Brazina

MEMORANDUM AND ORDER

Motion to Remand

Plaintiff Gary E. Brazina (“Brazina”) filed a complaint in California state court against Paul Revere Life Insurance Company (“Revere”) and Unumprovident Corporation (“Provident”) (collectively “defendants”), alleging that defendants wrongfully withheld payment of total disability benefits due Brazina as an orthopedic surgeon. Brazina also brought claims against the California Department of Insurance (“DOI”) for its approval of the policy language at issue, and later amended the caption of the complaint to include DOI. On January 22, 2003, Revere and Provident filed a notice of removal with this court, contending DOI was fraudulently joined. Now before the court is Brazina’s Motion to Remand. Having considered the parties’ arguments and submissions, and for the reasons set forth below, the court rules as follows.

BACKGROUND

Revere issued an individual income disability insurance policy to Brazina in 1988. In 1997, Brazina experienced a “herniated nucleus pulposis,” or slipped disk, that resulted in alleged permanent numbness and muscle loss in his right arm. Brazina made a claim for total disability benefits under the policy in January…