United States District Court, E.D. Pennsylvania
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.
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,
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).
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.
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.
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.
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
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.
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
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 ...