Delgado et al v. Ocean Harbor Casualty Insurance Company
ORDER AND REASONS: IT IS ORDERED that the Plaintiffs' 35 motion for leave to file an amended and restated complaint is DENIED. Signed by Judge Susie Morgan on 11/21/2022. (pp)
Case 2:22-cv-01987-SM-MBN Document 41 Filed 11/21/22 Page 1 of 12
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CANDACE THERIOT DELGADO,
OCEAN HARBOR CASUALTY
SECTION: “E” (5)
ORDER AND REASONS
Before the Court is a motion for leave to file an amended and restated complaint
filed by Plaintiffs Candice Theriot Delgado and Ramiro D. Delgado (“Plaintiffs”).1
Defendant Ocean Harbor Casualty Insurance Company (“Defendant”) opposes this
motion.2 For the reasons that follow, Plaintiffs’ motion3 is DENIED.
This case arises from an insurance dispute between Plaintiffs and
Defendant regarding damage caused by Hurricane Ida.4 On June 24, 2022, Plaintiffs filed
suit against Defendant in the 32nd Judicial District Court for the Parish of Terrebonne.5
On June 29, 2022, Defendant removed the suit to this Court on the basis of diversity
jurisdiction.6 Plaintiffs filed a motion to remand the case to state court, arguing they
planned to add two non-diverse defendants, thus destroying diversity and this Court’s
subject matter jurisdiction.7 The Court denied Plaintiffs’ motion on September 23, 2022,
R. Doc. 35.
R. Doc. 38.
3 R. Doc. 35.
4 R. Doc. 1 at p. 1.
6 Id. at p. 2.
7 R. Doc. 8-1 at p. 1.
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finding the issue was not properly before the Court because Plaintiffs had not yet filed a
motion to add the two defendants.8 On September 30, 2022, Plaintiffs filed the instant
motion for leave to file an amended and restated complaint, naming the two non-diverse
parties as additional defendants.9 In the motion, Plaintiffs seek leave to file an amended
and restated complaint to add as defendants Maverick Claims, LLC (“Maverick”), the
claims adjusting company hired by Defendant, and Kelly Colligan (“Mr. Colligan”), the
claims adjuster who is an employee of Maverick.10 Plaintiffs are citizens of Louisiana.11
Plaintiffs allege the two non-diverse parties are “Louisiana defendants.”12 Plaintiffs
further allege in their proposed amended complaint Maverick and Mr. Colligan are
domiciled in Louisiana.13 In the proposed amended complaint, Plaintiffs did not specify
the citizenship of the members of Maverick Claims, L.L.C.14 An L.L.C. has the citizenship
of each of its members.15 Therefore, to allege the citizenship of an L.L.C., it is necessary to
allege the citizenship of each member of the L.L.C. In Plaintiffs’ proposed amended
complaint, they allege only that Maverick is “a Limited Liability Company, authorized to
do and doing business in the State of Louisiana, with its domicile and mailing address as
127 Terrabella Boulevard, Covington, Louisiana 70433.”16 However, according to the
Louisiana Secretary of State’s website, at least one of Maverick’s members is domiciled in
R. Doc. 31.
R. Doc. 35.
10 R. Doc. 8-1 at p. 1.
11 R. Doc. 1 at p. 1.
12 R. Doc. 8-1 at p. 1.
13 R. Doc. 8-6 at p. 2.
15 Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).
16 R. Doc. 8-6 at p. 2.
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Louisiana.17 Accordingly, it is clear the addition of Maverick and Mr. Colligan as
defendants would destroy complete diversity for the purpose of diversity jurisdiction.
