Turpeau v. Fidelity Financial Services, Inc.

936 F. Supp. 975, 1996 U.S. Dist. LEXIS 11803, 1996 WL 473672
CourtDistrict Court, N.D. Georgia
DecidedMarch 29, 1996
Docket1:95-cv-01987
StatusPublished
Cited by13 cases

This text of 936 F. Supp. 975 (Turpeau v. Fidelity Financial Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turpeau v. Fidelity Financial Services, Inc., 936 F. Supp. 975, 1996 U.S. Dist. LEXIS 11803, 1996 WL 473672 (N.D. Ga. 1996).

Opinion

ORDER

FORRESTER, District Judge.

This matter is before the court on Plaintiffs’ motion to remand, to amend, and for attorneys’ fees as well as on Defendants’ motion to sever. At issue is the propriety of Defendants’ notice of removal. Additionally, Defendant Transouth has moved this court for summary judgment on the basis of Plaintiffs’ alleged misinterpretation of a Georgia insurance statute. Also pending are motions to compel, to excuse compliance with the Local Rules, to file supplemental briefs, and to extend time to move for class certification.

I. SUMMARY OF CASE

On July 7, 1995, seven Plaintiffs commenced this suit against eleven Defendants in the State Court of Fulton County, Georgia. Plaintiffs Barbara Turpeau, Darryl & Krystal Lewis, Martha Cleveland, Kevin Cuevas, Sandra Wright, and William Tuggle purported to represent the class of all similarly situated plaintiffs who have been injured by various Defendant lenders and life insurance companies’ violations of O.C.G.A. § 33-31 — 4 in selling excess credit life insurance pursuant to automobile financing. O.C.G.A. § 33-31-4(a) (1990) provides for limits on the amount of credit life insurance as follows:

The amount of credit life insurance shall not exceed the indebtedness. Where indebtedness repayable in substantially *977 equal installments is secured by an individual policy of credit life insurance, the amount of insurance shall not exceed the approximate unpaid indebtedness on the date of death and, where secured by a group policy of credit life insurance, shall not exceed the exact amount of unpaid indebtedness on that date.

“Indebtedness” is defined as “the total amount payable by debtor to a creditor in connection with a loan or other credit transaction.” O.C.G.A. § 33-31-1(5) (1990).

No single Plaintiff has a claim against more than one Defendant lender and one

Defendant insurer as illustrated by the following:

Plaintiff Defendant
Turpeau Fidelity Financial Services Admiral Life Insurance Co.
Lewis Bank South Corporation
JMIC Life Insurance Co.
Cleveland Mercury Finance Co.
Union Fidelity Life Ins. Co.
Cuevas Fidelity National Bank
American National Mortgage Co.
Wright TranSouth Mortgage Co.
American National Ins. Co.
Tuggle Chrysler Credit Corp.
JMIC Life Insurance Co.

II. PLAINTIFF WRIGHT: STATEMENT OF UNDISPUTED FACTS

Plaintiff Sandra Wright purchased an automobile from Freeway Ford in Columbus, Georgia on January 25, 1994. She financed her purchase with Freeway Ford under a retail installment contract with precomputed interest and equal monthly payments. Pursuant to her financing agreement, Plaintiff Wright purchased credit life insurance from Defendant American National, with the initial amount of insurance based upon the total of payments due under her financing contract. In other words, Plaintiff financed $10,375.69 but purchased $14,568.00 in credit life insurance (Retail Installment Contract, Exh. A to Plaintiffs Brief in Opposition to Defendant Transouth’s Motion for Summary Judgment). Freeway Ford assigned Plaintiffs contract to Defendant Transouth Mortgage as was provided in the initial installment contract.

III. DISCUSSION

A. Motions to Remand, Sever, and Amend

On August 8, 1995, Defendants Transouth and American National filed a notice of removal of Plaintiff Wright’s claims against them based on diversity jurisdiction. Two days later, Defendant Chrysler Credit filed a consent to the removal complaint for those claims by Plaintiff Cuevas against it and Defendant JMIC Life. Additionally, Defendants Transouth, American National, and Chrysler have moved this court to sever the claims that the Plaintiffs Wright, Tuggle, and Cuevas have asserted against them from those of the other Plaintiffs. In response, Plaintiffs have filed three motions to remand based on this court’s purported lack of subject matter jurisdiction as well as a motion to amend the complaint to stipulate that each individual class member will neither demand nor accept damages in excess of $50,000, exclusive of interest and costs.

(1) Diversity Jurisdiction

Any civil action brought in the state court over which the district court has original jurisdiction can be removed to federal court. 28 U.S.C. § 1441(a). A district court has original jurisdiction over federal questions, 28 U.S.C. § 1331, and cases involving diversity of citizenship, 28 U.S.C. § 1332. Under 28 U.S.C. § 1332, district courts have jurisdiction over civil actions where the amount in controversy exceeds $50,000.00, exclusive of interests and costs, and where the action is between citizens of different states.

CITIZENS OF DIFFERENT STATES

Diversity between the parties must be complete. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), overruled on other grounds, 43 U.S. (2 How.) 497, 11 L.Ed. 353 (1844); Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1557 (11th Cir. 1989). In the instant action, complete diversity does not exist between all of the plaintiffs and all of the Defendants. Defendants’ removal attempt will fail, therefore, unless, as Defendants assert, it appears that the *978 parties destroying diversity have been fraudulently joined. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir.1996). Misjoinder will have the same effect as fraudulent joinder. Id. at 1360. Plaintiffs counter that the correct inquiry should focus on the propriety of the class action rather than the joinder rules.

Rule 23

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Bluebook (online)
936 F. Supp. 975, 1996 U.S. Dist. LEXIS 11803, 1996 WL 473672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turpeau-v-fidelity-financial-services-inc-gand-1996.