Quality Time, Inc. v. West Bend Mutual Insurance Company

Filing 12

MEMORANDUM AND ORDER granting 9 defendant's Motion to Strike. Signed by District Judge J. Thomas Marten on 3/12/2012. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

Quality Time, Inc.,
Plaintiff,

vs.

Case No. 12-1008-JTM

West Bend Mutual Insurance Company,
Defendant.

MEMORANDUM AND ORDER

This is an action by plaintiff Quality Time, Inc. to obtain recovery under an insurance policy
issued by defendant West Bend Mutual Insurance Company. West Bend removed the action to this
court on January 5, 2012. The matter is before the court on the motion of West Bend to overrule the
objection lodged by plaintiff to the court’s subject matter jurisdiction. This objection, advanced in
a pleading following the removal entitled Plaintiff’s Reply, states that the court is without subject
matter jurisdiction in light of 28 U.S.C. § 1332(c), and because West Bend was owned by its policy
holders, which include residents of Kansas.
Quality Time argues in its motion that the rule in § 1332(c), which provides that an insurer
is deemed to have the same citizenship as its policy holder, applies in the event of direct actions
against the insurer by a third party; it has no application to first party claims under an insurance
policy. See Tuck v. United States Automobile Ass’n, 859 F.2d 842, 847 (10th Cir. 1988). Further, it

argues there is no authority for deeming the citizenship of an insurance company to be linked with
its policyholders, and in any event, it is actually a corporation organized under the laws of
Wisconsin.
Quality Time urges the court not to strike its Reply, stating that he “mentioned subject
matter jurisdiction due to the wording of Section 1332c,” and because West Bend failed to allege
in the removal notice and answer “that it was ‘incorporated,’” and that “[w]e would not be having
this discussion” if it had done so. (Dkt. 10, ¶ 2, 4). That is, Quality Time simply rationalizes its
original objection, without attempting to defend the present validity of the contention that the court
lacks subject matter jurisdiction.
The court finds that it possesses subject matter jurisdiction to hear the action and overrules
the objection advanced in Plaintiff’s Reply to Removal. The Reply to Removal is not a pleading
otherwise required, suggested, or contemplated by the Federal Rules of Civil Procedure, and the
defendant’s Motion to Strike the Reply (Dkt. 9) is hereby granted.
IT IS SO ORDERED this 12th day of March, 2012.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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