Opinion
Civil Action No 00-01068-VP-L
January 25, 2001
REPORT AND RECOMMENDATION
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(a), and the standing order of general reference. Before the Court now is defendant Raja Mahtani's motion to dismiss (Doc. 6), plaintiff's motion to remand (Doc. 15), defendants Raja Mahtani and Walter Bell's response to plaintiff's motion to remand (Doc. 17), affidavit of Raja Mahtani (Doc. 18), defendant MONY Life Insurance Company's opposition to the motion to remand (Doc. 19), plaintiff's brief in opposition to defendant Raja Mahtani's motion to dismiss (Doc. 20) and plaintiff's notice of withdrawing her motion to remand and withdrawing her opposition to defendant Raja Mahtani's motion to dismiss (Doc. 21).
Upon consideration of the pleadings, the undersigned recommends that the Motion to Dismiss Raja Mahtani (Doc. 6) should be GRANTED and the Motion to Remand (Doc. 15) should be rendered MOOT.
Gwendolyn Williams filed suit against MONY Life Insurance Company, MONY Life Insurance Company of America, Walter A. Bell and Raja Mahtani in the Circuit Court of Mobile County, Alabama alleging willful, reckless and mistaken misrepresentation, deceit and "fraudulent deceit," suppression and conspiracy in regard to her purchase of life insurance policies from defendants. In 1990, Williams had purchased life insurance policies with MONY through Bell's insurance business. In April 1999, Mahtani purchased the assets of Bell's insurance business.
Defendant removed the suit to the U.S. District Court for the Southern District of Alabama alleging complete diversity of citizenship, an amount in controversy in excess of the jurisdictional amount of $75,000.00 and that defendant Mahtani, a resident of Alabama, was fraudulently joined for the purpose of defeating federal jurisdiction. Plaintiff filed a motion to remand. Defendants filed a motion to dismiss Mahtani and an affidavit of Mahtani wherein he stated that he had no knowledge of plaintiff's insurance policies or other information prior to September 1999, when plaintiff contacted him. Plaintiff filed pleadings in opposition and, after receipt of Mahtani's affidavit, filed a notice of withdrawal of her motion to remand and opposition to Mahtani's motion to dismiss.
Defendant alleged in his removal notice that defendant Mahtani was fraudulently joined and therefore his citizenship should not be considered for purposes of establishing diversity. In Pacheco de Perez v. A.T.T., Co., 139 F.3d 1368, 1380 (11th Cir. 1998), the Eleventh Circuit explained,
In a removal case alleging fraudulent joinder, the removing party has the burden of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (citing Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir. 1989)). The burden of establishing fraudulent joinder is a heavy one. Where a plaintiff states even a colorable claim against the resident defendant, joinder is proper and the case should be remanded to state court. See id.; Cabalceta, 883 F.2d at 1562. The determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties. Id. In making its determination, the district court must evaluate factual allegations in the light most favorable to the plaintiff and resolve any uncertainties about the applicable law in the plaintiff's favor.Pacheco de Perez, 139 F.3d at 1380. As stated in Perez, the removing party has the burden of proving that there is no possibility the plaintiff can establish a cause of action against the resident defendant. The affidavit of defendant Mahtani provides sufficient evidence to meet this burden. Further, plaintiff tacitly admitted in her notice of withdrawal that she was unable to state a claim against Mahtani. Plaintiff stated that she was mistakenly under the impression at the time of filing her complaint that she had dealt with Mahtani in years prior to 1999. The Court interprets this to mean that plaintiff now has determined that her allegations against Mahtani were baseless.
Upon review of the record, the affidavit of Mahtani, and consideration of plaintiff's statements, the Court determines that the plaintiff can not establish a cause of action against the resident defendant Mahtani; therefore, the undersigned recommends that the Motion to Dismiss Mahtani should be GRANTED. Further, the Motion to Remand should be rendered MOOT by the filing of the plaintiff's Notice of Withdrawing Her Motion to Remand (Doc. 21).