ORDER DENYING PLAINTIFF’S MOTION TO REMAND AND GRANTING DEFENDANT’S MOTION TO STAY
Plaintiff Walter L. Good moves to remand this case to State Court and seeks attorneys’ fees incurred as a result of the removal. Defendant Prudential Insurance Company of America (“Prudential”) opposes. Prudential moves separately to stay all proceеdings in this ease pending a final decision by the Judicial Panel on Multidistrict Litigation (“the MDL Panel”) whether to transfer this ease. Mr. Good opposes. The matter was decided on the papers. Having considered all of the papers filed by the parties, the Court denies the motion to remand and grants the motion to stay.
On January 21, 1998, Mr. Good filed a complaint in the Marin County Superior Court against Prudential and Defendant Barbara Magid, a Prudential insurance agent. Mr. Good alleges that in February, 1994, he met with Ms. Magid and Dianne Garcia, a Prudential insurance agеnt not named in the complaint, to discuss the possibility of purchasing an additional insurance policy with Prudential. 1 According to Mr. Good, Ms. Magid made numerous representations concerning the benefits of a variable appreciable life insurance policy (“VAL”). Mr. Good alleges that Ms. Magid told him that Mr. Good could obtain a $1,000,000 VAL by paying an annual premium of $10,000 for three to" six years, after which time the premiums would “vanish.” Complaint at ¶ 11. According to Mr. Good, he bought a $1,000,000 VAL based on this representation.
Mr. Good alleges that Prudential never intended tо allow his premiums to vanish after three to six years. He alleges further that Prudential’s misrepresentations to the contrary were part of a nationwide pattern of deceptive conduct by Prudential. Complaint at ¶ 12. Mr. Good asserts claims for fraud, negligent misrepresentation, unfair competition, and money had and received against Prudential and Ms. Magid. He also asserts a claim for recision against Prudential.
On March 6, 1998, Prudential removed the case to this Court, asserting diversity jurisdiction. Prudential argued in the notice of removal that diversity jurisdiction exists even though Ms. Magid and Mr. Good are both citizens of California because Ms. Magid is a sham Defendant. On March 10, 1998, four days after removing the case, Prudential filed a notice of related action in In re the Prudential Insurance Company of America Sales Practices Litigation, MDL Docket No. 1061, a matter pending in the New Jersey District Court.
Mr. Good moves to remand this case to Superior Court, asserting that Ms. Magid was properly joined as a Defendant because she is personally liable for her misrepresentations to Mr. Good. Prudential rеsponds that the undisputed evidence in the case indicates that Ms. Magid was not involved in this sale of the VAL, and that, even if she were, she is not a proper Defendant because she acted at all times as Prudential’s agent in the course and scope of her agency.
Prudential also moves to stay the proceedings in this case pending final.decision by the MDL Panel, which, on March 26,1998, issued a conditional order of transfer of this case. Prudential argues that a temporary stay is appropriate to achieve the judicial economies that underlie 28 U.S.C. § 1407. Mr. Good responds that such a stay will prejudice him.
DISCUSSION
I. Legal Standards
A. Motion to Remand
Title 28 U.S.C. § 1447 provides that if, at any time before judgment, it appears that the district court lacks subject matter jurisdiction over a case previously removed from State court, the case must be rеmanded. 28 U.S.C. § 1447(c). The Ninth Circuit has held that courts should resolve doubts as to removability in favor of remanding the case to State court.
Gaus v. Miles, Inc.,
B. Motion to Stay
The power to stay proceedings is within the Court’s discretion. The Supreme Court has described the power to stay- proceedings as “incidеntal to the power inherent in every court to manage the schedule of cases on its docket to ensure fair and efficient adjudication.”
Landis v. American Water Works & Elec. Co.,
II. Motion to Remand
A. Fraudulent Joinder
A defendant may remove a case with a non-diverse defendant on the basis of diversity jurisdiction and seek to persuadе the district court that this defendant was fraudulently joined.
Zogbi v. Federated Dept. Store,
The dеfendant need not show that the joinder of the non-diverse party was for the purpose of preventing removal. Instead, the defendant must demonstrate that there is no possibility that the plaintiff will be able to establish a cause of action in State court against the аlleged sham defendant.
Dodson,
B. Analysis
Defendants assert that under California law, an insurance agent, acting within the scope of her agency for a disclosed insurance agency, is an improper defendant. The California Court of Appeal in
Lippert v. Bailey,
In
Gasnik v. State Farm Ins. Co.,
Federal courts within this circuit have applied
Lippert
and
Gasnik
to find insurance agents to be improper defendants in cases in which the agent was sued for fraud and negligent misrepresentation.
