United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
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.
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.”
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.
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.
February 21, 2017, Allstate filed the pending motion to
dismiss (Dkt. #9). Plaintiffs did not file a response.
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).
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.
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).
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
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.
“[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