Richard et al v. USAA Casualty Insurance Company

Filing 10

NOTICE AND ORDER: Within fourteen (14) days of this Notice and Order, Plaintiffs shall file a Notice of Citizenship setting out the citizenship of USAA Casualty Insurance Company. Signed by Magistrate Judge Erin Wilder-Doomes on 5/23/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BRIAN RICHARD, ET AL.
CIVIL ACTION
VERSUS
NO. 17-175-BAJ-EWD
USAA CASUALTY
INSURANCE COMPANY
NOTICE AND ORDER
On March 23, 2017, Garrison Property and Casualty Insurance Company (“Garrison”) filed
a Notice of Removal.1 Therein, Garrison asserts that it was incorrectly referred to as “USAA
Casualty Insurance Company” in a Petition for Damages filed by plaintiffs, Brian Richard and
Lance Boudreaux (“Plaintiffs”).2 Garrison asserts that “Plaintiffs’ lawsuit seeks damages under
La. R.S. § 22:1973 and La. R.S. § 22:1892 and for alleged breach of contract in connection with a
policy of insurance issued by Garrison….”3 Garrison further asserts that this court has diversity
subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because the amount in controversy
exceeds $75,000, exclusive of interest and costs, and the parties are completely diverse.4
Despite Garrison’s assertion that Plaintiff has “incorrectly referred” to it as “USAA
Casualty Insurance Company,” 28 U.S.C. § 1441(a) provides that “[e]xcept as otherwise expressly
provided by Act of Congress, any civil action brought in a State court of which the district courts
of the United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division embracing the
place where such action is pending.” Emphasis added. In an unpublished opinion, the Fifth Circuit
has stated that “[u]nder 28 U.S.C. § 1441(a), only a defendant may remove a civil action from state

1

R. Doc. 1.
R. Doc. 1.
3
R. Doc. 1, ¶ II.
4
R. Doc. 1, ¶¶ IV-XIII.
2

court to federal court. A non-party, even one that claims to be a real party in interest, lacks the
authority to institute removal proceedings.” De Jongh v. State Farm Lloyds, 555 Fed. Appx. 435,
437 (5th Cir. 2014) (citations omitted). However, courts in this circuit have distinguished
situations in which a removing party is misnamed (i.e., all parties agree that the removing party is
the proper defendant) and “the Court would not be manufacturing diversity jurisdiction based on
inserting defendants into or dismissing them from a case.” Lefort v. Entergy Corp., 2015 WL
4937906, at * 3 (E.D. La. Aug. 18, 2015).
Here, Plaintiffs’ Petition for Damages alleges that Brian Richard
brought suit against Lance Boudreaux and USAA Casualty
Insurance Company as his insured. Lance Boudreaux was covered
by a policy of insurance with limits of $100,000. On numerous
occasions, Richard offered to settle with Lance Boudreaux and
USAA with a full release of Lance Boudreaux. USAA refused to
settle within policy limits. Under Louisiana law, USAA has a
statutory duty to settle claims and protect its insured from an excess
judgment. It has failed to do that in the present action. Lance
Boudreaux has assigned any rights and or causes of action he may
possess for certain violations by USAA which have subjected him
to an excess judgment.5
Based on the allegations set forth in Plaintiffs’ Petition for Damages, it appears that Plaintiffs
intended to name Lance Boudreaux’s insurer as defendant. In its Notice of Removal, Garrison
asserts that the policy at issue was “issued by Garrison to Lance Boudreaux.”6 However, Plaintiffs
have asserted in other briefing submitted to this court that they “are seeking to enforce the
judgment against USAA CIC” and that Garrison “is not a named party or party cast in judgment
which forms the basis for this action.”7 Accordingly, it appears that the parties disagree regarding
whether this is merely a case of misnaming the proper defendant.

5

R. Doc. 1-2, ¶ 3.
R. Doc. 1, ¶ II.
7
R. Doc. 8, p. 1.
6

2

In its Notice of Removal, Garrison alleges that both Plaintiffs are domiciliaries of
Louisiana.8 Garrison further alleges that it is a Texas corporation with its principal place of
business in Texas.9 To the extent USAA Casualty Insurance Company is also diverse from
Plaintiffs, the question of which party is the proper insurer defendant does not affect whether this
court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (i.e., the de facto substitution of
Garrison in the place of USAA Casualty Insurance Company – to the extent such substitution
would be proper – would not result in the manufacturing of diversity in contravention of De
Jongh).
Accordingly,
IT IS HEREBY ORDERED that within fourteen (14) days of this Notice and Order,
Plaintiffs shall file a Notice of Citizenship setting out the citizenship of USAA Casualty Insurance
Company.
Signed in Baton Rouge, Louisiana, on May 23, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

8
9

R. Doc. 1, ¶¶ IX & X.
R. Doc. 1, ¶ XI.

3