Robertson et al v. Cincinnati Life Insurance Company et al
MEMORANDUM OPINION AND ORDER denying 13 MOTION by Heather Robertson, Jon Robertson to Remand Case to Circuit Court of Cabell County; granting 3 MOTION by RDN & Associates to Dismiss Complaint; Defendants RDN & Associates and Greg Jones are to be DISMISSED from the action. Signed by Judge Robert C. Chambers on 10/14/2016. (cc: attys; any unrepresented parties) (mkw)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HEATHER ROBERTSON, individually
and as the personal representative of
Jon Robertson, deceased,
CIVIL ACTION NO. 3:16-4242
THE CINCINNATI LIFE INSURANCE COMPANY,
a foreign corporation,
GREG JONES, individually and
as an agent of RDN & Associates, and
RDN & ASSOCIATES, a West Virginia corporation,
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant RDN & Associates, LLC’s Motion to Dismiss
pursuant to Federal Rule 12(b)(6) (ECF No. 3) and Plaintiff Heather Robertson’s Motion to
Remand (ECF No. 13). For the following reasons, the Court DENIES Plaintiff’s Motion to
Remand and GRANTS Defendant RDN’s Motion to Dismiss.
Plaintiff sued Defendants in state court, alleging that Defendant The Cincinnati Life
Insurance Company (Cincinnati Life) wrongfully denied Plaintiff her life insurance coverage and
benefits as beneficiary. Pl.’s Compl., ECF No. 1-1, at ¶ 19. Plaintiff’s decedent, Jon Robertson,
submitted a life insurance application in early January 2013 with Cincinnati Life through the
assistance of Defendant Greg Jones (Jones). 1 Id. at ¶ 10. The Complaint labels Jones as
Defendant RDN & Associates, LLC’s (RDN) agent. 2 Id. at ¶ 3. Plaintiff asserts that Jones
answered all of the application questions and that all the information was accurate. Id. at ¶¶ 10,
Cincinnati Life issued a life insurance policy to Mr. Robertson in late January 2013. Id.
at ¶ 11. Approximately two years later, Mr. Robertson died from complications relating to
esophageal cancer. Id. at ¶ 14. Plaintiff filed a claim to Cincinnati Life for the life insurance
coverage and benefits as beneficiary. Id. at ¶ 17. However, Cincinnati Life refused to pay on
the policy because Mr. Robertson allegedly misrepresented material facts about his medical
condition in the application, specifically regarding his use of tobacco or nicotine and whether he
had experienced chest pain within the last ten years. Id. at ¶ 20.
Plaintiff brings five separate counts against Defendants. The first three target Cincinnati
Life for breach of contract, violation of the West Virginia Unfair Trade Practices Act (UTPA), and
common law bad faith. Plaintiff brings a claim under reasonable expectation of insurance
coverage against all three Defendants, and a separate claim against RDN and Jones for a violation
of the UTPA. For the reasonable expectations claim, Plaintiff specifically alleges that she and
her husband “relied upon representations” from Defendants “that the life insurance application
was submitted appropriately and the policy would provide coverage and pay in the event of the
death of Jon Robertson.” Id. at ¶ 45. For the UTPA claim against Jones and RDN, Plaintiff states
The Court acknowledges that Jones has not made an appearance in this case. However,
RDN’s Motion to Dismiss covers all actions by Jones during his employment and, specifically,
during the preparation of Mr. Robertson’s application. The Court does not find any allegations
regarding Jones in his individual capacity within Plaintiff’s Complaint. The Motion to Dismiss,
thus, fully explains why Jones was fraudulently joined as a defendant.
RDN refutes that Jones acts as its agent, but the Court considers Plaintiff’s allegations as
true statements for the motion to remand and motion to dismiss standards.
that Defendants violated the “statute in connection with the sale and procurement of Jon
Robertson’s life insurance policy.” Id. at ¶ 51.
