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Ballard Spahr LLP 

1 East Washington Street, Suite 2300 

Phoenix, AZ 85004-2555 

Telephone: 602.798.5400 

John G. Kerkorian (012224)

kerkorianj@ballardspahr.com 

Shayna Fernandez Watts (027342) 

wattss@ballardspahr.com 

BALLARD SPAHR LLP 

1 East Washington Street, Suite 2300 

Phoenix, AZ 85004-2555 

Telephone: 602.798.5400 

Facsimile: 602.798.5595 

Attorneys for Defendants 

Allstate Insurance Company, Bryan 

McKinney, and Amber McKinney

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA – TUCSON DIVISION 

Adam Roth, an unmarried man,

Plaintiff, 

vs. 

Allstate Insurance Company, an Illinois 

corporation; and Bryan McKinney and Jane 

Doe McKinney, husband and wife, 

Defendant. 

NO. 

NOTICE OF REMOVAL 

(Removed from the Superior Court of the 

State of Arizona in and for the County of 

Pima, C20174909) 

Defendants Allstate Insurance Company (“Allstate”), Bryan McKinney, and 

Amber McKinney (collectively, “Defendants”) remove this action from the Arizona 

Superior Court for the County of Pima to the United States District Court for the District 

of Arizona pursuant to 28 U.S.C. § 1332 for the following reasons: 

1. On October 11, 2017, Adam Roth filed an action in the Pima County 

Superior Court, State of Arizona entitled Adam Roth v. Allstate Insurance Company, et 

al. C20174909 (the “State Court Action”). 

2. Plaintiff alleges that “[t]his action arises out of an agency contract between 

Roth and Allstate for Roth’s operation of a business as an Allstate agency in Pima 

County, Arizona, and out of actions taken by Allstate and McKinney in connection with 

Roth’s transfer of his economic interest in the Allstate customer accounts developed 

under said agency contract.” Compl. ¶ 6. 

Case 4:17-cv-00587-FRZ Document 1 Filed 12/04/17 Page 1 of 6
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Ballard Spahr LLP 

1 East Washington Street, Suite 2300 

Phoenix, AZ 85004-2555 

Telephone: 602.798.5400 

3. True and correct copies of all process, pleadings, and orders in the State 

Court Action are attached hereto as Exhibit A. 

4. Removal of this action to the United Stated District Court for the District of 

Arizona is proper pursuant to 28 U.S.C. §§ 1441 and 1332 because there is complete 

diversity of citizenship between Plaintiff and Defendants and the amount in controversy 

exceeds $75,000.00. 

5. At the time this action was commenced, and since then, Plaintiff has 

resided in and is a citizen of Pima County, Arizona. Compl. ¶ 1. 

6. At the time this action was commenced, and since then, Defendant Allstate 

was and has been an Illinois corporation with its principle place of business in Illinois. 

See Exhibit B. 

7. Bryan McKinney (“McKinney”) and Amber McKinney1

 (collectively, the 

“McKinneys”) were fraudulently joined. 

8. Joinder is fraudulent “[i]f the plaintiff fails to state a cause of action against 

a resident defendant, and the failure is obvious according to the settled rules of the state.” 

McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)) (alteration in 

original). In such a case, the District Court may ignore the presence of a defendant for 

the purpose of establishing diversity. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 

1067 (9th Cir. 2001). 

9. In most cases, the focus will be on whether the plaintiff can “state a 

reasonable or colorable claim for relief under the applicable substantive law against the 

party whose presence in the action would destroy the district court’s subject matter 

jurisdiction.” 13f c. Wright & A. Miller et al., Fed. Prac. & Proc. Juris. § 3641.1 (3d ed.). 

10. Plaintiff has not and cannot state a colorable claim against the McKinneys. 

 

1

 The Complaint does make any substantive allegations against Amber McKinney. Ms. 

McKinney was named solely “as a defendant to join McKinney’s marital community.” 

Compl. ¶ 5. 

Case 4:17-cv-00587-FRZ Document 1 Filed 12/04/17 Page 2 of 6
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Ballard Spahr LLP 

1 East Washington Street, Suite 2300 

Phoenix, AZ 85004-2555 

Telephone: 602.798.5400 

11. Count I, Plaintiff’s claim for Breach of the Covenant of Good Faith and 

Fair Dealing, is only alleged against Allstate because, notably, the McKinneys are not 

signatories to any contract with Plaintiff. 

12. Count II alleges that McKinney interred with his contractual relationships 

or business expectancies by telling potential buyers that Allstate would not approve them 

as buyers or that the Book of Business was not for sale (Compl. 52-57) and Plaintiff 

asserts that McKinney’s conduct “...was done in the course and scope of his employment 

by Allstate...” See Compl. ¶ 74. 

13. Plaintiff and Allstate however entered into an Exclusive Agency 

Agreement which provides: “The Company retains the right in its exclusive judgment to 

approve or disapprove such a transfer.” See Exhibit C at XVI. B. 

