LUKE v. OHEARN et al

Filing 7

ORDER granting 2 Motion to Remand; granting 3 Motion to RemandOrdered by U.S. District Judge CLAY D LAND on 3/20/14 (bsh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
DANIEL LUKE,

*

Plaintiff,

*

vs.

*

CHACE O’HEARN, CHARLES O’HEARN
d/b/a O’HEARN FARMS, INC.,
COTTON STATES MUTUAL INSURANCE
COMPANY, AND COUNTRY MUTUAL
INSURANCE COMPANY,

*

CASE NO. 4:13-cv-535 (CDL)

Defendants.

*
*
*

O R D E R
Country Mutual Insurance Company (“Country Mutual”) removed
this action from the Superior Court of Randolph County, Georgia,
based

upon

Defendants

diversity
Chace

of

O’Hearn

citizenship.
and

Charles

Plaintiff,
O’Hearn

along

d/b/a

with

O’Hearn

Farms, Inc. (“O’Hearn Defendants”), have filed motions to remand
(ECF Nos. 2, 3).

For the following reasons, those motions to

remand are granted.
DISCUSSION
A civil case filed in state court may be removed by a
defendant to federal court if the case could have been brought
originally in federal court.

28 U.S.C. § 1441(a).

Federal

courts have diversity jurisdiction over all civil actions where
the amount in controversy exceeds

1

$75,000 and the action is

between citizens of different states.
“Diversity

jurisdiction

requires

28 U.S.C. §

complete

1332(a).

diversity;”

plaintiff can be from the same state as any defendant.
v.

John

Crump

Toyota,

Inc.,

154

F.3d

1284,

1287

no

Triggs

(11th

Cir.

1998).
The Plaintiff in this action is a resident of Georgia.

And

although Defendant Country Mutual is a resident of Illinois, the
O’Hearn Defendants are all residents of Georgia.1
the

O’Hearn

Defendants’

citizenship

diversity does not exist.
O’Hearn Defendants’

is

Therefore, if

considered,

complete

Country Mutual maintains that the

citizenship

should be disregarded because

they were “fraudulently joined” in this action.
Fraudulent joinder is a judicially created exception to the
complete

diversity

Traditionally,

requirement.

joinder

may

be

Triggs,
deemed

154

F.3d

at

fraudulent

1287.

in

two

situations: (1) “when there is no possibility that the plaintiff
can prove a cause of action against the resident (non-diverse)
defendant,”

and

(2)

plaintiff’s

pleading

“when
of

there

is

outright

jurisdictional

fraud

facts.”

Id.

in

the
The

Eleventh Circuit has also recognized a third type of fraudulent
joinder,

which

misjoinder.”

is

more

precisely

described

as

“fraudulent

It is this third type of fraudulent joinder that

is implicated here.
1

Cotton States Mutual Insurance Company, which appears to be the predecessor
of Country Mutual, is also a resident of Illinois.

2

In the present case, Plaintiff alleges that Chace O’Hearn
spilled hot cooking grease on Plaintiff causing severe burns.
He has asserted negligence claims against Chace based on his
negligence and against the other O’Hearn Defendants based on
landowner

liability

asserts

claim

a

and

agency

against

Country

principles.
Mutual

Plaintiff
Georgia’s

under

also
RICO

statute, alleging that Country Mutual, which provided liability
insurance

coverage

for

the

incident

in

question,

provided

Plaintiff’s counsel with false and fraudulent information during
their investigation of the underlying liability claim.
No evidence exists in the present record that there is
“outright fraud” in the Plaintiff’s pleading of jurisdictional
facts.

He

Defendants,
evidence
Complaint

of

and

alleges

Country

the

that

a

has

fraud.

claim

O’Hearns.
a

the

Mutual

“outright”

states

Defendants,
establish

properly

recovery

Defendants is not possible.

against

residency
pointed

the

the

the

the

resident,
Country

various

Court

Furthermore,

Therefore,
against

of

no

Plaintiff’s
non-diverse

Mutual

resident,

to

cannot

non-diverse

Although not clearly articulated in

the briefs, Country Mutual is essentially asserting “fraudulent
misjoinder” as the basis for its fraudulent joinder claim.
Country

Mutual

maintains

that

no

contention

is

made

by

Plaintiff that Country Mutual and the O’Hearn Defendants are
joint tortfeasors—the RICO claim applies only to Country Mutual
3

and liability on that claim is separate and distinct from any
liability the O’Hearns may have on the negligence-based tort
claims.

Consequently, Country Mutual argues that the claims are

fraudulently
O’Hearns

misjoined,

must

be

and

ignored

therefore
when

the

claims

determining

against

the

whether

complete

universally

accepted

diversity of citizenship exists.
“Fraudulent

misjoinder”

is

not

a

corollary in fraudulent joinder jurisprudence.

See, e.g., A.

