Darby v Primerica Life Insurance Company, et al
ORDER AND REASONS denying 6 Motion to Remand. For the reasons stated herein, the Court DENIES plaintiff's 6 motion to remand. Because there is no reasonable basis to predict that plaintiff might be able to recover against the only in-state defendant, the Court also DISMISSES WITH PREJUDICE plaintiff's claim against defendant Ashton Lucian King. Signed by Judge Sarah S. Vance on 9/14/2020. (mm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PRIMERICA LIFE INSURANCE
COMPANY AND ASHTON LUCIAN
SECTION “R” (1)
ORDER AND REASONS
Before the Court is plaintiff Edith Darby’s motion to remand. 1
Defendant Primerica Life Insurance Company opposes the motion. 2 Because
the Court finds that defendant King was improperly joined, the Court denies
the motion to remand and dismisses Darby’s claims against King.
This case arises from a denial of life insurance benefits. 3 On February
4, 2019, Darby applied for life insurance with Primerica designating her son
as the insured and herself as the beneficiary. 4 After the policy came into
force, Bias died. 5 Darby therefore requested the proceeds she alleged she was
See R. Doc. 6.
See R. Doc. 9.
See R. Doc. 1-1.
See id. at 3, ¶ III; R. Doc. 2 at 2, ¶ III.
See R. Doc. 1-1 at 3, ¶ V; R. Doc. 2 at 3, ¶ V.
due from Primerica as the beneficiary, a total of $100,000. 6 Primerica
denied Darby’s claim.7
In a letter addressed to Darby, Primerica explained that because Bias
died within two years of the issuance of the policy, it conducted a routine
review of the claim. 8 According to Primerica, the review revealed that the
Primerica contended that Darby failed to disclose that Bias “had a history of
generalized anxiety disorder, mood disorder, bipolar disorder, personality
disorder and was a cannabis abuser.”10 Primerica stated that had it known
about this medical history, it would not have approved the policy. 11 As a
result, Primerica denied Darby’s claim, rescinded the policy, and returned
the premiums that Darby paid.12
Darby filed suit in state court, alleging Primerica breached its contract
and violated Louisiana statutes.13 In addition to suing Primerica, Darby sued
Ashton Lucian King, whom Darby alleges is an agent of Primerica. 14 In her
See R. Doc. 1-1 at 3, ¶ VI; R. Doc. 2 at 3, ¶ VI.
See R. Doc. 1-1 at 4, ¶ VIII; R. Doc. 2 at 3, ¶ VIII.
See R. Doc. 9-3 at 1.
See R. Doc. 1-1 at 4-7, ¶¶ IX-XVIII.
See id. at 1, ¶ I.
Complaint, Darby asserts that King assisted her in completing Primerica’s
life insurance policy application.15 The parties do not dispute that King is a
Primerica removed to this Court, alleging that Darby joined defendant
Ashton Lucian King to this lawsuit for the sole purpose of defeating complete
diversity.16 Primerica argues that King was improperly joined and that this
Court should deny Darby’s motion to remand. Darby argues that King was
not improperly joined. The Court considers the parties’ arguments below.
A defendant may generally remove a civil action filed in state court if
the federal court has original jurisdiction over the action. See 28 U.S.C.
§ 1441(a). The removing party bears the burden of showing that federal
jurisdiction exists. See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th
Cir. 1995). 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. See, e.g., Manguno v. Prudential Prop. & Cas.
See R. Doc. 1-1, at 3, ¶ III.
See R. Doc. 1, at 2-3, ¶ 6.
Ins., 276 F.33d 720, 723 (5th Cir. 2002); Neal v. Kawasaki Motors Corp.,
No. 95-668 1995 WL 419901, at *2 (E.D. La. July 13 1995). Though the Court
must remand the case to state court if at any time before the final judgment
it appears that it lacks subject matter jurisdiction, the Court’s jurisdiction is
fixed as of the time of removal. 28 U.S.C. § 1447(c); Doddy v. Oxy USA, Inc.,
101 F.3d 448, 456 (5th Cir. 1996).
For diversity jurisdiction to exist, the amount in controversy must
exceed $75,000, and there must be complete diversity between plaintiffs and
defendants. See 28 U.S.C. § 1332(a); Owen Equip. & Erection Co. v. Kroger,
437 U.S. 365, 373 (1978). Having a plaintiff and a defendant who are citizens
of the same state would ordinarily destroy complete diversity.
McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004).
Therefore, when a non-diverse party is properly joined as a defendant, no
defendant may remove the case under 28 U.S.C. § 1332.
A defendant may remove by showing that a non-diverse party was
improperly joined. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th
Because the doctrine is a narrow exception to the rule of
complete diversity, the burden of demonstrating improper joinder is a heavy
one. Id. at 574. A defendant may establish improper joinder by showing
either: “(1) actual fraud in pleading jurisdictional facts, or (2) inability of the
plaintiff to establish a cause of action against the non-diverse defendant.” Id.
at 573. To determine the second element, courts ask “whether the defendant
has demonstrated that there is no possibility of recovery by the plaintiff
against an in-state defendant, which stated differently means that there is no
reasonable basis for the district court to predict that the plaintiff might be
able to recover against an in-state defendant.” Id.
