United States District Court, M.D. Pennsylvania
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.
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”).
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).
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”).
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.
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).
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.
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.
(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 ...