Defendants removed the case to federal court pursuant to 28 U.S.C. § 1441, basing the
Court’s jurisdiction on diversity jurisdiction under 28 U.S.C. § 1332. Notice of Removal, ECF
No. 1. Diversity jurisdiction applies if the case involves complete diversity with citizens from
different states and if the amount in controversy exceeds $75,000, exclusive of interests and costs.
See 28 U.S.C. §1332. The parties agree that the amount in controversy exceeds $75,000, in part
because the policy covered $120,000.00. Notice of Removal, ECF No. 1, at ¶ 12. Plaintiff moved
to remand the case to state court, arguing that removal was improper because the parties lack
complete diversity. Pl.’s Mot. to Remand, ECF No. 13, at 3. Defendants Jones and RDN are
citizens of West Virginia, the same state that Plaintiff is domiciled. Defendants allege that
Plaintiff fraudulently joined RDN and Jones to the action to prevent federal court jurisdiction.
Notice of Removal, ECF No. 1, at ¶ 9. Thus, Defendants argue that Jones and RDN must be
dismissed from the action, leaving only diverse parties and conferring jurisdiction on this Court.
See Def. Cincinnati Life’s Resp. in Opp., ECF No. 15, at 1. The Court will first address the Motion
to Remand to assess whether it has jurisdiction, and then turn to the Motion to Dismiss.
The party seeking removal has the burden of proving jurisdiction. See Wilson v. Republic
Iron & Steel Co., 257 U.S. 92, 97 (1921). “Because removal jurisdiction raises significant
federalism concerns, we must strictly construe removal jurisdiction.” Mulcahey v. Columbia
Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994). District courts have original jurisdiction
over civil actions between citizens of different states with complete diversity when the amount in
controversy exceeds $75,000, exclusive of interests and costs. 28 U.S.C. § 1332.
Even though the statute requires complete diversity, district courts can disregard the
citizenship of parties who were fraudulently joined to destroy diversity. See Marshall v. Manville
Sales Corp., 6 F.3d 229, 232-33 (4th Cir. 1993). To prove fraudulent joinder and establish
jurisdiction, the removing party must show either (1) “outright fraud in the plaintiff’s pleading of
jurisdictional facts” or (2) “that there is no possibility that the plaintiff would be able to establish
a cause of action against the in-state defendant in state court.” Hartley v. CSX Transp., Inc., 187
F.3d 422, 424 (4th Cir. 1999) (quoting Marshall, 6 F.3d at 232). Fraudulent joinder “effectively
permits a district court to disregard, for jurisdictional purposes, the citizenship of certain
nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and
thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999).
This jurisdictional inquiry is not the appropriate phase of litigation in which to “resolve …
various uncertain questions of law and fact.” Hartley, 187 F.3d at 425. “A claim which can be
dismissed only after an intricate analysis of state law is not so wholly insubstantial and frivolous
that it may be disregarded for purposes of diversity jurisdiction.” Batoff v. State Farm Ins. Co.,
977 F.2d 848, 853 (3d Cir. 1992). In Hartley, the Fourth Circuit explained that the defendant
“alleging fraudulent joinder bears a heavy burden” as the defendant must be able to show “that the
plaintiff cannot establish a claim even after resolving all issues of law and fact in the plaintiff’s
favor.” 187 F.3d at 424 (citation omitted). The applicable standard is “more favorable to the
plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” Id.
The plaintiff must demonstrate “only a slight possibility of a right to relief” because “[o]nce the
court identifies this glimmer of hope for the plaintiff, the jurisdictional inquiry ends.” Id. at 426.
a. Cincinnati Life Met its Burden for Removal
The threshold question for this Court is whether Cincinnati Life has met its burden of proof
when filing its Notice of Removal. Plaintiff argues that Cincinnati Life made conclusory legal
assertions that RDN and Jones were fraudulently joined instead of providing any factual assertions
that demonstrate “outright fraud” or “that there is no possibility that plaintiff” can establish legal
claims against the nondiverse defendants. Pl.’s Mem. of Law in Supp. of Pl.’s Mot. to Remand,
ECF No. 14, at 4-5; see also Hartley, 187 F.3d at 424. A party moving for removal must make a
showing by “a statement of facts rightly leading to that conclusion apart from the pleader’s
deductions.” Wilson, 257 U.S. at 97.
