CNX GAS COMPANY LLC v. LLOYDS OF LONDON

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANNIA

CNX GAS CO., L.L.C.,

Plaintiff, Civil Action No. 2:19-cv-699-WSS

V. Hon. William S. Stickman, IV

LLOYD’S OF LONDON ET AL.,

Defendants.

OPINION

WILLIAM S. STICKMAN IV, District Judge

Lloyds of London (‘“Lloyd’s”) opened as a coffee house. As early as 1688, it also served

as a gathering place where men of enterprise shared news and discussed the latest developments

in maritime commerce. Gradually it grew from a modest forum for underwriting marine insurance

policies into one of the most preeminent specialist insurance marketplaces in the world. See

generally, JULIAN BURLING, LLOYD’S: LAW AND PRACTICE 13 (2013). Coverage disagreements in

the insurance context have always given rise to litigation. But federal courts throughout the United

States have particularly struggled to determine whether to exercise jurisdiction in cases involving

Lloyd’s insurance policies. See generally Howard M. Tollin & Mark Deckman, Lloyd’s of London

and the Problem with Federal Diversity Jurisdiction, 9 J. TRANSNAT’L L. & POL’Y, 289, 291-99

(2000); John M. Sylvester & Roberta D. Anderson, Js it Still Possible to Litigate Against Lloyd’s

in Federal Court, 34 TorRT & INS. J. 1065, 1070-71 (1999). This is because Lloyd’s unique

structure as merely a forum for thousands of underwriters to buy shares of risk makes it difficult

to execute the citizenship analysis required to determine diversity jurisdiction. That is the difficulty

at the heart of this case.

Plaintiff CNX Gas Co. is insured under a policy obtained through Lloyd’s. It filed suit in

the Court of Common Pleas of Allegheny County, Pennsylvania for coverage after its initial claim

under the policy was denied. Defendants, various entities affiliated with Lloyd’s, removed to this

Court. Before the Court is Plaintiff's Motion to Remand and Third-Parties’ Motion to Intervene.

CNX Gas Company LLC’s Motion to Remand Case to State Court and Request for Oral Argument

(ECF No. 17) (“Pl.’s Mot. to Remand”) at p. 1; Motion to Intervene of Chaucer Corporate Capital

No. 2 Ltd., Barbican Corporate member Limited and MSI Corporate Capital Limited (ECF No. 6)

(Third-Parties’ Mot. to Intervene”) at p. 1. For the reasons set forth below, the Court will grant the

Motion to Remand and deny the Motion to Intervene as moot.

FACTUAL BACKGROUND

Plaintiff is a natural gas company in the business of exploring and producing hydrocarbons

in various regions, including in western Pennsylvania. Its sole member is CNX Resources

Corporation, a Delaware corporation with a principal place of business in Pennsylvania. This

action stems from a coverage dispute arising out of an accident that occurred at the Switz 28F, a

natural gas well operated by Plaintiff in Monroe County, Ohio. Natural gas companies customarily

procure control-of-well insurance policies to protect themselves against well-related accidents.

Plaintiff did so in this case through Lloyd’s. Before detailing the specifics of the issues at bar, it is

necessary to explain how insurance obtained through Lloyd’s works.

I. The Lloyd’s Insurance Model

Lloyd’s neither issues insurance policies nor subscribes to them. It merely provides a

marketplace where its members can underwrite them. Lloyd’s members who subscribe to shares

of risk by underwriting insurance policies are referred to interchangeably as “underwriters” or

“Names.” The identities of Names are kept confidential. Names increase the efficiency of the

market and combine resources by forming groups called “syndicates,” unincorporated groups of

investors who appoint Names on their behalf. Syndicates exist for one year, dissolve, and then

reconstitute. Each is identified by a number. Syndicates do not manage their own investments as a

collective. Rather, the Names of each syndicate appoint one from among them to serve as the

managing agent of the syndicate. The appointed Name is referred to interchangeably as “lead

underwriter” or “active underwriter.”! The lead underwriter represents the collective interest of the

Names comprising that syndicate. The lead underwriter buys and sells insurance risks. If

successful, it brings profit to its syndicate. Similarly, a Name profits from premiums it receives.

