United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE, United States District Judge
for consideration the motion of plaintiff, Deniedra Jackson,
to remand. The court, having considered the motion, the
response of defendant, Allstate Vehicle and Property
Insurance Company, the record, and applicable authorities,
finds that the motion should be granted.
January 12, 2017, plaintiff filed her original petition in
the County Court at Law No. 3 of Tarrant County, Texas. The
action was brought before this court by notice of removal.
alleged in her petition that she sustained wind/hail damage
to the roof and interior of her home on or about April 1,
2015; that she reported a claim to defendant; and that no
payment was made. Defendant informed plaintiff that her roof
had been improperly installed, but it continued accepting her
premiums and extended the coverage on her property. On or
about March 17, 2016, plaintiff sustained significant damage
from a wind/hail storm. Plaintiff made a claim, which
defendant refused to pay.
petition, plaintiff asserted claims for breach of contract,
violation of the Texas Insurance Code chapter 541, violation
of the Texas Deceptive Trade Practices-Consumer Protection
Act, Tex. Bus. & Com. Code Ann. §§17.41-.63,
breach of duty of good faith and fair dealing, promissory
estoppel, and fraud and/or negligent misrepresentation.
Plaintiff did not allege an amount she sought to recover,
although she did fill out a civil case information sheet
showing that the damages sought were less than $100, 000,
including damages of any kind, penalties, costs, expenses,
prejudgment interest, and attorney's fees.
for This Court's Jurisdiction
removed the action to this court on the basis of diversity
jurisdiction. There is no question that diversity of
citizenship exists, as plaintiff is a citizen of Texas and
defendant is a citizen of Illinois, where it is incorporated
and has its principal place of business. The issue is whether
the amount in controversy exceeds $75, 000. 28 U.S.C. §
the amount in controversy is not shown in the plaintiff's
pleading, the removing party must establish by a
preponderance of the evidence that the jurisdictional amount
is met. Manguno v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002). It
may do this by setting forth summary judgment-type evidence
of facts in controversy that support a finding of the
requisite amount. Id. If a state statute provides
for attorney's fees, they are included as part of the
amount in controversy. Id. Removal cannot be based
upon conclusory allegations. Allen v. R & H Oil &
Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
The jurisdictional facts that support the removal are judged
at the time of the removal. Id.
case, defendant attached to its notice of removal a demand
letter dated May 18, 2016, which had attached to it an
estimate for replacement of the roof totaling $14, 850.42.
Also attached was a letter dated October 28, 2016, offering
to settle the entire matter in controversy for a total of
$16, 850 plus $2, 500 in attorney's fees to avoid the
filing of the lawsuit. Although plaintiff had earlier made a
demand for $92, 114.84, by letter dated November 16, 2015,
also attached to the notice of removal, there is no basis for
believing that such demand plays any role in the amount now
in controversy. Plaintiff has but one roof she is now seeking
to have replaced. And, defendant has not shown that even with
statutory damages and attorney's fees the amount in
controversy exceeds the statutory minimum.
relies upon the insurance policy limits of $693, 206 in
arguing that the amount in controversy is met. However, this
is not a case like Trigo v. State Farm Lloyds, No.
7:13-CV-147, 2013 WL 12140284 (S.D. Tex. July 3, 2013), upon
which defendant relies. There, the plaintiff had not pleaded
an amount in controversy nor provided his own estimate of
damages, instead relying on defendant's estimate to argue
that the amount in controversy was not met. Here,
plaintiff's own roofer says ...