However, the Court agrees with Cincinnati Life that a notice of removal does not need to
contain these factual allegations as long as the reasons for removal can be supported when
challenged. The statute on removal mandates that “[a] defendant or defendants desiring to
remove any civil action from a State court shall file in the district court … a notice of removal …
containing a short and plain statement of the grounds for removal.”
28 U.S.C. § 1446(a)
The statute does not require detailed factual allegations as to why the
defendants were improperly joined, only a short statement of why removal is warranted.
Cincinnati Life’s Notice of Removal meets this standard, stating that RDN and Jones are
“fraudulently and/or improperly joined” and thus should be excluded from the Court’s
determination of complete diversity.3 See Notice of Removal, ECF No. 1, at ¶¶ 5-6.
Furthermore, the Supreme Court’s analysis in Dart Cherokee Basin Operating Company,
LLC v. Owens provides a helpful comparison. 135 S.Ct. 547 (2014) (involving defendant in Class
The Notice of Removal also explained why Jones’s consent to removal was unnecessary
as he was fraudulently joined to the action. See Fleming v. United Teacher Assocs. Ins. Co., 250
F. Supp. 2d 658, 663 (S.D.W. Va. 2003) (holding that fraudulently joined defendants need not
consent to removal).
Action Fairness Act lawsuit justifying removal by amount in controversy). In that case, the Court
recognized that the removal statute mirrors the “general pleading requirement stated in Rule 8(a)
of the Federal Rules of Civil Procedure”, and that “[a] statement short and plain need not contain
evidentiary submissions.” Id. at 551 (internal quotations omitted). Rather, a notice of removal
must contain only “a plausible allegation” for the amount in controversy that can be supported
with evidence after “the plaintiff contests, or the court questions, the defendant’s allegation.” Id.
at 554; see also Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008) (“on
a challenge of jurisdictional allegations, the party seeking removal bears the burden” (internal
quotations and citation omitted)). Although that case involved a decision based on the amount in
controversy, the same justification supports requiring evidence for fraudulent joinder once a
plaintiff challenges removal rather than requiring it to be stated within the notice of removal.
Moreover, the Fourth Circuit does not bind the Court’s analysis on proper removal to the
pleadings’ allegations but allows the Court to “consider the entire record, and determine the basis
of joinder by any means available.” Mayes, 198 F.3d at 464 (quoting AIDS Counseling & Testing
Ctrs., 903 F.2d 1000, 1004 (4th Cir. 1990)). Thus, the determination of whether RDN and Jones
were fraudulently joined is not limited to what is alleged in the Notice of Removal, and the Court
can “consider evidence outside the pleadings” in making the decision of jurisdiction. Ashworth
v. Albers Med., Inc., 395 F. Supp. 2d 395, 403 (S.D.W. Va. 2005) (citation omitted).
Here, Cincinnati Life does not allege that Plaintiff committed outright fraud in the
Complaint. Rather, the basis for federal jurisdiction is on complete diversity because RDN and
Jones were fraudulently joined as in-state defendants. This claim is stated forthrightly in the
Notice of Removal, and Cincinnati Life supported this allegation when challenged by Plaintiff’s
Motion to Remand. Thus, the Court finds that Cincinnati Life has adequately met its burden to
remove the case, and the Court can, in turn, discuss the claims of fraudulent joinder. The Court’s
inquiry is limited to whether Plaintiff conceivably may state a claim against either RDN or Jones
under West Virginia law based on the allegations in the Complaint.
