Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Varrecchio v. Moberly

United States District Court, M.D. Louisiana

March 19, 2018

RACHEL VARRECCHIO
v.
MICHELLE A. MOBERLY, ET AL.

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion to Remand, filed by plaintiff Rachel Varrecchio.[1] The Motion is opposed.[2] For the following reasons, the undersigned recommends[3] that the Motion be DENIED. In the event this Report is adopted and Plaintiff's Motion to Remand is denied, the undersigned further recommends that this matter be referred to the undersigned for a scheduling conference.

         I. Background

         On or about August 11, 2017, Plaintiff filed a Petition for Damages in the Twenty-Third Judicial District Court for the Parish of Ascension, State of Louisiana, against Michelle A. Moberly, the Allstate Insurance Company (“Allstate”) and State Farm Mutual Automobile Insurance Companies (“State Farm Companies”) (collectively, “Defendants”), seeking damages for the injuries Plaintiff allegedly sustained as a result of a motor vehicle accident that occurred on or about August 22, 2016.[4] Plaintiff asserts that she was severely injured in the collision, which injuries include neck and back pain, and that she was forced to resign from the Walt Disney College Program due to her injuries.[5] Plaintiff further asserts that due to her planned participation in the Walt Disney College Program, she missed the enrollment deadline for the Fall 2016 semester at Louisiana State University (“LSU”). Plaintiff also alleges that she had to forego enrollment for the Spring 2016 semester at LSU due to her neck injury, which disrupted her sleep patterns and concentration.[6]

         On September 22, 2017, State Farm Mutual Automobile Insurance Company (“State Farm Company”) filed a Notice of Removal, asserting this Court has diversity jurisdiction under 28 U.S.C. § 1332(a) and that it was “erroneously referred to as State Farm Insurance Companies” in Plaintiff's state court Petition.[7] On October 3, 2017, State Farm Company filed a Supplemental and Amending Notice of Removal (the “Amended Notice of Removal”), as ordered by the Court, [8]asserting that the parties are diverse because Plaintiff is a Louisiana citizen, Moberly is a citizen of Ohio, Allstate is incorporated in Delaware and has its principal place of business in Illinois and State Farm Company is incorporated in and has its principal place of business in Illinois.[9] State Farm Company further asserts that State Farm Companies “is not a viable entity and it did not and cannot receive service of Plaintiff's Petition.”[10] State Farm Company further asserts that the amount in controversy exceeds $75, 000 based upon the damages sought by Plaintiff in the Petition, Plaintiff' failure to stipulate that her cause of action does not exceed $75, 000, and the fact that Plaintiff asserts the underlying liability insurance policy issued by Allstate to Moberly, with policy limits of $500, 000, is insufficient to adequately compensate her for the damages she allegedly sustained as a result of the accident.[11]

         On December 4, 2017, Plaintiff filed a Motion for Leave to File Corrected First Supplemental and Amended Petition Pursuant to the Magistrate's Court Order of December 4, 2017 (Doc. 20), as ordered by the Court, [12] seeking to name State Farm Company as a defendant in this matter in place of State Farm Companies.[13] The undersigned granted the Motion for Leave on December 5, 2017.[14]

         Also on December 4, 2017, Plaintiff filed the instant Motion to Remand, asserting that while the amount in controversy exceeds $75, 000, the Court lacks subject matter jurisdiction because the parties are not completely diverse.[15] Plaintiff claims that under 28 U.S.C. § 1332(c)(1), State Farm Company, in its capacity as Plaintiff's uninsured/underinsured (“UM”) motorist carrier, takes on the citizenship of its insured and therefore, both Plaintiff and State Farm Company are citizens of Louisiana.[16] Because diversity is lacking, Plaintiff argues the case must be remanded to state court.

         In response, State Farm Company asserts that § 1332(c)(1) applies only to a direct action brought against a liability insurer and that neither requirement is met in this case.[17] State Farm Company first points out that it is named as a defendant in its capacity as Plaintiff's UM motorist carrier and not in its capacity as a liability insurer. State Farm further asserts that a direct action against an insurer under § 1332(c)(1) is one in which a plaintiff sues another person's liability insurer without joining the insured and without having first obtained a judgment against the insured.[18] State Farm Company cites several cases from this Court in support of its argument.[19]

         II. Law and Analysis

         Diversity of citizenship is governed by 28 U.S.C. § 1332. Where a “direct action” has been brought against an ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.