United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff SSAA Ventures Operations
Corporation's Motion to Remand (Dkt. #6). After reviewing
the relevant pleadings and motion, the Court finds the motion
should be denied.
purchased an insurance policy issued by Markel Insurance
Company (“Markel”) insuring property located at
3521 North Star Road, Richardson, Texas (the
“Property”). After a hail storm allegedly caused
severe damage to the Property, Plaintiff submitted a claim to
Markel. Markel assigned the claim to Vericlaim, Inc.
(“Vericlaim”), who, in turn, assigned the claim
to Christopher James Jagger (“Jagger”) as the
individual adjuster. Plaintiff alleges Markel, Vericlaim, and
Jagger (collectively “Defendants”) improperly
evaluated and processed its claim. As a result, on August 31,
2017, Plaintiff filed its Original Petition (Dkt. #1, Exhibit
4) in Collin County District Court. Defendants filed their
Original Answer (Dkt. #1, Exhibit 7) on September 29, 2017.
citizenship of the parties in this lawsuit is not in dispute.
Plaintiff is a Texas corporation with its principal place of
business in Texas. Markel is an Illinois insurance company
with its principal place of business in Virginia. Vericlaim
is a Delaware corporation with its principal place of
business in Illinois. Jagger is Texas resident.
October 5, 2017, Markel filed its Notice of Removal (Dkt. #1)
alleging that complete diversity exists among the real
parties in interest and that the amount in controversy
exceeds $75, 000, exclusive of interest and costs.
Additionally, Markel asserted that because Plaintiff
improperly joined Jagger, the Court should dismiss Jagger as
a party and ignore his citizenship for jurisdictional
purposes. Plaintiff filed its Motion to Remand (Dkt. #6) on
November 9, 2017, arguing that it properly joined Jagger,
and, therefore, federal jurisdiction is lacking. Markel filed
its Response (Dkt. #7) on November 21, 2017.
defendant may remove any civil action from state court to a
district court of the United States which has original
jurisdiction. 28 U.S.C. § 1441. District courts have
original jurisdiction over all civil actions that are between
citizens of different states and involve an amount in
controversy in excess of $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(a). The party seeking removal
“bears the burden of establishing that federal
jurisdiction exists and that removal was proper.”
Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002); Weaver v. Zuirch Am. Ins.
Co., No. H-10-1813, 2010 WL 3910053, at *1 (S.D. Tex.
Oct. 1, 2010). The removal statute must “be strictly
construed, and any doubt about the propriety of removal must
be resolved in favor of remand.” Gasch v. Hartford
Accident & Indem. Co., 491 F.3d 278, 281-82 (5th
Cir. 2007). A district court is required to remand
the case to state court if, at any time before final
judgment, it determines that it lacks subject matter
jurisdiction. See 28 U.S.C. § 1447(c);
Groupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S.
567, 571 (2004).
assessing whether diversity jurisdiction exists, a court must
disregard non-diverse citizenship of an improperly joined
defendant.” Doucet v. State Farm Fire & Cas.
Co., No. 1:09-CV-142, 2009 WL 3157478, at *4 (E.D. Tex.
Sept. 25, 2009) (citing Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 572-73 (5th Cir. 2004)). A defendant
who contends that a non-diverse party is improperly joined
has a “heavy” burden of proof. Green v.
Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983);
Great Plains Tr. Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 312 (5th Cir. 2002). “In making
its determination, the court must ordinarily evaluate all of
the factual allegations in the plaintiff's state court
pleadings in the light most favorable to the plaintiff,
resolving all contested issues of substantive fact in favor
of the plaintiff.” Green, 707 F.2d at 205.
removing party must prove that there is absolutely no
possibility that the plaintiff will be able to establish a
cause of action against the in-state defendant in state
court, or that there has been outright fraud in the
plaintiff's pleading of jurisdictional facts.”