This profit is pro-rated based on the Name’s subscription to the insurance policy. BURLING, supra,

at 1-12; COUCH ON INS. 3d §§ 39:46-39:47 (2019); Tollin & Deckman, supra, at 292.

To obtain an insurance policy, a prospective insured contacts an insurance broker. The

broker then insures the risk through lead underwriters acting on behalf of their syndicates. Thus,

the contractual relationship is formed between the insured and the individual Names comprising

the syndicate, not the syndicate or Lloyd’s. The Names comprising the syndicate are the insurers.

Syndicates, on the other hand, are not legal entities. They do not assume liability or underwrite

risk. Accordingly, only Names comprising a syndicate can be sued for breach of an insurance

policy. Names have unlimited, several liability, but only for the proportion of the risk they

subscribed to. Under the standard Service of Suit clause in Lloyd’s policies, judgment on an

insured’s claim for coverage against any Name binds all other Names subscribing to that policy.

' Courts use the terms referred to throughout this Section interchangeably. E.g., NL Indus., Inc. v.

Onebeacon Am. Ins. Co., 435 F. Supp. 2d 558, 562 & n.3 (N.D. Tex. 2006). For the sake of

consistency, the Court will use the term “Name” for ordinary members of syndicates and the term

“lead underwriter” for Names who are appointed to represent syndicates.

The lead underwriter has authority to bring suit on behalf of the other Names comprising the

syndicate. See COUCH ON INS. 3d §§ 39:46-47, 229:33; Sylvester & Anderson, supra, at 1069. □

II. _— Plaintiff’s Control-of-Well Policy

Plaintiff entered into a Control-of-Well Insurance Policy USOEE1510523 (the “COW

Policy”) for the Switz 28F. The policy was underwritten by four Lloyd’s syndicates: 1) Syndicate

1084 (forty percent of the risk in aggregate), 2) Syndicate 4141 (twenty-five percent of the risk in

aggregate), 3) Syndicate 33 (fifteen percent of the risk in aggregate), and 4) Syndicate 9223

(twenty percent of the risk in aggregate). Syndicate 9223 consists of two smaller syndicates:

Syndicate 1955 and Syndicate 3210.

Only five entities affiliated with these syndicates are explicitly identified in Plaintiff's

Complaint: 1) Defendant China Reinsurance Group (“CRG”), 2) Defendant Hanover Insurance

Group (“Hanover”), 3) Defendant Nameco (No. 808) Limited (“Nameco”), 4) Defendant HCC

Intermediate Holdings, Incorporated (“HCC”), and 5) Defendant Hiscox Dedicated Corporate

Member Limited (“Hiscox”). The Third-Party Intervenors in this case are three other entities

affiliated with the aforementioned syndicates: 1) Chaucer Corporate Capital No. 2 Limited

(“Chaucer”), 2) Barbican Corporate Member Limited (“Barbican”), and 3) MSI Corporate Capital

Limited (“MSI”).

Chaucer is the sole Name comprising Syndicate 1084. Nameco is the sole Name

comprising Syndicate 4141. Barbican is the sole Name comprising Syndicate 1955. MSI is the

sole Name comprising Syndicate 3210. Barbican and MSI are thus the two Names comprising

Syndicate 9223 collectively. Hiscox is a Name that comprises 72.616424% of the capital of

Syndicate 33. The remaining 1,800, or so, Names that are not identified in Plaintiff's Complaint

comprise 27.383576% of Syndicate 33—the minority share. The composition of the Syndicates is

illustrated below:

Though CRG, Hanover, and HCC are listed as Defendants in Plaintiff's Complaint, those three

entities are not Names; therefore, they are not liable under COW Policy. Plaintiff's Complaint,

(“Pl.’s Compl.”) (ECF No. 1-2) at p. 3, 4 1-2; Declaration of Andrew Baker (Decl. of Andrew

Baker’) (ECF No. 1-4) at p. 1, {9 3-4; Declaration of Darren Stewart (Decl. of Darren Stewart’’)

(ECF No. 1-5) at pp.1-2, J§ 3-7 ; Declaration of David Smith (“Decl. of David Smith”) (ECF No.

