Ruiz v. Farmers Ins. Co., Civ. A. No. 90-2440-O.
| Decision Date | 05 February 1991 |
| Docket Number | Civ. A. No. 90-2440-O. |
| Parties | Santos RUIZ, Plaintiff, v. FARMERS INSURANCE COMPANY and Intracorp, Defendants. |
| Court | U.S. District Court — District of Kansas |
Bryson R. Cloon, Cloon & Bennett, Overland Park, Kan., for plaintiff.
Kenneth E. Holm, Boddington & Brown, Chtd., Kansas City, Kan., Richard N. Bien, James A. Durbin, Swanson, Midgley, Gangwere, Clarke & Kitchin, Kansas City, Mo., Neil L. Johnson, Swanson, Midgley, Gangwere, Clarke & Kitchin, Overland Park, Kan., for defendants.
This matter is before the court on plaintiff's motion to remand and for costs. Having reviewed the motion and the response thereto, the court is now prepared to rule.
Plaintiff, a resident of Kansas City, Kansas, filed this suit in the Wyandotte County, Kansas, District Court on November 20, 1990. In his complaint, plaintiff alleges that he was injured in an automobile accident on January 14, 1990. Plaintiff further alleges that he applied for personal injury protection benefits pursuant to his contract of insurance with Farmers Insurance Company ("Farmers"), but was denied such benefits because of the tortious conduct of Farmers and Intracorp. Plaintiff seeks judgment against Farmers for medical benefits, attorney's fees and interest. Plaintiff seeks damages against Intracorp in an amount in excess of $50,000.00.
In his original petition, plaintiff erroneously listed "Farmers Insurance Group" as a defendant. At approximately 1:46 p.m. on December 12, 1990, plaintiff filed an amended petition in the Wyandotte County District Court amending the name of defendant "Farmers Insurance Group" to "Farmers Insurance Company."1
At approximately 4:14 p.m. on December 12, 1990, Intracorp filed its notice of removal with this court. In the notice of removal, Intracorp alleged that, upon its information and belief, Farmers Insurance Group was a corporation with its principal place of business in Los Angeles, California. Intracorp further alleged that Farmers Insurance Group had not been served with process as of the filing of the notice of removal.
Plaintiff filed an objection to the removal and now seeks a remand of this action to state court. Plaintiff argues that removal is inappropriate in light of the fact that plaintiff and Farmers Insurance Company are both residents of the state of Kansas. Plaintiff further asks the court for an award of costs pursuant to 28 U.S.C. § 1447(c).
In response, Intracorp argues that removal was valid because, at the time the notice of removal was filed, Intracorp was the only properly joined and served defendant. Accordingly, Intracorp argues, complete diversity of citizenship existed and the requirements of 28 U.S.C. § 1441(a) and (b) were met.
A federal district court is required to remand an action removed from state court "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction...." 28 U.S.C. § 1447(c). When a party challenges removal and requests remand to the state court, the removing party has the burden of demonstrating that removal was proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). Further, in ruling on a motion to remand, a district court must focus on the plaintiff's complaint at the time the petition for removal was filed. Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987), cert. dismissed, 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988).
Here, the court finds that removal was not proper. In a case involving a non-separable controversy with resident and nonresident defendants, "the fact that the resident defendant has not been served with process does not justify removal by the nonresident defendant." Pullman Co. v. Jenkins, 305 U.S. 534, 540, 59 S.Ct. 347, 350, 83 L.Ed. 334 (1939) (citations omitted). In this case, at the time the petition for removal was filed, plaintiff's amended complaint had been filed correcting the name of defenda...
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