Herbert v. White et al

Filing 8

ORDER granting 6 Motion to Sever and to Partially Remand. The above styled and numbered cause, insofar as it pertains to the claims against Defendant Lorraine White, should be and is hereby Remanded to the County Court of Harrison County, Mississi ppi. The claims against Allstate will remain in this Court. 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). Signed by Chief District Judge Louis Guirola, Jr. on 9/20/2017 (wld)

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

PLAINTIFF

v.

CAUSE NO. 1:17CV228-LG-RHW

LORRAINE WHITE and
ALLSTATE INSURANCE COMPANY

DEFENDANTS

ORDER GRANTING MOTION TO SEVER
AND TO PARTIALLY REMAND
BEFORE THE COURT is the [6] Motion to Sever and Partially Remand to
State Court filed by Defendant, Allstate Insurance Company. Plaintiff Melissa
Herbert did not file a response. Having considered the Motion and the applicable
law, the Court finds that the Motion should be granted. The claims against
Defendant White will be severed and remanded back to state court.
BACKGROUND
Herbert filed this lawsuit in the County Court of Harrison County,
Mississippi against Defendant White, an uninsured driver, and Allstate, Herbert’s
insurer. Herbert brings negligence claims against White and contract claims
against Allstate. (Notice of Removal Ex. A 2-4, ECF No. 1-1). 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 it as Herbert is a citizen of Mississippi and Allstate is
incorporated in Delaware and has its principal place of business in Illinois.

DISCUSSION
A.. Motion to Sever
Allstate argues that Herbert improperly joined her tort claims against White
with her contract claims against Allstate. 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 the improper joinder 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.
Mississippi’s 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 in which the
Mississippi Supreme Court applied Rule 20(a), claims against an individual and a
first party breach of contract and bad faith claim against the individual’s insurance
company were held to involve 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 improper misjoinder. See Hampton,
2015 WL 11233043, at *2-3; Tolbert v. State Farm Mut. Auto. Ins. Co., No. 3:15-CV0042, 2015 WL 3450524, at *2 (N.D. Miss. May 29, 2015).
Herbert’s claim against White is for damages resulting from the accident, a
claim based on tort. Herbert’s claim against Allstate is based on contract, arising

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out of the subsequent claims handling process. These claims are distinct litigable
events. Therefore, the claims should be severed.
B. 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). Both Herbert and White are Mississippi citizens, and
therefore Herbert’s claims against White should be remanded to state court for lack
of diversity of citizenship. However, the claim by Herbert against Allstate, a
Delaware corporation, should remain in this Court.
IT IS THEREFORE ORDERED AND ADJUDGED that the [6] Motion to
Sever and Partially Remand filed by Defendant Allstate Insurance Company is
GRANTED. The above styled and numbered cause, insofar as it pertains to the
claims against Defendant Lorraine White, should be and is hereby REMANDED
TO THE COUNTY COURT OF HARRISON COUNTY, MISSISSIPPI. The
claims against Allstate will remain in this Court.

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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 20th day of September, 2017.

s/

Louis Guirola, Jr.

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

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