The opinion of the court was delivered by: Glasser, United States Senior District Judge
Berkshire Life Insurance Company of America ("Berkshire") brings this action against Robert A. Hagerman ("Hagerman") seeking rescission of a disability insurance policy based on Hagerman's failure to apprise Berkshire of material health-related information on his applications for the policy and an associated rider. Hagerman seeks to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons that follow, Hagerman's motion is denied.
On May 13, 2009, Berkshire filed a complaint against Hagerman seeking to rescind a Disability Insurance Policy ("the Policy"), and a related Catastrophic Disability Benefit Rider ("the Rider"), it had issued to Hagerman in 2008. (Dkt. # 1) ("Complaint"). Berkshire alleged that Hagerman had failed to apprise it of pre-existing medical conditions by making material misstatements of fact on his applications for the Policy and the Rider. Id. ¶¶ 8-26.
As a basis for federal court jurisdiction, Berkshire alleged that it was a citizen of Massachusetts by virtue of its being "an insurance company of," and maintaining its principal place of business in, Massachusetts. Id. ¶ 1. Berkshire alleged that Hagerman was a New York citizen and that the amount in controversy exceeded $75,000, see id.
¶¶ 2,4, and on the basis of these allegations invoked the Court's diversity jurisdiction under 28 U.S.C. § 1332.
On June 8, 2009, Berkshire submitted to the Court a stipulation of dismissal without prejudice which the Court granted on June 10. (Dkt. # 3). That same day, the Court received a letter from Berkshire seeking to reinstate the complaint. (Dkt. # 4) Berkshire explained that it had voluntarily dismissed the case based on a release and settlement agreement executed by Hagerman which he had subsequently disavowed. In a follow-up letter, Berkshire further explained the circumstances underlying its request and attached a letter from Hagerman's attorney repudiating the release and settlement and announcing that Hagerman intended to institute a separate action against Berkshire and others based upon Berkshire's denial of claims made by Hagerman under the Policy. (Dkt. # 6). The Court granted Berkshire's application to reopen the case. (Dkt. # 8).
On July 13, 2009, Hagerman filed this motion to dismiss Berkshire's complaint, asserting that the Court lacks subject matter jurisdiction over this action and that, even if it has jurisdiction, it should decline to exercise it in deference to an action brought by Hagerman against Berkshire and others filed in a New York state court on June 22, 2009. (Dkt. # 11) ("Mot. to Dismiss"). In that action Hagerman asserts causes of action against Berkshire, its corporate parent, and their employees relating to the denial of Hagerman's claims under the Policy and Rider. See Dkt. No. 1 (Notice of Removal) in Hagerman v. Berkshire Life Insurance Company of America et al., No. 09 Civ. 3184 (E.D.N.Y. filed July 23, 2009). Berkshire timely removed that action to this Court but, following oral argument before the Court, the parties voluntarily dismissed that action, mooting Hagerman's arguments based on abstention. See dkt. #20 in No. 09 Civ. 3184.
Hagerman's motion to dismiss asserts that Berkshire is a citizen of New York and, accordingly, there is no diversity of citizenship between the parties. He grounds this assertion on two arguments. First, he argues that Berkshire has no corporate identity independent of (i.e., is the "alter ego" of) its parent corporation, the Guardian Life Insurance Company of America ("Guardian"). It is undisputed that Guardian is a New York citizen. Second, he asserts that, even if Berkshire is a distinct entity, its "nerve center" and, accordingly, its principal place of business, is in New York state.
Included with the motion are several documents which, Hagerman argues, demonstrate that Berkshire is an alter ego of Guardian: A 2001 news article discussing Berkshire's then-pending merger with Guardian. Mot. to Dismiss Exh. A.; An excerpt from a website called "disabilityquotes.com" discussing a pending appointment of a new President of Berkshire. Id. Exh. B; A printout of a page from Berkshire's website stating that "Berkshire distributes its products through a nationwide network of Guardian agencies." Id. Exh. C.; Lastly, there is a copy of the Policy issued to him by Berkshire with the Guardian logo displayed on the cover page. Id. Exh. D.
Following Hagerman's submission of his motion to dismiss, Berkshire amended its complaint to assert two additional claims seeking specific enforcement of the release and settlement agreement (Count 4) and specific enforcement of an accord and satisfaction allegedly executed by Hagerman as part of the settlement agreement (Count 5). (Dkt. # 15). Berkshire thereafter informed the Court that the parties had agreed that Hagerman's motion to dismiss was responsive to the amended complaint notwithstanding the additional claims.