United States District Court, W.D. North Carolina, Asheville Division
ELIZABETH M.T. O'NAN, Plaintiff,
NATIONWIDE INSURANCE COMPANY,, Defendants.
Reidinger United States District Judge.
MATTER is before the Court on the Plaintiff's Motion to
Remand [Doc. 20]; Defendants' opposition memorandum,
[Doc. 33]; Plaintiff's reply [Doc. 53]; and amendment to
Plaintiff's reply [Doc. 54].
PROCEDURAL AND FACTUAL BACKGROUND
Elizabeth M.T. O'Nan filed this action pro se in
the General Court of Justice, Superior Court Division,
McDowell County, North Carolina, on November 30, 2016,
asserting claims of breach of contract and breach of the duty
of good faith and fair dealing against Defendant Nationwide
Insurance Company (“Nationwide”); claims of
breach of contract, intentional interference with contractual
relations, “false promise, ” and negligence
against the Defendants Servpro Industries, Inc.,
(“Servpro Industries”), Servpro of Marion, and
DOES 1 through 50; and a claim of fraud against all of the
aforementioned Defendants. [Complaint, Doc. 1-1].
Plaintiff is and was at all relevant times an individual
residing in and a citizen of McDowell County, North Carolina.
[Complaint, Doc. 1-1 at ¶ 1]. Although the Plaintiff
alleged Defendant Nationwide is a North Carolina corporation,
[Complaint, Doc. 1-1 at ¶ 2], Defendant Nationwide,
through a Declaration in support of removal by its Associate
Vice President and Assistant Secretary, has demonstrated that
it is an Iowa corporation with its principal place of
business and corporate headquarters in Des Moines, Iowa.
[Richards Dec., Doc. 1-5 at ¶ 3].
Plaintiff alleged Defendant Servpro Industries is a
corporation organized and existing pursuant to the laws of
the State of Tennessee and “authorized to transact and
is transacting business in the State of North
Carolina.” [Doc. 1-1 at ¶ 3]. Defendant Servpro
Industries, through a Declaration by its Assistant General
Counsel, has shown that it is a Nevada corporation with its
principal place of business in Gallatin, Tennessee. [Zomek
Dec., Doc. 1-1 at ¶ 3].
third defendant the Plaintiff names in this action she
identifies as “Servpro of Marion.” She has
alleged that “defendant Servpro of Marion was at the
time of the complaint a corporation duly organized and
existing under the laws of the State of North Carolina and is
authorized to transact and is transacting business in the
State of North Carolina.” [Complaint, Doc. 1-1 at
¶ 4] Defendants dispute the existence of such
case arises out of an accidental chimney fire in
Plaintiff's home in Marion, North Carolina, on December
4, 2013. In extinguishing the fire, the fire department used
a chemical that Plaintiff asserts rendered her house
“uninhabitable.” [Doc. 1-1 at ¶¶ 8, 19;
Ex. A to Complaint, Doc. 1-1 at 42]. The Plaintiff reported
the loss to her insurance carrier, Defendant Nationwide, and
was referred to Defendant Servpro Industries,
“Nationwide's Preferred Fire Restoration company,
” for fire restoration. [Id. at ¶ 10].
Defendant Nationwide also specifically referred the Plaintiff
to “Servpro of Marion” to request that Servpro of
Marion assess the damages and determine if the Plaintiff had
a claim. [Id. at ¶ 10]. Servpro of Marion
visited Plaintiff's home on December 6, 2013.
[Id. at ¶ 11]. Plaintiff further alleges
In December 2013, Nationwide employees, Mr. Brian L. Maness
and Mr. Spencer Gates met at the O'Nan home with the new
owner of its Preferred Fire Restoration provider, Servpro of
Marion, Mr. John Kuder, whom they stated was a personal
friend, to perform cleanup and fire restoration due to dry
chemical fire extinguisher residue remediation services in
exchange for payment from plaintiffs' insurance benefits.
[Id. at ¶ 82]. According to an attachment to
Plaintiff's Complaint, on or around December 9, 2013,
Plaintiff and Servpro of McDowell & Rutherford Counties
entered into an Authorization to Perform Services and
Direction of Payment (“Contract”), which provided
for Servpro of McDowell & Rutherford Counties to perform
fire restoration services in relation to Plaintiff's
December 4, 2013 chimney fire loss. [Ex. D to Complaint, Doc.
1-1 at 117-119]. Plaintiff alleges the Contract was breached.
though the Contract states that the “Franchise Legal
Name” of the contracting party is “Servpro of
McDowell and Rutherford Counties, ” Plaintiff also
alleges by way of attachment that J.L. Kuder Enterprises,
Inc., is the entity that does business as “Servpro of
McDowell & Rutherford Counties.” [Ex. D to
Complaint, Doc. 1-1 at 121]. John L. Kuder is the president
of and registered agent for that corporation, which is
organized and exists pursuant to the laws of the State of
North Carolina. On December 8, 2016, John L. Kuder
received a copy of the Summons and Complaint that were
directed to “Servpro of Marion.” [Notice of
Removal, Doc. 1 at 2-3].
January 4, 2017, Defendant Nationwide, with the consent of
Defendant Servpro Industries, filed a timely Notice of
Removal removing the lawsuit to this Court on the basis of
diversity jurisdiction. [Doc. 1]. Defendant Nationwide
asserts that the entity “Servpro of Marion” does
not exist and, therefore, there is complete diversity between
the remaining parties such that removal to this Court is
proper. Defendant Nationwide further argues that even if an
entity that can be identified as Servpro of Marion does exist
and can be substituted as the proper defendant in this
matter, the Contract's one-year limitations period bars
Plaintiff's claims against such party in any event. [Doc.
1 at ¶ 36].
on February 2, 2017, the Plaintiff filed the present Motion
to Remand the case to state court for lack of subject matter
jurisdiction, asserting that diversity does not exist between
the parties. [Doc. 20]. Based thereon, Plaintiff seeks remand
to state court.