“In analyzing whether a plaintiff has demonstrated a reasonable
possibility of recovery, the district court may ‘conduct a Rule 12(b)(6)-type
analysis, looking initially at the allegations of the complaint to determine
whether the complaint states a claim under state law against the in-state
defendant.’” Menendez v. Wal-Mart Stores, Inc., 364 F. App'x 62, 69 (5th
Cir. 2010) (per curiam) (quoting Smallwood, 385 F.3d at 573). As is the case
in the Rule 12(b)(6) context, the plaintiff must plead “‘enough facts to state
a claim to relief that is plausible on its face.’” See Int'l Energy Ventures
Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 200 (5th Cir. 2016)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible when the plaintiff pleads facts that allow the Court to “draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must
accept all well-pleaded facts as true and must draw all reasonable inferences
in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239
(5th Cir. 2009). But the Court is not bound to accept as true legal conclusions
couched as factual allegations. Iqbal, 556 U.S. at 678. In conducting its
analysis, the Court may consider “documents [that are] referred to in the
pleadings and are central to a plaintiff's claims.” Brand Coupon Network,
L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).
In limited circumstances, the Court may pierce the pleadings to assist
in its 12(b)(6)-type analysis. “[T]here are cases, hopefully few in number, in
which a plaintiff has stated a claim [under the 12(b)(6)-type analysis], but
has misstated or omitted discrete facts that would determine the propriety
of joinder.” Smallwood, 384 F.3d at 573. In these cases, “the district court
may, in its discretion, pierce the pleadings and conduct a summary inquiry.”
Id. But if the Court finds that allegations against the non-diverse defendant
cannot survive a Rule 12(b)(6) analysis, “it is unnecessary to pierce the
pleadings to consider the declarations the parties submitted.” Gros. v.
Warren Properties Inc., No. 12-2184, 2012 WL 5906724, at *13 (E.D. La.
Nov. 26, 2012).
In her motion to remand, Darby contends that her Complaint sets out
two state causes of action against King—one for negligent misrepresentation
and another for breach of contract. 17 The Court proceeds by subjecting each
claim to the relevant 12(b)(6)-type analysis.
Darby’s Complaint fails to plead sufficient facts to state a negligent
misrepresentation claim against King. To succeed on a theory of negligent
misrepresentation, a plaintiff must show that “(1) the defendant owes a duty
to supply correct information; (2) the defendant breaches that duty; and, (3)
the plaintiff suffers damages resulting from a justifiable reliance on that
misrepresentation.” Collins v. State Farm Ins., No. 06-6649, 2007 WL
1296240, at *3 (E.D. La. Apr. 30, 2007) (citing Chiarella v. Spirit Spectrum,
LLP, 921 So. 2d 106, 123 (La. App. 4 Cir. 2005)). The breach can occur either
through statement or omission. See, e.g., McLachlan v. New York Life Ins.,
general negligent misrepresentation cause of action where there is a legal
duty to provide correct information and the defendant fails to disclose or
See R. Doc. 6-1 at 7.
Here, Darby does not allege that King made any statements or
omissions at all. Rather, she simply alleges that King assisted her, Bias, or
both, in completing Primerica’s life insurance application. 18 First, Darby
alleges that “[she] made an application for life insurance with defendant,
Primerica . . . through its agent, Defendant Ashton Lucian King.”19 Three
pages later, Darby asserts that “[King] assisted Mr. Bias in completing the
application and instructed him how to complete [the] same.” 20 Neither of
these contradictory statements alleges that King provided misinformation,
or failed to provide accurate information, during the application process.
The Complaint does not identify any information whatsoever that King
omitted to supply or any misinformation he provided.
Next, Darby asserts a “legal conclusion couched as factual allegation”
that the Court is not bound to accept. Id. at 678. Darby asserts that King
“had a duty to petitioner to ensure the application was completed properly
and failed to properly complete [the] same, breaching his duty and causing
the damages complained of herein.”21 “While legal conclusions can provide
See R. Doc. 1-1 at 5-6, ¶¶ XV-XVII.
See id. at 3, ¶ III.
Id. at 6, ¶ XV (emphases added).
Id. at ¶ XVI.
the framework of a complaint, they must be supported by factual
allegations.” Id. at 679. The Court finds that Darby alleges no factual
predicate for the existence of a duty owed by King to ensure that Darby or
Bias complete the application properly. As a result, Darby fails to state a
claim of negligent misrepresentation. Iqbal, 556 U.S. at 666.
