Westridge v. Allstate Insurance

118 F.R.D. 617, 1988 U.S. Dist. LEXIS 1003, 1988 WL 10736
CourtDistrict Court, W.D. Arkansas
DecidedJanuary 25, 1988
DocketCiv. No. 87-5108
StatusPublished
Cited by3 cases

This text of 118 F.R.D. 617 (Westridge v. Allstate Insurance) is published on Counsel Stack Legal Research, covering District Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westridge v. Allstate Insurance, 118 F.R.D. 617, 1988 U.S. Dist. LEXIS 1003, 1988 WL 10736 (W.D. Ark. 1988).

Opinion

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Wanda Westridge and Maurice Wes-tridge filed this lawsuit, pro se, in the [618]*618Circuit Court of Washington County, Arkansas, alleging that the insurance carrier issued to them a policy of insurance which went into effect in May of 1981, insuring two separate automobiles, one owned by Wanda Westridge, and the other by Maurice Westridge. They claim that they received a letter dated June 8, 1987, from Allstate stating that as of 12:01 a.m. on July 28, 1987, Allstate “will cancell [sic]” the insurance provided by these policies. They say that the reasons given by Allstate for the termination of this policy were not meritorious, and they ask for a temporary injunction and damages in the total amount of $75,000.

Defendant, within the time and in the manner permitted by 28 U.S.C. § 1446, removed the case to this court and filed its answer, claiming that the insurance policy in question was due to terminate by its terms on July 27,1987, and that the June 8 letter referred to in the complaint was notice of the intention not to renew the policy upon termination.

Plaintiffs then filed a paper they called “Ex Parte Motion for Extension of Time” in which they ask that they “be granted an extension of time in which to reply to the defendant’s removal of the afore [sic] numbered case.” As a result of that filing, the court wrote the Westridges advising them that removal petitions do not call for a reply and that if they felt that the removal was not proper they should file a motion to remand. In that letter, the court also advised them that they should reply, in the time permitted by the court’s rules, to a motion for summary judgment filed by the insurance carrier a few days before.

The plaintiffs next filed a motion to remand. Although it is difficult to determine from the motion why the plaintiffs believe that the case should be remanded to state court, they say that it is because the state court “has original jurisdiction as granted by the Constitution of the State of Arkansas Art 12 Rule 11; Foreign Corporations doing Business in the state: as to contracts made or business done in the State, they (foreign Corporations) shall be subject to the same regulations, limitationts [sic] and liabilities as like corporations of the state.”

The court wrote Mr. Westridge with whom, as will be further set out below, this court has had previous contact, a letter attempting to explain to him that for a little over 200 years state courts and federal courts have had concurrent jurisdiction in cases between citizens of different states where the amount in controversy meets a jurisdictional requirement. The motion to remand was denied. The day that the order denying the motion to remand was filed, Mr. Westridge filed, also pro se, a notice of appeal to the Court of Appeals for the Eighth Circuit. As far as this court can determine, that appeal has not yet been acted upon by that court.

The Westridges have not responded to the motion for summary judgment although the time to do so long ago expired. For the reasons set forth below, the court has concluded that the motion should be acted on by this court at this time even though the attempted appeal of the court’s denial of the motion to remand has not yet been disposed of by the court of appeals.

Jurisdiction

This court finds that it has jurisdiction to rule on the motion for summary judgment even though this court’s refusal to remand the matter is on appeal. This is because, in the court’s view, the filing of the notice of appeal is clearly an attempt to appeal a non-appealable order. Of course, 28 U.S.C. § 1291 allows appeals only from “final decisions” of the district courts. The courts have rather uniformly held that an order denying a motion to remand is not a final order and is, thus, not appealable. See the numerous cases cited at Note 38 of 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3914. In fact, the United States Supreme Court, in dictum, in Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 578, 74 S.Ct. 290, 293, 98 L.Ed. 317 (1954), said that an order denying a motion to remand a removed case to a state court “[o]bviously ... is not final and appealable if standing alone.”

Since that is true, this court has jurisdiction to proceed in this matter and to rule on [619]*619the motion for summary judgment. The Court of Appeals for the Second Circuit, in Leonhard v. United States, 633 F.2d 599 (2d Cir.1980), in a well-reasoned opinion, held that the filing of the notice of appeal of a non-appealable order does not deprive the trial court of jurisdiction, and said, “[W]e see no efficiency to be gained by allowing a party arbitrarily to halt the district court proceedings by filing a plainly unauthorized notice which confers on this court the power to do nothing but dismiss the appeal.” Id. at 610.

In fact, as pointed out in that decision, by far a majority of the courts of appeal that have ruled on this issue have held that the attempted appeal of a non-appealable order has no effect on the jurisdiction of the trial court.1 In short, the law in most circuits, apparently including the Eighth Circuit, is that a trial court is not deprived of jurisdiction to continue with the case by the filing of a notice of appeal which is “manifestly deficient.” Hodgson, supra, and Hitch-mon, supra. Not only is this holding supported by the courts of appeal for most circuits that have ruled on this issue, in this court’s view it is also supported by common sense. In the words of the Hodgson court, 460 F.2d at 328: “Otherwise, a litigant could temporarily deprive a court of jurisdiction at any and every critical juncture.”

The Westridge notice of appeal is clearly premature and frivolous and is, thus, “manifestly deficient.” This court continues to have jurisdiction to proceed in this matter and will now rule on the motion for summary judgment which has been pending several months.

Motion For Summary Judgment

The court concludes that there is no genuine issue as to any material fact in relation to the issuance and non-renewal of the policy of insurance in question and that, thus, the motion for summary judgment should be granted.

The defendant attached to its motion for summary judgment a copy of the policy of insurance sued on. It shows that the policy was initially issued for a six-month period beginning July 27, 1986, and ending January 27, 1987, and was extended for a six-month period to end on July 27, 1987. In a letter dated June 8,1987, the plaintiffs were advised that, upon expiration of the insurance coverage at 12:01 a.m. on July 27, 1987, the policy would not be renewed. The letter also advised the Westridges of the reasons for the decision not to renew.

Under a heading “When And Where The Policy Applies,” the policy says: “Your policy applies only during the premiums period ...

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Cite This Page — Counsel Stack

Bluebook (online)
118 F.R.D. 617, 1988 U.S. Dist. LEXIS 1003, 1988 WL 10736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westridge-v-allstate-insurance-arwd-1988.