Further, in the proposed pleading, Plaintiffs allege “Maverick failed to include
some of the first floor’s rooms, comprising most of the first floor’s square footage, despite
the obvious damage to those rooms;” “Mr. Colligan and Maverick . . . misrepresented the
size and scope of damages on the second floor of their sketch;” and “Maverick also failed
to recommend replacement of two significant walls . . . that could both be moved with
minimal human force.”18 Plaintiffs further allege “Maverick’s cursory inspection and
grossly inaccurate estimates significantly misrepresented the Delgado’s damage and have
contributed to Ocean Harbor’s gross underpayment and delayed additional payments.”19
Based on the above, Plaintiffs allege Maverick and Mr. Colligan each committed negligent
acts,20 and in addition, Maverick, as Mr. Colligan’s employer, “was and is vicariously liable
for Mr. Colligan’s conduct.”21 On October 11, 2022, Defendant filed an opposition to
LAW AND ANALYSIS
Plaintiffs seek leave to file an amended complaint to add two non-diverse parties
as defendants.23 Plaintiffs also ask the Court to consider the merits of Plaintiffs’ previous
0260EC (last visited November 21, 2022).
18 R. Doc. 35-3 at p. 5.
20 Plaintiffs make allegations of misrepresentation but do not allege the Defendants committed fraud.
Instead, while Plaintiffs do not clearly assert the cause of action, it is clear Plaintiffs alleged cause of action
against Maverick and Mr. Colligan is one of negligence. Plaintiffs allege “Mr. Colligan’s and Maverick’s
substandard conduct was a legal cause of the Delgados’ damages.” Id. at p. 18. It is clear Plaintiffs are
alleging the potential defendants’ adjusting was below a standard of care, and Plaintiffs make no allegations
21 Id. at p. 3. Plaintiffs further allege “[d]uring and after the September 2, 2021, inspection and at all relevant
times, Mr. Colligan was in the course and scope of his employment with defendant Maverick.” Id.
22 R. Doc. 38.
23 R. Doc. 35.
Case 2:22-cv-01987-SM-MBN Document 41 Filed 11/21/22 Page 4 of 12
motion to remand, if the Court permits Plaintiffs to add the defendants.24 In its
opposition, Defendant argues Plaintiffs should not be permitted to add the two nondiverse parties as defendants under the factors outlined by the Fifth Circuit in Hensgens
v. Deere & Co. because Plaintiffs have failed to show the factors weigh in favor of granting
leave to amend. The Court agrees with Defendant.
When joinder of a non-diverse party post-removal would destroy complete
diversity, 28 U.S.C. § 1447(e) applies and gives the district court two options: (1) deny
joinder, or (2) permit joinder and remand the action to state court.25 “Although Rule 15(a)
provides that ‘leave to amend should be freely given’ and Rule 20 permits joinder of
proper parties, when the court is ‘faced with an amended pleading naming a new
nondiverse defendant in a removed case, the court must scrutinize that amendment more
closely than an ordinary amendment.’”26 “As such, when an amendment would destroy
jurisdiction, ‘most authorities agree that leave should be denied in the absence of strong
equities in favor of amendment.’”27
“The Fifth Circuit has held that when considering an amendment which would
destroy the jurisdiction of the court, ‘justice requires that the district court consider a
number of factors to balance the defendant’s interest in maintaining the federal forum
with the competing interest of not having parallel lawsuits.’”28 Therefore, when
determining whether to allow joinder of a party under section 1447(e), a district court
examines the factors set out in Hensgens v. Deere & Co. and does not apply the ‘freely
R. Doc. 35-6 at p. 3.
28 U.S.C. § 1447(e) (2018).
26 Neely v. Scottsdale Ins. Co., No. 14-48, 2014 WL 1572441, at *3 (E.D. La. Apr. 17, 2014) (citing Hensgens
v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)).
Case 2:22-cv-01987-SM-MBN Document 41 Filed 11/21/22 Page 5 of 12
given’ standard of Rule 15(a).”29 The Fifth Circuit in Hensgens set forth the following
factors for district courts to use when making such a determination:
[T]he court should consider the extent to which the purpose of the
amendment is to defeat federal jurisdiction, whether plaintiff has been
dilatory in asking for amendment, whether plaintiff will be significantly
injured if amendment is not allowed, and any other factors bearing on the
equities. The district court, with input from the defendant, should then
balance the equities and decide whether amendment should be permitted.
