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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON LINDA FISHER, JOHN FISHER, Plaintiffs, v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, WOLF FINANCIAL SERVICES, INC., DARRELL JOE WOLF, and SCOTT FRASER, Defendants. Civil Action No. 2:11-00550

MEMORANDUM OPINION AND ORDER

Pending is plaintiffs' motion to remand, filed August 26, 2011. Also pending are defendant Scott Fraser's motion to

dismiss, filed August 16, 2011, and defendants Wolf Financial Services, Inc. and Darrell Joe Wolf's motion to dismiss, or, in the alternative, for judgment on the pleadings, filed August 30, 2011.

When, as here, a motion to remand and a Rule 12(b)(6) motion to dismiss are both made, it is ordinarily improper to resolve the Rule 12(b)(6) motion before deciding the motion to remand. The question arising on the motion to remand as to

whether there has been a fraudulent joinder is a jurisdictional inquiry. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 852

(3rd Cir. 1992); cf. Mayes v. Rapoport, 198 F.3d 457, 460 (4th 1999) (observing that the propriety of removal and fraudulent joinder are jurisdictional questions).

I.

Background

This dispute arises from the denial of an insurance claim stemming from water damage to residential property located in Hedgesville, West Virginia. Plaintiffs Linda and John Fisher

are residents of Maryland and own the Hedgesville property that is the subject of the underlying insurance claim. (Compl.

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