Penn v. Pierce

Filing 19

OPINION AND ORDER, granting 8 MOTION to Remand filed by Donnie W. Pierce' This case is remanded to the CC of Bullock Co., AL; It is further Ordered that the 10 MOTION to Dismiss filed by Myron C. Penn is left for disposition by the state court after remand; The Clerk of the court is directed to take appropriate steps to effect the remand. Signed by Honorable Myron H. Thompson on 9/25/08. (Attachments: # 1 appeals checklist)(cert copy CC Bullock Co., AL)(vma, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

MYRON C. PENN,

) ) Plaintiff, ) ) v. ) ) DONNIE W. PIERCE, ) ) Defendant and ) Third-Party Plaintiff, ) ) v. ) ) ENCOMPASS INSURANCE, ) ) Third-Party Defendant. )

CIVIL ACTION NO. 2:07cv805-MHT (WO)

OPINION AND ORDER The court being of the opinion that the third-party complaint, which is the asserted basis for invoking the court's diversity-of-citizenship removal jurisdiction, 28 U.S.C. §§ 1332, 1441, cannot be the basis for removal, see Wright, Miller & Cooper, Federal Practice and

Procedure: Jurisdiction 3d § 3723, at 611 ("It is the citizenship determinative. of the Thus, original diversity parties of that is only

citizenship

between

a

third-party

plaintiff

and

a

third-party

defendant will not confer jurisdiction over a suit that is not otherwise removal."); J. Moore, Moore's Federal Practice 3d § 107.11[1][b][iv], at 107-35 ("The better view, consistent with the principle that removal

jurisdiction is to be strictly construed, is that thirdparty claims are not removable, because only a party defending against claims asserted by a plaintiff ought to to be able to remove."), it is ORDERED as follows: (1) The motion to remand (Doc. No. 8) is granted. (2) This case is remanded to the Circuit Court of Bullock County, Alabama. It is further ORDERED that the motion to dismiss (Doc. No. 10) is left for disposition by the state court after remand. The clerk of the court is DIRECTED to take

appropriate steps to effect the remand. DONE, this the 25th day of September, 2008. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE