Opinion
Case No. 5:05-cv-456-Oc-10GRJ.
April 20, 2006
ORDER
This case involves six state law claims of negligence, bad faith and breach of fiduciary duty. Defendant State Farm Mutual Automobile Insurance Company ("State Farm") is an Illinois corporation with its principal place of business in Illinois. State Farm removed the case from state court. Defendants Old Dominion Insurance Company ("Old Dominion") and Insurance By Ken Brown, Inc. ("Ken Brown"), are both Florida corporations. The claims in the case center around an automobile accident which claimed the life of LaWanda Janette Griner Glunt. The Defendants either insured, or were in negotiations to insure, Plaintiffs Sean M. Decter, Jesse S. Heckman, and Great White Pools, Inc., (the individuals responsible for the automobile accident), at the time of the accident. Plaintiff Wanda Gail Ward, as representative of Ms. Glunt's Estate, obtained an excess judgment against the other three Plaintiffs, and they assigned to Ward their choses in action against the Defendants.
When Defendant State Farm removed the case to this Court on the theory that joinder of the non-diverse parties ( i.e. Defendants Old Dominion and Ken Brown) was "fraudulent," Plaintiff Ward moved for remand (Doc. 9). The Magistrate Judge issued a Report (Doc. 11) recommending that the motion to remand be granted. Defendant State Farm has filed objections (Doc. 15) to the Magistrate Judge's report, and Plaintiff Ward has filed her response (Doc. 18) to the objections.
Upon an independent review of the file and upon due consideration, the Court concludes that the Magistrate's report and recommendation is due to be adopted, confirmed, and made a part hereof. The Magistrate Judge found, and the Court agrees, that while Plaintiff Ward will have difficulty prevailing on her state law claims against Old Dominion and Ken Brown, the claims are at least arguable under Florida law. As such, Defendant State Farm has failed to meet its burden of proof to establish that Old Dominion and Ken Brown were fraudulently joined.
Accordingly, and upon due consideration, it is hereby ordered and adjudged that:
(1) The Report and Recommendation of the Magistrate Judge (Doc. 11) is adopted, confirmed, and made a part hereof;
(2) Defendant State Farm's Objections (Doc. 15) are OVERRRULED;
(3) Plaintiff Ward's request for attorney's fees and costs is DENIED; and
(3) Plaintiff Ward's motion to remand (Doc. 9) is GRANTED. The Clerk is directed to remand this case to the Circuit Court for the Fifth Judicial Circuit, In and For Marion County, Florida.
IT IS SO ORDERED.
DONE and ORDERED.