Great Plains Tr., 313 F.3d at 312 (quoting
Green, 707 F.2d at 205). After the court resolves
all disputed questions of fact and ambiguities in controlling
state law in favor of the plaintiff, it determines whether
the plaintiff has any possibility of recovery against the
party whose joinder is questioned. Great Plains Tr.,
313 F.3d at 312. If there is a reasonable basis for
predicting that the state law might impose liability on the
facts of the case, then there is no fraudulent joinder.
Id. Additionally, “[t]he possibility of
imposing liability must be reasonable,  and not merely
theoretical.” Stewart v. World Ins. Co., No.
4:06-CV-501, 2007 WL 2746796, at *2 (E.D. Tex. Sept. 19,
2007) (citing Smallwood, 385 F.3d at 573 n.9;
Great Plains Tr., 313 F.3d at 312; Badon v. RJR
Nabisco, Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000)).
determination of improper joinder must be based on an
analysis of the causes of action alleged in the complaint at
the time of removal. See Cavallini v. State Farm Mut.
Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
“A district court should ordinarily resolve [claims of]
improper joinder by conducting a Rule 12(b)(6)-type
analysis.” McDonal v. Abbott Labs., 408 F.3d
177, 183 n.6 (5th Cir. 2005); see also Boone v.
Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005).
“[I]f a plaintiff can survive a Rule 12(b)(6)-type
challenge, there is generally no improper joinder.”
Guillory v. PPG Indus., Inc., 434 F.3d 303, 309 (5th
Cir. 2005) (citation omitted); Smallwood, 385 F.3d
at 573. The court, however, must carefully distinguish an
attack on the overall merits of the case from a showing that
defendants were improperly joined in order to defeat
diversity. See Smallwood, 385 F.3d at 573; see
also Gasch, 491 F.3d at 284. However, the plaintiff must
plead “enough facts to state a claim of relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). There are cases in
which a further summary inquiry is appropriate to
“identify the presence of discrete and undisputed facts
that would preclude plaintiff's recovery against the
in-state defendant.” Smallwood, 385 F.3d at
deciding whether a defendant has been improperly joined, a
federal district court must apply the federal pleading
standards.” Gutierrez v. Allstate Fire & Cas.
Ins. Co., No. 3:17-CV-0636-D, 2017 WL 2378298, at *3
(N.D. Tex. June 1, 2017) (citing Int'l Energy
Ventures Mgmt., L.L.C. v. United Energy Grp. Ltd., 818
F.3d 193, 207-08 (5th Cir. 2016)). “This standard
requires the plaintiff to plead enough facts ‘to state
a claim to relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual context that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “The plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged- but it has not ‘shown'-‘that the
pleader is entitled to relief.'” Id. at
679 (alteration omitted) (quoting Fed.R.Civ.P. 8(a)(2)).
Furthermore, Rule 8(a)(2) requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Although “the
pleading standard Rule 8 announces does not require
‘detailed factual allegations, '” it demands
more than “labels and conclusions.”
Iqbal, 566 U.S. at 678 (quoting Twombly,
550 U.S. at 555). Likewise, “a formulaic recitation of
the elements of a cause of action will not do.”
Id. (citation omitted).
evaluating a claim of fraudulent joinder, we do not determine
whether the plaintiff will actually or even probably prevail
on the merits of the claim, but look only for a possibility
that the plaintiff may do so.” Rodriguez v.
Sabatino, 120 F.3d 589, 591 (5th Cir. 1997); see
Guillory, 434 F.3d at 308-09. “If that possibility
exists, a good faith assertion of such an expectancy in a
state court is not a sham…and is not fraudulent in
fact or in law.” B., Inc. v. Miller Brewing
Co., 663 F.2d 545, 550 (5th Cir. Unit A 1981) (citation
omitted). “If there is ‘arguably a reasonable
basis for predicting that the state law might impose
liability on the facts involved, ' then there is no
fraudulent joinder, ” and the ...