1-6) at pp. 1-2, J] 3-5; Third-Parties’ Mot. to Intervene at p. 1.

II. Procedural History

On November 12, 2016, Plaintiff “spudded in” (.e., began drilling) the well. On August

12, 2017, the well experienced an accident. The well operators allegedly lost control. High pressure

flow of fracking materials escaped from the wellbore. The well operators attempted to regain |

control by using two Full Opening Safety Valves (““TIW”) valves—safeguards designed to shut

off tubing used for well service activities—but to no avail. The well operators then activated Switz

28F’s emergency shear rams. The rams cut and capped the work string, shutting down the well.

The work string was lost, rendering the well useless. Despite Plaintiff's documenting its costs over

the following eighteen-month period, Defendants denied coverage. Pl.’s Compl. at p. 7, 44 20-25 □

Plaintiff filed a two-count Complaint in the Court of Common Pleas of Allegheny County,

Pennsylvania on May 14, 2019, alleging breach of the COW contract and statutory bad faith.

Plaintiff purported to sue all of the Names who underwrote the COW Policy. See Pl.’s Compl. at

pp. 1, 8-10, 44 27-41. Plaintiff only identified five Names as Defendants in the Complaint—CRG,

Hanover, Nameco, HCC, and Hiscox. Plaintiff did not explicitly identify the remainder of the

names underwriting the COW Policy because Lloyd’s kept them confidential. Defendants filed

their Notice of Removal to this Court on June 14, 2019, invoking diversity jurisdiction.

Defendants’ Notice of Removal (“Def.’s Notice of Removal”) (ECF No. 1) at p. 1.

On June 19, 2019, Nameco, Hiscox, Chaucer, Barbican, and MSI filed an Answer. See

Answer, Affirmative Defenses and Counterclaim of Defendants Nameco (No. 808) Limited, and

Hiscox Dedicated Corporate Member Itd. and Intervenors Chaucer Corporate Capital No. 2 Ltd.,

Barbican Corporate Member Limited and MSI Corporate Capital Limited (“Def.’s and Third-

Parties’ Answer”) (ECF No. 4) at p. 1. The first two Names characterized themselves as

Defendants, while the latter three characterized themselves as Intervenors. That same day,

Chaucer, Barbican, and MSI—three Names who underwrote the COW Policy but were not

specifically identified in the Complaint, jointly filed a Motion to Intervene. See Third-Parties’ Mot.

to Intervene at p. 1. Oral argument was held on September 30, 2019.

STANDARDS OF REVIEW

The determination of Plaintiff's remand motion centers on the question of the Court’s

jurisdiction. Defendant removed based on diversity jurisdiction. Federal district courts may

exercise diversity jurisdiction over actions where 1) the amount in controversy exceeds

$75,000.00, and 2) the parties to the suit are diverse. 28 U.S.C. § 1332(a). Section 1332 requires

complete diversity: every defendant must have different citizenship from every plaintiff. Carden

v. Arkoma Assocs., 494 U.S. 185, 187 (1990) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267

(1806)). Defendants in a civil case in state court may remove to a federal district court so long as

the requirements of Section 1332 are satisfied. 28 U.S.C. § 1441(a). All defendants must join or

consent to the petition to remove unless one of the following exceptions applies: “(1) a non-joining

defendant is an unknown or nominal party; (2) a defendant has been fraudulently joined; or (3) a

non-resident defendant has not been served at the time the removing defendants filed their

petition.” Michaels v. State of N.J., 955 F. Supp. 315, 319 (D.N.J. 1996) (citing Balazik v. Cnty. of

Daughpin, 44 F.3d 209, 213 & n.4 (3d Cir. 1995)).

A lack of subject matter jurisdiction is a mandatory basis for remand. 28 U.S.C. § 1447(c).

A removing party asserting diversity jurisdiction has the burden to demonstrate that the

requirements for diversity are met. McNutt Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178,

189 (1936). The presumption at every stage of litigation is that the court lacks federal jurisdiction

unless proven otherwise. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895) (internal

citation omitted). Doubts as to jurisdiction must be resolved in favor of remand. Samuel-Bassett v.