14. As a matter of law, exercising this contractual right cannot constitute 

tortious interference with Plaintiff’s business relationship or expectation and Count II 

fails. Stephenson v. Allstate Insurance Company, 141 F. Supp. 2d 784 (E.D. Mich. 

2001), aff’d 328 F.3d 822 (6th Cir. 2003) (granting summary judgment in favor of 

defendant Allstate Insurance Company on the plaintiff’s claim of tortious interference 

with contract, as well as on an additional state law claim based of Allstate’s right to 

approve purchases of Book of Business in Agency Agreement); see also Steinberger v. 

Me Vey ex rel. Cnty. of Maricopa, 234 Ariz. 125, 318 P.3d 419 (App. 2014)(discussing 

the circumstances under which a borrower may sue a lender for negligent undertaking in 

connection with a loan modification, while “emphasiz[ing] that our holding is limited to 

the particular allegations in this case.”) 

15. Regarding Count III, Plaintiff has failed to state a colorable claim for 

negligent undertaking against the McKinneys because Plaintiff has not alleged any 

physical harm. 

16. Arizona applies the Good Samaritan doctrine from § 323 of the 

Restatement (Second) of Torts (1965) to negligent undertaking claims outside of the 

mortgage context. Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 608, 688 

Case 4:17-cv-00587-FRZ Document 1 Filed 12/04/17 Page 3 of 6
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Ballard Spahr LLP 

1 East Washington Street, Suite 2300 

Phoenix, AZ 85004-2555 

Telephone: 602.798.5400 

P.2d 605, 616 (1984). The Arizona Supreme Court has not extended this theory beyond 

its express limitation to physical harm because to do so would greatly transform the law 

of contracts. 

17. Count IV for Arizona Consumer Fraud is predicated upon two statements 

allegedly made by Bryan McKinney in July 2016 and September 2016, respectively. 

Compl. ¶¶ 67, 24, 32. 

18. Arizona’s Consumer Fraud Statute has a one year statute of limitations. 

Ariz. Rev. Stat. § 12-541(5). 

19. Because Plaintiff did not file his claim regarding the July and September 

2016 statements until October 11, 2017, Plaintiff’s claim against the McKinneys for 

consumer fraud is time barred and must fail. 

20. Plaintiff thus has failed to state a cause of action against a resident 

defendant, here the McKinneys, and the failure is obvious according to the settled rules of 

the state. 

21. Because Plaintiff is a citizen of Arizona and Allstate is a citizen of Illinois, 

and because, Bryan and Amber McKinney are fraudulently joined individuals, complete 

diversity exists. 

22. The amount in controversy exceeds $75,000 because Plaintiff claims 

damages of $175,000.00 based on the difference between what Plaintiff alleges he sold 

his business for ($450,000.00) and what he alleges he could have sold his business for 

($625,000.00). Compl. ¶¶40, 73. 

23. Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) because the events 

giving rise to this action are alleged to have occurred in this federal district. 

24. This Notice of Removal is timely filed under 28 U.S.C. § 1446(b) because 

Plaintiff served the McKinneys on November 4, 2017 and Allstate on November 9 and 

15, 2017. See Exhibit D. 

25. Defendants have served a copy of this Notice of Removal on Plaintiff in 

accordance with 28 U.S.C. § 1446(d). 

Case 4:17-cv-00587-FRZ Document 1 Filed 12/04/17 Page 4 of 6
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Ballard Spahr LLP 

1 East Washington Street, Suite 2300 

Phoenix, AZ 85004-2555 

Telephone: 602.798.5400 

26. A copy of the Notice of Filing of the Notice of Removal to the United 

States District Court as filed in the State Court Action is attached hereto as Exhibit E. 

27. Defendants reserve the right to submit additional evidence supporting this 

Notice of Removal should Plaintiff move to remand. 

WHEREFORE, Defendants request that the above-captioned action, currently 

pending in the Pima County Superior Court, State of Arizona, be removed to this Court, 

which shall assume full jurisdiction over it as provided by law. 

RESPECTFULLY SUBMITTED this 4th day of December, 2017. 

BALLARD SPAHR LLP 

By: /s/ Shayna Fernandez Watts 

John G. Kerkorian 

Shayna Fernandez Watts 

1 East Washington Street, Suite 2300 

Phoenix, AZ 85004-2555 

Attorneys for Defendants 

Allstate Insurance Company, Bryan 

McKinney, and Amber McKinney 

 

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Ballard Spahr LLP 

1 East Washington Street, Suite 2300 

Phoenix, AZ 85004-2555 

Telephone: 602.798.5400 

CERTIFICATE OF SERVICE

I certify that on the 4th day of December, 2017, I electronically transmitted the 

foregoing document to the Clerk’s Office using the ECF system for filing and transmittal 

of a Notice of Electronic Filing to all CM/ECF registrants of record in this matter. 

/s/Christina M. Revering 

Case 4:17-cv-00587-FRZ Document 1 Filed 12/04/17 Page 6 of 6