National Credit Control, Inc. v. First National Insurance Co. of America

749 F. Supp. 154, 1990 U.S. Dist. LEXIS 14735, 1990 WL 167128

• Court: District Court, E.D. Texas
• Decided: October 12, 1990
• Docket: No. S-89-0319-CA
• Status: Published

Opinion

MEMORANDUM ORDER

COBB, District Judge.

The defendants removed this case from the 336th Judicial District Court, Grayson County, Texas, alleging fraudulent joinder of the two non-diverse defendants, Keith Petrick (Petrick) and Guy Nichols (Nichols). Simultaneous with the removal, the defendants filed a motion to dismiss, seeking the dismissal of the plaintiffs’ suit as to Petrick and Nichols. The plaintiffs have moved this court for remand of the case.

As the plaintiffs correctly point out, the burden is on the defendants to show fraudulent joinder by clear and convincing evidence. Parks v. New York Times Co., 308 F.2d 474 (5th Cir.1962), cert. denied, 376 U.S. 949, 84 S.Ct. 964, 11 L.Ed.2d 969 (1964). The defendants must show the plaintiffs have no colorable state law claim against the non-diverse defendants. Tedder v. FMC Corp., 590 F.2d 115 (5th Cir.1979); Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172 (5th Cir.1975).

In the instant case, plaintiffs allege several state law tort claims against Pe-trick and Nichols. The defendants have failed to show that those tort claims are not even colorable. It is apparent that Petrick and Nichols are “persons” within the meaning of the Texas Insurance Code. TEX.INS.COD. art. 21.21 sec. 16(a). It is certainly colorable that the plaintiffs could maintain a tort action against these persons for conspiracy to breach and breach of the duty of good faith and fair dealing.

Accordingly, the motion to remand is GRANTED, and this case is REMANDED to the 336th Judicial District Court, Gray-son County, Texas.