United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' Motion to Abstain and
Remand (Dkt. #8). Having considered the pleadings, the Court
finds that the motion should be denied.
about April 1, 2016, a severe storm hit the Denton County,
Texas area, causing damage to Plaintiffs Augustine and Jaime
Lopez's property. 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.
assigned Defendant 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 property
and noted that any damage occurred prior to the inception of
the Allstate policy. Plaintiffs allege that Allstate, through
its agent, Harbison, conducted a substandard and improper
inspection and adjustment of the property. Specifically,
Plaintiffs allege that Harbison “had a vested interest
in undervaluing the claims assigned to him by Allstate in
order to maintain his employment” and that “the
disparity in the number of damaged items in [Harbison's]
report compared to that of Plaintiffs' public
adjuster's is evidence of fraud on the part of
Harbison.” Plaintiffs further argue that Harbison
“had advanced knowledge of what amount of damages he
needed to find in order to either deny the claim or find the
claim below the deductible.” Plaintiffs state that
Harbison made misrepresentations regarding the amount of
damage Plaintiffs' property sustained and made
misrepresentations during the inspection regarding why the
policy would not cover certain damage. Plaintiffs allege that
Allstate failed to assess the claim thoroughly and failed to
perform its contractual duties under the policy. Plaintiffs
allege that the damage to their property is estimated at $30,
646.73 and that they have not received any amount from
Allstate for the damage.
January 12, 2017, Plaintiffs filed suit against Allstate and
Harbison in the 211th District Court, Denton County, Texas
seeking damages that exceed $75, 000 (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. Plaintiffs
also brought claims against Harbison for violations of the
Texas Insurance Code, violations of the Texas Deceptive Trade
Practices Act, fraud, negligence, and gross negligence.
are both citizens of the State of Texas. Allstate is an
Illinois corporation with its principal place of business in
Illinois. Harbison is a citizen of the State of Texas. 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).
February 21, 2017, Plaintiffs filed their Motion to Abstain
and Remand (Dkt. #8). On March 7, 2017, Allstate filed a
response (Dkt. #11). Plaintiffs did not file a reply.
defendant may remove any civil action from state court to a
district court of the United States which has original
jurisdiction. 28 U.S.C. § 1441. District courts have
original jurisdiction over all civil actions that are between
citizens of different states and involve an amount in
controversy in excess of $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332. The party seeking removal
“bears the burden of establishing that federal
jurisdiction exists and that removal was proper.”
Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002); Weaver v. Zurich Am. Ins.
Co., No. Civ. A. H-10-1813, 2010 WL 3910053, at *1 (S.D.
Tex. Oct. 1, 2010). The removal statute must “be
strictly construed, and any doubt about the propriety of
removal must be resolved in favor of remand.” Gasch
v. Hartford Accident & Indem. Co., 491 F.3d 278,
281-82 (5th Cir. 2007). A district court is required to
remand the case to state court if, at any time before final
judgment, it determines that it lacks subject matter
jurisdiction. See 28 U.S.C. § 1447(c);
Groupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S.
567, 571 (2004).
assessing whether diversity jurisdiction exists, a court must
disregard non-diverse citizenship of an improperly joined
defendant.” Doucet v. State Farm Fire and Cas.
Co., No. 1:09-CV-142, 2009 WL 3157478, at *4 (E.D. Tex.
Sept. 25, 2009) (citing Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 572-73 (5th Cir. 2004)). A defendant
who contends that a non-diverse party is improperly joined
has a “heavy” burden of proof. Green v.
Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983);
Great Plains Trust Co. v. Morgan Stanley Dean Witter
& Co., 313 F.3d 305, 312 (5th Cir. 2002) (citation
omitted). “In making its determination, the court must
ordinarily evaluate all of the factual allegations in the
plaintiff's state court pleadings in the light most
favorable to the plaintiff, resolving all contested issues of
substantive fact in favor of the plaintiff.”
Green, 707 F.2d at 205.
removing party must prove that there is absolutely no
possibility that the plaintiff will be able to establish a
cause of action against the in-state defendant in state
court, or that there has been outright fraud in the
plaintiff's pleading of jurisdictional facts.”
Great Plains Trust, 313 F.3d at 312 (quoting
Green, 707 F.2d at 205). After the Court resolves
all disputed questions of fact and all ambiguities in
controlling state law in favor of the plaintiff, the Court
determines whether the plaintiff has any possibility of
recovery against the party whose joinder is questioned.
Id. (citation omitted). If there is a reasonable
basis for predicting that the state law might impose
liability on the facts of the case, then there is no
fraudulent joinder. Id. (citation omitted). This
possibility must be reasonable and not just theoretical.
determination of improper joinder must be based on an
analysis of the causes of action alleged in the complaint at
the time of removal. See Cavallini v. State Farm Mut.
Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
“A district court should ordinarily resolve [claims of]
improper joinder by conducting a Rule 12(b)(6)-type
analysis.” McDonal v. Abbott Labs., 408 F.3d
177, 183 n.6 (5th Cir. 2005); see also Boone v.
Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005).
“[I]f a plaintiff can survive a Rule 12(b)(6)-type
challenge, there is generally no improper joinder.”
Guillory v. PPG Indus., Inc., 434 F.3d 303, 309 (5th
Cir. 2005) (citation omitted); Smallwood, 385 F.3d
at 573. The Court, however, must carefully distinguish an
attack on the overall merits of the case from a showing that
defendants were improperly joined in order to defeat
diversity. See Smallwood, 385 F.3d at 573; see
also Gasch 491 F.3d at 284.
must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Merely lumping
diverse and non-diverse defendants together in
undifferentiated liability averments of a petition does not
satisfy the requirement to state specific actionable conduct
against the non-diverse defendant. See Griggs v. State
Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999). Merely
asserting a laundry list of statutory violations without
factual support as to how a non-diverse defendant violated
the statute will not suffice. Doucet, 2009 WL
3157478, at *5. However, the joinder of an in-state,
non-diverse defendant is proper as long as the