United States District Court, D. Massachusetts
TERRENCE C. HACK, Plaintiff
AXA EQUITABLE LIFE INS. CO. and DISABILITY MANAGEMENT SERVICES, INC., Defendant.
MEMORANDUM AND ORDER
Dr. Terrence C. Hack has sued defendants Axa Equitable Life
Ins. Co. ("Axa") and Disability Management
Services, Inc. ("DMSI"), alleging that they
improperly refused to classify him as having a "Total
Disability" under two disability insurance policies that
he purchased from Axa. He asserts claims against Axa for
breach of contract and breach of the covenant of good faith
and fair dealing. Hack also alleges that DMSI intentionally
interfered with his contractual relations. He asserts claims
against both defendants for negligence, declaratory judgment,
and violation of Massachusetts General Laws Chapters 93A and
filed this case in the Superior Court for Middlesex County of
the Commonwealth of Massachusetts. Defendants removed it to
this court on the basis of diversity jurisdiction.
See 28 U.S.C. §§1441, 1332.
has filed a motion to remand this case to the Massachusetts
state court. He argues that this case was improperly removed
because the parties are not diverse. He argues that DMSI is a
citizen of Massachusetts because its principal place of
business is in the state. Defendants oppose the motion to
remand. They stated in the Notice of Removal and argue in
their Opposition to Hack's motion that DMSI was
improperly joined as a defendant. In particular,
they assert that there is no reasonable possibility that Hack
has stated a claim against DMSI on which relief can be
reasons explained in this Memorandum, the Motion to Remand is
plaintiffs file a civil action in state court over which the
federal courts would have had original jurisdiction based on
diversity of citizenship, the defendants may remove the
action to federal court, 28 U.S.C. §1441(a), provided
that no defendant 'is a citizen of the State in which
such action is brought.1" Universal Truck &
Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103,
107-08 (1st Cir, 2014) (quoting 28 U.S.C. §1441(b)).
right of removal cannot be defeated by a fraudulent joinder
of a non-diverse defendant 'having no real connection
with the controversy.1" Mills v. Allegiance
Healthcare Corp., 178 F.Supp.2d 1, 4 [D. Mass. 2001)
(quoting Wilson v. Republic Iron & Steel
Co., 257 U.S. 92, 97 (1921). "A joinder is a sham
and fraudulent if it is ' without any reasonable basis in
fact and without any purpose to prosecute the cause in good
faith against the [defendant].'" Id.
(quoting Wilson, 257 U.S. at 98).
is generally recognized that, under the doctrine of
fraudulent joinder, removal is not defeated by the joinder of
a non-diverse defendant where there is no reasonable
possibility that the state's highest court would find
that the complaint states a cause of action upon which relief
may be granted against the non-diverse defendant."
Universal Truck & Equip. Co. v. Southworth-Milton,
Inc., 765 F.3d 103, 108 (1st Cir. 2014).
In order to show that naming a non-diverse defendant is a
"fraudulent joinder" effected to defeat diversity,
the defendant must demonstrate, by clear and convincing
evidence, either that there has been outright fraud committed
in the plaintiff's pleadings, or that there is
no possibility, based on the pleadings, that the plaintiff
can state a cause of action against the non-diverse defendant
in state court.
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 207
(2d Cir.2001); see also Mills, 178 F.Supp.2d at 5
(employing the Whitaker standard); In re
Fresenius Granuflo/Naturalyte Dialysate Prod.Liab.
Litiq., 6 F.Supp.3d 321');">76 F.Supp.3d 321, 332 (D. Mass. 2015) (same).
assessing a claim of fraudulent joinder, the court is not
bound by the allegations in the complaint and may consider
affidavits and other materials that bear on the question of
whether there is a reasonable basis for joinder of a
defendant." In reFresenius