United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter is before the Court on Plaintiff Maria Cruz's
motion to remand the case to the Superior Court of New
Jersey, Middlesex County. (ECF No. 7). For the reasons
expressed below, Plaintiffs motion is denied.
case arises from an insurance coverage dispute. On September
25, 2017, Plaintiff Maria Cruz, a New Jersey resident, filed
her Complaint against her insurance company, Defendant Geico
Insurance/Government Insurance Company (hereinafter,
"Geico"), an insurance company with its principal
place of business in Maryland. (ECF No. 1, "Notice of
Removal" at ¶¶ 1, 8-9). According to the
Complaint, on October 2, 2014, Plaintiff was involved in a
car accident with Deliah Martinez, and suffered serious
permanent injuries as a result. (ECF No. 1-1,
"Complaint"at ¶¶ 3-4).
Thereafter, Martinez settled with Plaintiff for the full
amount available under her policy, $25, 000. (Id. at
¶¶ 5-6). According to Geico, it issued Plaintiff an
uninsured/underinsured motorist insurance policy, with policy
limits of $100, 000/$3 00, 000, respectively. (Notice of
Removal at ¶ 11). In her Complaint, Plaintiff, seeks to
recover the remaining balance, under her policy, from Geico,
$75, 000; in addition, Plaintiff also seeks legal fees and
punitive damages, based on Geico's alleged bad faith
conduct. On December 7, 2017, Geico removed the matter to
this Court based on diversity jurisdiction under 28 U.S.C.
§ 1332. The sole issue before this Court is whether the
present matter should be remanded to the Superior Court
pursuant 28 U.S.C. § 1447(c).
action that has been removed to federal court can be remanded
to state court, pursuant to 28 U.S.C. § 1447(c), if the
removal procedure was defective. Section 1447(c) states, in
relevant part, that "[a] motion to remand the case on
the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of
the notice of removal under section 1446(a). If at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded." 28 U.S.C. § 1447(c) Moreover, under
Section 1446(a), when a defendant seeks to remove a civil
action from State court, he or she must file a notice of
removal, "containing a short and plain statement of the
grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action." 28 U.S.C. § 1446(a).
According to the Third Circuit, the "party asserting
jurisdiction bears the burden of showing that at all stages
of the litigation the case is properly before the federal
court." Samuel- Bassett v. Kia Motors Am.,
Inc., 357 F.3d 392, 396 (3d Cir. 2004). Accordingly, on
a motion to remand, the burden of demonstrating a proper
basis for removal remains with the removing party. See
Carroll v. United Air Lines, 7 F..Supp.2d 516,
519(D.N.J.. 1998). "Under 28 U.S.C. § 1441(a),
defendants may generally remove civil actions from state
court to federal court so long as the district court would
have had subject-matter jurisdiction had the case been
originally filed before it." A.S. ex rel. Miller v.
SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir.
2014). Removal is improper where "complete
diversity" is lacking between each plaintiff and each
defendant. Harvey v. Blockbuster, Inc. 384 F.Supp.2d
749, 752 (D.N.J. 2005).
Plaintiff sought to remand since the Complaint fails to
satisfy the amount in controversy requirement under 28 U.S.C.
§ 1332(a). However, at oral argument, Plaintiff
abandoned this argument and now contends diversity
jurisdiction is lacking since, under the "direct
action" provision of 28 U.S.C. § 1332(c), Geico is
considered a citizen of New Jersey for purposes of diversity
principles of diversity jurisdiction are well-established.
District Courts have subject matter jurisdiction "over
civil actions between 'citizens of different States'
where 'the matter in controversy exceeds the sum or value
of $75, 000, exclusive of interest and costs.'"
Perm v. Wal-Mart Stores, Inc., 116 F.Supp.2d 557,
561 (D.N.J. 2000) (quoting 28 U.S.C. § 1332(a)). For
diversity purposes, corporations are "deemed to be a
citizen of every State and foreign state by which it has been
incorporated and of the State or foreign state where it has
its principal place of business." 28 U.S.C. §
1332(c)(1). One caveat to this rule, however, is that an
insurer of a liability policy, sued in a direct action, is
deemed not only to be a citizen of the state of its
incorporation and principal place of business, but also the
state in which the insured is a citizen. Id. As
such, direct actions against insurers eliminates diversity
jurisdiction. Thus, the sole issue, is whether the present
matter constitutes a "direct action" under Section
true 'direct action' suit is '[a] lawsuit by a
person claiming against an insured but suing the insurer
directly instead of pursuing compensation indirectly through
the insured.'" Travelers Indent. Co. v.
Bailey, 557 U.S. 137, 143 n.2 (2009) (quoting
Black's Law Dictionary 491 (8th ed. 2004)). As such, a
direct action "exists only if 'the cause of action
against the insurance company is of such a nature that the
liability sought to be imposed could be imposed against the
insured.'" Davis v. OneBeacon Ins. Grp.,
721 F.Supp.2d 329, 335 (D.N.J. 2010) (quoting McGlinchey
v. Hartford Accident & Indem. Co., 866 F.2d 651, 653
(3d Cir. 1989)). "Accordingly, actions by an insured
against his own insurer under the uninsured motorist
provisions of the policy, the precise situation in the
instant case, have been held not to constitute direct actions
within the proviso of § 1332(c)." State Farm
Ins. Co v. Evans, 712 F.Supp. 57, 59 (E.D. Pa. 1989)
(collecting cases). Thus, Plaintiffs suit against Geico is
not a direct action, since she asserts claims against her
own insurer, not another insured. Therefore,
Plaintiffs motion to remand based on lack of diversity is
carefully reviewed and taken into consideration the
submissions of the parties, as well as the arguments and
exhibits therein presented, and for good cause shown, and for
all of the foregoing reasons, ORDERED that
Plaintiffs Motion to Remand is DENIED.