Hart v. Knockerball MidMo, LLC et al
ORDER. Plaintiff Hart's Motion to Remand, Doc. 3, and Defendant Knockerball MidMo, LLC's Motion to Remand, Doc. 7 are granted. Because the Court grants the Motions to Remand, Defendant Knockerball MidMo, LLC's Motion for Leave to File First Amended Cross-Claim, Doc. 40, is denied for lack of subject matter jurisdiction. Signed on 12/8/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
KNOCKERBALL MIDMO, LLC, and
ATLANTIC SPECIALTY INSURANCE
Case No. 2:17-CV-04182-NKL
Pending before the Court are Plaintiff Derek Hart’s Motion to Remand, Doc. 3, and
Defendant Knockerball MidMo, LLC’s Motion to Remand, Doc. 7.
the Motions to Remand are granted.
For the following reasons,
Because the Court grants the Motions to Remand,
Defendant Knockerball MidMo, LLC’s Motion for Leave to File First Amended Cross-Claim,
Doc. 40, is denied for lack of subject matter jurisdiction.
On December 23, 2016, Derek Hart visited Knockerball MidMo, LLC (“Knockerball”),
where he sustained severe and permanent injuries, including paralysis.
One month later, Hart
served Knockerball with a state court lawsuit, claiming that Knockerball was liable for his
At the time, Knockerball was insured under a policy issued by Atlantic Specialty
Insurance Company (“Atlantic”), with a coverage period of July 1, 2016 through July 1, 2017.
Despite notice of the lawsuit, Atlantic did not defend Knockerball in state court.
thereafter, Knockerball was held to be in default, and on July 11, 2017 a bench trial determined
On July 13, 2017, the state court entered a final judgment against Knockerball
in the amount of $44,631,268.99.
On August 17, 2017, Hart filed an equitable garnishment proceeding in the Circuit Court
of Cole County, Missouri, under Mo. Rev. Stat. § 379.200, seeking to recover the judgment from
Knockerball’s insurer, Atlantic.
were named as defendants.
Pursuant to Section 379.200, both Knockerball and Atlantic
On August 23, 2017, Knockerball filed a cross-claim against
Atlantic, alleging breach of its duties under the insurance policy.
On September 21, 2017,
Atlantic removed the case on the basis of diversity citizenship. Both Hart and Knockerball
move to remand.
Upon removing an action to federal court, the defendant bears the burden of proving by a
preponderance of the evidence that the court has subject matter jurisdiction over the case.
Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010); Hatridge v. Aetna Cas. & Sur.
Co., 415 F.2d 809, 814 (8th Cir. 1969).
“Removal statutes are strictly construed, and any
doubts about the propriety of removal are resolved in favor of state court jurisdiction and
Baumgartner v. Ford Motor Credit Co., No. 07-4084-CV-C-NKL, 2007 WL
2026135, at *1 (W.D. Mo. July 9, 2007) (citing In re Business Men’s Assurance Co. of America,
992 F2d 181, 183 (8th Cir. 1993)).
It is undisputed that Plaintiff Hart and Defendant Knockerball are both Missouri citizens.
Nevertheless, Atlantic argues that removal is proper based on two co-dependent theories.
Atlantic argues that although Section 379.200 requires both the insured and the insurer to be
joined as defendants, Knockerball, the insured, must be realigned with Plaintiff for purposes of
Second, Atlantic argues that the direct action provision of 28 U.S.C.
1332(c)(1) does not apply to this case, because petitions brought under Section 379.200 do not
constitute direct actions against the insurer.
Atlantic must prevail on both of these theories to
avoid remand—a difficult task considering that a significant number of courts within this circuit
have rejected both.
With regard to realignment, Atlantic argues that the parties’ alignment under Section
379.200 is immaterial, and Knockerball must be realigned with Hart for federal jurisdiction
purposes. In determining jurisdiction, “the designation of parties as plaintiff or defendant in the
pleadings is not controlling . . . .”