If it permits the amendment of the nondiverse defendant, it then must
remand to the state court. If the amendment is not allowed, the federal court
The district court has discretion to permit or deny post-removal joinder of a nondiverse party.31
The Court will address each of the Hensgens factors in turn.
Factor One: The Extent to Which the Purpose of the Amendment Is
to Defeat Jurisdiction.
The Court finds the first Hensgens factor—the extent to which the purpose of the
amendment is to defeat federal jurisdiction—weighs against granting leave to amend.
“When courts analyze the first Hensgens factor, they consider ‘whether the plaintiffs knew
or should have know the identity of the non-diverse defendant when the state court
complaint was filed.’”32 “Courts have concluded ‘that a plaintiff’s failure to join a nondiverse defendant to an action prior to removal when such plaintiff knows of a nondiverse defendant’s identity . . . suggests that the purpose of the amendment is to destroy
diversity.’”33 It is clear that Plaintiffs knew of the non-diverse defendants’ identities long
before the state court complaint was filed. First, Plaintiffs mentioned Maverick by name
Id. (internal citations omitted).
Hensgens, 833 F.2d at 1182.
32 Neely, No. 14-48, 2014 WL 1572441, at *4 (citing Tomlinson v. Allstate Indem. Co.. No. 6-617, 2006 WL
1331541, at *3-4 (E.D. La. May 12, 2006)).
33 Id. (citing Tomlinson, No. 6-617, 2006 WL 1331541, at *3-4).
Case 2:22-cv-01987-SM-MBN Document 41 Filed 11/21/22 Page 6 of 12
in their original state court petition but did not name Maverick as a defendant.34 Second,
Plaintiffs allege in their amended complaint that Mr. Colligan conducted an inspection of
their home on September 2, 2021, during which Mr. Delgado was present.35 Accordingly,
the identity of both Maverick and Mr. Colligan was known to Plaintiffs as early as
September 2, 2021. Moreover, Plaintiffs’ intent to amend their state court petition mere
days after filing suit in state court and before any additional discovery had been conducted
suggests the purpose of the amendment is to destroy diversity.36 As such, the first factor
weighs against granting Plaintiffs’ motion for leave to amend their complaint to add the
non-diverse parties as defendants.
Factor Two: Whether Plaintiffs Have Been Dilatory in Asking for
As to the second factor—whether Plaintiffs have been dilatory in asking for
amendment—the Court finds Plaintiffs have not been dilatory. “When determining if a
plaintiff was dilatory in seeking to amend, ‘courts often look to the amount of time that
has passed between the filing of the original complaint and the amendment and the
amount of time between removal and the amendment.’”37 Defendant argues Plaintiffs
have been dilatory in seeking to amend because over three months passed between
removal and the instant motion for leave to amend.38 Although it is true that three months
passed, the Court finds Plaintiffs were not dilatory during that period. Although
procedurally deficient, Plaintiffs demonstrated their intent to amend their complaint
when they filed a motion to remand to state court on July 13, 2022, less than one month
R. Doc. 1-2 at p. 2.
R. Doc. 35-3 at pp. 3-4.
36 R. Doc. 38-1 at pp. 1-2 (demonstrating Plaintiffs intent to add the non-diverse defendants only three days
after they filed the initial state court petition).
37 Neely, No. 14-48, 2014 WL 1572441 at *5 (citing Tomlinson, No. 6-617, 2006 WL 1331541, at *4).
38 R. Doc. 38 at pp. 9-10.
Case 2:22-cv-01987-SM-MBN Document 41 Filed 11/21/22 Page 7 of 12
after filing suit and removal.39 The Court denied Plaintiffs’ motion on September 23,
2022, finding the motion could not be granted because Plaintiffs had not yet filed a
motion for leave to amend their complaint to add the non-diverse defendants, and as
such, the issue of remand was not properly before the court.40 A week later, on September
30, 2022, Plaintiffs filed the instant motion for leave to file an amended and restated
complaint.41 The Court finds Plaintiffs have not been dilatory in seeking to add the nondiverse parties as defendants. Accordingly, this factor weighs in favor of granting
Factor Three: Whether Plaintiffs Will Be Significantly Injured If
Amendment Is Not Allowed.
