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O'Nan v. Nationwide Insurance Co.

United States District Court, W.D. North Carolina, Asheville Division

July 11, 2017

ELIZABETH M.T. O'NAN, Plaintiff,
v.
NATIONWIDE INSURANCE COMPANY,, Defendants.

          ORDER

          Martin Reidinger United States District Judge.

         THIS 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].

         I. PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff Elizabeth M.T. O'Nan[1] 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].

         The 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].

         The 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].

         The 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 entity.[2]

         This 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.

         Even 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.[3] 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].[4]

         On 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].

         Thereafter, 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.

         II. ...


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