United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
Bissoon United States District Judge
before the Court is a Motion to Remand filed by Plaintiffs
Lisa Cirocco and Alex Cirocco (“Plaintiffs”) (Doc
6). For the reasons that follow, the Court will grant
Plaintiffs’ Motion, and remand this action to the Court
of Common Pleas of Allegheny County, Pennsylvania.
February 24, 2017, Plaintiffs filed a Complaint in the Court
of Common Pleas of Allegheny County against The Northwestern
Mutual Life Insurance Company (“Northwestern”)
and Stephen Hast, Jr. (“Hast”). Plaintiff Lisa
Cirocco alleges claims against both Defendants for breach of
contract, violation of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law (“UTPCPL”),
intentional misrepresentation, fraud and unfair insurance
practices. See Compl., attached as Ex. A
to Notice of Removal (Doc. 1-2). Plaintiffs allege that Hast,
who was an agent of Northwestern, met with them in 2005
regarding the purchase of insurance policies. Id.
¶¶ 6, 9, 10. Plaintiffs purportedly expressed
concerns about Lisa Cirocco’s vision due to
pre-existing conditions, and Hast allegedly recommended that
a disability policy would be best for her situation.
Id. ¶¶ 11, 14. Hast gave Lisa Cirocco
medical authorization forms to complete and after an
examination process was conducted, Northwestern issued her a
disability income policy on October 25, 2005. Id.
¶¶ 15-25. Lisa Cirocco subsequently made payments
on the policy until submitting a claim for benefits on March
28, 2015. Id. ¶¶ 27, 28. On October 12,
2015, Northwestern advised Lisa Cirocco that it was
rescinding the policy because certain information was
incorrectly reported or was omitted when she applied for
coverage. Id. ¶¶ 30, 31.
March 29, 2017, Northwestern timely removed Plaintiffs’
action to this forum. (Doc. 1). Northwestern claims that this
Court has jurisdiction over the case under 28 U.S.C. §
1332(a) because complete diversity of citizenship exists
among Plaintiffs, who are Pennsylvania citizens, and
Northwestern, a citizen of Wisconsin, and the amount in
controversy exceeds $75,000. Id. ¶¶ 6, 7.
Northwestern contends that Hast, who also is a citizen of
Pennsylvania, was fraudulently joined to destroy diversity.
Id. ¶¶ 12, 13. According to Northwestern,
Plaintiffs have no real intention to prosecute the action
against Hast, and there is no reasonable basis or colorable
ground to support their claims against him. Id.
¶¶ 18-22, 23-39.
filed the instant Motion to Remand on April 17, 2017, arguing
that the Complaint alleges conduct attributable to Hast,
which supports his joinder as a party in the action. (Doc. 6,
¶¶ 21, 29). Plaintiffs assert that Hast’s
proper joinder destroys diversity of citizenship, and a
remand is required. (Doc. 8 at 4-7). Plaintiffs also request
an award of attorney’s fees and costs incurred as a
result of the removal. (Doc. 6, ¶ 32).
8, 2017, Hast joined Northwestern in opposing remand.
See Doc. 17. Hast contends that he had no role in
Northwestern’s decision to rescind the policy, he is
not liable to Lisa Cirocco and he should be dismissed from
the case. Id. at 2.
defendant may remove a civil action from state court if it
originally could have been brought in federal court. 28
U.S.C. § 1441(a). If removal is based on diversity of
citizenship, a proper exercise of federal jurisdiction
requires satisfaction of the amount in controversy and
complete diversity between the parties. In re
Briscoe, 448 F.3d 201, 215 (3d Cir. 2006).
fraudulent joinder doctrine is an exception to the
requirement that removal must be predicated on complete
diversity. See Briscoe, 448 F.3d at 215-16. Where
complete diversity is lacking, “the diverse defendant
may still remove the action if it can establish that the
non-diverse defendants were ‘fraudulently’ named
or joined solely to defeat diversity jurisdiction.”