KIA Motors Am., Inc., 357 F.3d 392, 403 (3d Cir. 2004). Citizenship for diversity purposes must

be assigned not to “artificial or ‘invisible’ legal creatures,” but rather to “real and substantial parties

to the controversy.” Navarro Sav. Ass’n v. Lee, 446 US. 45 8, 460 (1980) (citing cases). Failure to

object to removal cannot confer subject matter jurisdiction on a court where it otherwise would

have none. Medlin v. Boeing Vertol Col., 620 F.2d 957, 960 (3d Cir. 1980).

ANALYSIS

The determination of whether the removing defendants have satisfied their burden of

establishing the complete diversity required by 28 U.S.C. §1332 in this case hinges upon the

identities of the defendants as pleaded in Plaintiffs Complaint. Plaintiff argues that it intended to

sue all of the Names who underwrote the COW Policy. The Complaint pleads, in relevant part,

2. Made Defendants herein are all of the underwriters of a Certificate

of Insurance effected with Underwriters at Lloyds, London, issued

to CNX and numbered USOEE1510523 (“the Policy”). The

underwriters of the Policy are referred to herein as “Defendants.”

On information and belief, the Defendants are the “names” and

members of the following Lloyd’s Syndicates: 1084, 4141, 33 and

9223. .

Pl.’s Compl. at p. 1, § 2. Despite clearly and unequivocally expressing the intent to sue all of the

Names underwriting the COW policy, the caption does not specifically identify them or the

Syndicates to which they belong. Disposition of the threshold jurisdictional question thus depends

upon the resolution of two issues: 1) whether the Complaint sufficiently pleaded all the Names

who underwrote the COW Policy as Defendants, or rather, whether Plaintiff's action must be

construed as extending only against the specific Defendants identified in the caption; and 2)

whether Defendants met their burden to establish diversity jurisdiction over all of the Names

sufficiently pleaded.

I. The Form of the Complaint

Whether the Court may exercise diversity jurisdiction over this action depends on the

Defendants’ identities. If the Complaint is construed as asserting claims against only the parties

named in the caption, there is no dispute that complete diversity exists. Plaintiffs position,

however, is that Paragraph Two of its Complaint successfully pleaded every Name that underwrote

the COW Policy into the case—both those Plaintiff could identify and those it could not. Plaintiff

argues that it was Defendants’ burden to establish complete diversity. Because they have not done

so for all of the Names on the COW Policy, Plaintiff seeks remand. Defendants object, arguing

that the Complaint can only be construed as asserting claims against the specific Defendants named

in the caption.

Whether the language in Paragraph 2 of the Complaint identifying “all underwriters” who

are the “names and members of the following Lloyd’s Syndicates” as Defendants can be construed

as, in fact, asserting a claim against all of the Names begins with an analysis of Rule 10 governing

‘Form of Pleadings”. According to Rule 10(a), every pleading must have a caption and a title that

names all the parties. FED. R. Civ. P. 10(a). Multiple authorities have held, however, that the

_ caption is not determinative of the identity of the parties to the action, the district court’s personal

jurisdiction over the defendant, or its subject matter jurisdiction over the claims asserted. WRIGHT

& MILLER, 5A FED. PRAC. & PRoc. CIV. § 1321 (4th ed. Aug. 2019). It is the essence of the

complaint that matters, not its title or label. See Booker v. State of Ark., 380 F.2d 240, 242 (8th

Cir. 1967), abrog. on other grounds by Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484 (1973).

The United States Court of Appeals for the Tenth Circuit has held, for example, that defendants

not named in a caption will be deemed to be in the case if they are identified in the body of the

complaint. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (“It has been held a party

not properly named in the caption of a complaint may still be properly before the court if the

allegations in the body of the complaint make it plain the party is intended ‘as a defendant; merely

naming a party in a brief, however, does not provide adequate notice.”). The Court finds these

authorities persuasive and holds that the body of the Complaint here leads to the unmistakable

conclusion that Plaintiff intended to sue all of the Names who underwrote the COW Policy.”

