Fine v. State Farm Fire and Casualty Company et al
ORDER AND REASONS granting 11 Motion to Remand to State Court. Signed by Judge Lance M Africk on 4/21/2015. (Attachments: # 1 Remand Letter) (blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID R. FINE
STATE FARM FIRE AND CASUALTY
COMPANY, ET AL.
ORDER AND REASONS
The Court has pending before it a motion1 filed by plaintiff, David R. Fine, to remand the
above-captioned matter to state court. Defendant, State Farm Fire & Casualty Company (“State
Farm”), has filed an opposition,2 to which plaintiff has filed a reply.3 For the following reasons,
plaintiff’s motion to remand is GRANTED.
This case arises out of alleged damage to plaintiff’s house incurred during Hurricane Isaac.4
Plaintiff filed a lawsuit in Civil District Court for the Parish of Orleans on December 16, 2014
against State Farm as well as Bowman Roofing, LLC, and Tommy Bowman (collectively, “the
Bowman defendants”).5 With respect to the Bowman defendants, plaintiff alleges that they
“provided roofing work on the house located on the property owned by plaintiff . . . prior to the
subject hurricane” and “failed to provide adequate and appropriate roofing construction to the
R. Doc. No. 11.
R. Doc. No. 12.
R. Doc. No. 15.
R. Doc. No. 1-1, at 4.
R. Doc. 1-1.
Property and thus caused damage to the roof and interior of the house.”6 With respect to State Farm,
plaintiff alleges that it insured the house but “has failed to pay the plaintiff the sum due him under
the policy for repair and replacement of the damaged Property and its contents,” and furthermore
that State Farm told plaintiff “that roofing installation done by [the Bowman] defendants . . . prior
to the subject hurricane, was faulty and inappropriate” and resulted in damage to the roof and house
during the hurricane.7
State Farm removed the case to this Court on the basis of diversity jurisdiction, contending
that the Bowman defendants are “both citizens of Louisiana [and] have been improperly and
fraudulently joined with State Farm.”8 Plaintiff has now filed a motion9 to remand which is fully
briefed and ripe for decision.
The Court has jurisdiction over a removed action if it is a “civil action brought in a State
court of which the district courts of the United States have original jurisdiction.” 28 U.S.C.
§ 1441(a). The removing party has the burden to establish the existence of jurisdiction. Winters v.
Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998). “To determine whether
R. Doc. No. 1-1, at 3, 5. Plaintiff does not expressly allege the citizenship of either
Tommy Bowman or Bowman Roofing, LLC. See R. Doc. No. 1-1, at 3 (“Defendant, Bowman
Roofing, LLC . . . is a local business, authorized to do and doing business in the State of
Louisiana . . . .”; “Defendant, Tommy Bowman, is an individual, authorized to do and doing
business in the State of Louisiana . . . .”). Nonetheless, the premise of State Farm’s removal and
opposition to remand is that the Bowman defendants are nondiverse from plaintiff. R. Doc. 12, at
6 (“[P]laintiff’s joinder of the nondiverse Bowman Defendants, both citizens of Louisiana,
cannot defeat subject matter jurisdiction in this court because the claims against the Bowman
Defendants and suit against those defendants along with State Farm are improperly and
R. Doc. No. 1-1, at 3-4.
R. Doc. No. 1, at 8.
R. Doc. No. 11.
jurisdiction is present for removal, [courts] consider the claims in the state court petition as they
existed at the time of removal.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002). “In assessing whether removal was appropriate, the Court is guided by the principle,
grounded in notions of comity and the recognition that federal courts are courts of limited
jurisdiction, that removal statutes should be strictly construed.” J.O.B. Invs., LLC v. Gootee Servs.,
LLC, 908 F. Supp. 2d 771, 773 (E.D. La. 2012) (Vance, C.J.) (citing Manguno, 276 F.3d at 723).