Kraus & Son v. Benjamin Moore & Co., No. CV 05-5487, 2006 WL
1582193, at *5 (E.D.N.Y. June 7, 2006) (expressing reluctance to
“[wade]

into

the

uncharted

waters

of

fraudulent-egregious

misjoinder” without clear direction from the Supreme Court or
Congress); Riddle v. Merck & Co., Inc., Civil No. 06-172-GPM,
2006 WL 1064070, at *7-8 (S.D. Ill. April 21, 2006) (finding
nothing in the fraudulent joinder jurisprudence of the Supreme
Court or the Seventh Circuit Court of Appeals suggesting that
the egregious “misjoinder” of non-fraudulent claims under state
procedural rules is a question that implicates subject matter
jurisdiction of a federal court); Osborn v. Metro. Life Ins.
Co., 341 F. Supp. 2d 1123, 1127-1128 (E.D. Cal. 2004) (declining
to apply fraudulent misjoinder theory because unnecessary and
because of uncertainty of how to apply it, and finding better
rule is for alleged misjoinder to be resolved in state court).
Notwithstanding the skepticism of courts from other Circuits,
4

the

fraudulent

misjoinder

Eleventh Circuit.
here.

theory

has

been

adopted

in

the

And quite frankly, that is all that matters

In Tapscott v. MS Dealer Service Corp., 77 F.3d 1353

(11th Cir. 1996), abrogated on other grounds by Cohen v. Office
Depot, 204 F.3d 1069 (11th Cir. 2000), the Court explained that
under certain circumstances misjoinder of parties could be so
“egregious” as to amount to fraudulent joinder.

77 F.3d at

1360.

not

Perhaps

predictably,

the

Court

did

define

“egregious;” it simply made clear that “mere misjoinder” is not
fraudulent joinder.
not

be

joined

Procedure

or

Id.

under
the

Rule

Therefore, even if the parties could
20

applicable

of

the

state’s

Federal

Rules

counterpart

to

of

Civil

Rule

20,

their joinder may not constitute fraudulent joinder, unless it
was “egregious.”

A finding of “egregiousness” appears to depend

upon the extent to which the resident, non-diverse defendant has
any “real connection with the controversy” involving the diverse
defendant.

Id., citing Wilson v. Republic Iron & Steel Co., 257

U.S. 92, 97 (1921); see also Triggs, 154 F.3d at 1288-90.
starting

point

for

the

defendant

could

have

been

analysis

then

there

whether

permissively

against the non-resident defendant.
appropriate,

is

obviously

joined

the
in

The

resident

the

action

If permissive joinder is
can

be

no

fraudulent

misjoinder; but as noted, a finding of improper joinder is not
dispositive

of

fraudulent

joinder.
5

Instead,

if

permissive

joinder

is

not

appropriate,

the

Court

must

look

closer

to

determine whether there is such a lack of connection between the
claims that not only is joinder improper, but it is clearly or
obviously so.
The Federal Rules of Civil Procedure permit persons to be
joined as defendants in a single action if: “(A) any right to
relief is asserted against them jointly, severally, or in the
alternative

with

transaction,

respect

to

or

occurrence,

or

arising

series

out

of

of

the

same

transactions

or

occurrences; and (B) any question of law or fact common to all
defendants will arise in the action.”

Fed. R. Civ. P. 20(a)(2);

see also O.C.G.A. § 9-11-20(a) (using almost identical language
in

Georgia

permissive

joinder

statute).

Plaintiff

does

not

assert a RICO claim against the O’Hearn Defendants; nor does he
claim that they are joint tortfeasors with Country Mutual.

But

this does not mean that Plaintiff’s RICO claim against Cotton
Mutual clearly or obviously

has no real connection with the

controversy between Plaintiff and the O’Hearns.

All of the

claims in the underlying action arise from the same event—the
alleged negligent spilling of grease on the Plaintiff by Chace
O’Hearn.
the

facts

It is not obvious at this stage of the litigation that
related

to

that

incident

will

not

Plaintiff’s RICO claim against Country Mutual.

be

relevant

to

It is beyond

dispute that without the incident giving rise to the negligence
6

claims against the O’Hearn Defendants, there would be no RICO
claim.
causal

Of course, the mere presence of a remote “but for”
connection

is

not,

standing

alone,

a

sufficient

connection to defeat a fraudulent misjoinder claim.

But the

connection here is less remote than that.

It is reasonable to

conclude

may

that

how

the

accident

occurred

be

relevant

to

whether Country Mutual made false and fraudulent representations
related

to

the

underlying claim.

insurance

coverage

that

existed

for

the

While the claims are distinct and different,

it is not obvious that they do not involve some common issues of
law and fact.
The Court’s conclusion regarding the relationship between
the various claims asserted by Plaintiff
joinder

is

necessarily

counterpart.

proper

under

Rule

does not mean that
20

or

its

Georgia

Nor does it mean that the trial judge could not

sever the claims or that Plaintiff will ultimately prevail on
his claim.

But that is not the standard this Court must apply.

To find fraudulent joinder, the joinder must be shown to be more
than

impermissible;

Country

Mutual

Consequently,
citizenship

the
of

it

must

simply
Court
the

be

has
is

egregiously
not

not

O’Hearn

or

carried

authorized

Defendants,

obviously
that

to
and

burden.

ignore
when

so.

the
their

citizenship is considered, complete diversity does not exist.

7

Without

complete

diversity,

there

is

no

basis

for

federal

subject matter jurisdiction.
CONCLUSION
The motions to remand (ECF Nos. 2, 3) are granted, and the
Clerk is directed to remand this action to the Superior Court of
Randolph

County,

Georgia.

Plaintiffs’

request

for

fees

and

expenses is denied.
IT IS SO ORDERED, this 20th day of March, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

8