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Pisanchyn v. Progressive Direct Insurance Co.

United States District Court, M.D. Pennsylvania

August 2, 2018

CHRISTOPHER PISANCHYN, Plaintiff,
v.
PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant.

          MEMORANDUM

         Presently before me is the Motion to Remand (Doc. 5) filed by Plaintiff Christopher Pisanchyn (“Plaintiff”). Plaintiff commended this action for underinsured motorist benefits against his insurer, Defendant Progressive Direct Insurance Company (“Defendant”), in the Court of Common Pleas of Lackawanna County, Pennsylvania. Defendant removed the case to this Court. Plaintiff now requests that the action be remanded to state court. Remand, says Plaintiff, is required because: (1) the parties are not diverse; and/or (2) a forum selection clause in the insurance policy waived Defendant's right to remove. Because diversity jurisdiction over the action exists and Defendant did not waive its right to remove under the forum selection clause, Plaintiff's motion to remand will be denied.

         I. Background

         On December 8, 2016, Plaintiff filed a Praecipe for Writ of Summons in the Court of Common Pleas of Lackawanna County, Pennsylvania. (See Doc. 1, Ex. “A”). Plaintiff filed his two-Count Complaint against Defendant for breach of contract and bad faith on May 18, 2018. (See id. at Ex. “E”).

         Defendant removed the action to this Court on June 15, 2018. (See Doc. 1, generally). Defendant contends that jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1332 because it is an Ohio corporation with its principal place of business in Ohio, Plaintiff is a citizen of Pennsylvania, and the amount in controversy exceeds $75, 000.00. (See id. at ¶¶ 8, 10, 16).

         Plaintiff moved to remand the action to state court on June 26, 2018. (See Doc. 5, generally). According to Plaintiff, the parties are not diverse because, as this is a “direct action” against his insurer, Defendant is “deemed a citizen of Pennsylvania.” (Id. at ¶¶ 10, 12). Plaintiff further argues that the Defendant waived the right to remove based on a forum selection clause in the applicable insurance policy. (See id. at ¶ 21). That clause provides: “[a]ny action brought against us pursuant to coverage under Part III - Uninsured/Underinsured Motorist Coverage must be brought in the county in which the person seeking benefits resides, or in the United States District Court serving that county.” (Id. at Ex. “A”).

         Defendant timely opposed the motion to remand, (see Doc. 7, generally), to which Plaintiff filed a reply. (See Doc. 8, generally). The motion to remand is thus fully briefed and ripe for disposition.

         II. Legal Standard

         Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “[T]he party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court.” Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007) (citation omitted). Removal statutes are to be strictly construed against removal, and all doubts are resolved in favor of remand. See A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir. 2014) (citation omitted).

         III. Discussion

         Plaintiff seeks to have the matter remanded to state court on the grounds that (1) the parties are not diverse in light of 28 U.S.C. § 1332(c)(1)(A), and/or (2) Defendant waived its right to remove.

         A. Diversity.

         Plaintiff first argues that the parties are not diverse by virtue of 28 U.S.C. § 1332(c)(1)(A). More particularly, Plaintiff claims that since this is a direct action against the insurer and the insured, i.e., himself, is not named as a party-defendant, Defendant should be deemed a Pennsylvania citizen. This argument is without merit.

         Section 1332(c)(1) provides:

(1) a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the ...

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