Murry v. GEICO General Insurance Company (GEICO) et al

Filing 15

ORDER granting 5 Motion to Remand to State Court; denying as moot 13 Motion to Sever; action REMANDED to Circuit Court Tallahatchie County, Mississippi. Signed by District Judge Debra M. Brown on 4/24/18. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
PHALLON MURRY,
also known as Ms. Willie Fry

PLAINTIFF

V.

NO. 3:18-CV-31-DMB-RP

GEICO GENERAL INSURANCE
COMPANY, also known as Government
Employees Insurance Company (GEICO),
and MELVIN BREWER

DEFENDANTS

ORDER
Before the Court are Phallon Murry’s motion to remand, Doc. #5, and GEICO General
Insurance Company’s motion to sever, Doc. #13.
I
Relevant Procedural History
On January 8, 2018, Phallon Murry filed a complaint in the Circuit Court of Tallahatchie
County, Mississippi, against GEICO General Insurance Company and Melvin Brewer. Doc. #2.
In her complaint, Murry alleges that Brewer “negligently drove his motor vehicle forward and
such negligence proximately caused his vehicle tire to run into the Plaintiff’s right ankle and right
foot.” Id. at ¶ 12. Murry further alleges that Brewer was an uninsured motorist and that “[u]nder
the GEICO insurance policy, the Plaintiff is entitled to the payment of the policy limit for the
uninsured motorist coverage ….” Id. at ¶ 19–21.
GEICO, asserting diversity jurisdiction, removed the state court action to this Court on
February 8, 2018. Doc. #1. The notice of removal alleges that Murry and Brewer are both citizens
of Mississippi and that GEICO is a Maryland corporation with a principal place of business of
Maryland. Id. at ¶¶ 4–6. The notice of removal also alleges that, notwithstanding the matching

citizenship of Murry and Brewer, complete diversity exists because, pursuant to the doctrine of
fraudulent or egregious misjoinder, the citizenship of Brewer may be disregarded. Id. at ¶¶ 8, 12.
On February 12, 2018, Murry filed a “Motion to Remand.”1 Doc. # 5. On February 23,
2018, GEICO filed a response in opposition to remand, Doc. # 11, and three days later, filed a
motion to sever, Doc. # 13.
II
Standard
“Under the federal removal statute, a civil action may be removed from a state court to a
federal court on the basis of diversity. This is so because the federal court has original subject
matter jurisdiction over such cases.” Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp.,
Ltd., 818 F.3d 193, 199 (5th Cir. 2016). “The party seeking to remove bears the burden of showing
that federal jurisdiction exists and that removal was proper. Any ambiguities are construed against
removal and in favor of remand to state court.” Scarlott v. Nissan N. Am., Inc., 771 F.3d 883, 887
(5th Cir. 2014) (internal citations omitted). In this regard, “[i]f at any time before final judgment
it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c).

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The document includes the statement, “This Motion to Remand is for docketing separately from the Response,
Answer, objections, and authority of law in the memorandum filed herein at this time. The latter document is labeled
‘Motion to Remand to the Second Judicial District of Tallahatchie County, Mississippi.’” Doc. #5.

The same day, Murry filed a separate document titled, “Motion to Remand to the Circuit Court of the Second Judicial
District of Tallahatchie County, Mississippi,” Doc. #6; however, the document was not docketed as a motion, does
not technically qualify as a memorandum brief in form or substance, and appears to be only Murry’s attempt to file a
memorandum brief in support of her motion to remand. That day, Murry also filed a virtually identical document with
the same title, which was docketed as a motion. Doc. #8. The docket text describes this filing as an amended motion
(though it is not titled as such) and indicates it was filed “to Include Cert Page.” To the extent Murry intended the
first of these filings to serve as a memorandum brief and the second to serve as an amended version of the same, the
latter one has been terminated as a motion.

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III
Analysis
Diversity jurisdiction requires that there be: (1) complete diversity between the parties; and
(2) an amount in controversy in excess of $75,000, exclusive of interest and costs. 28 U.S.C.
§1332; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). Complete diversity “requires that all
persons on one side of the controversy be citizens of different states than all persons on the other
side.” Vaillancourt v. PNC Bank, Nat’l Ass’n, 771 F.3d 843, 847 (5th Cir. 2014).
As explained above, GEICO submits that complete diversity exists because Brewer, a nondiverse defendant, was fraudulently misjoined. Murry seeks remand on the ground that Brewer
was not fraudulently misjoined in this action and that, therefore, complete diversity does not exist.
The doctrine of fraudulent misjoinder derives from the Eleventh Circuit’s opinion in
Tapscott v. MS Dealer Service Corp., which held that “[a] defendant’s right of removal cannot be
defeated by a fraudulent joinder of a resident having no real connection with the controversy.” 77
F.3d 1353, 1360 (11th Cir. 1996)). Recently, this Court rejected fraudulent misjoinder as a basis
for removal jurisdiction. See Wilson v. State Farm Mut. Auto. Ins. Co., No. 4:17-cv-124, 2018
WL 1096836, at *2 (N.D. Miss. Feb. 28, 2018). In reaching this conclusion, the Court relied on
both the rule that the removal statute must be strictly construed and the absence of clear guidance
from the Fifth Circuit or the United States Supreme Court on the application of the fraudulent
misjoinder doctrine. Id. For these same reasons, the Court concludes here that fraudulent
misjoinder is not a viable rule and that, therefore, the citizenship of Brewer, a non-diverse
defendant, may not be disregarded. Accordingly, in the absence of complete diversity, remand
must be granted. GEICO’s motion to sever will be denied as moot.

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IV
Conclusion
For the reasons above, Murry’s motion to remand [5] is GRANTED and GEICO’s
motion to sever [13] is DENIED as moot. This action is REMANDED to the Circuit Court
of Tallahatchie County, Mississippi.
SO ORDERED, this 24th day of April, 2018.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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