Anderson v. Home Ins. Co.

Citation724 F.2d 82
Decision Date08 February 1984
Docket NumberNo. 83-1663,83-1663
PartiesLarry Roland ANDERSON, Appellant, v. The HOME INSURANCE COMPANY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Larry Roland Anderson, pro se.

Ben J. Weinberger, St. Louis, Mo., for appellant.

Daniel T. Rabbitt, Charles E. Reis, IV, Brown, James & Rabbitt, P.C., St. Louis, Mo., for appellee, Home Ins. Co.

Before HENLEY, Senior Circuit Judge, and JOHN R. GIBSON and FAGG, Circuit Judges.

PER CURIAM.

This is an appeal from a dismissal by the district court under Fed.R.Civ.P. 37(b)(2)(C) for failure to answer interrogatories. Acting pro se, Larry Roland Anderson sued the Home Insurance Company in state court on an insurance policy, alleging libel and wrongful denial of a claim. Home Insurance had refused to indemnify his claimed fire loss, citing a finding of arson and Anderson's failure to document his insured property. Anderson amended the complaint adding as a defendant his insurance agent, Paul H. Politte, Inc., and thereby destroying diversity jurisdiction. Nevertheless, Home Insurance petitioned for removal to the United States District Court under 28 U.S.C. Sec. 1441, alleging fraudulent joinder. The District Court found the joinder to be fraudulent, allowed removal under 28 U.S.C. Sec. 1441, assumed jurisdiction under 28 U.S.C. Sec. 1332, and dismissed Anderson's claim against Politte for misjoinder under Fed.R.Civ.P. 21.

Home Insurance subsequently propounded interrogatories which Anderson failed to answer. The district court ordered Anderson to answer under Fed.R.Civ.P. 37(a). After a month without response from Anderson and four months after the filing of the interrogatories, the district court, under Fed.R.Civ.P. 37(b)(2)(C), dismissed the complaint with prejudice for failure to comply with its order. We affirm.

Anderson argues first that the district court improperly assumed jurisdiction on removal from the state court and improperly dismissed Politte. Joinder designed solely to deprive federal courts of jurisdiction is fraudulent and will not prevent removal. Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.1979). Fraudulent joinder exists if, on the face of plaintiff's state court pleadings, no cause of action lies against the resident defendant. Tedder, 590 F.2d at 117. In this case joinder is fraudulent. On the face of the pleadings, Anderson stated no claim against Politte: Anderson and Home Insurance were the only parties to the contract, and Politte apparently was uninvolved in the libel claim. As a result, Politte is not an indispensable party, see Fed.R.Civ.P. 19(a), and under Fed.R.Civ.P. 21 the district court properly dismissed Anderson's claim against Politte.

Anderson also argues that the district court abused its discretion when, under Fed.R.Civ.P. 37(b)(2)(C), it dismissed his complaint with prejudice for failure to obey its...

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