White et al v. Emerson et al

Filing 12

ORDER granting 5 Motion to Sever; granting 5 Motion to Partially Remand. The above styled and numbered cause, insofar as it pertains to the claims against Defendant Kim Emerson, is remanded to the County Court of Jackson County, Mississippi. The claims against Allstate will remain in this Court. Ordered that a certified copy of this order of remand shall be immediately mailed by the Clerk to the clerk of the state court. Signed by Chief District Judge Louis Guirola, Jr. on 3/23/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

TEVIN WHITE and
KAREN WHITE

PLAINTIFFS

v.

CAUSE NO. 1:17CV15-LG-RHW

KIM EMERSON and
ALLSTATE INSURANCE COMPANY

DEFENDANTS

ORDER GRANTING MOTION TO SEVER AND TO PARTIALLY REMAND
BEFORE THE COURT is the Motion to Sever and Motion to Partially
Remand [5] filed by Defendant, Allstate Insurance Company (“Allstate”). Plaintiffs
Tevin White and Karen White (collectively, “the Whites”) did not file a response to
the Motion. Having considered the Motion and the applicable law, the Court is of
the opinion that the Motion should be granted.
BACKGROUND
The Whites commenced this action in the County Court of Jackson County,
Mississippi, naming Kim Emerson and Allstate as Defendants. The claims against
Emerson are for damages resulting from a vehicular accident. The claims against
Allstate are based on contract and the claims handling process. Allstate argues that
the claims are wholly distinct, thus entitling Allstate to a severance. Allstate
further argues that once the claims are severed, this Court has diversity jurisdiction
over the claims against them as the Whites are citizens of Mississippi and Allstate
is incorporated in Delaware and has its principal place of business in Illinois.
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DISCUSSION
Motion to Sever
Allstate argues that the Whites fraudulently misjoinded their claims to avoid
removal to federal court. The Fifth Circuit has ruled that the misjoinder of plaintiffs
cannot be used to circumvent diversity jurisdiction. In re: Benjamin Moore & Co.,
309 F.3d 296, 298 (5th Cir. 2002). This Court utilizes Mississippi Rule of Civil
Procedure 20 in a fraudulent misjoinder analysis. See Hampton v. State Farm Mut.
Auto. Ins. Co., No. 3:15-CV-576-CWR-FKB, 2015 WL 11233043, at *2-3 (S.D. Miss.
Sept. 24, 2015). Joinder is improper unless both prongs of Rule 20(a) are satisfied.
See id.
Rule 20(a) states that joinder is proper when: (1) the right to relief arises out
of the same transaction, occurrence, or series of transactions or occurrences, and (2)
a question of law or fact common to all defendants will arise in the action. Miss. R.
Civ. P. 20(a). In a factually similar case, the Supreme Court of Mississippi, applying
Rule 20(a), ruled a third party tort claim against an individual and a first party
breach of contract and bad faith claim against the individual’s insurance company
involved distinct litigable events. See Hedgwood v. Williamson, 949 So. 2d 728, 731
(Miss. 2007). The federal courts of Mississippi have applied the Hedgwood analysis
to matters of fraudulent misjoinder. See Hampton, 2015 WL 11233043, at *2-3;
Tolbert v. State Farm Mut. Auto. Ins. Co., No. 3:15-CV-0042, 2015 WL 3450524, at
*2 (N.D. Miss. May 29, 2015).
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The Whites’ claim against Emerson is for damages resulting from the
accident, a claim based on torts. The Whites’ claim against Allstate is based on
contract arising out of the subsequent claims handling process. These claims are
distinct litigable events. Therefore, the claims should be severed.
Motion to Remand
Having severed the diverse claim from the non-diverse claim, the Court may
remand one while retaining jurisdiction over the other. See, e.g., Cartwright v. State
Farm Mut. Auto Ins. Co., No. 4:14-cv-00057-GHD-JMV, 2014 WL 6959045, at *8
(N.D. Miss. Dec. 8, 2014). “The district courts shall have original jurisdiction of all
civil actions 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.” 28 U.S.C.
§ 1332(a)(1). Therefore, the claim by the Whites, Mississippi citizens, against
Emerson, a Mississippi citizen, should be remanded to state court as no diversity of
citizenship exists. However, the claim by the Whites against Allstate, a Delaware
corporation, should remain in this Court.1
IT IS, THEREFORE, ORDERED AND ADJUDGED that the [5] Motion to
Sever and Motion to Partially Remand filed by Defendant Allstate Insurance
Company is GRANTED. The above styled and numbered cause, insofar as it

1

The Whites did not plead a specific amount; however, they are asking for an
unspecified amount of punitive damages against Allstate, which has been
consistently held to exceed the amount necessary for federal jurisdiction. See, e.g.,
Sun Life Assurance Co. of Canada (U.S.) v. Fairley, 485, F. Supp. 2d 731, 734 (S.D.
Miss. 2007) (citations omitted).
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pertains to the claims against Defendant Kim Emerson, should be and is hereby
REMANDED TO THE COUNTY COURT OF JACKSON COUNTY,
MISSISSIPPI. The claims against Allstate will remain in this Court.
IT IS FURTHER ORDERED AND ADJUDGED that a certified copy of
this order of remand shall be immediately mailed by the Clerk to the clerk of the
state court pursuant to 28 U.S.C. § 1447(c).
SO ORDERED AND ADJUDGED this the 23rd day of March, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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