Winton v. Moore

• Decision Date: 07 August 1968
• Docket Number: No. 68-C-130.,68-C-130.
• Citation: 288 F. Supp. 470
• Parties: Parker L. WINTON, Father and Next Friend of Tony G. Winton, Minor, Plaintiff, v. Merle MOORE and the Prudential Insurance Company of America, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

288 F. Supp. 470

Parker L. WINTON, Father and Next Friend of Tony G. Winton, Minor, Plaintiff, v. Merle MOORE and the Prudential Insurance Company of America, Defendants.

No. 68-C-130.

United States District Court N. D. Oklahoma.

August 7, 1968.

Robert S. Gee, of Wallace & Owens, Miami, Okl., for plaintiff.

G. Ellis Gable, of Gable, Gotwals, Hays, Rubin & Fox, Tulsa, Okl., for defendants.

ORDER OF REMAND

DAUGHERTY, District Judge.

This is an action by the representative of the beneficiary of an insurance policy issued by the Defendant Prudential Insurance Company of America (Prudential). Plaintiff is a citizen of Oklahoma. Defendant Prudential is a corporation organized under the laws of the State of New Jersey, with its principal place of business in Newark, New Jersey. Defendant Merle Moore is Defendant Prudential's agent and is a citizen of Oklahoma. The action was initiated in the District Court of Craig County, Oklahoma, and is here on Defendant Prudential's Removal Petition. Defendant Moore did not join in the Removal Petition.

Plaintiff's suit is based on Defendant Moore's alleged failure to transmit insurance premiums paid him to the Defendant Prudential, thus allowing the policy to lapse and, alternatively, on Defendant Prudential's failure to pay the face of the policy upon the death of the insured.

Defendant Prudential's grounds for removal are, fraudulent joinder of the agent Moore, or that the Plaintiff has stated separate and independent causes of action, in either of which cases, removal is permitted by 28 U.S.C. § 1441(c).¹

Plaintiff has moved for remand on the grounds that there is a cause of action stated against the agent Moore as well as against the Defendant Prudential, that is, the agent has not been fraudulently joined, and that there is a lack of diversity of citizenship because of the presence of the Defendant Moore.

Where the removing party claims fraudulent joinder, he has the burden of pleading such fraudulent joinder with particularity and supporting it by clear and convincing proof.² Such is the nature of the facts that are required to be proved under this rule that the Court, if it retains jurisdiction of the case, must be able to dismiss the complaint against the nondiverse Defendant.³ In the instant case, the Plaintiff's cause of action against the Defendant Moore would survive both a motion to dismiss as well as a motion for summary judgment; as to the dismissal because a claim is stated in the complaint on which relief can be granted, and as to the summary judgment because there remains to be determined a genuine material fact issue, that of the payment of the premium, which is hotly disputed by the parties.

It appears that Plaintiff has a sound legal basis for his action against the Defendant Moore, although this conclusion is not absolutely clear under Oklahoma law.⁴ If the facts which support the Plaintiff's cause of action against the Defendant Moore do not exist, then there is a circumstance indicative of fraudulent joinder, even though a valid cause of action may have been stated in the complaint. Thus, the Court may seek to resolve the issue of whether the factual basis of the cause of action exists by any means, however, this does not mean that the Court will pre-try doubtful issues of fact: the fact issues must be capable of summary determination.⁵ Defendant Prudential has attempted to marshall the evidence of nonpayment by deposing Plaintiff, Defendant Moore, and a third person, Mr. Goodwin. Plaintiff states the payment was made, but is not clear as to which period it might relate. Defendant Moore states that he never received the payment. Mr. Goodwin knows nothing of his own knowledge about the payment, except what Defendant Moore told him. This is hardly the sort of clear and convincing evidence on which a summary determination that there is no factual basis for Plaintiff's cause of action against the Defendant Moore can be made. Accordingly, the Defendant Prudential has failed to make out a case of fraudulent joinder.

Defendant Prudential further contends that Plaintiff has stated separate and independent causes of actions against it and Defendant Moore, thus allowing removal of its part of the case or the entire case. While it is true that Plaintiff states one cause of action in tort, against the Defendant Moore, and another on the basis of contract, against the Defendant Prudential, only a single recovery is sought. Under these circumstances this case is indistinguishable from American Fire & Cas. Co. v. Finn, 341 U.S. 6, ...