Id. at 216. A removing defendant who claims
fraudulent joinder bears a “heavy burden of
persuasion.” Boyer v. Snap-On Tools Corp., 913
F.2d 108, 111 (3d Cir. 1990) (citation omitted). It must show
“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.”
Abels v. State Farm Fire & Cas. Co., 770 F.2d
26, 32 (3d Cir. 1985). A claim is colorable if it is not
“wholly insubstantial and frivolous.” Batoff
v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir.
analyzing a fraudulent joinder claim, the district court must
accept all factual allegations in the plaintiff’s
complaint as true and “resolve any uncertainties as to
the current state of controlling substantive law in favor of
the plaintiff.” Boyer, 913 F.2d at 111. The
fraudulent joinder inquiry is not governed by the Rule
12(b)(6) standard, which is “more searching than that
permissible.” See Batoff, 977 F.2d at 852
(observing “it is possible that a party is not
fraudulently joined, but that the claim against that party
ultimately is dismissed for failure to state a claim upon
which relief may be granted”). In sum, “[i]f
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 111 (citation omitted).
has not met its heavy burden regarding fraudulent joinder.
First, Northwestern has not shown that Plaintiffs have no
real intention in good faith to prosecute the action against
Hast. Other than critiquing the sufficiency of
Plaintiffs’ Complaint, which the Court is not to judge
at this stage, Northwestern has cited no conduct by
Plaintiffs or other evidence indicating that they do not
intend to proceed against Hast, and the Court discerns none
in the record. See Doc. 1, ¶¶ 18-22.
Plaintiffs must allege at least one colorable claim against
Hast, and Lisa Cirocco’s UTPCPL claim against Hast
so-qualifies. An individual may bring a private
action under the UTPCPL to recover damages caused by certain
enumerated “unfair or deceptive acts or
practices,” as well as “any other fraudulent or
deceptive conduct which creates a likelihood of confusion or
of misunderstanding.” 73 P.S. §§ 201-3,
201-2(4)(xxi), 201-9.2(a). The Pennsylvania Supreme Court has
held that the UTPCPL is to be liberally construed to
effectuate its underlying purpose of fraud prevention.
See Ash v. Cont’l Ins. Co., 932 A.2d 877, 881
Plaintiffs allege that Hast recommended a disability policy
for Lisa Cirocco because of her pre-existing eye issues.
Compl. ¶¶ 9, 14. Lisa Cirocco claims that
Northwestern and Hast violated the UTPCPL by, inter
alia, using deceptive representations regarding the sale
of the policy upon which she relied in deciding to purchase
it. Id. ¶ 51.b. Northwestern argues that there
is no colorable ground to support a UTPCPL claim against Hast
because: (1) Lisa Cirocco has not pled any deceptive act,
representation or conduct; (2) she has not pled justifiable
reliance on any deceptive or fraudulent conduct; and (3) she
cannot prove causation. See Doc. 16 at 12-14.
gravamen of Northwestern’s argument is whether
Plaintiffs have properly pled a UTPCPL claim against
Hast, but it is not the Court’s task
to assess the claim under a Rule 12(b)(6) standard at this
juncture. Rather, the question is whether the claim is
colorable, and the Court concludes that it is. First, a
private individual may maintain a claim under the UTPCPL
against an insurance agent. See Kelly v. Progressive
Advanced Ins. Co., 159 F.Supp.3d 562, 564 (E.D. Pa.
2016) (“[t]he UTPCPL applies to the sale of an
insurance policy”); Pekular v. Eich, 513 A.2d
427, 434 (Pa. Super. Ct. 1986) (an insured can maintain a
UTPCPL claim because the Unfair Insurance Practices Act does
“not represent the sole and exclusive deterrent to
alleged unfair or deceptive acts of insurers and their
agents”) (emphasis added). In addition,
numerous federal courts have determined that Pennsylvania law
may allow a UTPCPL claim against individual insurance agents
or claims representatives, thus defeating challenges of
fraudulent joinder. See Barrie v. Progressive Specialty
Ins. Co., 2017 ...