United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
FISH SENIOR UNITED STATES DISTRICT JUDGE
the court is the defendants' motion to abate proceedings
and compel appraisal (docket entry 12). For the reasons
stated below, the defendants' motion is granted.
a dispute over an insurance policy issued to the plaintiff,
Robin Nabors (“Nabors”), by the defendant,
American Reliable Insurance Company (“American”),
covering water damage to Nabors's home. See
Plaintiff's Original Petition (“Original
Petition”) at 2-3 (docket entry 1-1). After an April
2015 hail storm damaged Nabors's home, American assigned
the defendant, Scott Monell (“Monell”), to adjust
Nabors's claim and inspect the damage. Id. at 3.
The defendants have not yet paid Nabors under the policy.
March 6, 2017, Nabors commenced this action in the 40th
Judicial District Court of Ellis County, Texas.
Defendants' Notice of Removal (“Notice”) at 1
(docket entry 1); Original Petition at 1. Nabors seeks a
declaratory judgment regarding the scope of the policy's
coverage as well as damages for breach of contract and
violations of the Texas Insurance Code against American.
Original Petition at 3-4. Nabors seeks relief for violations
of the Texas Insurance Code against Monell. Id. at
5. On March 20, 2017, the defendants removed the case to
federal court based on diversity jurisdiction. Notice at 2.
On April 12, 2017, the defendants filed the instant motion to
abate proceedings and compel appraisal. Defendants'
Motion to Abate (“Motion”) (docket entry 12). On
May 3, 2017, Nabors filed a timely response. Plaintiff's
Response in Opposition to Defendants' Motion to Abate
(docket entry 19); Plaintiff's Brief in Support of Its
Response in Opposition to Defendants' Motion to Abate
(“Plaintiff's Brief”) (docket entry 18). On
May 12, 2017, the defendants filed a timely reply.
Defendants' Reply in Support of Their Motion to Abate
(“Reply”) (docket entry 20). The motion is now
ripe for decision.
Jurisdiction: Whether Monell Is Improperly Joined
court may sua sponte raise the issue of its
jurisdiction at any time during the course of litigation.
In re Bass, 171 F.3d 1016, 1021 (5th Cir. 1999)
(“Federal courts must be assured of their subject
matter jurisdiction at all times and may question it sua
sponte at any stage of judicial proceedings”)
U.S.C. § 1441(a) permits the removal of “any civil
action brought in a [s]tate court of which the district
courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). The statute
allows a defendant to “remove a state court action to
federal court only if the action could have originally been
filed in federal court.” Anderson v. American
Airlines, Inc., 2 F.3d 590, 593 (5th Cir. 1993).
However, the removal statute must be strictly construed
because “removal jurisdiction raises significant
federalism concerns.” Willy v. Coastal
Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988); see
also Gutierrez v. Flores, 543 F.3d 248, 251 (5th
Cir. 2008). Therefore, “any doubts concerning removal
must be resolved against removal and in favor of remanding
the case back to state court.” Cross v. Bankers
Multiple Line Insurance Company, 810 F.Supp. 748, 750
(N.D. Tex. 1992) (Means, J.); see also Shamrock Oil &
Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941).
The party seeking removal bears the burden of establishing
federal jurisdiction. Willy, 855 F.2d at 1164.
are two principal bases upon which a district court may
exercise removal jurisdiction: the existence of a federal
question, see 28 U.S.C. § 1331, and complete
diversity of citizenship among the parties. See 28
U.S.C. § 1332. Here, the removing defendants have
alleged only diversity of citizenship as a basis for this
court's jurisdiction. See Notice at 2. The court can
properly exercise jurisdiction on the basis of diversity of
citizenship after removal only if three requirements are met:
(1) the parties are of completely diverse citizenship,
see 28 U.S.C. § 1332(a); (2) none of the
properly joined defendants is a citizen of the state in which
the case is brought, see 28 U.S.C. § 1441(b);
and (3) the case involves an amount in controversy of more
than $75, 000, see 28 U.S.C. § 1332(a).
as the defendants contend, even if a defendant has the same
citizenship as the plaintiff, a federal court can still
exercise removal jurisdiction over an action if the court
finds that the plaintiff improperly joined the non-diverse
defendant. A defendant can satisfy the requirements for
improper joinder by demonstrating that “there is no
possibility of recovery by the plaintiff against an instate
defendant, which stated differently means that there is no
reasonable basis for the district court to predict that the
plaintiff might be able to recover against an instate
defendant.” Smallwood v. Illinois Central Railroad
Company, 385 F.3d 568, 573 (5th Cir. 2004) (en banc),
cert. denied, 544 U.S. 992 (2005). To determine
whether Nabors is unable to establish a cause of action
against the non-diverse defendant, Monell, the court should
conduct a Rule 12(b)(6)-type analysis. Id.
“[T]he Rule 12(b)(6) analysis necessarily incorporates
the federal pleading standard articulated in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007).” International Energy Ventures Management,
L.L.C. v. United Energy Group, Ltd., 818 F.3d 193, 200
(5th Cir. 2016) (emphasis in original).
defendants contend that Monell is improperly joined because
there is no possibility that Nabors can recover from Monell
under the Texas Insurance Code. Notice at 4. First, the
defendants contend that Nabors failed to plead an injury
independent from the denial of policy benefits. Id.
(citing Mital Hospital, Inc. v. Evanston Insurance
Company, No. 4:16-CV-0893-A, 2016 WL 7165976, at *4
(N.D. Tex. Dec. 6, 2016) (McBryde, J.)). The defendants
further contend that Nabors's claims under §
541.060(a)(2)(A) and § 541.060(a)(7) of the Texas
Insurance Code fail because Monell has no authority to settle
Nabors's claim under the policy. Id. at 4-5.