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Ticer v. Imperium Insurance Co.

United States District Court, N.D. Texas, Dallas Division

January 15, 2020

MARK A. TICER d/b/a LAW OFFICE OF MARK A. TICER, Plaintiff,
v.
IMPERIUM INSURANCE COMPANY and IRONSHORE INDEMNITY, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          BRANTLEY STARR UNITED STATES DISTRICT JUDGE

         Before the Court is plaintiff Mark A. Ticer's Motion for Remand. After careful consideration, and for the reasons provided below, the Court DENIES the motion.[1]Therefore, Ticer's claims against defendant Imperium Insurance Company (Imperium) are severed and remanded to state court, while Ticer's claims against defendant Ironshore Indemnity, Inc. (Ironshore) will proceed, under diversity jurisdiction, before this Court.

         I.

         Before addressing Ticer's motion, the Court briefly provides the facts and procedural history of this case.

         A.

         Ticer does business as the Law Office of Mark A. Ticer. He is a resident of Dallas County and a citizen of Texas. On January 17, 2019, Ticer filed a petition in the 193rd Judicial District Court of Dallas County against defendants Imperium and Ironshore. In his petition, Ticer alleged claims for breach of contract, prompt pay violations, and violations of the Texas Insurance Code. Ticer filed an amended petition on January 29, 2019.

         Ticer's claims stem from Ticer's involvement in two lawsuits, and Imperium's alleged failure to provide coverage to him during the second lawsuit and Ironshore's alleged failure to provide coverage to him during both lawsuits. Regarding the first lawsuit, Ticer alleges that Ironshore assumed his defense at trial but refused to defend him on appeal. Ticer won his appeal and seeks coverage from Ironshore for his out-of-pocket expenses defending his appeal. Regarding the second lawsuit, Ticer alleges that both Ironshore and Imperium were obligated to provide coverage for his defense, but that Imperium refused to defend him and that Ironshore never responded to his request for coverage.

         B.

         Ironshore timely removed this case to this Court under 28 U.S.C. § 1441. Ironshore, a Minnesota and New York citizen, seeks removal based on diversity jurisdiction. Ironshore argues that this Court possesses subject matter jurisdiction under 28 U.S.C. § 1332(a) because the amount in controversy minimum is met and because Imperium, a Texas citizen, was improperly joined to the lawsuit. Ironshore argues that Imperium and Ironshore issued Ticer separate insurance policies at different times and for different coverage. Therefore, Ironshore maintains that Ticer's claims against Imperium should be severed and remanded to state court, while Ticer's claims against it should proceed before this Court.

         In response, Ticer moved to remand this case to Texas state court. Ticer argues that aside from the fact that Ironshore did not obtain Imperium's consent for removal, removal is impossible because Imperium was properly joined to the lawsuit.[2] And, according to Ticer, because Imperium is a proper defendant and is a citizen of Texas, the forum defendant rule proscribes removal of the case to federal court.[3] Ticer's motion for remand is ripe for this Court's review.

         II.

         With the facts and procedural posture set, the Court provides the applicable legal standards for removal.

         A.

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”[4] “For a case to be removable based on diversity jurisdiction, ‘all persons on one side of the controversy [must] be citizens of different states than all persons on the other side.'”[5] Because Ticer and Imperium are both citizens of Texas, diversity of citizenship does not exist here. And so, to remove this case to ...


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