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London v. Sentry Select Insurance Co.

United States District Court, M.D. Louisiana

October 3, 2018

JOSEPH LONDON
v.
SENTRY SELECT INSURANCE COMPANY, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE

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

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations 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 of the Magistrate Judge which have been 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

         Before the Court is Plaintiff's Motion to Remand. (R. Doc. 5). The motion is opposed. (R. Doc. 9). Plaintiff has filed a Reply. (R. Doc. 12).

         I. Background

         On or about November 9, 2017, Joseph E. London (“Plaintiff”) filed the instant action in the 18th Judicial District Court, Iberville Parish, Louisiana, naming as defendants Sentry Insurance Company (“Sentry”), Stingray Logistics, Inc. (“Stingray”), Dale R. Whipkey, and GoAuto Insurance company (“GoAuto”) (R. Doc. 1-3, “Petition”). Plaintiff alleges that on or about November 30, 2016, he was driving a 1998 Chevrolet Monti Carlo owned by Mr. Tyler Garrett when he was involved in a collision with a vehicle owned and operated by Mr. Whipkey. (Petition ¶ 3). Plaintiff alleges that Stingray is Mr. Whipkey's employer, and Sentry is Mr. Whipkey's liability insurer. (Petition ¶¶ 6-7). Plaintiff further alleges that GoAuto is Mr. Garrett's liability insurer, and that underlying policy held by Mr. Garrett provided uninsured/underinsured motorist (“UM”) coverage on the vehicle driven by Plaintiff. (Petition ¶¶ 8-9).

         On March 21, 2018, Sentry, Stingray, Mr. Whipkey, and GoAuto (collectively, the “Removing Defendants”) filed a Notice of Removal asserting that the Court has diversity jurisdiction over this action. (R. Doc. 1 at 2). The Removing Defendants assert that GoAuto, a non-diverse defendant, was improperly joined as a defendant for the following reasons: the GoAuto policy issued to Mr. Garrett (policy number 384122) lists an unrelated 2015 Chevrolet Camaro as the covered vehicle; the policy had been canceled for non-payment of premiums at the time of the collision; the policy was subject to a valid UM form rejecting coverage in conformity with La. R.S. 22:1295(1)(a)(ii); and Plaintiff was specifically excluded as a driver under the policy. (R. Doc. 1 at 4-5). The Removing Defendants submitted an affidavit by a GoAuto representative, Ms. Kim McCloud, and various documents, in support of the foregoing assertions. (R. Doc. 1-8).

         The Removing Defendants further assert that removal was timely because they could first ascertain that the amount in controversy was satisfied on February 27, 2018 upon receipt of certain medical information. (R. Doc 1 at 6-9). The Removing Defendants submit various medical records in support of a finding that the amount in controversy requirement is satisfied. (R. Doc. 1-7).

         On April 16, 2018, Plaintiff filed the instant Motion to Remand, asserting that the Court lacks diversity jurisdiction in light of the presence of GoAuto as a non-diverse defendant. (R. Doc. 5).

         II. Arguments of the Parties

         In support of remand, Plaintiff argues that GoAuto was not improperly joined as a defendant because the Petition “clearly states a cause of action against GoAuto under Louisiana law” and “the mere possibility that Mr. London may not prevail in his claim against GoAuto does not provide a basis for remand.” (R. Doc. 5 at 6). While Plaintiff does not address any of the specific bases raised in the Notice of Removal in support of a finding of improper joinder, Plaintiff asserts that the Removing Defendants have not met their burden of establishing improper joinder. (R. Doc. 5 at 6-7).

         In opposition, the Removing Defendants assert that the Court should “pierce the pleadings” to reach the conclusion that GoAuto was improperly joined. (R. Doc. 9 at 4-6). As raised in the Notice of Removal, the Removing Defendants argue that Mr. Garrett rejected UM coverage under his GoAuto policy (policy number 384122) by validly executing a UM form rejecting coverage. (R. Doc. 9 at 6-8). The Removing Defendants further argue that the vehicle driven by Plaintiff was actually insured under a GoAuto policy (policy number 268158) issued to Plaintiff's spouse, Valencia London, and UM coverage was rejected under the policy. (R. Doc. 9 at 8-9). Finally, the Removing Defendants ...


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