b. Claim for Reasonable Expectation of Insurance Coverage
Because Plaintiff’s causes of actions are based on West Virginia law, the Court looks to
the law of that state to determine fraudulent joinder. Plaintiff’s first claim concerning RDN and
Jones appears in Count Four for reasonable expectation of insurance coverage. The Supreme
Court of Appeals of West Virginia has held that both the insurance company and the agent can be
held liable when the agent creates a reasonable expectation of insurance coverage. Keller v. First
Nat’l Bank, 403 S.E.2d 424, 428 (W. Va. 1991). A reasonable expectations claim incorporates
the “traditional rule that any ambiguities in an insurance policy will be resolved in favor of the
insured.” Staley v. Mun. Mut. Ins. Co. of W. Va., 282 S.E.2d 56, 59 (W. Va. 1981). The doctrine
is to guarantee that “the objectively reasonable expectations of applicants and intended
beneficiaries regarding the terms of insurance contracts will be honored even though painstaking
study of the policy provisions would have negated those expectations.” Nat’l Mut. Ins. Co. v.
McMahon & Sons, Inc., 356 S.E.2d 488, 495 (W. Va. 1987) (citation omitted), overruled on other
grounds by Parsons v. Halliburton Energy Servs., Inc., 785 S.E.2d 844 (W. Va. 2016). This
doctrine traditionally has been applied only to situations in which policy language was ambiguous.
Id. at 496. However, the West Virginia courts have recognized limited extensions to the doctrine
when the insurance agent affirmatively misrepresented part of the policy to the insured plaintiffs.
See Costello v. Costello, 465 S.E.2d 620 (W. Va. 1995); Keller, 403 S.E.2d 424 (W. Va. 1991);
see also Lewis v. State Farm & Cas. Co., Civ. No. 3:14-24452, 2015 WL 502035, at *3 (S.D.W.
Va. Feb. 5, 2015) (relying on allegations that agent told plaintiffs of specific policy coverage for
rock falls that were later denied when granting motion to remand).
The first such extension involved a reasonable expectation of credit life insurance. In
Keller, Mrs. Keller received a renewal notice for her credit life insurance policy from the defendant
bank, but the bank determined that the renewal was erroneously issued. 403 S.E.2d at 426. The
bank cancelled the life insurance policy without informing Mrs. Keller’s husband, and when Mrs.
Keller died, the bank claimed that no credit life insurance policy was in effect. Id. The court
held that the bank “must give the coverage or promptly notify the insured of the denial” after
actively creating a reasonable expectation of coverage through the renewal notice. Id. at 427.
The second extension appeared in Costello, when the plaintiff was injured in a motorcycle
accident and required insurance coverage from a different vehicle jointly owned with her husband
to help pay for the medical bills incurred. 465 S.E.2d at 622. The insurance company denied the
claim because the plaintiff was not named on the policy and was separated from her husband at
the time. Id. The court held that the plaintiff successfully made a claim against the insurance
agent because she reasonably expected to be named as an insured person under the policy. Id. at
624. The agent’s affirmative conduct in the application process led the plaintiff to believe that
she had identical coverage to her husband, and the court found that a jury could rule in favor of
the plaintiff on that claim. Id. Both of these cases represent the limited extension of the doctrine
when an insurance agent engages in “specific conduct … during the application or administration
process which creates some reasonable expectation of insurance coverage.” Lansing v. Allstate
Ins. Co., Civ. No. 5:12-cv-0676, 2012 WL 1566354, at *4 (S.D.W. Va. May 2, 2012).
As RDN references in its Response, the Supreme Court of Appeals of West Virginia has
retracted from these extensions and reasserted the notion that ambiguity is required to justify a
reasonable expectations claim. See RDN’s Resp. to Pl.’s Mot. to Remand, ECF No. 17, at 9 n.6.
