Butcher v. American Economy Insurance Company

Filing 6

ORDER Proposed discovery plan is moot, new plan to be filed after workers compensation carrier is added, parties to show cause why the case should not be remanded for lack of complete diversity, ( Amended Pleadings due by 10/28/2011., Discovery plan deadline 11/18/2011., Follow up on Show Cause Response on 9/26/2011.) So Ordered by Magistrate Judge Landya B. McCafferty.(mm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Paul Butcher
v.

Civil No. 11-cv-306-PB

American Economy Insurance
Company, et al.

O R D E R
On August 26, 2011, a preliminary pretrial conference was
held in this case.

Peter M. Solomon, Esquire, appeared for

plaintiff and Donald L. Smith, Esquire, appeared for defendant.
As discussed with both counsel, the court declines to approve
the Proposed Discovery Plan (doc. no. 5) as it is moot.
Plaintiff and defendant intend to join the workers’ compensation
carrier for plaintiff’s employer, whom they both agree is an
indispensable party.

Plaintiff and defendant agree that this

party shall be joined on or before October 28, 2011.

Once that

party is added to this lawsuit, the parties will file a renewed
proposed discovery plan.
concurs,

Assuming that the to-be-joined party

that discovery plan will likely include a request to

place the case on an expedited discovery track.

The parties

shall file a discovery plan on or before November 18, 2011.

Counsel agreed that once the additional party is included
in the lawsuit, the likelihood of a global settlement will be
enhanced.
The court notes that the docket incorrectly reflects two
named defendants in this case.

In a removal case, the original

entry of named parties on this court’s docket must mirror the
named parties in the state court pleading.
petition names only one defendant:

The state court

American Economy Insurance

Company Underwriting for Safeco Insurance Company of America
(“American”).

The clerk’s office is directed to correct the

docket to mirror the named parties in the state court petition.
As it stands, there does not appear to be complete
diversity here.

According to the state court petition,

plaintiff is a New Hampshire resident and American’s principal
place of business is located in Keene, New Hampshire.

According

to the Notice of Removal, plaintiff named the wrong defendant in
its state court pleading and the correct defendant, Safeco
Insurance Company of America, is a corporate citizen of a state
other than New Hampshire.

That may be, but as the parties must

well appreciate, the court’s consideration of this case is
necessarily limited to the case plaintiff filed, including the
defendant he named, not the case defendant thinks plaintiff
should have filed.

On or before September 26, 2011, the parties

shall each show cause why the court should not recommend that
the district judge remand the case for lack of complete
diversity.

__________________________
Landya B. McCafferty
United States Magistrate Judge
August 30, 2011
cc:

Andrew D. Dunn, Esq.
Peter M. Solomon, Esq.