As to the third factor—whether Plaintiffs will be significantly injured if amendment
is not allowed—the Court is persuaded Plaintiffs will not be injured. The Fifth Circuit has
stated “a plaintiff will not be ‘significantly injured’ by the denial of a clearly meritless
claim.”42 Accordingly, the first question for the Court is whether Plaintiffs’ claims against
Maverick and Mr. Colligan have merit.
Plaintiffs argue “Louisiana jurisprudence provides support for [Plaintiffs’] claims
against Mr. Colligan and Maverick because ‘a tort duty may exist in the settlement of an
insurance claim.’”43 In so arguing, Plaintiffs rely heavily on Loehn v. Hardin, a 2002
decision from another section of this Court, which held that an insurance claimant had a
valid cause of action in tort against an insurance adjuster.44 Defendant argues in
opposition that Plaintiffs will not be prejudiced by denial of the motion because they do
R. Doc. 8.
R. Doc. 31.
41 R. Doc. 35.
42 Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010).
43 R. Doc. 35-3 at p. 15.
44 No. CIV.A.02-257, 2002 WL 922380, at *2 (E.D. La. May 6, 2002).
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not have a legitimate claim against Maverick or Mr. Colligan.45 Defendant argues, “under
Louisiana law, there is generally no cause of action against an insurance adjuster for the
processing and handling [of] an insurance claim.”46 Further, Defendant argues Plaintiffs’
reliance on Loehn is misguided, as Louisiana federal courts, including this Court, have
disagreed with the ruling in recent years.47
The Court indeed finds Plaintiffs’ reliance on Loehn is misguided. In the years since
the Loehn decision, other sections of this Court have consistently refused to follow Loehn,
holding instead the duties of insurers cannot be extended to insurance adjusters, and
insurance adjusters are generally not liable in tort.48 However, Louisiana courts and
federal courts applying Louisiana law have noted, as do Plaintiffs and Defendant, that an
insurance adjuster may be liable in rare circumstances when the adjuster assumes a duty
to the insured.49 “An adjuster could possibly assume a duty . . . to an insured in certain
circumstances depending on the ‘relative education of the parties, the diligence of the
claimant in seeking the facts, the actual or apparent authority of the adjuster, the content
R. Doc. 38 at p. 10.
Id. at pp. 10-11.
48 Motin v. Travelers Ins. Co., No. Civ.A. 03-2487, 2003 WL 22533673, at *4-5 (E.D. La. Nov. 3, 2003)
(“The Court respectfully disagrees with the holding of the Loehn court. . . . Nothing in the statutes suggests
the Louisiana Legislature’s intent to impose upon insurance adjusters the duties the statutes explicitly
impose upon the insurer. Moreover, nothing in the statutes suggests that the Louisiana Legislature intended
that the duties imposed upon the insurers be relegable to the adjusters.”); Schreiber v. Essex Ins. Co., No.
06-7741, 2007 WL 9812845, at *3 (E.D. La. Mar. 12, 2007) (“Plaintiffs cannot establish a cause of action
against the insurance adjuster in tort. Plaintiffs assert that an insurance adjuster has a duty to properly
handle the claims which had been delegated to him by the insurer. However, this Court has previously
disagreed with the holding of Loehn .”); Toups v. State Farm Fire & Cas. Co., No. 07-1068, 2007 WL
1030452, at *3 (E.D. La. Mar. 29, 2007) (same); Kessel v. State Farm Fire & Cas. Co., No. 06-5234, 2007
WL 1017573, at *2 (E.D. La. Mar. 30, 2007) (same); Stipelcovich v. State Farm Fire & Cas. Co., No. 071030, 2007 WL 1030461, at *3 (E.D. La. Mar. 30, 2007) (same); Westermoreland v. Wright Nat. Flood,
No. 13-564-JJB-RLB, 2014 WL 1343387, at *3 n.1 (M.D. La. Apr. 3, 2014) (disagreeing with Loehn and
instead following the reasoning outlined in Motin); Lewis v. Republic Fire & Cas. Co., No. 6:15-0035, 2015
WL 3654560, at *5 (W.D. La. June 10, 2015) (“It is well settled in Louisiana law that a claims adjuster, as
the disclosed agent of another, has no duty to the insured. Furthermore and more specifically, Louisiana
courts have consistently held that no cause of action lies in tort against an insurance adjuster. The duty of
the adjuster is to the insurer who contracted with him.”) (internal citations omitted).
