United States District Court, D. Montana, Missoula Division
QUINLAN G. ROE, Plaintiff,
RHONDA L. LELAND; CLAUDIA LYNN WELLS; and ALLSTATE INSURANCE COMPANY, Defendants.
W. MOLLOY, DISTRICT JUDGE.
December 2014 and June 2015, Plaintiff Quinlan G. Roe was
involved in two separate motor vehicle accidents with
uninsured motorists. (Doc. 3.) He unsuccessfully attempted to
obtain the full amount of uninsured motorists
("UM") benefits from his own auto insurer,
Defendant Allstate Insurance Company. (Doc. 9 at ¶ 2.)
On December 6, 2018, Roe filed a negligence suit against the
two uninsured motorists, Rhonda Leland and Claudia Wells, in
Montana Fourth Judicial District Court, Missoula County.
(Id. at ¶ 3.) Leland was immediately served,
(Doc. 2-5), and attempts were made to serve Wells, but she
could not be located, (Doc. 9 at ¶ 6). On August 21,
2019, Roe amended his complaint to include Allstate. (Doc.
3.) On September 11, 2019, Allstate removed the case to this
Court on the grounds that Leland and Wells are now, and at
the time the Amended Complaint was filed, nominal parties
whose citizenship is not considered for the purposes of
establishing federal diversity jurisdiction. (Doc. 1 at 4.)
Roe seeks to remand this matter back to state court in the
absence of complete diversity. (Doc. 7.) He also seeks fees
and costs associated with the motion. While remand is
appropriate, fees and costs are not awarded.
party's request for remand and for associated costs and
attorney fees are governed by 28 U.S.C. § 1447. The
request for remand will be granted if the court finds that
the removal is improper and the federal court lacks
defendant may remove "any civil action brought in a
State court of which the district courts ... have original
jurisdiction." 28 U.S.C. § 1441(a). Allstate
premises removal of the present case on diversity of
citizenship pursuant to 28 U.S.C. § 1332(a)(1).
"Diversity removal requires complete diversity, meaning
that each plaintiff must be of a different citizenship from
each defendant." Grancare, LLC v. Thrower ex rel.
Mills, 889 F.3d 543, 548 (9th Cir. 2018). But assessment
of citizenship is limited to "real and substantial
parties to the controversy," disregarding
"nominal" parties. Navarro Sav. Ass 'n v.
Lee, 446 U.S. 458, 460-61 (1980); see also 28
U.S.C. § 1441(b)(2) (action may not be removed under
section 1332(a) "if any of the parties in interest
properly joined and served as defendants is a citizen of the
State in which such action is brought"). Allstate, as
the removing party, bears the burden of establishing
jurisdiction. Indus. Tectonics, Inc. v. Aero Alloy,
912 F.2d 1090, 1092 (9th Cir. 1990). If federal jurisdiction
is in doubt, remand is necessary. Dunham v. Lockheed
Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006).
undisputed that for the purposes of removal Roe, Leland, and
Wells are assumed to be citizens of Montana. (See
Doc. 2-1 at ¶¶ 1-3; Doc. 3 at ¶¶
1-3.)But Allstate asserts that Leland and Wells
are not "real and substantial" parties because
Allstate is the uninsured payment obligor. On the other hand,
Roe maintains that both Leland and Wells have a stake in this
litigation as the tortfeasors, albeit uninsured tortfeasors.
indicated by the parties, the persuasive authority on this
issue is divided. Allstate relies on a case that found the
uninsured tortfeasor was a nominal party where the claim was
for UM benefits and the driver was merely named to trigger an
"inchoate" payment obligation owed by the UM
insurer. Kidd v. Gilfilen, 170 F.Supp.2d 649, 651-52
(S.D. W.Va. 2001); see also Jakoubek v. Fortis Benefits
Ins. Co., 301 F.Supp.2d 1045, 1050-51 (D. Neb. 2003)
(disregarding the citizenship of the State of Nebraska in
assessing benefits owed and administered by a private
insurer). Roe relies on two other district court cases that
hold the opposite, Van-Soolen v. Horace Mann Insurance
Co., 2012 WL 3730529 (D. Nev. Aug. 2, 2012), and
Thomas v. Corbett, 2010 WL 3064470 (S.D. W.Va. Aug.
2, 2010). In Van-Soolen, the court concluded that an
uninsured motorist was a real party in interest in a case
that also included the UM carrier because Nevada law
specifically allowed the plaintiff to seek recovery against
the insurer, the uninsured motorist, or both. The
Thomas court reached a similar result, finding that
the low coverage limits and possibility of personal recovery
against the uninsured motorist justified a significant stake
in the lawsuit.
and Thomas are more persuasive given Montana law and
Roe's insistence that policy limits may be insufficient
to cover his damages. In Montana, a plaintiff can bring a
direct tort action against the tortfeasor, as the person who
caused the alleged injuries, and a contract claim against his
UM carrier who stands in the shoes of the tortfeasor
"for the purpose of fulfilling [its] contractual
obligations" under the policy. Dill v. Mont.
Thirteenth Jud. Dist. Ct., 979 P.2d 188, 191 (Mont.
1999). Thus, it is appropriate for Roe to sue Leland and
Wells directly under Montana law. Additionally, Roe states
that he may seek a judgment in excess of the UM coverage
limits of $600, 000 on the grounds that his injuries will
diminish his earning capacity for the remainder of his life.
(Doc. 13 at 9.) Thus, Wells and Leland potentially have a
financial stake in the litigation. Unlike the situation in
Kidd, the case relied on by Allstate, the
tortfeasors' presence in the case is more than just a
procedural mechanism to reach the insurer.
on the foregoing, remand is appropriate. To the extent this
is a close question, any doubt weighs in favor of remand.
Dunham, 445 F.3d at 1252.
Fees and Costs
further seeks his fees and costs associated with removal.
While such fees and costs can be awarded, 28 U.S.C. §
1447(c), such an award is not warranted. The parties'
merits briefing on the jurisdictional issue references what
Allstate calls the "confirmatory email." (Docs. 4,
12.) While the contents of this email are not sufficient to
confer jurisdiction, Allstate reasonably understood this
correspondence as an acknowledgement that this case is
fundamentally about recovering uninsured benefits from
Allstate. (See Doc. 12 at 4.) In light of that understanding
and the authority discussed above, a fees award is not
on the foregoing, Roe's motion (Doc. 7) is GRANTED in
PART and DENIED in PART. This matter is REMANDED back to the
Fourth Judicial District Court, Missoula County. The clerk is
directed to transmit the file to the state ...