Opinion
Case No. 8:03-CV-2385-T-27TBM
January 26, 2004
ORDER
BEFORE THE COURT is Plaintiffs Motion to Amend Complaint to Add Party Plaintiff, to Add Non-Diverse Defendant, and to Remand to State Court (Dkt. 7) and Defendant's Memorandum of Law in Opposition (Dkt. 9). Upon consideration, Plaintiffs Motion is GRANTED in part and DENIED in part.
Ronald Glasbrenner ("Plaintiff") filed a Complaint against Continental General Insurance Company ("Continental") in the Circuit Court in Pasco County alleging breach of contract for failing to pay insurance benefits. Plaintiff also sought declaratory relief. (Dkt. 2). Continental removed the case to this Court asserting diversity jurisdiction. (Dkt. 1). Plaintiff presently seeks to add his wife, Victoria Glasbrenner, as a party plaintiff and to add claims against Continental for negligence, estoppel and additional breach of contract claim. (Dkt. 7). Continental has not objected to these two requests, accordingly, Plaintiff's motion to add Victoria Glasbrenner as a plaintiff and assert additional claims against Continental is GRANTED.
In its response to Plaintiffs motion, Continental stated that it had no objection to Plaintiffs request to add Victoria Glasbrenner as a party plaintiff and add claims against Continental. (Dkt. 9, pp. 1-2).
Plaintiff also seeks to join Continental's insurance agent, Joseph J. Godinsky, as a non-diverse defendant and remand this action to state court. (Dkt. 7). Plaintiff seeks to bring claims against Godinsky for negligence in procuring insurance. Continental objects, arguing that Plaintiffs negligence claim against Godinsky is not ripe and cannot serve as a basis for remanding the case. (Dkt. 9). This Court agrees.
28 U.S.C. § 1447(e) provides:
If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court
In determining whether joinder of a non-diverse defendant should be permitted after removal, a district court must balance the equities involved. See Hughes v. Promark Lift, Inc., 751 F. Supp. 985, 987 (S.D. Fla. 1990). Factors to be considered are: (1) the extent to which the purpose of the amendment is to defeat federal jurisdiction, (2) whether the plaintiff has been dilatory in asking for the amendment, (3) whether the plaintiff win be significantly injured if the amendment is not allowed, and (4) any other factors bearing on the equities. See Jarriel v. General Motors Corp., 835 F. Supp. 639, 641 (N.D. Ga. 1993). Upon consideration of these factors, the district court has two options: (1) deny joinder, or (2) permit joinder and remand the case to state court. See Ingram v. CSX Transportation. Inc., 146 F.3d 858, 862 (11th Cir. 1998).
Continental correctly argues that a claim against an insurance agent for negligence does not accrue until the underlying action against the insurance company is final. See Blumberg v. USAA Casualty Insurance Company, 790 So.2d 1061, 1065-66 (Fla. 2001). Accordingly, here, there is no risk of parallel lawsuits because Plaintiff cannot pursue his lawsuit against Godinsky until his lawsuit against Continental is final Neither is Plaintiffs negligence action a compulsory counterclaim. See McKay v. State Farm Fire and Casualty Company, 731 So.2d 852, 855 (Fla. 4th DCA 1999) (claim for negligent failure to provide proper insurance coverage does not arise out of the same aggregate of operative facts as declaratory judgment action to determine whether coverage existed for plaintiffs injuries). Plaintiff's claim against Godinsky is not ripe and Godinsky is not an indispensable party to this action. Therefore, Plaintiffs request to join Godinsky as anon-diverse party is DENIED. Accordingly, it is
ORDERED AND ADJUDGED that Plaintiffs Motion to Amend Complaint to Add Party Plaintiff, to Add Non-Diverse Defendant, and to Remand to State Court (Dkt. 7) is GRANTED in part and DENIED in part. Plaintiff shall have ten (10) days from the date of this Order to file an Amended Complaint in accordance with this Order.
DONE AND ORDERED.