Delaughter v. Dufrene et al
MEMORANDUM OPINION AND ORDER granting 3 Motion to Remand. Ordered that this cause is Remanded to the Circuit Court of Jackson County, Mississippi pursuant to 28 U.S.C. § 1447(c). It is further ordered that a certified copy of this order of remand shall be immediately mailed by the Clerk to the clerk of thestate court. Signed by District Judge Louis Guirola, Jr. on 11/15/17. (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JAMES A. DELAUGHTER
CAUSE NO. 1:17CV294-LG-RHW
CELESTE M. DUFRENE, ANTONIO R. MADDEN,
and USAA CASUALTY INSURANCE COMPANY
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO REMAND
THIS MATTER COMES BEFORE THE COURT on the  Motion to Remand
by USAA Casualty Insurance Company, one of the defendants in this case. The
removing defendant, Celeste Dufrene, has filed a response, and USAA has replied.
After due consideration of the pleadings, briefs and arguments of counsel and the
relevant legal authorities, the Court finds that it does not have jurisdiction of this
cause, and it should therefore be remanded to the Circuit Court of Jackson County,
Mississippi. USAA’s request for attorneys’ fees and costs is denied.
This case concerns an automobile accident allegedly caused by two
underinsured drivers. Plaintiff Delaughter seeks damages against the drivers, plus
underinsured driver insurance benefits from his own insurer, USAA. USAA states
that counsel for Dufrene contacted USAA’s counsel and requested consent to
removal. USAA responded that it did not and would not consent. (USAA Mem. 3,
ECF No. 4). Nevertheless, Dufrene removed the case, asserting that USAA’s
consent was not necessary; it had been improperly joined because the plaintiff’s
claims against USAA are separate and distinct from the plaintiff’s claims against
the tortfeasors. USAA now seeks remand on the grounds that the removal was
defective because USAA was properly joined, and therefore its agreement to
removal was necessary under 28 U.S.C. § 1446.
All served defendants must join in the petition for removal within thirty days
of service on the first defendant, and if consent of all served defendants is not timely
obtained, the removal is procedurally defective. Doe v. Kerwood, 969 F.2d 165, 167,
169 (5th Cir. 1992). USAA did not and does not consent to removal, and it argues
that the removal was therefore procedurally defective for failure to comply with the
rule of unanimity.
In order to show that the removal was not procedurally defective, Dufrene
must demonstrate that one of the three exceptions to the rule of unanimity applies:
(1) USAA is an improperly or fraudulently joined defendant; (2) USAA is a nominal
or unnecessary defendant; or (3) USAA had not been served by the time of removal.
See Jones v. Watts, No. 5:10-CV-189-DCB-JMR, 2011 WL 2160915, at *5 (S.D. Miss.
June 1, 2011) (citations omitted). Dufrene argues that the improper joinder
exception applies, because the underinsured motorist claim against USAA does not
arise from the same occurrence or litigable event as the negligence claim against
Dufrene and the driver of the third vehicle. Additionally, Dufrene argues that the
allegations against USAA are conclusory and do not state a plausible claim for
The Court first finds that the allegations against USAA state a plausible
claim for relief. The plaintiff alleges that 1) the tortfeasors were underinsured; 2)
USAA provided underinsured motorist coverage to the plaintiff; and 3) USAA had
not tendered underinsured motorist benefits to the plaintiff. (Compl. 2, ECF No. 12). This is sufficient factual content to allow the Court to draw a reasonable
inference that USAA is liable for the misconduct alleged. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
Next, Dufrene supports her argument regarding joinder with cases in which
the plaintiff brought bad faith and breach of contract claims against the insurer in
addition to claims against the tortfeasor. See Hegwood v. Williamson, 949 So.2d
728 (Miss. 2007); Tolbert v. State Farm Mut. Auto. Ins. Co., No. 3:15-CV-0042, 2015
WL 3450524 (N.D. Miss. May 29, 2015). This case is distinguishable because there
are no bad faith or breach of contract claims against USAA. Dufrene argues that
the Court should infer such claims because the plaintiff could not mean anything
else by his allegations that USAA did not tender benefits, and by his request for
punitive damages against all defendants. But in the Court’s view, an allegation
that no underinsured benefits have been tendered by USAA is not an assertion of
bad faith or even necessarily a breach of contract. As USAA notes, the plaintiff
must prove fault and damages against the tortfeasors before it can be known
whether or to what extent underinsured benefits are due to the plaintiff. That will
be accomplished at the trial of this case.
The circumstances of this case are similar to those in Cook v. OneBeacon
American Insurance Company, No. 2:13CV305-HSO-RHW, 2014 WL 6388458 (S.D.
Miss. Nov. 14, 2014), where the court stated that the law in Mississippi was that
“[i]n uninsured motorist cases, the alleged uninsured tortfeasor and an uninsured
motorist insurer may be joined in an action as co-defendants.” Cook 2014 WL
6388458, at *3 (citing Heflin v. Merrill, No. 2012-CA-00663-COA, 2013 WL
5614290, at *1 (Miss. Ct. App. Oct. 15, 2013); Leitch v. Miss. Ins. Guar. Ass’n, 27 So.
3d 405, 406 (Miss. Ct. App. 2009)). The Cook court noted that the plaintiff’s right to
relief from both the tortfeasor and the insurer arose from the collision, and a
common question of law was whether the plaintiff was legally entitled to recover
against the tortfeasor. Id.
Because this plaintiff’s right to recover from USAA will depend on his right to
recover from the tortfeasors, the Court concludes that USAA was properly joined in
this action. USAA did not consent to the removal, and therefore the case must be
remanded to the state court.
USAA requests an award of costs and expenses, including attorney’s fees,
against Dufrene for the necessity of filing its Motion to Remand. The removal
statute provides that, “[a]n order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of the
removal.” 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award
attorney’s fees under § 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal. Conversely, when an objectively reasonable
basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132,
141 (2005). The Court finds an award of costs and expenses unwarranted, as
Dufrene presented an arguable, albeit unsuccessful, basis for removal.
IT IS THEREFORE ORDERED AND ADJUDGED that the  Motion to
Remand filed by Defendant USAA Casualty Insurance Company is GRANTED.
The above styled and numbered cause is hereby REMANDED TO THE CIRCUIT
COURT OF JACKSON COUNTY, MISSISSIPPI pursuant to 28 U.S.C. § 1447(c).
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 15th day of November, 2017.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE
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