Woulard et al v. Rogers et al

Filing 14

Memorandum Opinion and Order Granting Plaintiffs' 9 Motion to Remand. Signed by District Judge Irene M. Keeley on 5/30/12. (Cert. copy, with cert. copy of docket sheet forwarded to Monongalia County Circuit Court)(mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JUSTIN WOULARD, JENNIFER WOULARD,
and JUSTIN WOULARD, natural parent
of M.W. and J.W., minors
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:12CV65
(Judge Keeley)

MARC C. ROGERS, an individual,
MAPERO, LLC, a limited liability
company, FAIRMOR, LP, a limited
partnership, and ERIE INSURANCE
PROPERTY and CASUALTY, a foreign
corporation,
Defendants,
JOHN D. SUMMERS, doing business as
John D. Summers, Construction,
Third-Party Defendant.

MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 9]
Before the Court is the plaintiffs’ motion to remand (dkt. no.
9). For the reasons discussed below, the Court GRANTS the motion
and REMANDS this case to the Circuit Court of Monongalia County,
West Virginia.
I.
The plaintiffs, Justin Woulard, Jennifer Woulard, and their
minor children M.W. and J.W. (collectively “the plaintiffs” or “the
Wouldards”), rented the upper level of a duplex apartment owned by
the defendant Marc Rogers, the president and owner of the defendant

WOULARD, ET AL. v. ROGERS, ET AL.

1:12CV65

MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 9]
Mapero LLC, which operates as a general partner of the defendant
Fairmor, LP (collectively “the Rogers defendants”). The defendant
Erie Insurance Property and Casualty (“Erie”) provides medical
expense and liability coverage to Marc Rogers. This case arises
from the personal injuries sustained by the Woulards when they
suffered carbon monoxide poisoning in their home.
On November 14, 2011, the plaintiffs filed a complaint against
the Rogers defendants in the Circuit Court of Monongalia County,
West Virginia, asserting various causes of action for breach of
implied warranty of habitability and professional negligence. On
March 20, 2012, the plaintiffs amended their complaint to add two
declaratory judgment counts against Erie, seeking resolution of
certain questions related to the Rogers defendants’ insurance
coverage.
Erie timely removed this civil action under 28 U.S.C. §§ 1441
and 1446, invoking this Court’s diversity jurisdiction pursuant to
28 U.S.C. § 1332. Erie argues that the Court has subject matter
jurisdiction over this case because complete diversity exists
between the plaintiffs, residents of West Virginia, and Erie, a
Pennsylvania

corporation.

Erie

contends

that

the

plaintiffs

fraudulently misjoined their claims against Erie with those against

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WOULARD, ET AL. v. ROGERS, ET AL.

1:12CV65

MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 9]
the Rogers defendants, also West Virginia residents, in an attempt
to defeat removal. On this theory, Erie has moved to bifurcate the
plaintiffs’ claims. (Dkt. No. 4). The plaintiffs, however, contend
that their claims against the defendants are properly joined and,
on May 9, 2012, moved to remand this case to state court on the
ground that the Rogers defendants’ presence necessarily destroys
this Court’s diversity jurisdiction. (Dkt. No. 9).
II.
Federal district courts 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). Although the
complete diversity requirement of § 1332(a) is only satisfied where
the lawsuit contains “no plaintiff and no defendant who are
citizens of the same state,” Wis. Dep’t of Corrs. v. Schacht, 524
U.S. 381, 388 (1998), a nondiverse defendant may nevertheless
remove a minimally diverse case if it can demonstrate that it was
fraudulently misjoined in the state action. See Tapscott v. MS
Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996), abrogated on
other grounds, Cohen v. Office Depot, 204 F.3d 1069 (11th Cir.

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WOULARD, ET AL. v. ROGERS, ET AL.

1:12CV65

MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 9]
2000).1 A district court will then sever the claims against the
misjoined parties, remand the severed claims between the nondiverse
parties, and retain jurisdiction over the claims between the
diverse parties. Ryan Environmental, Inc. v. Hess Oil Co., 718
F.Supp.2d 719, 726 (N.D. W. Va. 2010) (citing Tapscott, 77 F.3d at
1353).
“Fraudulent misjoinder is an assertion that claims against
certain defendants, while provable, have no real connection to the
claims against other defendants in the same action and were only
included in order to defeat diversity jurisdiction and removal.”
Wyatt v. Charleston Area Med. Ctr., Inc., 651 F.Supp.2d 492, 496
(S.D. W. Va. 2009). District courts in West Virginia have found
that a plaintiff has fraudulently misjoined a defendant if such
joinder fails to satisfy the prerequisites for permissive joinder.
Fed. R. Civ. P. 20(a)(2) states that two or more defendants may be
joined in one action if:

1

Although the “fraudulent misjoinder” doctrine has not been
uniformly adopted or applied in all federal jurisdictions, it has
been adopted in both the Northern and Southern Districts of West
Virginia. See Hughes v. Sears, Roebuck and Co., No. 2:09-CV-93,
2009 WL 2877424, at *2-3 (N.D. W. Va. Sep. 3, 2009)); Ashworth v.
Albers Medical, Inc., 395 F.Supp.2d 395, 409-10 (S.D. W. Va. 2005).