This conclusion is consistent with the spirit behind the Rules Enabling Act of 1934—to

simplify federal pleading and prioritize substance over form. Pub. L. 73-415, 48 Stat. 1064 |

(codified as amended at 28 U.S.C. § 2072). That spirit is not only a historical force, but a

? Though not binding on this Court, it is noteworthy that Pennsylvania courts, where this case

originated, apply a similar rule for cases when a plaintiff manifests an intent to sue a defendant in

the body of its complaint notwithstanding its failure to name the defendant in the caption:

substance over form. See Piehl v. City of Phila., 987 A.2d 146, 157 (Pa. 2009) (permitting a

plaintiff to amend the caption of her complaint to name a defendant previously only designated in

the body pursuant to the liberal policy underlying Pa. R. Civ. P. 1033).

contemporary one, one that compels federal courts to cast aside petty formalism in favor of a

“forgiving spirit” towards technical lapses in complaint drafting. See Paul D. Carrington,

“Substance” and “Procedure” in the Rules Enabling Act, 1989 DUKE L. J. 281, 307; see also

WRIGHT & MILLER, 5 FED. PRAC. & PROC. Clv. § 1286 (3d ed. Aug. 2019).

With these principles in mind, the Court holds that Plaintiff's Complaint adequately asserts

claims against all of the Names, not merely those specifically named in the caption. The second

Paragraph of the Complaint unequivocally states that “Defendants herein are all of the

underwriters of a Certificate of Insurance. . . .On information and belief, the Defendants are the

‘names’ and members of the following Lloyd’s indicates: 1084, 4141, 33, and 9223.” Pl.’s Compl.

at p. 3,9 2 (emphasis added). Further, to the extent that the Complaint separately identified any

of the Names, it specifically does so in a representative, but not exclusive fashion: “They [the

Names] are believed to include, but are not limited to: [the specifically identified Names].” Jd. In

addition to expressing the intent to assert claims against all of the underwriting Names, Paragraph

2 also identifies the four Lloyd’s syndicates to which Plaintiff asserts all of the underwriting Names

belong—Syndicates 1084, 4141, 33 and 9223. An examination of the Complaint—particularly

Paragraph 2—leaves no doubt that Plaintiff intended to assert claims against all of the Names who

underwrote the COW Policy.

Defendants argued (at oral argument) that if Plaintiff wanted to sue all the Names, it should

have included all of them, or least the names of the Syndicates they comprise, in the caption. But

Plaintiff cannot be blamed for failing to identify every Name before discovery. This is especially

the case because identities of Lloyd’s Names are usually kept confidential. Cf Lincoln Ben. Life

Co. v. AEI Life, L.L.C., 800 F.3d 99, 108-09 (3d Cir. 2015) (“[A] rule requiring the citizenship of

each member of each LLC to be alleged affirmatively before jurisdictional discovery would

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effectively shield many LLCs from being sued in federal court without their consent. This is surely

not what the drafters of the Federal Rules intended.”). Moreover, parties in actions arising out of

Lloyd’s policies frequently decline to individually identify each Name in the caption, but rather,

generically identify “underwriters of Lloyd’s” or some permutation thereof. See Ario v. The

Underwriting Members of Syndicate 53 at Lloyd’s for the 1998 Year of Account, 618 F.3d 277 (3d.

Cir. 2010); Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079 (11th Cir. 2010);

Certain Interested Underwriters v. Layne, 26 F.3d 39 (6th Cir. 1994); Certain Underwriters at

Lloyd’s, London Subscribing to Policy No. AMT008174 v. VMA Constr. LLC, No. 17-5626 (ES)

(SCM), 2018 WL 314815, at **1, 2 (D.N.J. Jan 5. 2018).

