United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
FISH SENIOR UNITED STATES DISTRICT JUDGE.
the court is the plaintiff's motion to remand this case
to the state court from which it was previously removed
(docket entry 14). For the reasons stated below, the
plaintiff's motion to remand is denied.
case arose from the alleged mishandling of the plaintiff
Carrillo Funeral Directors, Inc.
(“Carrillo”)'s insurance claim for damage to
its properties following a hailstorm. See
Plaintiff's Original Petition (“Plaintiff's
Petition”) ¶ 4.2, attached to
Defendants' Notice of Removal (“Notice of
Removal”) (docket entry 1). Upon discovery of roof
damage following the storm, Carrillo filed an insurance claim
with its insurer, Ohio Security Insurance Company
(“Ohio Security”). Id. Ohio Security
then assigned Julius John Horvath (“Horvath”), an
individual adjuster, to investigate, inspect, and prepare a
report on the claim. Id. ¶ 4.3. Carrillo
contends that Horvath's inspection of the damaged
property and the overall manner in which he handled the claim
were insufficient, which resulted in Ohio Security
underpaying and partially denying Carrillo's claim.
Id. ¶ 4.4.
2, 2017, Carrillo filed this suit against Ohio Security and
Horvath in the 192nd District Court of Dallas County, Texas,
to recover damages resulting from the alleged mishandling of
its insurance claim. See id. ¶¶ 5.1-11.2.
On June 8, 2017, the defendants removed the case to this
court based on diversity of citizenship, arguing that
Carrillo improperly joined Horvath, a Texas citizen.
See Notice of Removal ¶¶ 12-14. On July
10, 2017, Carrillo moved to remand this case to the state
court, arguing that removal was improper because there is not
complete diversity of citizenship. See Plaintiff
Carrillo's Motion to Remand (“Plaintiff's
Motion”) (docket entry 14).
Carrillo does not dispute that the amount in controversy
exceeds $75, 000, see generally Plaintiff's
Motion, the only issue before the court is whether it was
proper for Carrillo to join Horvath as a defendant
U.S.C. § 1441(a) permits the removal of “any civil
action brought in a State 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.”
Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.
2008) (citation omitted). Accordingly, “any doubt as to
the propriety of removal should be resolved in favor of
remand.” Id. (citation and internal quotations
omitted). The party seeking removal bears the burden of
establishing federal jurisdiction. Willy v. Coastal
Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988).
are two principal bases upon which a district court may
exercise removal jurisdiction: (1) the existence of a federal
question, see 28 U.S.C. § 1331, and (2)
complete diversity of citizenship among the parties.
See 28 U.S.C. § 1332. Here, the defendants have
alleged only diversity of citizenship as a basis for this
court's jurisdiction. See Notice of Removal
¶ 8. The court can properly exercise jurisdiction on the
basis of diversity of citizenship 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).
In this case, there is not complete diversity because both
Carrillo and Horvath are Texas citizens. See
Plaintiff's Petition ¶ 2.3; Notice of Removal ¶
11. The defendants, however, contend that removal is proper
because the plaintiff improperly joined Horvath in this suit.
Notice of Removal ¶ 11.
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. See McDonal v. Abbott
Laboratories, 408 F.3d 177, 183 (5th Cir. 2005). The
Fifth Circuit has recognized two grounds on which a court can
find that a defendant was improperly joined: when “(1)
there is actual fraud in pleading jurisdictional facts or (2)
the plaintiff is unable to establish a cause of action
against the nondiverse defendant.” Campbell v.
Stone Insurance, Inc., 509 F.3d 665, 669 (5th Cir. 2007)
(citation omitted). In this case, only the latter ground is
at issue. See Notice of Removal at 3-4.
party seeking removal bears [the] heavy burden of proving
that the joinder of the in-state party was improper.”
Smallwood v. Illinois Central RailroadCompany, 385 F.3d 568, 574 (5th Cir. 2004) (en
banc), cert. denied, 544 U.S. 992 (2005). This
burden requires the trial court to “resolve any
contested issues of material fact, and any ambiguity or
uncertainty in the controlling state law, in [the
plaintiff's] favor.” Griggs v. State Farm
Lloyds, 181 F.3d 694, 699 (5th Cir. 1999). To satisfy
the second ground for improper joinder, the defendant must
demonstrate that “there is no reasonable basis for the
district court to predict that the plaintiff might be able to
recover against an in-state defendant.”