Opinion
CIVIL ACTION 01-D-767-N
August 1, 2001
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Vivian Caldwell's Motion To Remand, which was filed July 12, 2001. Defendant United Insurance Company of America filed a brief in opposition July 24, 2001. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Plaintiff's Motion is due to be granted.
I. DISCUSSION
Plaintiff purchased insurance from United's insurance agents. Plaintiff alleges that these agents misrepresented material facts about the scope of coverage afforded by the policies. For example, the agents said that the policies "would cover all [Plaintiff's] medical bills and the medical bills of her minor children which were incurred as a result of an accident," and that she "needed the insurance policy . . . despite being a recipient of Medicaid." (Compl. ¶ 20.) These agents then continuously and repeatedly suppressed material facts concerning the insurance policies each time that they collected a premium from her. (Id. ¶ 13.)
The defendants removed on the basis of complete diversity of citizenship. United basically seeks to advance this case to the summary judgment stage. It contends that none of the individual defendants named in the Complaint are United insurance agents, although at least one of them, G. Wayne Clark, neither confirms nor denies Plaintiff's allegation. (Doc. No. 12.) It also argues that none of the representations made to Plaintiff constitute fraud, and that Plaintiff's claim of outrageous conduct fails as a matter of law. (Doc. No. 13 at 2-3 n. 2.)
Removal of a case from state to federal court is proper if the case could have been brought originally in federal court. See 28 U.S.C. § 1441(a). A federal district court may assert jurisdiction in a case involving complete diversity of citizenship between the parties, provided that the amount in controversy exceeds $75,000, exclusive of interest and costs.See 28 U.S.C. § 1332(a). The defendant, as the removing party, bears the burden of establishing federal jurisdiction.See Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). Removal statutes are strictly construed because of the significant federalism concerns raised by removal. See Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941); Seroyer v. Pfizer, Inc., 991 F. Supp. 1308, 1312 (M.D. Ala. 1997). "All doubts [and uncertainties] about federal court jurisdiction must be resolved in favor of a remand to state court." Seroyer, 991 F. Supp. at 1312 (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)).
United argues that the individual defendants have been fraudulently joined. Therefore, it contends that the court should proceed as if there is complete diversity among the parties. In analyzing whether joinder is fraudulent, the court "should resolve all questions of fact and controlling law in favor of the plaintiff," even if it considers "any submitted affidavits and/or deposition transcripts." Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989); see also Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir. 1995). If there is no possibility that the plaintiff can establish a cause of action against any resident defendant, then the court will disregard the defendant's citizenship for jurisdictional purposes. See Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996),abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).
At this stage, the court does not weigh the merits of the claim; the court merely determines whether Plaintiff has arguably raised a claim under state law. The court finds sufficient evidence for a rational jury to find that the individual defendants have been neither fraudulently joined nor fraudulently misjoined. Plaintiff's Complaint and subsequent affidavit have certainly established colorable counts of fraud against the individual defendants arising out of the servicing of the policies. See Bromberg v. Metropolitan Life Ins. Co., 50 F. Supp.2d 1208, 1213-14 (M.D. Ala. 1999); Grace v. Interstate Life Acc. Ins. Co., 916 F. Supp. 1185, 1188-89 (M.D. Ala. 1995). There also is the possibility of a successful claim of outrage. The court does not join in Defendants' broad reading of Grantham v. Vanderzyl, 2001 WL 499361 (Ala. 2001) (Moore, C.J.)Grantham merely stands for the unremarkable proposition that a hospital can receive summary judgment on a claim of outrage when an operating room assistant presents only a scintilla of evidence that: (1) she subjectively perceived any harm from coming into contact with the blood of a patient of unknown HIV/AIDS risk status; and (2) reasonable people in her position would have felt similarly. This case is due to be remanded.
Courts can and should award reasonable costs and attorney's fees incurred as a result of an erroneous removal except, perhaps, when the motion presents complex issues of fact or law. See Grace, supra at 1192 (declining to award fees when issue of fraudulent joinder was "far from a simple determination.") The issue is "whether an award would further `overall fairness given the nature of the case, the circumstances of the remand, and the effect on the parties.'" Gardner v. Allstate Indem. Co., 2001 WL 705715 at *1, 2001 U.S. Dist. LEXIS 8560 (M.D. Ala. 2001) (quoting Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 767 F. Supp. 561, 563 (S.D.N.Y. 1991), aff'd, 971 F.2d 917 (2d Cir. 1992)); see also Gray v. New York Life Ins. Co., 906 F. Supp. 628, 637 (N.D. Ala. 1995).
The court finds that the removal was erroneous, that no conduct by the plaintiff contributed to the erroneous removal, and that an award is fair and equitable under all the circumstances. This is a run-of-the-mill case where a defendant has sought to expand the boundaries of federal subject matter jurisdiction without substantial grounds for doing so. Such improper actions "have wrought needless litigation costs upon the other party, upset the sensitive principles of federalism underlying our nation's dual court system, and frustrated judicial economy." Gardner, supra, at *7. Fees shall be shifted accordingly, pursuant to 28 U.S.C. § 1447(c). See id., (awarding fees of $31,300).
II. ORDER
It is CONSIDERED and ORDERED that this case be and the same is hereby REMANDED to the Circuit Court of Bullock County, Alabama.See 28 U.S.C. § 1447(c). Plaintiff's just costs, actual expenses, and reasonable attorney's fees, which were incurred as a result of the removal of this case, be and the same are hereby TAXED to Defendants, for which let execution issue. See id. Plaintiff shall submit a bill of costs by August 6, and Defendant shall pay them by August 13. The court retains jurisdiction to oversee said payment. The Clerk of Court shall effectuate this order.