Even if the Court were to accept Darby’s unsupported legal conclusions
as true, nothing in her Complaint alleges with the third element of negligent
misrepresentation—justifiable reliance. “Louisiana courts have held that an
insured’s reliance on an insurer’s alleged misrepresentation is not justifiable
when the terms of the policy clearly reveal that the alleged misrepresentation
was inaccurate.” Campo v. Allstate Ins., 440 F. App’x 298, 301-02 (5th Cir.
In other words, if clear policy terms contradict alleged
misrepresentations, the “insured [remains] responsible for reading his policy
and is presumed to know its terms.” City Blueprint & Supply Co. v. Boggio,
3 So. 3d 62, 67 (La. App. 4 Cir. 2008).
Here, the policy indicates that inaccurate application information
could result in the denial of benefits. The Application Agreement, which
Darby reviewed and signed, provides that if an insured dies within two years
of the issuance of a policy, as occurred here, then “(a) [Primerica] may
contest such coverage under the policy; and (b) such coverage may be
rendered void if [Primerica] determines that any information in the
application related to such coverage is false, incomplete or incorrect.”22 In
addition, Darby signed directly under a bold statement that provided “[t]he
approval of insurance for the proposed insured(s) is based on the
representations made regarding use of tobacco or nicotine, responses to
medical questions and other application information. False representations
will result in a denial of coverage in a claims investigation and may be
considered insurance fraud.” 23
misrepresentations, Darby could not have “justifiably relied” on those
misrepresentations. Indeed, this Court held that nearly identical language
barred a plaintiff from justifiably relying on alleged misrepresentations. See
Anderson v. Primerica Life Ins., No. 19-9943, 2019 WL 8301672, at *6-*7
(E.D. La. Dec. 4, 2019). As was the case in Anderson, any “reliance on [the
agent’s] statement . . . was unreasonable in light of the fact that the policy in
this case specifically contains a straightforward, uncomplicated, exclusion.”
Id. at *6 (citing City Blueprint, 3 So. 3d at 67). That is, “[a] simple review of
the policy would have put the [Darby] on notice” that her coverage might be
R. Doc. 9-1 at 5.
See id. at 8 (emphasis added).
void. See id. Thus, there is no reasonable basis to predict that Darby can
recover under a claim for negligent misrepresentation.
Having conducted the 12(b)(6)-type analysis with respect to Darby’s
negligent misrepresentation claim, the Court finds that Darby fails to state a
claim. As a result, there is no “reasonable basis” that Darby “might be able
to recover against” King on this cause of action. See Smallwood, 384 F.3d at
573. The Court proceeds to the second cause of action.
Next, Darby’s prayer for relief asserts that she is entitled to “specific
performance and damages” against defendant King for breach of contract.24
Under Louisiana law, “an agent for a known principal is not held personally
liable with respect to the principal’s contractual obligations . . . unless the
agent  personally binds himself,  exceeds his authority, or 
misrepresents a position of the principal.” McKeough v. State Farm Fire
and Cas. Co., No. 07-6568, 2008 WL 517139, at *2 (E.D. La. Feb. 22, 2008);
see also La. Civ. Code arts. 3016, 3019. Once again, Darby’s Complaint fails
to allege sufficient factual matter that could support this cause of action.
Iqbal, 556 U.S. at 679.
See R. Doc. 1-1, at 6, ¶ XVIII; R. Doc. 6-1, at 5.
Nothing in Darby’s complaint alleges that King bound himself or
exceeded his authority. To the contrary, Darby’s complaint states that “[a]t
all relevant times, [King] was acting for the benefit of Defendant, Primerica
Life Insurance Company, as its agent, and/or in the course and scope of his
Nor does Darby allege any facts suggesting that King
misrepresented Primerica’s position. As explained above, the Complaint
identifies no inaccurate representation made by King, or any accurate
information he omitted about the insurer’s position. Consequently, the
Court finds that Darby fails to state a claim on her second cause of action and
that there is no “reasonable basis” that Darby “might be able to recover
against” King on a theory of breach of contract. See Smallwood, 384 F.3d at
Declining to Pierce the Pleadings
Finding the Rule 12(b)(6)-type analysis conclusive, the Court declines
to pierce the pleadings in this case. See Smallwood, 385 F.3d at 573; Gros.
v. Warren Properties Inc., No. 12-2184, 2012 WL 5906724 at *13 (E.D. La.
Nov. 26, 2012). Even if the Court were to pierce the pleadings, plaintiff’s
submission—an affidavit signed by Edith Darby26—would not alter the
See R. Doc. 1-1 at 6, ¶ XVII (emphasis added).
See R. Doc. 6-2.
outcome. Darby’s affidavit contradicts her Complaint, and it does not allege
any conduct by King that could support either cause of action.
For the foregoing reasons, the Court DENIES plaintiff’s motion to
remand. Because there is no reasonable basis to predict that plaintiff might
be able to recover against the only in-state defendant, the Court also
DISMISSES WITH PREJUDICE plaintiff’s claim against defendant Ashton
New Orleans, Louisiana, this _____ day of September, 2020.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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