Thomson et al v. Hartford Casualty Insurance Company

Filing 10

ORDER denying 7 Motion to Remand. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN N. THOMSON, et al.,
Case No. 13-10863
Hon. Lawrence P. Zatkoff

Plaintiffs,
v.
HARTFORD CASUALTY INSURANCE COMPANY,
Defendant.
_____________________________________________/
OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on September 19, 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Plaintiffs’ Motion to Remand this action to State Court [dkt 7].
Defendant responded to the motion. The Court finds that the facts and legal arguments are adequately
presented in the parties’ papers such that the decision process would not be significantly aided by oral
argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motion be
resolved on the briefs submitted, without oral argument. For the following reasons, Plaintiffs’ motion is
DENIED.
II. BACKGROUND
The instant case involves an underlying state court probate action, which has since concluded.
There, Plaintiffs John Thomson, Julia Kassak, Silverio J. Vitello, Paula L. Vultaggio, and Anna Vitello
(“Plaintiffs”) filed suit against Kathleen O’Brien and Kathleen O’Brien, P.C. (“O’Brien”) for breach of

fiduciary duties, breach of trust and legal malpractice. Plaintiffs obtained a judgment in the amount of
$770,065.42 against O’Brien on or about December 19, 2012
Plaintiffs then filed a request and writ for garnishment against Defendant Hartford Casualty
Insurance Company (“Defendant Hartford”) in Oakland County Probate Court, seeking to garnish a
series of professional liability policies that Defendant Hartford issued to O’Brien to satisfy the judgment.
Defendant Hartford timely filed a notice of removal with this Court, which Plaintiffs now challenge.
III. LEGAL STANDARD
A civil case filed in state court may be removed to federal court if it could have been brought in
federal court originally. See 28 U.S.C. § 1441(a). Federal courts have original, diversity jurisdiction
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and
is between citizens of different states. See 28 U.S.C. § 1332.
IV. ANALYSIS
Plaintiffs’ instant motion attacks the removal on several fronts: that Defendant Hartford violated
the rule of unanimity by failing obtain or request O’Brien’s consent in the removal; that the “probate
exception” to the Court’s otherwise proper jurisdiction prevents removal; and that the Court should
refrain from exercising its discretionary jurisdiction under the Declaratory Judgment Act.
A. RULE OF UNANIMITY
It is beyond dispute that Plaintiffs, citizens of Michigan, and Defendant Hartford, a citizen of
Indiana and Connecticut, are diverse, and that the amount in controversy exceeds $75,000.00.
Nevertheless, Plaintiffs attempt to evade diversity jurisdiction by first arguing that Defendant violated the
rule of unanimity by filing its notice of removal without the consent of O’Brien.
Title 28 U.S.C. § 1446 requires the unanimous consent of all defendants to the removal. Loftis v.
UPS, Inc., 342 F.3d 509, 516 (6th Cir. 2003). The statute, however, requires only those “defendants who

2

have been properly joined and served” to consent to removal. 28 U.S.C. § 1446(b)(2)(A). The Court
finds that O’Brien is not a “properly joined” defendant to this action. First, the instant suit involves a
garnishment action that is entirely separate and distinct from the underlying state court probate litigation.
Second, it appears to the Court that O’Brien does not have an interest in the garnishment action. In the
probate litigation, Plaintiffs and O’Brien entered into a settlement agreement whereby O’Brien
“assign[ed] to Plaintiffs any and all rights and claims which [O’Brien] may have against any insurer for
insurance coverage (defense and/or indemnity) . . . .” In turn, Plaintiffs then agreed that O’Brien would
not “be required to pay or otherwise contribute to the payment of any such judgment, even if such
payment or contribution is sought by an individual or entity who is not a party to this Agreement.” Thus,
Plaintiffs’ argument that O’Brien is, or should be, a defendant in the instant case is flawed.
Notwithstanding that, the Court finds nothing indicating that O’Brien has, in fact, been served by
Plaintiffs. Although Plaintiffs filed a certificate of service corroborating that copies of the summons and
complaint were served on Defendant Hartford, they fail to similarly include such substantiation with
respect to O’Brien. In short, the Court concludes that O’Brien has not been “properly joined and served,”
and Defendant Hartford was therefore not required to seek her consent prior to filing the notice of
removal.
B. PROBATE EXCEPTION
It is well-settled that federal district courts do not enjoy jurisdiction over state probate matters.
See, e.g., Markham v. Allen, 326 U.S. 490, 494 (1946) (citing cases). In Markham, the Supreme Court
reaffirmed that a federal court may not exercise its otherwise proper jurisdiction when doing so would
interfere with state probate matters. Id. This is the so-called “probate exception” to federal jurisdiction.
The Supreme Court limited the Markman holding, however, in Marshall v. Marshall, 547 U.S. 293
(2006). The Court clarified that this narrow exception “reserves to state probate courts the probate or

3

annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from
endeavoring to dispose of property that is in the custody of a state probate court.” Id. at 311-12. In all
other situations, the doctrine “does not bar federal courts from adjudicating matters outside those confines
and otherwise within federal jurisdiction.” Id. at 312.
Here, the garnishment action is separate and distinct from the underlying probate litigation.
Contrary to Plaintiffs’ arguments, the instant case does not deal with the administration of an estate or
disposal of property that is being held by the state probate court. Rather, the issue in this case is whether
or not Plaintiffs are entitled to garnish Defendant Hartford’s insurance policies to satisfy the judgment
Plaintiffs obtained against O’Brien. As such, the Court finds that Plaintiffs cannot rely on the “probate
exception” as a basis for remand.
C. DECLARATORY JUDGMENT ACT
Last, Plaintiffs’ argument that the Court should refrain from exercising its discretionary
jurisdiction under the Declaratory Judgment Act misses the mark. As previously mentioned, the instant
case involves a garnishment action. The Court questions why Plaintiffs attempt to invoke the Declaratory
Judgment Act when Plaintiffs seek monetary—as opposed to declaratory—relief. Accordingly, the Court
dismisses this argument.

4

V. CONCLUSION
Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that Plaintiffs’ Motion to
Remand [dkt 7] is DENIED.
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
Hon. Lawrence P. Zatkoff
U.S. District Judge
Dated: September 19, 2013

5