LAW AND ANALYSIS
The only jurisdictional basis at issue is diversity jurisdiction and the jurisdictional amount
in controversy is not disputed.10 The parties agree that the Bowman defendants are nondiverse from
plaintiff.11 The presence of the Bowman defendants in the case, if proper, defeats complete diversity
of citizenship and requires remand to state court, as plaintiff contends in his motion.12 In opposition,
State Farm contends that the Court should ignore the citizenship of the Bowman defendants because
plaintiff egregiously misjoined its claims against them with its unrelated claim against State Farm
in order to defeat complete diversity.13
“[A] defendant may remove by showing that the nondiverse party was joined fraudulently14
due to plaintiff’s inability to establish a claim under state law against the nondiverse defendant or
due to fraud in the pleading of jurisdictional facts.” Id. at 774. State Farm does not urge either of
those theories of improper joinder in favor of exercising jurisdiction. Instead, State Farm relies on
R. Doc. No. 15, at 1.
R. Doc. No. 11-2, at 1; R. Doc. No. 12, at 6-7.
R. Doc. No. 11-2, at 1.
R. Doc. No. 12, at 1-2.
The Fifth Circuit prefers the term “improper joinder” to “fraudulent joinder,” although
“there is no substantive difference between” the two phrases. See Smallwood v. Ill. Cent. R.R.,
385 F.3d 568, 571 n.1 (5th Cir. 2004).
a “third type” of improper joinder, sometimes called Tapscott misjoinder, which applies “in
instances in which the claim against the diverse defendant has no real connection to the claim
against the nondiverse defendant and there is no joint, several or alternative liability.” See id. at 774
(citing Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated on other
grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)).15
The Louisiana Code of Civil Procedure defines “cumulation of actions” as “the joinder of
separate actions in the same judicial demand, whether by a single plaintiff against a single defendant,
or by one or more plaintiffs against one or more defendants.” La. Code Civ. Proc. art. 461.16 A
plaintiff in Louisiana state court may cumulate claims against multiple defendants if “[t]here is a
community of interest between the parties joined.” La. Code Civ. Proc. art. 463. “The Louisiana
Fourth Circuit Court of Appeal has stated that a ‘community of interest is present between different
actions or parties, where enough factual overlap is present between the cases to make it
The Court assumes for the sake of argument that Tapscott misjoinder is viable. See
Richmond v. Chubb Grp. of Ins. Cos., No. 06-3973, 2006 WL 2710566, at *6 (E.D. La. Sept. 20,
2006) (Africk, J.) (assuming that Tapscott misjoinder is recognized in the Fifth Circuit for the
purpose of resolving motion to remand); see also J.O.B. Invs., 908 F. Supp. 2d at 775 (“Because
the Fifth Circuit appears to have endorsed this principle and courts in the Eastern District of
Louisiana have consistently applied Tapscott, the Court finds that defendants may argue that
plaintiff’s claims against its insurers and against the contractors have no real connection and thus
are egregiously misjoined.”).
“Louisiana federal courts have not been of one mind” with respect to whether the
egregious joinder analysis should look to state or federal joinder rules. J.O.B. Invs., 908 F. Supp.
2d at 775 (footnote omitted). Application of state joinder law is logical “since plaintiffs must
follow state joinder rules in bringing their claims, and fraudulent joinder analysis requires
federal courts to look at the substantive law of the state in which the action was brought to
determine whether plaintiffs can state a claim.” Id.; see also Richmond, 2006 WL 2710566, at *6
n.28 (“[T]he relevant question is not whether plaintiffs properly joined [defendants] under Rule
20(a) but whether they were properly joined under Louisiana law.”). In this case, the Court will
look to Louisiana joinder rules because the outcome would not be different if federal joinder
rules governed the issue.
commonsensical to litigate them together.’” J.O.B. Invs., 908 F. Supp. 2d at 776 (quoting
Mauberret-Lavie v. Lavie, 850 So. 2d 1, 2 (La. App. 4 Cir. 2003)).
The Court finds J.O.B. Investments to be factually similar and persuasive. In J.O.B.
Investments, an insured property owner suffered damages from a broken air conditioning unit and
sued both its maintenance contractor and its insurer in state court. See id. at 773. The insurer
removed the case on a theory of Tapscott misjoinder. See id. In granting the property owner’s
motion to remand, the court found factual commonalities because “a central issue in plaintiff’s
claims against the contractors and the insurers is the cause of the air conditioning unit’s
malfunction.” Id. at 777. The court also concluded that “although the legal nature of the claims is
different, the overlap of significant factual questions suggests that plaintiff’s claims against the
contractors and the insurance companies” were sufficiently related for the purpose of Louisiana’s
rules governing joinder. Id. at 778.