See e.g., Duffy v. Allstate Ins. Co.,
Mr. Good asserts that
Lippert
applies only to attempts to hold agents liable for breaches of contractual obligations. His authority for this proposition is Witkin’s
Summary of California Law,
which discusses
Lippert
in a seсtion entitled “Liability to Agent on Contracts.” 2 Witkin,
Summary of California Law,
Agency § 145. Nothing in Witkin’s
Summary,
however, or in
Lippert
itself, limits the rule in the case to contractual claims. Indeed, the agents in
Lippert
were not sued on the insurance contract. Instead, they were sued for a negligent failure to make the contract that the plaintiffs wished to make with the insurer.
See Lippert,
Mr. Good presents no California case, and the Court knows of none, holding that an insurance agent whose' principal is disclosed can ever be held liable for acts committed within the scope of his or her agency. Mr. Good relies instead on eases outside of the insurance context, which hold that agents are liable for their own torts even when they are acting within the scope of their employment.
See Bayuk v. Edson,
Mr. Good also cites three insurance cases. Two of these, however, involve insurance agents who are either the agents of the insured or dual agents, that is, those who act as agent for both the insurеd and the insurance company. In
Clement v. Smith,
Mr. Good asserts that the complaint contains allegations that, if proven, establish that Ms. Magid acted as a dual agent. The only such allegation he cites, however, states simply that Defendants had superior knowledge of their insurance products and led him to believe he was acting in his best interests. Complaint at ¶ 17, Under California law, a “dual agent” theоry requires that the insurance agent act on behalf of the insured in some way beyond his or her capacity as an agent for the insurer. An insurance agent cannot be a “dual agent” unless he or she is either an independent broker or has a long-term, special relationship with the insured.
Maloney v. Rhode Island Ins. Co.,
In light of the absence of authоrity to the contrary, the Court finds that Lippert and Gasnik establish that there is no possibility that Mr. Good will be able to establish a cause of action against Ms. Magid. Mr. Good alleges that Ms. Magid was acting within the scope of her agency at all times relevant to the complaint. Complaint at ¶5. Furthermore, Mr. Good does not contest that there was full disclosure of Prudential as the principal. Under Lippert and Gasnik, therefore, the Court finds that Ms. Magid was fraudulently joined as a Defendant. Accordingly, the Court finds further that the removal was proper and denies Mr. Good’s motion to remand.
C. Procedural Defects in Notice of Removal
Mr. Good asserts that Prudential’s notice of removal was fatally defective because, although it alleged the citizenship of the parties at the time of the notice of removal, it failed to allege their citizenship at the time the complaint was filed. The Court finds this argumеnt disingenuous. Mr. Good does not dispute that, at all times relevant to
Mr. Good asserts further that the notice of removal is defective because it lacks a section entitled “Intra-District Assignment,” as required by Local Rule B — 5(b). By its terms, however, this rule applies only to “eomplaint[s]” and “petition[s].” A notice of removal is neither. Furthermore, Mr. Good does not allege that this case was assigned to the wrong division of the Northern District of California or that the failure to include this section prejudiced him in any way.
The Court finds, therefore, that neither of the alleged defects in the notice of removal requires the case to be remanded.
III. Motion to Stay
Cases pending in different districts involving common questions of fact may be transferred by the MDL Panel to another district for consolidated pretrial proceedings.
See
28 U.S.C. § 1407(a). The purpose of such transfers is to further judicial economy and to eliminate the potential for conflicting pretrial rulings.
See
Weigel,
The Judicial Panel on Multidistrict Litigation,
The MDL Panel entered a conditional transfer order regarding this case on March 26, 1998. It appears, therefore, that a stay pending a final decision by thе MDL Panel would likely be brief. Furthermore, such a stay would further the aim of judicial efficiency.
Mr. Good asserts that he will be prejudiced if a stay is issued. His main argument, however, is that a stay is improper when a motion to remand is pending before the transferor court. This argument, howevеr, is moot because, as indicated above, the Court denies his motion to remand. Mr. Good’s only other argument against a stay is that a transfer to New Jersey may take months rather than weeks and that the delay would prejudice him. Mr. Good does not, however, present any еvidence that a transfer to New Jersey will take months, especially now that a conditional order of transfer has been entered. He also fails to indicate why the delay would prejudice him.
The Court finds that a stay pending the MDL Panel’s final decision is proper.
CONCLUSION
For thе foregoing reasons, Plaintiffs motion to remand (Docket No.18) is denied. Because the Court finds that this case was properly removed, the Court also denies Plaintiffs request for attorneys’ fees incurred as a result of removal. Defendants’ motion to stay (Docket No.6) is granted. The case is hereby stayed pending a decision by the MDL Panel whether to transfer this case. The case management conference, currently scheduled for July 17,1998, is vacated.
Notes
. Mr. Good alleges that, at the time, he already owned a Prudential term life insurance policy.