United States District Court, S.D. Texas, Houston Division
Adam F. Massey, et al., Plaintiffs,
Allstate Vehicle and Property Insurance Company, Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
H. MILLER UNITED STATES DISTRICT JUDGE
before the court is a memorandum and recommendation
(“M&R”) filed by Magistrate Judge Nancy
Johnson. Dkt. 16. The Magistrate Judge considered plaintiffs
Adam Massey and Stephanie Massey's amended motion for
remand (Dkt. 12). Id. Defendant Allstate Vehicle and
Property Insurance Company (“Allstate”) timely
objected to the M&R. Dkt. 17. The Masseys did not object.
Having considered the M&R, motion, Allstate's
objections, and other relevant materials in the record, the
court is of the opinion that Allstate's objections should
be OVERRULED and that the M&R should be ADOPTED IN FULL.
insurance case, the Masseys' home suffered storm damage
during Hurricane Harvey. Dkt. 1-3. On December 15, 2017, the
Masseys sued Allstate and four insurance
adjusters in the 333rd Judicial District Court of
Harris County, Texas, for: (1) breach of contract; (2) breach
of duty of good faith and fair dealing; (3) fraud; (4)
conspiracy; (5) negligent hiring, training, supervision, and
retention; (6) violations of the Texas Insurance Code; and
(7) violations of the Texas Deceptive Trade Practices Act.
received service of the petition on December 26, 2017, and
filed its answer on January 19, 2018. Dkt. 1. On March 20,
Allstate filed an election of legal responsibility
(“Election”) under Texas Insurance Code §
542A.006 for the adjusters. Dkt. 1-8. Under § 542A.006,
when an insurer is a party to an action, it “may elect
to accept whatever liability an agent might have to the
claimant for the agent's acts or omissions related to the
claim by providing written notice to the claimant.”
Tex. Ins. Code Ann. § 542A.006. If this election is made
after a lawsuit has been filed, then “the court shall
dismiss that action with prejudice.” Id. In
relevant part, an “agent” is defined to include
an “adjuster who performs any act on behalf of an
insurer.” Id. § 542A.001(1).
April 2, the Masseys filed an amended petition acknowledging
that Allstate filed the Election. Dkt. 1-12. That same day,
the state court dismissed the four adjusters pursuant to
§ 542A.006. Dkt. 1-10. Then, on April 11, Allstate
removed the case. Dkt. 1. The Masseys now move for remand.
Dkts. 8, 12. It is undisputed that without the adjusters,
complete diversity exists. Dkts. 1, 17, 18. The only inquiry
is whether removal was proper.
M&R, Judge Johnson finds that the voluntary-involuntary
rule applies to this case and makes the case not removable.
Dkt. 16 at 10. Further, she finds that Allstate did not
timely file its notice of removal. Id. Accordingly,
she recommends granting the Masseys' motion for remand.
Id. Allstate objects to that recommendation. Dkt.
dispositive matters, the court “determine[s] de novo
any part of the magistrate judge's disposition that has
been properly objected to.” Fed.R.Civ.P. 72(b)(3).
“The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
Id. “When no timely objection is filed, the
court need only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b), Advisory Comm.
Note (1983). For non-dispositive matters, the court may set
aside the magistrate judge's order only to the extent
that it is “clearly erroneous or contrary to
law.” Fed.R.Civ.P. 72(a).
Motion for Remand
may remove to federal court “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. The party seeking removal bears the burden of
establishing federal jurisdiction. Willy v. Coastal
Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). This
statutory right to removal is strictly construed because
“removal jurisdiction raises significant federalism
concerns.” Id. (citations omitted). Therefore,
“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
objects that: (1) the voluntary-involuntary rule does not
apply; (2) its removal was timely; and (3) the Masseys'
first amended petition created independent grounds for
removal based on improper ...