Having reviewed the parties’ arguments in this case, the Court finds that the pre-hurricane
condition of plaintiff’s roof is a fact question common to plaintiff’s claims against both the Bowman
defendants and State Farm. State Farm states that the Bowman defendants caused damage to
plaintiff’s house and that it denied plaintiff’s insurance claim in part because “his roof problems
were related to the roof and/or installation of the roof by the Bowman defendants.”17 If State Farm
is correct, then plaintiff potentially has recourse against the Bowman defendants. If State Farm erred
by denying coverage in part on that basis, then plaintiff potentially has recourse against State Farm.
This common fact question is “enough factual overlap . . . to make it commonsensical to litigate”
R. Doc. No. 12, at 3; see also R. Doc. 12-1, at 1-2 (explaining that damage to “your
slate roofing system is a result of wear, tear, and maintenance” subject to policy exclusion).
these claims together, rather than to compel plaintiff to litigate the claims separately and face the
risk of inconsistent verdicts based on inconsistent findings regarding the pre-storm condition of his
roof. Id. at 776 (internal quotation marks omitted). As in J.O.B. Investments, “although the legal
nature of the claims is different,” the factual overlap makes joinder proper in these circumstances.
Id. at 778.
The cases on which State Farm relies in support of finding misjoinder are distinguishable.
Most of the cases involve attempted joinder of claims against insurance companies with claims
based on post-casualty repairs. See Savoie v. Safeco Ins. Co. of Am., No. 06-7808, 2007 WL 675304,
at *1 (E.D. La. Feb. 27, 2007) (Fallon, J.) (“The Plaintiff’s claims against S & S Home
Improvements, however, are wholly independent allegations of improper construction and repair that
occurred months after Hurricane Katrina.”); Milliet v. Liberty Mut. Ins. Co., No. 07-7443, 2008 WL
147821, at *3 (E.D. La. Jan. 11, 2008) (Engelhardt, J.) (finding that the plaintiff misjoined a claim
against his insurer with a claim based on a “post-Katrina construction contract”); Bowman v. Horace
Mann Ins. Co., No. 07-7056, 2008 WL 282760, at *1-2 (E.D. La. Jan. 30, 2008) (finding improper
joinder of claim against insurer and post-hurricane contractor). Unlike those cases, plaintiff’s claim
against the Bowman defendants implicates pre-accident repairs which were a factor in State Farm’s
adjustment of plaintiff’s insurance claim. Accordingly, there is a level of factual overlap present in
this case that was absent from Savoie, Milliet, and Bowman.
State Farm also cites two Hurricane Katrina cases in which plaintiffs attempted to join claims
against insurers with negligence claims against governmental entities responsible for flood control.18
See Berthelot v. Boh Bros. Constr. Co., No. 05-4182, 2006 WL 1984661, at *12 (E.D. La. June 1,
R. Doc. No. 12, at 12-13.
2006) (Duval, J.); Defourneaux v. Metro. Prop. & Cas. Ins. Co., No. 06-3809, 2006 WL 2524165,
at *2 (E.D. La. Aug. 30, 2006) (Feldman, J.). Those cases are plainly “distinguishable from the
present dispute by [their] complexity, which necessitated the separation of claims that shared only
a narrow factual basis.” J.O.B. Investments, 908 F. Supp. 2d at 778 (distinguishing Berthelot).
In sum, plaintiff’s claims against the Bowman defendants and State Farm involve a sufficient
factual overlap and joinder of the claims is proper, or at least not so egregiously improper as to
warrant an application of the Tapscott principle. Accordingly,
IT IS ORDERED that plaintiff’s motion to remand is GRANTED for lack of subject matter
jurisdiction and that the above-captioned matter is REMANDED to Civil District Court for the
Parish of Orleans, State of Louisiana.
New Orleans, Louisiana, April 21, 2015.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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