Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-8-2009
Cathy Brooks-McCollu v. State Farm Ins Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2716
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2716
___________
CATHY D. BROOKS-MCCOLLUM,
Appellant
v.
STATE FARM INSURANCE COMPANY
___________________________
Appeal From the United States District Court
For the District of Delaware
(D.C. Civil No. 04-cv-00419)
District Judge: Honorable Joseph J. Farnan, Jr.
_____________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 3, 2009
Before:RENDELL, FUENTES and NYGAARD, Circuit Judges
(Filed April 08, 2009)
_________
OPINION OF THE COURT
_________
PER CURIAM
Cathy D. Brooks-McCollum appeals pro se from the District Court’s order
granting State Farm Insurance Company’s motion for summary judgment and denying her
own. For the following reasons, we will vacate and remand for further proceedings.
I.
Brooks-McCollum was, and claims still to be, a Director of the Board of Emerald
Ridge Services Corporation, a company that provides maintenance services for a
Delaware real estate development called Emerald Ridge. This lawsuit is the latest of at
least six state and federal suits that she has filed following a dispute with other members
of the Board, which apparently began when the Board refused to reimburse her $185.00
that she had paid out of her own pocket for power washing expenses.
Following that incident, Brooks-McCollum resigned from the Board but later
purported to “rescind” her resignation. She also filed a lawsuit in Delaware state court,
contending that she was the sole properly-elected member of the Board and seeking, inter
alia, a determination of the proper membership of the Board, reimbursement of the
$185.00 she had paid, and “indemnification” from the Board for her legal expenses. The
status of that litigation is unclear from the record but, while it remained pending, Brooks-
McCollum filed a complaint in the District Court against Emerald Ridge, its Board and
individual Board members, seeking essentially the same relief. The District Court
dismissed that complaint for lack of subject matter jurisdiction, and we affirmed,
explaining why Brooks-McCollum’s allegations did not state a colorable federal claim.
See Brooks-McCollum, 166 Fed. Appx. 618, 619-20 (3d Cir. 2006).
In the meantime, Brooks-McCollum had filed the complaint at issue here. This
complaint names as the sole defendant State Farm, which issued a business liability
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insurance policy to Emerald Ridge and tendered thereunder a defense to Emerald Ridge
and the individual Board members in the state court litigation. Brooks-McCollum alleges
that State Farm is (1) obligated under the policy to pay her legal fees as well and (2) liable
as a “joint tortfeasor” for “encouraging and aiding and funding” various allegedly-illegal
actions by the Board members, including the vandalism of her vehicle.
By order entered May 13, 2008, the District Court granted State Farm’s motion for
summary judgment after concluding that State Farm was entitled to judgment as a matter
of Delaware state law on both claims. In particular, the District Court determined that the
State Farm policy provides indemnification only for liability imposed on Emerald Ridge
and its Board, and provides no benefits to an insured against whom no action has been
brought. The District Court also concluded that Brooks-McCollum presented no evidence
of State Farm’s involvement in the vandalism of her vehicle or any other illegal action.
Brooks-McCollum appeals, and we have jurisdiction under 28 U.S.C. § 1291.1
II.
Ordinarily, we would exercise plenary review over the District Court’s ruling on
the parties’ motions for summary judgment. See Prudential Ins. Co. of Am. v. Hovis, 553
F.3d 258, 262 (3d Cir. 2009). This case, however, raises a threshold issue regarding the
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Brooks-McCollum purported to bring her suit, and purports to appeal, both individually
and on behalf of Emerald Ridge. Brooks-McCollum, however, may not represent
Emerald Ridge pro se. See Simbraw, Inc. v. United States, 367 F.2d 373, 374 (3d Cir.
1966).
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District Court’s jurisdiction, which we are obligated to address sua sponte. See
Employers Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990).
(“‘[E]very federal appellate court has a special obligation to satisfy itself not only of its
own jurisdiction, but also that of the lower courts in a cause under review.’”) (citation
omitted). The District Court did not explain the basis for its exercise of jurisdiction, and
the record does not allow us to determine whether jurisdiction was present. Accordingly,
we must vacate and remand. See id. at 47.
In her complaint, Brooks-McCollum alleged that the District Court had federal
question jurisdiction under a variety of federal statutes. The District Court, however, did
not discern any federal claim in Brooks-McCollum’s complaint, and neither do we.2
Instead, it properly discerned and addressed only the two state-law claims against State
Farm identified above. Because Brooks-McCollum properly asserted only those state-law
claims, the only potential basis for jurisdiction in the District Court was diversity of
citizenship under 28 U.S.C. § 1332(a). Brooks-McCollum alleged diversity jurisdiction
in her complaint, but she alleged neither State Farm’s citizenship nor her own. In its
answer, State Farm denied that the District Court had jurisdiction and pleaded lack of
2
Despite her citation of various federal criminal and other statutes, Brooks-McCollum
makes no colorable allegation that State Farm has violated any federal law. Nor does she
make any colorable allegation that State Farm is a state actor. Instead, as we explained in
her previous appeal, she asserts only “quintessential state law causes of action,” and
“[h]er citation of various constitutional and federal statutory provisions does not
transform these state law claims into causes of action ‘arising under’ the Constitution or
federal law.” Brooks-McCollum, 166 Fed. Appx. at 619.