49 Motin, No. Civ.A. 03-2487, 2003 WL 22533673, at *4-5.
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of his promises to the claimants, misrepresentation or fraud.’”50 These rare circumstances
do not exist in this case.
Courts have consistently held that a plaintiff’s allegations of improper claims
adjusting do not establish a claims adjuster assumed a duty to the plaintiff.51 For example,
in Lapeyrouse v. State Farm Fire and Casualty Co., the United States District Court for
the Middle District of Louisiana held the plaintiffs had not demonstrated that the claims
adjuster had assumed a duty to them.52 In the plaintiffs’ complaint, they alleged the
adjuster undervalued materials and consciously disregarded estimates and engineering
reports indicating the structure needed to be demolished.53 The Court determined the
plaintiffs’ allegations did not meet the strict definition of fraud, finding “[a]t most, the
Plaintiffs allege that [the claims adjuster] ignored certain costs, that the Plaintiffs allege
are related to wind damage, and disregarded certain reports that the Plaintiffs allege
indicate that their home needed to be demolished.”54 “In other words,” the Court
summarized, “the Plaintiffs’ allege that [the] adjustment of the claim and decisions
Dillon v. Lincoln Gen. Ins. Co., No. 06-7354, 2006 WL 3469554, at *2 (E.D. La. Nov. 30, 2006) (quoting
Pellerin v. Cash Pharmacy, 396 So. 2d 371, 373 (La. App. 1st Cir. 1981)).
51 Motin, No. Civ.A. 03-2487, 2003 WL 22533673, at *5 (“Plaintiff’s allegations that ‘the defendants have
intentionally breached the insurance contract and have engaged in intentional, bad faith claims adjusting
in violation of the Louisiana Insurance Code . . . do not establish, if true, that [the adjuster] assumed a duty
to them.”); Alarcon v. Aetna Cas. & Sur. Co., 538 So. 2d 696 (La. App. 5th Cir. 1989) (holding the plaintiff’s
claims of failing to evaluate the homeowner’s claim in a timely manner; failing to make any meaningful
effort to evaluate the homeowner’s claim; failing to attempt to make a reasonable settlement of the
homeowner’s claim; and failing to fulfill the terms of the contract did not prove the adjuster had assumed
a duty toward the plaintiff); Stipelcovich, No. 07-1030, 2007 WL 1030461, at *4 (holding the plaintiffs’
allegations that the adjusters “acted in bad faith, failed to disclose material information and acted arbitrarily
and capriciously do not establish, if true, that the adjusters assumed a duty to them”); Toups, No. 07-1068,
2007 WL 1030452, at *4 (same). But see Dillon, No. 06-7354, 2006 WL 3469554, at *3 (finding the adjuster
assumed a duty to the plaintiffs based on alleged self-dealing); Pelican Hosp. Grp. V. United Nat. Ins. Co.,
No. 06-6168, 2006 WL 3313721, at *4 (E.D. La. Nov. 13, 2006) (holding the adjuster may have assumed a
duty where there were questions of whether the adjuster was acting as an agent or independent contractor
and the adjuster never submitted his report to the insurance company and still had not done so nearly a