The Court holds that Plaintiff's Complaint adequately pleaded all of the Names who

underwrote the COW Policy as Defendants in this case. First, the caption purports to name “Lloyds

of London” along with certain suspected underwriters that Plaintiff was able to identify. The

prefatory language of the Complaint states:

AND NOW comes Plaintiff, CNX Gas Company LLC, by and

through its undersigned counsel, which files this Complaint against

Defendants, Certain Underwriters at Lloyd’s London Subscribing

to Certificate of Insurance No. USOEE1510523, and in support

thereof, states as follows:

Pl.’s Compl. at p. 3 (emphasis added). Paragraph Two of the Complaint unequivocally alleges, in

relevant part, that “Defendants herein are all of the underwriters of a Certificate of Insurance

effected with Underwriters at Lloyd’s, London, issued to CNX and numbered USOEE1510523.”

Id. at p. 3, § 2 (emphasis added). Whatever technical defects there may be in the caption of the

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Complaint, the body nevertheless sufficiently gave notice that all the Names who underwrote the

COW Policy were being sued.?

II. Diversity Jurisdiction

Having established who is being sued for the purposes of diversity—all of the Names—the

next question is whether Defendants satisfied their burden to justify removal. The nature of the

Lloyd’s business model raises questions of whose citizenship is relevant for diversity of citizenship

analysis. A circuit split exists on this issue. COUCH ON INS. 3d §§ 229:23, 241:10.

The split ultimately comes down to whether, for diversity purposes, a Lloyd’s syndicate is

more like a trust or a limited partnership—in other words, whether only the representative Name’s

citizenship is relevant (the trust model), or whether the citizenship of all of the Names must be

considered (the limited partnership model). The United States Court of Appeals for the Sixth

Circuit takes the minority position that only a Name serving as lead underwriter counts for

diversity purposes. Layne, 26 F.3d at 39. Only lead underwriters, the Sixth Circuit concluded, can

qualify as “real parties in interest” for diversity purposes. In so reasoning, the Sixth Circuit

principally relied on Tennessee agency law, which tracked the common law principle that only

agents themselves are liable for conduct on behalf of undisclosed principals. Jd. at 43 (citing

Anderson v. Durbin, 740 S.W.2d 417, 418 (Tenn. Ct. App. 1987); and then citing RESTATEMENT

> Defendants argue that under the COW Policy’s Service of Suit clause, service was only properly

made on the Names identified in the caption, not all the Names who underwrote the policy. See

Underwriters Response to Motion to Remand (“Def.’s Resp.”) (ECF 28) at p. 8. Within the COW

Policy, Clause 3 of the Certificate of Provisions, Clause 12 of the Declarations, and Clause 19 of

the General Conditions (the “Service of Suit clause”) provided that service of process upon the

firm of Mendes & Mount constituted effective service upon all the “Underwriters” (i.e., the

Names). See Pl.’s Compl. at p. 22, 29, FJ 12, 19. The fact that the “Underwriters” were identified

by Syndicate number in the COW Policy implies not that the Underwriters are the Syndicates

themselves, but rather that they are the Names that comprise the Syndicates. Compare Def.’s Resp.

at 8, with Pl.’s Compl. at p. 18. Service is, therefore, not an issue in this case. All Names who

underwrote the COW Policy were properly served in accordance with the terms of the Policy.

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(SECOND) OF AGENCY § 322 (Am. Law Inst. 1958)). The trust analogy relies heavily on Navarro

Sav. Ass’n v. Lee, 446 U.S. at 460.

The United States Courts of Appeals for the Second, Seventh, and Eleventh Circuits, on

the other hand, form the majority regime. They take the view that when a syndicate is sued, the

citizenship of every Name comprising the syndicate counts, not merely that of the Name serving

as lead underwriter. E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 938 (2d

Cir. 1998) (hereinafter “Squibb I’); E. R. Squibb & Sons, Inc. v. Lloyd ’s & Co.’s, 241 F.3d 154,

159 (2d Cir. 2001) (hereinafter “Squibb IP’); Ind. Gas Co., Inc. v. Home Ins. Co., 141 F.3d 314,

319 (7th Cir. 1998); Osting-Schwinn, 613 F.3d at 1089.4 In doing so, they chiefly rely on the

Supreme Court’s decision in Carden v. Arkoma Assocs. in deeming Lloyd’s syndicates more akin

to limited partnerships—a type of unincorporated association in which every member must be

diverse from the plaintiff, not merely the representative. 494 U.S. at 187.° Most jurisdictions

characterize Lloyd’s syndicates as unincorporated associations. F.g., 62 F. Supp. 2d at 1129.