In Robertson v. Fowler, the court highlighted that “there must be an ambiguity regarding the terms
of that contract” for reasonable expectations to apply. 475 S.E.2d 116, 120 (W. Va. 1996). The
court did not take that opportunity to explicitly overturn the extensions in Keller and Costello and
has not yet clarified its position on whether such extensions still exist. As noted previously by
this Court, “Robertson might very well be an implicit abrogation of Keller and Costello.” Hill v.
John Alden Life Ins. Co., 556 F. Supp. 2d 571, 574 (S.D.W. Va. 2008).
Regardless of whether Keller and Costello are implicitly overruled, Plaintiff’s reliance on
the allowed extensions is misplaced. Keller and Costello each involved an insurance agent who
“took affirmative action or made specific statements which created a misconception” that the
plaintiff reasonably relied upon. Hill, 556 F. Supp. 2d at 574. Here, there are no allegations that
the agent misrepresented the potential coverage, no allegations of unnoticed cancellation, and no
mistakes by the agent in filling out the application. See Call ex rel. Estate of Call v. Protective
Life Ins. Co., Civ. No. 3:06-0068, 2006 WL 5926005, at *5 (S.D.W. Va. June 28, 2006) (pleading
agent’s assurances of coverage after explaining medical history, which sustained claim). Plaintiff
alleges that she “relied upon representations … that the life insurance application was submitted
appropriately and the policy would provide coverage and pay in the event of the death of Jon
Robertson.” Pl.’s Compl., ECF No. 1-1, at ¶ 45; see also id. at ¶ 46 (reasonably expecting for the
application “to be correctly processed”). The only affirmative conduct of RDN and Jones within
the Complaint is a representation that Cincinnati Life would pay upon Mr. Robertson’s death in
accordance with the policy. Id. at ¶ 47. There are no facts that show that the application was not
submitted properly or that RDN or Jones acted in a way to prevent Plaintiff’s coverage. Instead,
the Complaint demonstrates that Jones acted in the exact way that Plaintiff expected: correctly
processing and submitting the truthful application for potential coverage. Plaintiff admits that
Jones filled out the application accurately based on the information provided to him and cannot
point to any specific conduct of policy misrepresentation. Id. at ¶¶ 21-22 (stating that Mr.
Robertson did not smoke or complain of chest pains, as was answered on his insurance
application). Cincinnati Life approved the policy, proving that Jones and RDN submitted the
application properly. Id. at ¶ 12. Plaintiff challenges the later denial in coverage, but the
insurance application includes a clause that warns applicants that “any false statement or
misrepresentation may result in the loss of coverage under the policy.” Cincinnati Life Ins.
Policy, ECF No. 16-1, at 24. This is the clause that allegedly justifies Cincinnati Life’s denial of
benefits, and Plaintiff and her husband were aware of it when Mr. Robertson signed the application.
Thus, absent conduct from RDN or Jones to assert otherwise, the denial of benefits from an alleged
material misrepresentation does not create a reasonable expectations claim against RDN or Jones.
None of the other allegations or factual support within the Complaint can support a claim
of reasonable expectations against Jones or RDN either.4 The instant action is simply an argument
over the policy’s enforcement and Cincinnati Life’s decision not to issue the benefits. The
decision to deny coverage was a decision by Cincinnati Life, and Plaintiff cannot point to any
involvement or influence from Jones or RDN in reaching that decision. Plaintiff challenges the
alleged material misrepresentation that Cincinnati Life cites to as the reason for its denial, but
Plaintiff fails to attribute any of the conduct that led to the denial to Jones’s or RDN’s actions.
In briefing, the parties dispute over whether Jones misunderstood a question regarding
Mr. Robertson’s chest pain and how that could have affected the application. See Pl.’s Reply to
Cincinnati Life’s Resp. in Opp. to Pl.’s Mot. to Remand, ECF No. 18, at 5. Plaintiff still however
maintains that the application was filled out correctly. Id. Cincinnati Life further explains that
the question on chest pain asked whether the applicant “had or been told by a medical professional
he/she had” chest pain. See Cincinnati Life’s Mot. for Leave to Supp. its Resp., ECF No. 20, at 2.
