Surplus Marketing Service Insurance Agency, Inc. v. Marsh & McLennan, Inc.
Surplus Marketing Service Insurance Agency, Inc. v. Marsh & McLennan, Inc.
Opinion of the Court
ORDER GRANTING PLAINTIFF’S MOTION FOR REMAND
This action was removed from the state court by petition of defendant Northbrook Excess and Surplus Insurance Company (“Northbrook”), dated June 14, 1983. On June 23, 1983, the plaintiff moved to remand for improvident removal. The claims against Northbrook are independently removable but the claims against Marsh & McLennan, Inc. are not because there is no diversity of citizenship. Plaintiff argues that the claims brought against the two defendants are not “separate and independent” as required by 28 U.S.C. § 1441(c).
The governing interpretation of the “separate and independent” requirement in this circuit is found in New England Concrete Pipe v. D/C Systems, Inc., 658 F.2d 867 (1st Cir. 1981):
What should determine the applicability of § 1441(c), however many wrongs may comprise a particular suit, is whether those wrongs arise from an interlocked series of transactions, that is, whether they substantially derive from the same facts.
658 F.2d at 874, n. 12. Multiple theories of recovery, multiple claims, multiple defendants and differing requests for relief against different defendants do not control. 658 F.2d at 872-874.
For the purposes of determining whether the claims are “separate and independent”, the plaintiff’s pleadings at the time the petition for removal was filed control. 658 F.2d at 872, n. 8. The claims described in the complaint are (1) defendant Northbrook’s alleged breach of its agreement to insure Subaru of New England; (2) Northbrook’s allegedly wrongful termination of its brokerage agreement with the plaintiff; (3) Marsh & McLennan, Inc.’s and Northbrook’s subsequent refusal to pay commissions to plaintiff on the replacement coverage they arranged for Subaru. Marsh
Plaintiff’s motion to remand for improvident removal is ALLOWED. The case is remanded to the Trial Court for the Commonwealth of Massachusetts, Superior Court Department, Suffolk County, pursuant to 28 U.S.C. § 1447(c).
Reference
- Full Case Name
- SURPLUS MARKETING SERVICE INSURANCE AGENCY, INC. v. MARSH & McLENNAN, INC.
- Status
- Published