Malone v. Allstate Insurance Company et al

Filing 9

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 6/17/13. (SAC )

FILED
2013 Jun-17 PM 04:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERRY MALONE,

}
}
Plaintiff,
}
}
v.
}
}
ALLSTATE INSURANCE COMPANY and }
MICHAEL ROCCHIO,
}
}
Defendants.
}

CIVIL ACTION NO.
13-AR-0884-S

MEMORANDUM OPINION
On May 13, 2013, contemporaneously with its removal of the
above-entitled action, Allstate Insurance Company filed a motion to
dismiss the action as against the non-diverse defendant, Michael
Rocchio (“Rocchio”).

On June 7, 2013, Ralph Bohanan, Jr. filed a

notice of appearance for plaintiff, styling the case “Sherry Malone
v. Allstate Insurance Company”, without reflecting Michael Rocchio
as a defendant.

On June 11, 2013, the court entered an order

providing that the motion to dismiss as against Rocchio would be
taken under submission at 4:30 p.m., “Monday, June 18, 2013" (which
should, of

course,

have

said

“Monday,

June

17,

2013"),

with

plaintiff having the right to respond to the motion on or before
June

15,

2013.

Plaintiff

has

not

responded.

Under

the

circumstances, the court concludes that plaintiff is conceding that
Rocchio was fraudulently joined, particularly inasmuch as no motion
to remand has been filed.

If a cause of action had been stated

against Rocchio, this court would lack subject-matter jurisdiction
and would remand sua sponte.
By separate order the motion to dismiss the action as against
Rocchio will be granted.
DONE this 17th day of June, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE