Noble v. USAA Casualty Insurance Company et al

Filing 33

ORDER granting 26 Motion to Remand and directing the Clerk of the Court to immediately remand this case to the Circuit Court of Pulaski County. Signed by Judge James M. Moody Jr. on 12/14/2015. (rhm)

IN THE UNITED STATE DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JANICE KIMBERLY NOBLE
VS.

PLAINTIFF
4:15-CV-00636-JM

USAA CASUALTY INSURANCE, et al.

DEFENDANTS
ORDER

Pending is Plaintiff’s Motion to Remand (Doc. No. 26). Defendants have responded.1
As set out below, the Motion is GRANTED.
I.

BACKGROUND
Plaintiff and Defendant Lewayne Williams were involved in an automobile accident in

May 2010. Alleging that Williams was under-insured, Plaintiff amended her complaint to add
the insurance defendants.
On October 14, 2015, Defendant USAA removed this case to federal court based on
diversity jurisdiction. Though Williams and Plaintiff are both Arkansas residents, USAA asserts
that he is fraudulently joined.
II.

DISCUSSION
Plaintiff contends that this case should be remanded for lack of diversity and for untimely

removal. However, USAA contends Williams is fraudulently joined. USAA points out that
Plaintiff’s actions during the course of litigation – neither accepting nor declining Williams’s
policy limits settlement offer and not pursuing discovery against Williams -- reveal that Plaintiff
does not intend to proceed against Williams.

1

Doc. No. 30.
1

Fraudulent joinder exists when a plaintiff files a “frivolous or otherwise illegitimate
claim against a non-diverse defendant solely to prevent removal.”2 “However, if there is a
‘colorable’ cause of action -- that is, if the state law might impose liability on the resident
defendant under the facts alleged -- then there is no fraudulent joinder.”3 Stated another way, “if
there is a reasonable basis in fact and law supporting the claim, the joinder is not fraudulent.”4
Defendants point out several issues that call into question the sincerity of Plaintiff’s
intention to continue to pursue the claims against Williams. But, this important fact remains:
Williams was the driver of the car involved in the accident with Plaintiff, and Plaintiff asserts
that his negligence caused her injuries. Accordingly, Plaintiff has pled a colorable cause of
action against Williams.
CONCLUSION
Based on the findings of fact and conclusions of law above, Plaintiff’s Motion to Remand
(Doc. No. 26) is GRANTED. Accordingly, the Clerk of the Court is directed to immediately
remand this case to the Circuit Court of Pulaski County.
IT IS SO ORDERED this 14th day of December, 2015.
________________________________
UNITED STATES DISTRICT JUDGE

2

Filla v. Norfolk Souther Ry. Co., 336 F.3d 806, 809-10 (8th Cir. 2003).

3

Id. at 810.

4

Id.
2