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1:12CV65

MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 9]
(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or
series of transactions or occurrences; and (B) any
question of law or fact common to all defendants will
arise in the action.
Fed.

R.

Civ.

P.

20(a)(2);

see

also

W.

Va.

R.

Civ.

P.

20

(substantially same). The Supreme Court of the United States has
said that Rule 20(a) must be interpreted to allow for the “broadest
possible scope of action consistent with fairness to the parties;
joinder of claims, parties and remedies is strongly encouraged.”
United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966).
Therefore, “the rule should be construed in light of its purpose,
‘which is to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits.’”
Saval v. BL, Ltd., 710 F.2d 1027, 1031 (4th Cir. 1983) (quoting
Mosley v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir.
1974)).
III.
The parties have focused much of their attention on the
propriety of bifurcation pursuant to W. Va. R. Civ. P. 42(c) and
the question of abstention pursuant to factors enumerated in
Nautilus Ins. Co. v. Winchester Homes, Inc., 15 F.3d 371, 376 (4th
Cir. 1994). These arguments, however, are largely irrelevant to the
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MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 9]
threshold

jurisdictional

issue

before

the

Court.

Rather

than

deciding whether separate trials of this matter would “further[] .
. . convenience . . . or avoid prejudice” or serve the interests of
expedience or economy, W. Va. R. Civ. P. 42(c), this Court must
determine

whether

the

defendants

were

even

capable

of

being

permissively joined in the first instance. Fed. R. Civ. P. 20, 21.
Similarly, the doctrines of abstention are only relevant where a
Court evaluates the propriety of hearing a case “that is otherwise
properly within its jurisdiction.”

Nautilus Ins. Co., 15 F.3d at

375. Without fraudulent misjoinder, the Court has no jurisdiction
from which to abstain.
Turning instead to the procedural correctness of the joinder
in this case, West Virginia law is clear that an injured plaintiff
may bring a declaratory judgment action against the defendants’
insurance carrier “‘in the original personal injury suit rather
than by way of separate action.’” State ex. rel., Piper v. Sanders,
--- S.E.2d ----, 2012 WL 987413, at *3 (W. Va. March 23, 2012)
(quoting Syl. Pt. 4, Christian v. Sizemore, 383 S.E.2d 810 (W. Va.
1989)); see also Price v. Messer, 872 F.Supp. 317, 321 (S.D. W. Va.
1995) (“A plaintiff may join a claim against a tortfeasor with a
related

claim

against

the

tortfeasor’s

6

insurer

concerning

WOULARD, ET AL. v. ROGERS, ET AL.

1:12CV65

MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 9]
coverage.”). Other district courts in this circuit have found that
a plaintiff’s insurer may be properly joined with the alleged
tortfeasor when the lawsuit alleges the tortfeasor caused harm
allegedly covered under the policy. See generally John S. Clark Co.
v. Travelers Indem. Co. of Ill., 359 F.Supp.2d 429 (M.D.N.C. 2004);
Hanna v. Gravett, 262 F.Supp.2d 643, 647 (E.D. Va. 2003).
It is undisputed that the plaintiffs properly joined Erie in
this action under applicable state law. The plaintiffs have further
made a plausible argument that Erie, as the issuer of an insurance
policy allegedly covering the damages at issue in this action, is
logically and properly joined in this case under Rule 20(a)(2).
Ultimately,

Erie

has

simply

failed

to

carry

its

burden

of

establishing that it cannot be joined in the same lawsuit as the
Rogers defendants. As Erie and the Rogers defendants are not
fraudulently misjoined and complete diversity is thus absent on the
face of the complaint, this Court lacks subject matter jurisdiction
over this action and GRANTS the plaintiffs’ motion to remand.
IV.
In conclusion, for the reasons discussed, the Court GRANTS the
plaintiffs’ motion to remand (dkt. no. 9), REMANDS this case to the
Circuit Court of Monongalia County, West Virginia, and CANCELS the
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1:12CV65

MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION TO REMAND [DKT. NO. 9]
Scheduling Conference currently set for Wednesday, May 30, at 11:30
a.m.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: May 30, 2012.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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