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jurisdiction as an affirmative defense, though it too neglected to plead either party’s
citizenship. The District Court did not determine the parties’ citizenship or otherwise
address whether it had diversity jurisdiction. Nor did the parties raise any issue of
jurisdiction on appeal (State Farm asserted merely that “[i]t is believed that Plaintiff
contends” that the District Court had federal question jurisdiction).
Nevertheless, in light of our obligation to inquire into the District Court’s
jurisdiction sua sponte, we directed the parties to file supplemental briefs on this issue,
which they have now done. Brooks-McCollum argues that the District Court had
diversity jurisdiction because State Farm “resides” in and issued the insurance policy out
of Maryland and has its home office in Illinois. She does not allege her own citizenship,
which is unclear (certain of her filings bear both a Maryland address and different
Delaware addresses), but her citizenship “at the time the complaint was filed” controls.
Midlantic Nat. Bank v. Hansen, 48 F.3d 693, 696 (3d Cir. 1995). State Farm argues that
the District Court did not have diversity jurisdiction. It makes no representation
regarding its citizenship, but it argues that there is no diversity because its citizenship is
deemed the same as Brooks-McCollum’s for purposes of this type of suit under 28 U.S.C.
§ 1332(c)(1).3
3
State Farm also argues that Brooks-McCollum has not alleged that the amount in
controversy exceeds $75,000, but it cannot be said to a “legal certainty” from her
complaint that she seeks less than that amount. Dardovitch v. Haltzman, 190 F.3d 125,
135 (3d Cir. 1999).
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That provision, however, does not apply to this type of suit. The provision reads in
relevant part: “in any direct action against the insurer of a policy or contract of liability
insurance . . . to which action the insured is not joined as a party-defendant, such insurer
shall be deemed a citizen of the State of which the insured is a citizen, as well as” the
insurer’s place of incorporation and principal place of business. 28 U.S.C. § 1332(c)(1).
State Farm argues that this provision applies because Brooks-McCollum brought her
action directly against it without naming the “insured” (i.e., Emerald Ridge and its
covered directors) as defendants. Leaving aside the issue of whether Brooks-McCollum
herself or the allegedly “illegitimate” membership of Emerald Ridge are properly
considered the “insured” under this policy, which the District Court did not decide, this
action is not the kind of “direct action” contemplated by the statute.
“[A] ‘direct action,’ as that term is used in § 1332(c), does not exist ‘unless the
cause of action against the insurance company is of such a nature that the liability sought
to be imposed could be imposed against the insured,’” and it does not include suits by an
insured against his or her own insurer. McGlinchey v. Hartford Accident & Indem. Co.,
866 F.2d 651, 653 (3d Cir. 1989) (citation omitted). See also Rosa v. Allstate Ins. Co.,
981 F.2d 669, 674-75 (2d Cir. 1992) (explaining rationale underlying this provision). In
this case, Brooks-McCollum seeks damages for State Farm’s own alleged liability to her,
not for any liability that could be imposed against Emerald Ridge or its directors. Thus,
this provision does not apply, and State Farm’s citizenship for diversity purposes turns
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instead on its state of incorporation and principal place of business. See 28 U.S.C. §
1332(c)(1). The pleadings contain no allegation in that regard, and there is nothing in the
record before us that would allow us to determine State Farm’s citizenship even if we
were inclined to address that issue in the first instance. See Mennen Co. v. Atlantic Mut.
Ins. Co., 147 F.3d 287, 293-94 (3d Cir. 1998) (“subject matter jurisdiction depends upon
facts of record”); Employers Ins. of Wausau, 905 F.2d at 47 & n.5 (remanding where
record insufficient to determine, inter alia, citizenship of parties for diversity purposes).
Accordingly, because we cannot determine from the record whether the District
Court had subject matter jurisdiction over this dispute, we are constrained to vacate its
order entering summary judgment in favor of State Farm and remand for the District
Court to determine whether it has diversity jurisdiction and to conduct such proceedings
as may be necessary in that regard. In light of this disposition, we do not reach the merits
of the District Court’s ruling. We note, however, that we have no reason to believe that
plenary review of that ruling would lead us to a different conclusion. Brooks-
McCollum’s “motion to review lower court[’]s order on legal fees and court costs” and
motion to strike State Farm’s supplemental appendix are denied.
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