United States District Court, W.D. Texas, San Antonio Division
SO APARTMENTS, LLC; TRIFS COVE, LLC; PP APARTMENTS LLC; GARDINA COURT APTS, LLC; TV APTS, LLC; TRIF TRADEWIND, LLC; AND TRIFF GARDINA, LLC, Plaintiffs,
EVEREST INDEMNITY INSURANCE COMPANY, MICHAEL HARGRAVE, Defendants.
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
date, the Court considered the status of the above-captioned
case. After reviewing the parties' briefing and the
applicable law, the Court hereby GRANTS Plaintiffs'
Motion to Remand to State Court. Docket no. 2.
filed their Original Petition in the 285th Judicial District
Court of Bexar County, Texas on August 22, 2017. Docket no.
1-1. Plaintiffs bring claims related to an alleged insurance
claim following a storm. Id.
citizens of Texas, allege that on April 19, 2016, a hail
storm damaged their insured properties located at 1318
Gardina St., San Antonio, Texas 78201 and 423 Vance Jackson,
San Antonio, Texas 78201 (“the Properties”).
Id. at 11. Plaintiffs are the owners of insurance
policies for these properties, issued by Defendant Everest.
allege they sustained covered losses when a wind and
hailstorm damaged the Properties, and Plaintiffs reported
such to Everest pursuant to the policy. Id. at 12.
Everest hired Defendant Michael Hargrave to address the
damages, but Hargrave allegedly failed to address all of the
damages. Id. After the initial inspection, Hargrave
and Everest allegedly have done little to advance
Plaintiffs' claims and ignored Plaintiffs' pleas for
help. Id. Everest has allegedly failed to accept,
deny, or pay the claim. Id. Plaintiffs allege that
Hargrave “conducted an outcome-oriented investigation
and under-scoped Plaintiffs' damages.” Id.
allege that Everest wrongfully failed to accept, deny, or pay
their claim timely and have effectively denied the claim for
full repairs to the Properties, despite the policy providing
coverage for such losses. Id. Plaintiffs allege
Everest failed to fully pay Plaintiffs' claim and engaged
its agents to misrepresent policy provisions and coverage.
bring claims against Everest for breach of contract, breach
of the duty of good faith and fair dealing, civil conspiracy,
and noncompliance with the Texas Insurance Code. Id.
at 13-19. Plaintiffs also bring claims against Hargrave for
civil conspiracy and noncompliance with the Texas Insurance
Code. Id. at 16-19.
September 29, 2017, Everest removed the case to this Court,
alleging diversity of citizenship between the proper parties.
Docket no. 1. Given that Plaintiffs and Hargrave are all
citizens of Texas, Everest argues that Hargrave is improperly
joined. Id. On October 27, 2017, Plaintiffs filed
their Motion to Remand now pending before the Court. Docket
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). On a motion to remand, the court must
consider whether removal was proper. In order for removal to
be proper, a district court must have original jurisdiction
over the removed action. See id.
district courts have original jurisdiction over civil actions
if the parties are diverse and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a). There is no
dispute regarding the amount in controversy, which is alleged
to be in excess of $75, 000. Docket no. 1. Further, there are
no disputes regarding the states of citizenship of any of the
defendant may remove a case with a non-diverse defendant to a
federal forum if the non-diverse defendant is improperly
joined. Smallwood v. Illinois Cent. R. Co., 385 F.3d
568, 573 (5th Cir. 2004). There are two ways to establish
improper joinder: “(1) the plaintiff has
stated a claim against a diverse defendant that he
fraudulently alleges is non[-]diverse, or (2) the plaintiff
has not stated a claim against a defendant that he
properly alleges is non[-]diverse.” Int'l
Energy Ventures Mgmt., L.L.C. v. United Energy Grp.,
Ltd., 818 F.3d 193, 199 (5th Cir. 2016) (citing
Smallwood, 385 F.3d at 573) (emphasis in original).