Dryden v. Dryden, 265 F.2d 870, 873 (8th Cir. 1959).
the duty of the federal courts to look beyond the pleading and to arrange the parties according to
their sides in the dispute.” Universal Underwriters Ins. Co. v. Wagner, 367 F.2d 866, 870 (8th
Furthermore, “[t]he question whether a civil action is removable and has been
properly removed is one for the consideration of the federal courts and is not controlled by State
law.” Elite Nurse Staffing, inc. v. Am. Cas. Co. of Reading, Pa., No. 2:10–CV–04210–NKL,
2010 WL 5300926, at *4 (W.D. Mo. Dec. 20, 2010) (quoting Stoll v. Hawkeye Cas. Co. of Des
Moines Iowa, 185 F.2d 96, 99 (8th Cir. 1950)); see also Minot Builders Supply Ass'n v.
Teamsters Local 123, 703 F.2d 324, 327 (8th Cir. 1983) (“The question whether a particular
party is a ‘defendant’ for purposes of removal is a matter of federal law.”).
Atlantic urges the Court to follow the Eleventh Circuit’s holding in City of Vestavia Hills
v. General Fidelity Insurance Company, 676 F.3d 1310 (11th Cir. 2012), a case brought pursuant
to an Alabama statute that is nearly indistinguishable from Section 379.200. 1
Alabama Code § 27-23-2, under which Vestavia Hills was brought, reads:
Upon the recovery of a final judgment against any person, firm, or corporation by any
person, including administrators or executors, for loss or damage on account of bodily
injury, or death or for loss or damage to property, if the defendant in such action was
insured against the loss or damage at the time when the right of action arose, the
judgment creditor shall be entitled to have the insurance money provided for in the
contract of insurance between the insurer and the defendant applied to the satisfaction of
Eleventh Circuit held that the interests of the defendant-insured and the plaintiff were aligned
once the judgment was entered against the defendant-insured in the underlying case. Id. at
1314 (“[T]he only thing that [the defendant-insured] could want out of this case is for Vestavia
Hills to win.”).
Thus, for purposes of diversity jurisdiction, the Eleventh Circuit realigned the
defendant-insured with the plaintiff. Id.
Here, Atlantic argues that just as in Vestavia Hills,
both Hart and Knockerball would like nothing more than for Atlantic to fulfill the judgment, and
therefore Knockerball should be realigned with Hart.
Atlantic also argues that Randolph v.
Employers Mut. Liability Ins. Co., 260 F.2d 461 (8th Cir. 1958), supports such realignment.
Randolph noted, in dicta, that it would be proper in a garnishment action to align the underlying
defendant with the plaintiff for jurisdictional purposes. Id. at 464.
However, as Atlantic acknowledges, a number of Missouri federal district courts have
also taken up the issue, and each declined to realign the parties as Atlantic suggests. See, e.g.,
Goree v. PV Holding Corp., No. 4:15-CV-202 CEJ, 2015 WL 2238960, at *3 (E.D. Mo. May 12,
2015) (“Courts have repeatedly rejected the argument that judgment debtors sued under §
379.200 can be realigned as plaintiffs for the purposes of creating federal jurisdiction); Webster
the judgment, and if the judgment is not satisfied within 30 days after the date when it is
entered, the judgment creditor may proceed against the defendant and the insurer to reach
and apply the insurance money to the satisfaction of the judgment.