As this discussion was based on a misunderstanding in briefing, the Court finds that the additional
allegation does not justify a reasonable expectations claim against Jones or RDN.
Submitting a truthful application on behalf of an applicant does not create a reasonable expectation
of insurance coverage upon the applicant’s death.
Ultimately, this case is similar to one in which this Court refused to “stretch the doctrine
of reasonable expectation of insurance coverage so far that an insurance agent may be held liable
for the unilateral decision of the insurance provider, when no representations are made regarding
that future decision.” Hill, 556 F. Supp. 2d at 575 (attempting to hold insurance agent liable for
interpretation of pre-existing condition by the insurance company). In that case and this case, the
parties disagree on the interpretation and enforcement of one of the clauses within the application.
See id. Like the plaintiff in Hill, Plaintiff here cannot sustain a claim against either Jones or RDN
for reasonable expectation of insurance coverage.
c. Claim Under the West Virginia Unfair Trade Practices Act
Plaintiff’s second cause of action against Jones and RDN in Count Five alleges a violation
of the UTPA.5 Pl.’s Compl., ECF No. 1-1, at ¶¶ 50-51. Plaintiff points out that the UTPA creates
Plaintiff does not make a specific statutory violation allegation, but rather cites the
entirety of UTPA § 33-11-4(1):
(1) Misrepresentation and false advertising of insurance policies.—
No person shall make, issue, circulate, or cause to be made,
issued or circulated, any estimate, circular, statement, sales
presentation, omission or comparison which:
(a) Misrepresents the benefits, advantages, conditions or terms of
any insurance policy; or
(b) Misrepresents the dividends or share of the surplus to be
received on any insurance policy; or
(c) Makes any false or misleading statements as to the dividends or
share of surplus previously paid on any insurance policy; or
(d) Is misleading or is a misrepresentation as to the financial
condition of any person, or as to the legal reserve system upon
which any life insurer operates; or
(e) Uses any name or title of any insurance policy or class of
insurance policies misrepresenting the true nature thereof; or
a private cause of action, allowing claims against an individual insurance agent for personal
liability. See Taylor v. Nationwide Mut. Ins. Co., 589 S.E.2d 55, 61 (W. Va. 2003). However,
in order to sustain a cause of action, Plaintiff must allege conduct violating the UTPA, which
Plaintiff has failed to do here.
After copying the UTPA into the Complaint, Plaintiff’s only allegation against Jones and
RDN is that “[t]he defendants violated the above statute in connection with the sale and
procurement of Jon Robertson’s life insurance policy.” Pl.’s Compl., ECF 1-1, at ¶ 51. There
are no factual allegations that tie Jones or RDN to a misrepresentation of benefits, dividends,
financial conditions of a person or the insurance company, the nature of the insurance company,
or the purpose behind acquiring the policy. See, e.g., Halkias v. AXA Equitable Life Ins. Co., Civ.
No. 2:05-cv-0438, 2006 WL 890620, at *3 (S.D.W. Va. Apr. 4, 2006) (finding enough factual
allegations to support UTPA claim when complaint alleged that defendant “intentionally
misrepresent[ed] the terms and conditions of [the] policy”); Fellure v. Equitable Variable Life Ins.
Co., Civ. No. 2:05-cv-0214, 2005 WL 3115851, at *1 (S.D.W. Va. Nov. 21, 2005) (alleging
“fraudulently concealed information” and “misrepresenting an insurance policy” under the
In the Motion to Remand, Plaintiff argues that Jones’s representation that the
“application was submitted appropriately; that it would be correctly processed; and that life
insurance benefits would be paid” became a misrepresentation simply because Cincinnati Life
refused to pay on the policy according to the policy’s terms. Pl.’s Mot. to Remand, ECF No. 14,
(f) Is a misrepresentation for the purpose of inducting or tending to
induce the lapse, forfeiture, exchange, conversion or surrender
of any insurance policy; or
(g) Is a misrepresentation for the purpose of effecting a pledge or
assignment of or effecting a loan against any insurance policy;
(h) Misrepresents any insurance policy as being shares of stock.