District court opinions within circuits forming the majority regime are persuasive to the Court as

well. Se. Crane Inspections, L.L.C. v. Chaucer Corp. Cap. (No. 3) Ltd., Civ. Action No. 16-00392-

KD-B, 2016 WL 6900798, at **1, 2 (S.D. Ala. Oct. 14, 2016) (applying Osting-Schwinn, 613 F.3d

at 1089); Sikorsky Aircraft Corp. v. Lloyds TSB Gen. Leasing (No. 20) Ltd., 774 F. Supp. 2d 431,

442-43 (D. Conn. 2011) ( applying Squibb 1); Allendale Mut. Ins. Co. vy. Excess Ins. Co. Ltd., 62

F, Supp. 2d 1116 (S.D.N.Y. 1999) (same); Humm v. Lombard World Trade, Inc., 916 F. Supp.

291, 297-98 (S.D.N.Y. 1996) (preceding Squibb I but applying the same rule of law); Chase

Manhattan Bank, N.A. v. Aldridge, 906 F. Supp. 870, 873 (S.D.N.Y. 1995) (same).

> Other unincorporated associations where every member must be diverse include limited liability

companies, labor unions, joint stock companies, and joint ventures. Lincoln Ben. Life Co. v. AEI

Life, L.L.C., 800 F.3d 99 (3d Cir. 2015) (LLCs); Johnson v. SmithKline Beecham Corp., 724 F.3d

337, 352-53 (3d Cir. 2013) (LLCs); Ind. Gas Co., Inc. v. Home Ins. Co., 141 F.3d 314, 316 (6th

Cir. 1998) (“Membership associations such as labor unions, joint stock companies, and joint

ventures take the citizenship of each member.” (citing United Steelworkers v. R.H. Bouligny, Inc.,

382 U.S. 145 (1965); and then citing Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449 (1900)));

Underwood y. Maloney, 256 F.2d 334, 339 (3d Cir. 1958) (unions).

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District courts addressing this issue in circuits without direct authority from their respective

courts of appeals—including all of those that have done so in this circuit—overwhelmingly side

with the majority regime. E.g., VMA Constr., LLC, 2018 WL 314815, at *3; Lloyd’s v. Gailes, Civ.

Action No.: 4:16-cv-77-DMB-JMV, 2016 WL 3033741 at **1, 4 (N.D. Miss. May 26, 2016);

Advanced Sleep Ctr., Inc. v. Certain Underwriters at Lloyd’s London, Civ. Action No. 14-592,

2015 WL 4097069, at **1,2 & n.17 (ED. La. July 7, 2015); D’Andrea Constr. Co. v. Old Rep.,

Civ. Action No. 13-997 (ES) (JAD), 2014 WL 5018885, at **1, 7 (D. N.J. Oct. 6, 2014); Mohamed

v. Certain Underwriters at Lloyd’s of London, Civ. No. 2001/0128, 2014 WL 6872893, at **1, 2

(D.V.I. Apr. 24, 2014); Certain Underwriters at Lloyd ’s, London Subscribing to Policy No. GL-

2918-028 v. Wenhaven, Inc., Civ. No. 2014-03, 2014 WL 4627978, at **1, 5 (D.V.I. Sept. 16,

2014); Nat’l Union Fire Ins. Co. of Pittsburg, Pa vy. Siemens Energy, Inc., No. 3:13-cv-115, 2013

WL 3323182, at **1, 1 (S.D. Tex. July 1, 2013); Certain Underwriters at Lloyd’s of London

Subscribing to Policy No. FINFR 1001771 v. Com. Int’l Inc., No. 2:12-cv-00824-ODW (JCx),

2012 WL 2328215, at **I, 2 (C.D. Cal. June 19, 2012); Zidell Marine Corp. v. Beneficial Fire &

Cas. Ins. Co., No. C02-5131 RBL, 2003 WL 27176596, at **1, 2 (W.D. Wash. Dec. 4, 2003);

Majestic Ins. Co. v. Allianz Int’l Ins. Co., 133 F, Supp. 2d 1218, 1223 (N.D. Cal. 2001);

Transamerica Corp. v. Reliance Ins. Co. of Ill., 884 F. Supp. 133, 139 (D. Del. 1995); Lowsley-

Williams v. North R. Ins. Co., 884 F. Supp 166, 172 (D.N.J. 1995); Bath Iron Works Corp. v.

