Tincher v. Insurance Co. of State of Pennsylvania
| Decision Date | 25 June 2003 |
| Docket Number | No. CIV.A. 2:03CV221.,CIV.A. 2:03CV221. |
| Parties | Brenda TINCHER, Plaintiff, v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Ohio Casualty Insurance Company, M.S. Carriers, Inc., and Patrick G. Geis, Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Jeffrey A. Breit, Esquire, Breit Drescher & Imprevento PC, Norfolk, Plaintiff Counsel.
Barbara M.R. Marvin, Esquire, Jackson & Campbell PC, Washington, DC, Counsel for Defendant Insurance Company of State of Pennsylvania.
Mary T. Morgan, Esquire, Kalbaugh Pfund & Messersmith PC, Norfolk, Counsel for Defendant Ohio Casualty Insurance. Kevin Lawson Keller, Esquire, Willcox & Savage, PC, Norfolk, Counsel for Defendant M.S. Carriers, Inc.
Patrick G. Geis, Virginia Beach, Pro Se Defendant.
This matter is before the court on plaintiffs motion to remand. On February 24, 2003, defendant The Insurance Company of the State of Pennsylvania ("ICSOP") was served with a summons and a copy of a complaint filed by plaintiff in the Circuit Court of the City of Norfolk. ICSOP filed a notice of removal on March 24, 2003, stating that the case was removable pursuant to 28 U.S.C. §§ 1441 and 1446, as the amount in controversy exceeded $75,000, and the suit was between citizens of different states. On April 4, 2003, plaintiff filed a motion to remand, pursuant to 28 U.S.C. § 1447(c), alleging that the District Court has no subject matter jurisdiction under 28 U.S.C. § 1441(b), because defendant Patrick G. Geis is a resident of Virginia. ISOP responded to the motion to remand on April 14, 2003, and plaintiff replied on April 17, 2003. Defendant M.S. Carriers, Inc., filed a memorandum opposing the motion to remand and adopting defendant ICSOP's memorandum on April 18, 2003. No additional responses or replies having been received, and the time for such having passed, this matter is ripe for review.
Plaintiff argues that the District Court has no subject matter jurisdiction, as defendant Patrick G. Geis is a citizen of Virginia. Under 28 U.S.C. § 1441(b), an action is removable "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." The Notice of Removal sets out the citizenship of the parties as follows: plaintiff is a resident of Poplarville, Mississippi; defendant ICSOP is a Pennsylvania company with its principal place of business in New York, New York; defendant Ohio Casualty Insurance Company is an Ohio company with its principal place of business in Fairfield, Ohio; defendant M.S. Carriers, Inc. is a Tennessee company with its principal place of business in Memphis, Tennessee; and defendant Patrick G. Geis is a resident of Virginia.
In its response to plaintiffs motion to remand, defendant ICSOP argues that defendant Patrick G. Geis was fraudulently joined as he is a nominal party and not a true party in interest. However, the Notice of Removal alleges nothing about fraudulant joinder; it simply asserts diversity jurisdiction. Nor has ICSOP moved to amend its notice of removal to incorporate such allegations. Were such amendment requested, however, the court would have no choice but to deny leave to amend.
Courts in this district have generally adopted a strict construction of the general rule that "allegations of jurisdiction imperfectly stated in the original petition for removal may be amended even after expiration of the 30-day removal period, whereas `missing allegations may not be supplied nor new allegations furnished.'" Richmond, F. & P.R. Co. v. Intermodal Services, Inc., 508 F.Supp. 804, 805 (E.D.Va.1981) (citing Thompson v. Gillen, 491 F.Supp. 24, 27 (E.D.Va.1980); but see Ginn v. Stegall, 132 F.R.D. 166, 167 (...
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