As explained in the analysis of the reasonable expectations claim, Jones submitted the
application accurately based on all of the answers provided by Mr. Robertson, which Plaintiff
maintains are truthful statements. The policy was correctly processed, evidenced by Cincinnati
Life issuing the policy in late January 2013. There are no factual allegations within the Complaint
that demonstrate any misrepresentations or false advertisements by Jones or RDN. 6 Cincinnati
Life denied the policy claim and refused to pay because Mr. Robertson allegedly made material
misrepresentations on the application. Pl.’s Compl., ECF No. 1-1, at ¶ 20. This caveat to
coverage was stated plainly in the life insurance application, and there is no allegation that Jones
or RDN made any representation that such clause would not apply if Mr. Robertson provided
materially false information on the application. See Cincinnati Life Ins. Policy, ECF No. 16-1, at
24. The fact that Cincinnati Life denied insurance benefits to Plaintiff does not automatically
translate into misrepresentations by the agent or agency that helped procure the life insurance
policy. Life insurance benefits would have been paid under the policy if Cincinnati Life had not
discovered alleged material misrepresentations on the application made by Mr. Robertson.
Plaintiff attempts with this second claim “to hold insurance agents liable for the provider’s
unfavorable decision.” Hill, 556 F. Supp. 2d at 576. Thus, the Court finds that Plaintiff has no
plausible claim against RDN or Jones for a violation of the UTPA.
Accordingly, the Court finds that Plaintiff has not alleged viable claims against Jones or
Plaintiff points to Jones’s failure to tell Mr. Robertson that he had “to supplement or
update his [medical] information” after the application was submitted, but the Court finds this
argument to be unfounded. See Pl.’s Reply to Cincinnati Life’s Resp. in Opp. to Pl.’s Mot. to
Remand, ECF No. 18, at 7. There is no indication in the pleadings to suggest that such additional
information was necessary, and Cincinnati Life granted the policy in January 2013, demonstrating
that all information had been provided.
RDN. Both Jones and RDN were fraudulently joined in an effort to destroy complete diversity.
Jones, RDN, and Plaintiff are all citizens of West Virginia. Cincinnati Life’s principal place of
business and state of incorporation are in Ohio, making Ohio its citizenship for diversity purposes.
Having found that the two in-state defendants were fraudulently joined, diversity is complete.
Plaintiff’s Motion to Remand, therefore, must be DENIED.
d. Motion to Dismiss
RDN has filed a motion to dismiss the counts alleged against it individually and as the
principal of Jones sued in his capacity as an agent. RDN’s Mot. to Dismiss Pl.’s Compl., ECF No.
3. As the Court has already found that there is no possibility of recovery, RDN must be dismissed
from this action. Plaintiff has failed to make any plausible claim against RDN. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (holding that to survive a motion to dismiss, a
complaint must state enough facts for a claim to be “plausible on its face”). Thus, RDN and Jones
as an agent of RDN are hereby DISMISSED.
The Complaint also names Jones as a defendant individually. See Pl.’s Compl., ECF No.
1-1. Although Jones received service of the complaint in state court, he has not made an
appearance in this Court. Looking thoroughly at the Complaint, the Court can find no allegations
towards Jones in his individual capacity. Every statement of fact involving Jones represents an
act committed during the course of his employment. As there are no plausible claims against
Jones in his official capacity as an agent under RDN as explained above, the Court finds that Jones
was fraudulently joined in his individual capacity as well and should thus be DISMISSED from
For the foregoing reasons, Plaintiff’s Motion to Remand (ECF No. 13) is DENIED, and
Defendant RDN’s Motion to Dismiss (ECF No. 3) is GRANTED. Defendants RDN and Jones
are to be DISMISSED from the action.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
October 14, 2016
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