United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
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).
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
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.
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).
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).
Arguments of the Parties
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).
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 ...