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Barrie v. Progressive Specialty Insurance Company

United States District Court, E.D. Pennsylvania

March 28, 2017

HAJA BARRIE
v.
PROGRESSIVE SPECIALTY INSURANCE COMPANY, et al.

          MEMORANDUM

          O'NEILL, J.

         Plaintiff Haja Barrie brought claims in the Court of Common Pleas for Philadelphia County against her insurer, defendant Progressive Specialty Insurance Company, and defendant Megan Carrier, a Progressive insurance claims adjuster, for bad faith, breach of contract and unfair trade practices. Defendants removed to this Court, asserting diversity jurisdiction under 28 U.S.C. § 1332(a). Dkt. No. 1. Plaintiff now files a motion to remand her case, pointing out that both she and defendant Carrier share Pennsylvania citizenship. Dkt. No. 8. Defendants argue that Carrier was fraudulently joined and so her citizenship does not prevent removal under the diversity statute. Dkt. Nos. 11 and 12. I hold that some of plaintiff's factual allegations provide sufficient support to find that her unfair trade practices claim against Carrier is colorable. It follows that she was not fraudulently joined. Therefore, I will remand this case.

         BACKGROUND

         In August 2016, plaintiff discovered that her car, which she had left parked on the street, had been sideswiped. Compl. ¶¶ 7-14. She reported the damage to the police and had the car towed to a body shop. Id. ¶ 15. She also contacted her insurer, Progressive. Id. ¶ 25. On August 25, Carrier requested a recorded interview with plaintiff, which plaintiff gave. Id. ¶¶ 27, 28 and Ex. B. On September 1, plaintiff's attorney, Eric Brauer, contacted Carrier on plaintiff's behalf to inquire about the status of her claim. This began an exchange in which Carrier communicated regarding plaintiff's claim in a way that plaintiff now alleges constituted harassment and unnecessary delay. Id. at ¶¶ 18, 24, 33.

         In response to Brauer's email, Carrier sent him and plaintiff a form requesting authorization for Progressive to obtain information about plaintiff from various third parties, including plaintiff's banks, credit reporting agencies and other insurers, and permission “to remove any and all fluids, electronic parts or equipment, component parts, assemblies, materials and filters” from her car “for the purposes of examination, inspection, comparison, testing, and/or storing.” Id. ¶ 34 and Ex. F. Carrier also sent a letter requesting items of proof. Id. ¶ 38 and Ex. F. Some of these items related directly to plaintiff's ownership or maintenance of the car. Id. (requesting all maintenance records and most recent inspection reports for the car, proof of plaintiff's purchase of the car and “any and all pictures” plaintiff had of her car). Other items would provide proof of plaintiff's account of the accident itself. Id. (requesting the police report incident number, contact information for plaintiff's neighbor who took her to the hospital and the bill for the towing of her car). Other requested information related to plaintiff's potential expenses as a result of the damage to her car. Id. (requesting the towing bill and “Uber/Lyft transactions from July 15, 2016 to September 6, 2016”). Finally, three requests for information related to plaintiff's personal life and not directly to her car or the accident. Id. (requesting records for all incoming and outgoing calls from plaintiff's cell phone between July 15 and August 31, 2016, plaintiff's work schedule for August 2016 and the contact information for her manager at work).

         Several emails passed between Carrier and Brauer over the next several weeks in which Brauer provided some of the information requested and Carrier reasserted her need for omitted documents. Id. ¶¶ 43-64. Plaintiff provided: authorization for Progressive to access her financial information, permission to remove fluid, equipment, and parts from her vehicle, id. at ¶ 37, identification information for the individual who took her to the hospital, the police report number, ¶ 42 and Ex. H, the name and contact information for the neighbor who witnessed the collision, ¶ 43 and Ex. I, and pictures of her car, ¶ 49(e) and Ex. K. She explained that she did not have the other information or documents. Id.

         Although Carrier did not continue to press plaintiff for her phone records, work schedule, or manager's contact information, Carrier reiterated her need for maintenance and inspection reports, proof of purchase of the car, emails from Kelly Blue Book regarding the listing of the car for sale, the tow bill and all Uber/Lyft receipts. Id. at ¶¶ 50, 54, 56 and Ex. L, P, R. Plaintiff reiterated that she did not have this information. Id. at ¶ 57 and Ex. S. After several email exchanges, Carrier asked for an additional interview with plaintiff. Id. ¶ 61 and Ex. T. Plaintiff alleges that this request was unnecessary, unfair and unreasonable and makes no allegations about whether she gave the additional interview. Id. Finally, on November 21, Carrier sent Brauer a letter denying coverage for plaintiff's loss because Progressive believed plaintiff had failed to cooperate with the investigation. Id. ¶ 64 and Ex. W.

         On the basis of these facts, plaintiff alleges Carrier mishandled her claim by conducting the investigation “in an unfair and unreasonable manner, ” id. ¶¶ 18, 24, 33, and demanding unnecessary information. She alleges, first, that this was an “an attempt to harass and intimidate” plaintiff “in order to have her discontinue her claim.” Id. ¶ 54. Second, she alleges that Carrier did so on account of plaintiff's race, ethnicity and citizenship status. Id. ¶¶ 17, 23, 24, 40, 41, 50, 61. She alleges Carrier “had no basis to question [her] property damage claim . . . other than the fact that [plaintiff] was an African American woman who came to the United States of America from Sierra Leone and who legally works and resides here with a Green Card.” Compl. ¶ 59.

         STANDARD OF REVIEW

         A defendant can remove a civil action from state court if the claims could have been brought in federal court originally. 28 U.S.C. § 1441(a). If, as here, a defendant removes to federal court based upon diversity of citizenship under 28 U.S.C. § 1332(a), every plaintiff's state citizenship must be different from every defendant's. See also In re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006). However, where parties are not diverse, a federal court may retain jurisdiction over the case only if a defendant shows that the nondiverse party was “fraudulently joined, ” or added to the action solely for the purposes of defeating diversity jurisdiction. Id. at 215. If a non-diverse defendant was fraudulently joined, the court can “disregard, for jurisdictional purposes, ” that party's citizenship and “thereby retain jurisdiction.” Id. Here, both plaintiff and defendant Carrier are citizens of Pennsylvania; therefore, the court only has jurisdiction over this case if the defendants show that Carrier was fraudulently joined.

         Joinder is fraudulent “where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.” Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). In other words, the failure must be “obvious according to the settled rules of the state.” Id. at 112, citing 1A Moore's Federal Practice at 274 (2d ed. 1989). A defendant should not be considered fraudulently joined unless the claims against the defendant are “wholly insubstantial and frivolous.” Briscoe, 448 F.3d at 217. “If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that joinder was proper and remand the case to state court.” Boyer, 913 F.2d at 112, quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983). Thus, if any one of plaintiff's claims against Carrier is colorable, joinder is proper.

         In determining whether Carrier's joinder is proper, I “must resolve all contested issues of substantive fact” and “any uncertainties as to the current state of controlling substantive law” in plaintiff's favor. Boyer, 913 F.2d at 112. The removal statutes “are to be strictly construed against removal and all doubts should be resolved in favor of remand, ” and “a removing party who charges that a plaintiff has fraudulently joined a party to destroy diversity of jurisdiction has a heavy burden of persuasion.” Id. at 111 (internal quotation marks omitted).

         In keeping with these requirements, the standard of review to assess whether joinder is fraudulent is less rigorous than an assessment of whether the plaintiff has stated a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Briscoe, 448 F.3d at 217. “[I]t is possible that a party is not fraudulently joined, but that the claim against that party ...


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