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Lopez v. Allstate Vehicle and Property Insurance Co.

United States District Court, E.D. Texas, Sherman Division

April 4, 2017




         Pending before the Court is Defendant Allstate Vehicle and Property Insurance Company's Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Rule 12(b)(6) Motion to Dismiss (Dkt. #9). After reviewing the relevant pleadings and motion, the Court finds the motion should be denied.


         This suit arises from damage caused to Plaintiffs' property after a storm on or about April 1, 2016 in Denton County, Texas. Plaintiffs own a homeowners insurance policy issued by Defendant Allstate Vehicle and Property Insurance Company (“Allstate”). Shortly after the storm, Plaintiffs submitted a claim to Allstate against the policy for damage to their property. Plaintiffs allege that the damage to their property includes “roofing shingles and felt, drip edge, paint and seal of exterior fascia, step flashing, ridge caps, roof sheathing, valley lining, roof vent turbines, flashing, trim board, siding, exhaust caps, gutters, downspouts, and a/c condenser fins.”

         Allstate assigned Gary Harbison (“Harbison”) to adjust the claim. On or about October 12, 2016, Harbison conducted an initial adjustment of the claim. Harbison found that there was no damage from a covered peril to the roof of the property and noted that any damage occurred prior to the inception of the Allstate policy. Plaintiffs have not received any amount for the damage to their property.

         On January 12, 2017, Plaintiffs filed suit against Allstate and Harbison in the 211th District Court, Denton County, Texas (Dkt. #8, Exhibit A). Plaintiffs brought claims against Allstate for breach of contract, violations of the Texas Insurance Code, breach of the duty of good faith and fair dealing, violations of the Texas Deceptive Trade Practices Act, and fraud. On February 13, 2017, Allstate removed the action to the Court asserting that the Court had diversity jurisdiction over the matter because Plaintiffs improperly joined Harbison to the case (Dkt. #1). On February 21, 2017, Plaintiffs filed their Motion to Abstain and Remand (Dkt. #8). The Court denied the Motion to Abstain and Remand on April 4, 2017.

         On February 21, 2017, Allstate filed the pending motion to dismiss (Dkt. #9). Plaintiffs did not file a response.


         Allstate moves for dismissal under Rule 12(b)(1) for lack of standing. Standing is a required element of subject matter jurisdiction under Rule 12(b)(1). New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586 (5th Cir. 1987). To have Article III standing, a plaintiff must show: (1) he has suffered a concrete and particularized injury that is actual or imminent; (2) the injury is “fairly traceable” to the defendant's actions; and (3) the injury will likely be redressed if he prevails in his lawsuit. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The party asserting jurisdiction bears the burden of proof on standing. Ramming v. United States, 281 F.3d 158, 161 (5th Cit. 2001).

         A Rule 12(b)(1) motion should be granted only if it appears beyond doubt that the plaintiff cannot prove a plausible set of facts in support of its claims. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). The Court should accept all well-pleaded allegations in the complaint as true and view those allegations in the light most favorable to the plaintiff. Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). The Court's dismissal of a plaintiff's case because the plaintiff lacks subject matter jurisdiction is not a determination on the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Ramming, 281 F.3d at 161.

         Allstate also moves for dismissal under Rule 12(b)(6). The Federal Rules of Civil Procedure require that each claim in a complaint include a “short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts in plaintiff's complaint and view those facts in the light most favorable to the plaintiff. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine whether the complaint states a claim for relief that is plausible on its face. ‘“A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the well-pleaded facts do not permit the [C]ourt to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or elements.'” Morgan v. Hubert, 335 F. App'x 466, 470 (5th Cir. 2009) (citation omitted). This evaluation will “be a context-specific task that requires the reviewing [C]ourt to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its ...

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