United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is Plaintiff's Motion to Remand (Doc. 7), filed
September 2, 2016. After careful review of the motion,
response, record, and applicable law, the court grants
Plaintiff's Motion to Remand.
Lopez (“Plaintiff” or “Lopez”)
originally filed this action against Allstate Texas
Lloyd's (“Defendant” or
(“Allstate”) on May 4, 2016, in the 134th
Judicial District Court of Dallas County, Texas. Lopez
sustained losses to his dwelling (home) and his personal
property as a result of windstorm, hailstorm, and water
damage to his property. Lopez contends that Allstate failed
to compensate him fully for the damage to his home and
personal property in accordance with his Insurance Policy
(“Policy”) with Allstate. Pl.'s Original Pet.
asserts claims for breach of contract, violations of the
Texas Deceptive Trade Practices Act (“DTPA”),
violations of the Texas Insurance Code, and breach of the
duty of good faith and fair dealing. He seeks actual and
special damages as follows:
past, present, and future cost of repair to PLAINTIFF'S
home, any investigative and engineering fees incurred in the
claim, cost of mitigation, reliance damages, restitution
damages, and costs of alternative housing while repairs are
The Plaintiff is also entitled to recover consequential
damages from Defendant's breach of contract. The
Plaintiff is also entitled to recover the amount of
PLAINTIFF'S claim plus 18% per annum penalty on that
claim against Defendant as damages under Section 542 of the
Texas Insurance Code, plus pre-judgment and post judgment
interest and attorney's fees.
Pl.'s Original Pet. 13-14.
removed the state court action to federal court on August 8,
2016, contending that complete diversity of citizenship
exists between the parties and that the amount in controversy
exceeds $75, 000, exclusive of interest and costs. Lopez
disagrees and contends that Allstate has not established that
the amount in controversy exceeds $75, 000 and seeks a remand
of this action to state court.
Subject Matter Jurisdiction
federal court has subject matter jurisdiction over civil
cases “arising under the Constitution, laws, or
treaties of the United States, ” or over civil cases in
which the amount in controversy exceeds $75, 000, exclusive
of interest and costs, and in which diversity of citizenship
exists between the parties. 28 U.S.C. §§ 1331,
1332. Federal courts are courts of limited jurisdiction and
must have statutory or constitutional power to adjudicate a
claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375, 377 (1994) (citations omitted); Home Builders
Ass'n of Miss., Inc. v. City of Madison, 143 F.3d
1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by
statute or the Constitution, they lack the power to
adjudicate claims and must dismiss an action if subject
matter jurisdiction is lacking. Id.; Stockman v.
Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir.
1998) (citing Veldhoen v. United States Coast Guard,
35 F.3d 222, 225 (5th Cir. 1994)). A federal court must
presume that an action lies outside its limited jurisdiction,
and the burden of establishing that the court has subject
matter jurisdiction to entertain an action rests with the
party asserting jurisdiction. Kokkonen, 511 U.S. at
377 (citations omitted). “[S]ubject-matter jurisdiction
cannot be created by waiver or consent.” Howery v.
Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
courts may also exercise subject matter jurisdiction over a
civil action removed from a state court. Unless Congress
provides otherwise, a “civil action brought in a State
court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a).
federal court has an independent duty, at any level of the
proceedings, to determine whether it properly has subject
matter jurisdiction over a case. Ruhgras AG v. Marathon
Oil Co., 526 U.S. 574, 583 (1999)
(“[S]ubject-matter delineations must be policed by the
courts on their own initiative even at the highest
level.”); McDonal v. Abbott Labs., 408 F.3d
177, 182 n.5 (5th Cir. 2005) (A “federal court may
raise subject matter jurisdiction sua
sponte.”) (citation omitted).
considering a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction, “a court may evaluate (1)
the complaint alone, (2) the complaint supplemented by
undisputed facts evidenced in the record, or (3) the
complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.” Den
Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d
420, 424 (5th Cir. 2001) (citation omitted). Thus, unlike a
Rule 12(b)(6) motion to dismiss for failure to state a claim,
the district court is entitled to consider disputed facts as
well as undisputed facts in the record and make findings of
fact related to the jurisdictional issue. Clark v.