Certain Member Co.’s of Inst. of London Underwriters, 870 F. Supp. 3, 7 (D. Me. 1994); Queen

Victoria Corp. v. Ins. Specialists of Haw., Inc., 711 F. Supp. 553, 554-55 (D. Haw. 1989). The

Court, therefore, adheres to the majority view and requires complete diversity to exist between

Plaintiff and all of the Lloyd’s Names underwriting the policy. Defendants concede that the

majority regime is correct: “Caselaw is clear that when the syndicates are suing or being sued in a

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representative capacity ... each name or member of the syndicate must be diverse for diversity

jurisdiction to be invoked.” Def.’s Resp. at p. 9.

Defendants have failed to establish complete diversity. Only the identity of the Names

comprising Syndicates 1084, 9223, 4141 and 72.6 percent of Syndicate 33 are established. The

‘Names comprising the remaining 27.4% of Syndicate 33 remain a mystery. Importantly, the

remaining 27.4% of Syndicate 33 allegedly consists of over 1,800 Names. See Plaintiff CNX Gas

Company LLC’s Reply Memorandum in Support of Motion to Remand Case to State Court (“Pl.’s

Reply to Opp. to Remand”) (ECF No. 30) at p. 1. Given that Plaintiffs Complaint pleaded all the

Names who underwrote the COW Policy, it follows that Defendants must identify the citizenship ©

of all the Names to permit this Court to exercise diversity jurisdiction on removal.® The removing

Defendants’ failure to identify and establish the citizenship of some 1,800 unidentified Names

comprising the minority share of Syndicate 33 makes it impossible for the Court to establish

complete diversity. At the very least, it creates substantial doubt as to whether such complete

diversity exists. This doubt must be resolved in favor of remand. See Samuel-Bassett, 357 F.3d at

403. Defendants have not met their burden of establishing complete diversity. See Osting-Schwinn,

613 F.3d at 1092 (citing McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002)).

II. Intervention

Third-Party Intervenors seek to come into the case under Rule 24(a)(2), and in the

alternative, under Rule 24(b). See Third Parties’ Mot. to Intervene at pp. 2-4, 4] 5-12, Plaintiff is

correct in asserting that the Motion to Intervene is unnecessary. See Plaintiff CNX Gas Company

° This case, where the removing underwriters seek to proceed in federal court is the natural

corollary to the more common scenario in Lloyd’s cases where it is the plaintiff who seeks diversity

jurisdiction, not the defendant. In such cases, courts overwhelmingly require the plaintiff to

demonstrate the diversity of every defendant-Name.

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LLC’s Brief in Opposition to Motion to Intervene (“Pl.’s Opp. to Mot. to Intervene”) (ECF No.

19) at p.1. Paragraph Two of the Complaint rendered the all Names who underwrote the COW

Policy parties to the dispute ab initio, including those now attempting to come into the case as

“Third-Party Intervenors.” The matter is moot, however, because the requirements for subject

matter jurisdiction have not been satisfied.

CONCLUSION

AND NOW, this sixteenth day of October, 2019, it is hereby ORDERED that Plaintiff

CNX Gas Company LLC’s Motion to Remand Case to State Court (ECF No. 17) is hereby

GRANTED. It is further hereby ORDERED that Third-Party Intervenor’s Motion to Intervene of

Chaucer Corporate Capital No. 2 Ltd., Barbican Corporate Member Limited and MSI Corporate

Capital Limited (ECF No. 6) is hereby DENIED as moot.

Ql § KE

WILLIAM S.STICKMANIV

U.S. DISTRICT JUDGE

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