Mo. Rev. Stat. § 379.200 reads:
Upon the recovery of a final judgment against any person, firm or corporation by any
person, including administrators or executors, for loss or damage on account of bodily
injury or death, or damage to property if the defendant in such action was insured against
said loss or damage at the time when the right of action arose, the judgment creditor shall
be entitled to have the insurance money, provided for in the contract of insurance
between the insurance company, person, firm or association as described in section
379.195, and the defendant, applied to the satisfaction of the judgment, and if the
judgment is not satisfied within thirty days after the date when it is rendered, the
judgment creditor may proceed in equity against the defendant and the insurance
company to reach and apply the insurance money to the satisfaction of the judgment. This
section shall not apply to any insurance company in liquidation.
v. Mair, No. 4:15 CV 430 RWS, 2015 WL 1886640, at *2 (E.D. Mo. Apr. 24, 2015)
(“[Defendant-insured] cannot be realigned as a party-plaintiff.”); Kendall v. N. Assur. Co. of Am.,
No. 09-0539-CV-W-GAF, 2009 WL 2632757, at *2 (W.D. Mo. Aug. 25, 2009) (“This Court has
rejected this realignment argument on at least four separate occasions.”); Haines v. Sentinel Ins.
Co., No. 08-00981-CV-W-FJG, 2009 WL 648894, at *3 (W.D. Mo. Mar. 11, 2009) (“[T]he
Court finds that the realignment of [the defendant-insured] is improper in this action because he
is a necessary party defendant to the action under Mo.Rev.Stat. § 379.200.”).
Indeed, this Court
is one of the many that has declined to realign a defendant-insured with the plaintiff under
See Cincinnati Ins. Co. v. R & L Siding, Inc., No. 01–04091–CV–C–NKL,
2002 U.S. Dist. LEXIS 29357, (W.D. Mo. June 21, 2002).
Nevertheless, Atlantic asks the Court to ignore this long line of cases because the
previous decisions each “proceeded on a variety of erroneous premises or distinguishable facts.”
Notice of Removal, Doc. 1, p. 4. Some decisions, Atlantic argues, confuse the necessary party
concept with realignment.
Doc. 16, p. 12.
Others are allegedly inapplicable because the
decisions to remand were based upon whether or not the defendant-insured is a nominal party.
Doc. 16, p. 11.
Although the Court is not bound by the parties’ statutory alignment under Section
379.200, it is bound by Glover v. State Farm Fire and Casualty Company, 984 F.2d 259, 260
(8th Cir. 1993).
There, the Eighth Circuit affirmed the district court’s decision that Section
379.200 “require[d] joinder of [the defendant-insured] as an additional party defendant, and that
joinder of [the defendant-insured] in the federal action would destroy diversity jurisdiction.”
Id. at 260. Glover also affirmed the district court’s holding that “[the plaintiff] could not bring
such an action [under Section 379.200] in federal court,” id. at 260-261, a critical requirement of
removal under 28 U.S.C. 1441(a).
Federal courts have an obligation to exercise the jurisdiction bestowed upon them.
Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976) (noting the
“virtually unflagging obligation of the federal courts to exercise the jurisdiction given them”).
Therefore, in affirming the district court’s jurisdictional determinations, Glover implicitly
rejected the use of realignment to create federal jurisdiction.
The Eighth Circuit’s earlier
decision, Randolph, does not affect the outcome of this case because it did not consider equitable
garnishment under Section 379.200.
Under Section 379.200, Knockerball is a necessary
party-defendant to Hart’s equitable garnishment action, and realignment of Knockerball with
Hart is not proper because it would create diversity in contradiction to Glover.
Because Hart and Knockerball are both undisputed citizens of Missouri, and the Court
declines to realign the parties, diversity of citizenship does not exist and the Court is without
jurisdiction to entertain the removed action.
The question of whether Section 379.200
constitutes a “direct action,” as that phrase is used in 28 U.S.C. § 1332(c)(1), does not affect the
outcome of these motions, and therefore the Court need not address the issue.
For the foregoing reasons, Plaintiff Hart’s Motion to Remand, Doc. 3, and Defendant
Knockerball MidMo, LLC’s Motion to Remand, Doc. 7 are granted. Because the Court grants
the Motions to Remand, Defendant Knockerball MidMo, LLC’s Motion for Leave to File First
Amended Cross-Claim, Doc. 40, is denied for lack of subject matter jurisdiction.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: December 8, 2017
Jefferson City, Missouri
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