United States District Court, W.D. Oklahoma
JANETTA L. TALKINGTON, Individually, and as power of attorney for her mother, DOROTHY L. CANARY, MICHAEL D. TALKINGTON, and EDDY R. CANARY, Plaintiffs,
NEW YORK LIFE INSURANCE & ANNUITY CORPORATION, a foreign corporation, and THE ESTATE OF ROSE BEATTIE, Deceased, Defendants.
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' Motion to Remand (Doc. 9). For
the reasons that follow, the Motion is DENIED.
owners of life insurance policies issued by Defendant New
York Life Insurance & Annuity Corporation (“New
York Life”), have brought suit against New York Life
and the Estate of Rose Beattie, a now-deceased life insurance
agent for New York Life who allegedly made false
representations to Plaintiffs regarding their ability to
borrow from the cash value of their policies. Plaintiffs, who
argue that their policies are now in danger of lapsing, filed
suit against New York Life and the Beattie Estate in McClain
County, Oklahoma on August 5, 2016. (Doc. 1, Ex. 1).
Defendants then filed a notice of removal (Doc. 1), arguing
that this Court has diversity jurisdiction under 28 U.S.C.
§ 1332 because the Beattie Estate has been fraudulently
joined. Plaintiffs moved to remand.
may remove an action on the basis of diversity of citizenship
if there is complete diversity between all named plaintiffs
and all named defendants, and no defendant is a citizen of
the forum state. See Lincoln Prop. Co. v. Roche, 546
U.S. 81, 84 (2005). Here, Plaintiffs are citizens of
Oklahoma. One Defendant, New York Life, is a corporation
organized under Delaware law with its principal place of
business in New York. The other Defendant, the Beattie
Estate, takes on the citizenship of that of the deceased, in
this case Oklahoma. With the Plaintiffs and the Beattie Estate
all citizens of Oklahoma, it would appear that complete
diversity is lacking. New York Life, however, insists in its
Motion to Remand that Plaintiffs fraudulently joined the
Beattie Estate, meaning that this Court should dismiss the
Estate, making the remaining Plaintiffs and New York Life
diverse and paving the way for this Court to exercise
jurisdiction under 28 U.S.C. § 1332.
doctrine of fraudulent joinder permits a federal court
assessing subject-matter jurisdiction to disregard the
citizenship of a non-diverse defendant against whom the
plaintiff has not or cannot assert a colorable claim for
relief. Roe v. Gen. Am. Life Ins. Co., 712 F.2d 450,
452 (10th Cir. 1983). “To establish fraudulent joinder,
the removing party must demonstrate either: (1) actual fraud
in the pleading of jurisdictional facts, or (2) inability of
the plaintiff to establish a cause of action against the
non-diverse party in state court.” Hernandez v.
Liberty Ins. Corp., 73 F.Supp.3d 1332, 1336 (W.D. Okla.
York Life argues that Plaintiffs can establish no cause of
action against the Beattie Estate because it did not exist at
the time of filing. The Court agrees: an entity that lacks
“a legal existence under Oklahoma law . . . lacks the
capacity to be sued.” Barham v. Toney, 2016 WL
3365410, at *1 (E.D. Okla. June 16, 2016).
filed suit in state court on August 5, 2016. (Doc. 9, Ex. 3).
At that time, the Beattie Estate did not exist; it was not
until November 29, 2016, that Plaintiffs even filed a
petition to appoint a personal representative for the Beattie
Estate. (Doc. 9, Ex. 1). In other words, Plaintiffs had
commenced no probate action and the state court had appointed
no personal representative at the time of this suit's
filing. The Estate had no legally cognizable existence and
thus lacked the capacity to be sued under Oklahoma law.
nonetheless insist that this court must remand because the
state court will inevitably appoint a personal
representative, thereby making the estate an entity-and
citizen of Oklahoma-and divesting this court of diversity
jurisdiction. That argument disregards the familiar
time-of-filing rule, which says that a “the district
court must determine the jurisdictional facts as they are
when the complaint is filed, not as they might be upon final
judgment.” Symes v. Harris, 472 F.3d 754, 758
(10th Cir. 2006). At the time that this suit was filed-August
5, 2016-the Beattie Estate lacked a legal existence. As a
legal non-entity, the Beattie Estate could not face suit. As
a result, there is complete diversity between Plaintiffs and
Defendant New York Life. Plaintiffs' Motion to Remand is
 “[T]he legal representative of
the estate of a decedent shall be deemed to be a citizen only
of the same State as the decedent . . . ” 28 ...