52 No. 14-52-JJB-RLB, 2014 WL 4373273, at *6 (M.D. La. Sept. 3, 2014).
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regarding the scope of the damage . . . was improper.”55 The Court found the complaint
“simply does not contain any allegation that [the adjuster] engaged in any fraud or
misrepresentations that would possibly trigger an exception to the general rule that
claims adjusters cannot be held personally liable in tort with regard to their adjusting of
an insurance claim.”56 The court further reasoned “[t]he Plaintiffs’ disagreement with [the
adjuster’s] method of adjusting claims and ultimate claims decision, in the absence of an
allegation of fraud or misrepresentation, cannot form the basis of a claim against him
under Louisiana law.”57
Like in Lapeyrouse, this Court finds Plaintiffs’ allegations are insufficient to
demonstrate Mr. Colligan assumed a duty to Plaintiffs. Plaintiffs made no allegations of
fraud sufficient to show the adjuster assumed a duty to Plaintiffs. While it is clear
Plaintiffs disagree with the methods used by Mr. Colligan during his inspection, mere
disagreement with a claims adjuster’s methodology does not constitute an allegation of
fraud or misrepresentation. While Plaintiffs state Maverick and Mr. Colligan
misrepresented the size and scope of the damage, it is clear Plaintiffs actual allegation is
one of negligence, not of fraud.58 In substance, Plaintiffs allege, like in Lapeyrouse, the
adjustment of the claim and the decisions regarding the scope of the damage were merely
improper. Having concluded Plaintiffs failed to demonstrate Mr. Colligan, and as a result,
Maverick, assumed a duty to Plaintiffs, the Court finds Plaintiffs’ claims against Maverick
and Mr. Colligan are meritless. As such, the Court finds Plaintiffs “will not be ‘significantly
injured’ by the denial of [their motion to amend to add a] clearly meritless claim.”
58 R. Doc. 35-3 at pp. 15-18 (discussing a potential tort duty and the standard of care outlined for claims
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Moreover, a “plaintiff’s assertions that he will be significant injured by denial of
the amendment are undermined by his initial failure to name [the non-diverse]
defendants in state court,” when a plaintiff knew of the identities of the non-diverse
parties before filing his state court petition.59 Thus, the Court is further persuaded that
Plaintiffs will not be significantly injured by denial of their motion to amend based on
Plaintiffs’ failure to bring suit against Maverick and Mr. Colligan in the initial state court
petition. Accordingly, the third factor weighs against granting leave to amend.
Factor Four: Any Other Factors Bearing on the Equities.
The final consideration outlined in Hensgens implores the Court to consider “any
other factors bearing on the equities.”60
When determining “other factors,” the Court typically balances the
competing interests of the parties. Courts have noted that the defendant
“has a compelling interest in maintaining the federal forum. The rationale
behind removal statutes is that diverse defendants have an option of
selecting a state or federal forum.” However, there is “also the danger of
parallel federal/state proceedings with the inherent dangers of inconsistent
results and the waste of judicial resources.”61
As pointed out by Defendant, Plaintiffs have made no arguments whatsoever that
additional factors should be considered by the Court.62 In addition, Defendant argues “the
denial of the Plaintiffs’ motion will not expose them to the risk of parallel state and federal
proceedings or otherwise prejudice them, especially as they do not have a legitime claim
against the proposed nondiverse defendants.” The Court agrees and finds no additional
factors bear on the analysis.
Shargian v. Shargian, 591 F. Supp. 3d 100, 114 (E.D. La. 2022).
Hensgens, 833 F.2d at 1182.
61 Neely, No. 14-48, 2014 WL 1572441, at *8.
62 R. Doc. 35-6.
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After examining each of the Hensgens factors, the Court finds the factors weigh
against Plaintiffs. Plaintiffs’ failure to add the two non-diverse parties in their state court
petition weighs heavily against them. Moreover, that Plaintiffs have failed to demonstrate
legitimate claims against Maverick and Mr. Colligan further persuades the Court that
amendment is not warranted. Accordingly, the Court concludes the factors weigh in favor
of denying Plaintiffs’ motion for leave to file an amended and restated complaint.
IT IS ORDERED that the Plaintiffs’ motion for leave to file an amended and
restated complaint63 is DENIED.
New Orleans, Louisiana, this 21st day of November, 2022.
UNITED STATES DISTRICT JUDGE
R. Doc. 35.
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