IN THE UNITED STATE DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION BRANDON ADAMS, ET AL. P L A I N T IFFS VS. 4:20-CV-01410-BRW THE CINCINNATI INSURANCE CO., ET AL. DEFENDANTS ORDER Pending is Plaintiff’s Motion to Remand (Doc. No. 8). Defendant Cincinnati Insurance Co. has responded and Plaintiff replied.1 As set out below, the Motion is DENIED. Pure Insurance Company and Brandon Adams are DISMISSED without prejudice. The Motion to Dismiss (Doc. No. 10) is MOOT. I. BACKGROUND On October 23, 2020, Plaintiffs filed a complaint in state court seeking declaratory judgments against Defendants related to two insurance contracts. Plaintiffs Bryan and Carla

Adams have an insurance contract with Defendant The Cincinnati Insurance Co. Plaintiff Brandon Adams has separate insurance contracts with separate Defendant named “Pure Insurance Company.” Cincinnati removed the case on December 2, 2020. On December 9, 2020, Plaintiffs filed a motion to remand because Cincinnati failed to get consent from Pure. II. DISCUSSION A. Remand Under

(b)(2)(A), “[w]hen a civil action is removed solely under section

1441(a), all defendants who have been properly joined and served must join in or consent to the

1Doc. Nos. 12, 19. removal of the action.” It is undisputed that Cincinnati failed to get consent from Pure before removing this case. However, Cincinnati contends that “there is no legal entity known as ‘Pure Insurance Company,’” and asserts that it “not a proper party to this lawsuit and is not a legal entity that can accept service, consent to removal, or otherwise defend and/or participate in litigation . . . .”2 I agree.

It appears that the named Defendant “Pure Insurance Company” is the result of a misnomer. No one disputes that there is no company named Pure Insurance Company or that the properly-named party is Privilege Underwriters Reciprocal Exchange. Notably, this company name appears on page 25 of the insurance contract attached to the complaint.3 However, Plaintiffs still have made no efforts to correct the misnomer. Though they argue that its obvious they meant Privilege Underwriters Reciprocal Exchange, they are responsible for clearing up the misnomer with an amended complaint. No such request has been made. Because Pure Insurance Company does not exist (or at least was not involved in the facts surrounding this case) it is not

“properly joined and served,” and Cincinnati was not required to get its consent.4 B. Severance Although the request appears in a response, rather than a separate motion, I agree with Cincinnati’s argument that Defendants must be severed. Although all Plaintiffs are seeking

2Doc. No. 13. 3Doc. No. 2, at p. 322 of 369. 4Berkley v. Midfirst Bank, No. 3:15-CV-110-SA-SAA,

, at *2 (N.D. Miss. Aug. 17, 2015) (“There has been no attempt by Plaintiff to amend the pleadings to state Shapiro as the properly named party in the Complaint [2]. Case law states that leave will be granted to fix such small errors, but such leave had not been requested at the time of removal.

Since there, at the time of removal, had been no request by the Plaintiff to amend the pleadings, the Court holds that the misnomer doctrine cannot, on its own, transform the named party into the intended party . . . Thus, since Defendant Shapiro was not properly joined in this action, Shapiro was not a party that must consent to removal.”). indemnity related to a case filed against them in state court, the fact is, there are three plaintiffs pursing claims against two separate defendants based on two separate insurance contracts that, no doubt, contain different terms and conditions. Accordingly the legal and factual grounds for denying the claims are likely different (and Plaintiffs have not established otherwise).5

CONCLUSION Based on the findings of fact and conclusions of law above, Plaintiff’s Motion to Remand (Doc. No. 26) is DENIED. Pure Insurance Company and Brandon Adams are DISMISSED without prejudice. The Motion to Dismiss (Doc. No. 10) is MOOT. IT IS SO ORDERED this 31st day of December, 2020.

Billy Roy Wilson UNITED STATES DISTRICT JUDGE

5Allegis Investment Services, LLC v. Arthur J. Gallagher & Co,

(D. Utah 2017) (denying consolidation of denial of coverage claims from same plaintiff against different insurers because each policy was different and individual issues would predominate).