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Gieringer v. Cincinnati Insurance Companies

September 5, 2008

JEFF GIERINGER, PLAINTIFF,
v.
THE CINCINNATI INSURANCE COMPANIES, DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/GUYTON)

MEMORANDUM AND ORDER

This civil action is before the Court on Plaintiff Jeff Gieringer's ("Plaintiff") Motion for Joinder of Additional Defendant and Remand to the Sevier County Circuit Court. [Doc. 5.] In this motion, Plaintiff seeks to add Danny J. Glascow as an additional defendant, thereby destroying complete diversity in this action.*fn1 Thus, Plaintiff asks the Court to remand this action to State court. Defendant, The Cincinnati Insurance Companies, ("Defendant") has filed a response opposing the motion. [Docs. 6, 7.] The motion is now ripe for the Court's consideration.

The Court has carefully considered the parties' filings [Docs. 5, 6, 7] in light of the relevant law. For the reasons set forth herein, Plaintiff's motion [Doc. 5] will be DENIED.

I. RELEVANT FACTS

According to Plaintiff's complaint, Defendant issued him a homeowner's insurance policy for a residence located in Lexington, Kentucky. [Doc. 1-2 at 2.] On January 18, 2008, Plaintiff moved all of his personal property to a new residence located in Gatlinburg, Tennessee. [Id.] On January 24, 2008, Plaintiff's personal property was allegedly destroyed by a fire at his new residence in Gatlinburg, Tennessee. [Id.] After making a claim for the loss of his personal property, Defendant denied Plaintiff's claim except for a payment offer of $1000. [Id. at 3.] Plaintiff then filed this lawsuit against Defendant on June 16, 2008, in the Circuit Court of Sevier County seeking damages for the loss of his personal property and for a violation of the Tennessee Consumer Protection Act. [Id. at 2.]

On July 10, 2008, Defendant filed notice of removal to the Court on the basis of diversity jurisdiction. [Doc. 1.] According to Plaintiff's complaint, he is a resident of Tennessee, while Defendant maintains that it is a resident of Ohio. [Docs. 1; 1-2 at 2.] On July 16, 2008, Plaintiff filed the present motion for joinder of additional defendant and remand to the Sevier County Circuit Court. [Doc. 5.] In the proposed amended complaint, Plaintiff seeks to add Mr. Glascow, a resident of Tennessee, as a defendant in this action. [Doc. 5-2 at 1.] In the proposed alleged complaint, Plaintiff makes the following allegations against Mr. Glascow:

7. That at the time the homeowner's claim for the loss of the personal property was made to defendant, The Cincinnati Insurance Company, defendant, Danny J. Glascow was an employee, servant and/or agent of The Cincinnati Insurance Company and was assigned the plaintiffs' claim for handling, administration and investigation within the course and scope of his employment with The Cincinnati Insurance Company.

8. That defendant, Danny J. Glascow was negligent in his handling, administration and investigation of the plaintiffs' personal property claim in that he failed or otherwise refused to comply with policies and procedures for the handling, administration and investigation published, adopted and implemented by The Cincinnati Insurance Company and that the negligence of defendant, Danny J. Glascow was a proximate cause of damages suffered by the pla[intiffs all for which the defendant, Danny J. Glascow is liable as a matter of law.

9. The defendant, Danny J. Glascow was negligent in his handling, administration and investigation of plaintiffs' personal property claim in that he failed or otherwise refused to comply with the customs, standards and practices recognized, accepted and implemented by insurance industry in the state of Tennessee in regard to the defendant's handling, administration and investigation and that the negligence of defendant, Danny J. Glascow was a proximate cause of damages suffered by the plaintiffs all for which the defendant, Danny J. Glascow is liable as a matter of law.

10. That defendant, Danny J. Glascow's negligence in his handling, administration and investigation of the plaintiffs' persona property claim was a direct and proximate cause of defendant, The Cincinnati Insurance Company's breach of contract as set forth in paragraph 7 of this Complaint all for which the defendants are liable as a matter of law. [Doc. 5-2 at 2-3.] Should the Court grant the request to include Mr. Glascow as a defendant in this action, Plaintiff contends that diversity jurisdiction will be destroyed, and this action should be remanded to State court.

II. ANALYSIS

As an initial matter, the Court notes that the parties do not dispute that complete diversity existed at the time of removal. Rather, Plaintiff is attempting to join, post-removal, a non-diverse defendant to this action. Title 28 U.S.C. § 1447(e) provides that "[i]f 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." Thus, courts are given discretion to determine whether to grant motions to amend after removal that destroy diversity jurisdiction. See City of Cleveland v. Deutsche Bank Trust Co., No. 1:08cv0139, 2008 WL 3822939, at *13 (N.D. Ohio Aug. 8, 2008). In making such determinations, courts should consider whether the plaintiff has been dilatory or is trying to destroy diversity, whether the plaintiff will be significantly disadvantaged if the amendment is not allowed, and whether remanding the action to state court will prejudice the defendant. Curry v. U.S. Bulk Transp., Inc., 462 F.3d 536, 540 (6th Cir. 2006) (citation omitted). Additionally, courts "must take into account the original defendant's interest in its choice of forum." Wells v. Certainteed Corp., 950 F. Supp. 200, 201 (E.D. Mich. 1997). "The general impetus for applying § 1447(e) is for the trial court to use its discretion and determine if allowing joinder would be fair and equitable." Deutsche Bank Trust Co., 2008 WL 3822939, at *12 (citations omitted).

After reviewing the record, the Court finds strong indications that Plaintiff's purpose in seeking amendment is solely to destroy diversity jurisdiction. In his motion, Plaintiff offers no explanation as to why Mr. Glascow was omitted from the original complaint filed in State Court. [See Doc. 5.] The proposed amended complaint alleges that Mr. Glascow handled, administered, and investigated Plaintiff's personal property claim at the time the claim was made, so Plaintiff was aware of Mr. Glascow's alleged involvement at the time this action was originally filed in State court. [Doc. 5-2 at 2.] In Wells, the district court was faced with similar circumstances when the plaintiff "asserted no reason why [the non-diverse defendant] was not named as a defendant in the original action," was aware of the non-diverse defendant before the filing of the original complaint, and chose to add him as a defendant "only after defendant removed the case to federal court." Id. As in Wells, the Court finds that these circumstances strongly indicate that Plaintiff's "sole reason for seeking to add [non-diverse party] as a defendant, at this time, is to defeat jurisdiction." Id. The timing of Plaintiff's request also raises questions about the purpose for seeking amendment. See Deutsche Bank Trust Co., 2008 WL 3822939, at *13 ("That the [plaintiff] did not delay, and brought its motion to amend soon after the complaint was filed, does nothing to disguise ...


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