United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
Fortress Iron, LP, (“Fortress”) has filed a
motion to remand, see Dkt. No. 13, which United
States District Judge Ed Kinkeade has referred to the
undersigned United States Magistrate Judge for report and
recommendation, see Dkt. No. 16. Defendant The
Travelers Indemnity Company (“Travelers”) has
filed a response, see Dkt. No. 14, and Fortress has
filed a reply, see Dkt. No. 15.
following reasons, the undersigned recommends that the motion
for remand be granted.
October 24, 2018, Fortress filed its Original Petition in the
C-68th Judicial District Court of Dallas County, Texas,
styled Fortress Iron, LP v. The Travelers Indemnity
Company and Jason Spradlin, Cause No. DC-18-16087 (the
“State Court Action”). Fortress asserted claims
against Travelers and its claims investigator/adjuster Jason
Spradlin based on Travelers' denial of a property
insurance claim. See Dkt. No. 1-1 at 9-18.
November 11, 2018, Travelers and Spradlin filed an answer,
see Id. at 34-38, and Travelers filed a notice of
election under Section 542A.006 of the Texas Insurance Code,
see Id. at 40-41.
November 28, 2018, Travelers removed the case to federal
court based solely on diversity jurisdiction under 28 U.S.C.
§ 1332(a). See Dkt. No. 1. Travelers contends
that complete diversity exists because Fortress is a citizen
of Texas, Travelers is a citizen of Connecticut, and
Spradlin's Texas citizenship should be disregarded for
purposes of diversity because he was improperly joined.
See Dkt. No. 1. Travelers' improper joinder
argument is based solely on its election under Texas
Insurance Code Section 542A.006(c). See Id. at 3-4.
December 28, 2018, Fortress filed a motion to remand and
argues that the voluntary-involuntary rule precludes removal
of this action. See Dkt. No. 13. In its response,
Travelers disagrees and argues that improper joinder is an
exception to the voluntary-involuntary rule. See
Dkt. No. 14.
undersigned now concludes that the motion for remand should
Federal Jurisdiction and Removal
federal court's jurisdiction is limited, and federal
courts generally may hear a case of this nature only if it
involves a question of federal law or where diversity of
citizenship exists between the parties. See 28
U.S.C. §§ 1331, 1332.
defendant may remove an action filed in state court to
federal court on the basis of diversity if the action is one
that could have originally been filed in federal court.
See 28 U.S.C. § 1441(a). The removing party
bears the burden of establishing jurisdiction. See Miller
v. Diamond Shamrock Co., 275 F.3d 414, 417 (5th Cir.
U.S.C. § 1332 creates federal subject matter
jurisdiction where diversity of citizenship exists between
the parties and the amount in controversy exceeds $75, 000.
See 28 U.S.C. §§ 1332(a), (b). “A
district court cannot exercise diversity jurisdiction if one
of the plaintiffs shares the same state citizenship as any
one of the defendants.” Corfield v. Dallas Glen
Hills LP, 355 F.3d 853, 857 (5th Cir. 2003). To
establish subject matter jurisdiction, “the party
asserting federal jurisdiction must distinctly and
affirmatively allege [ ] the citizenship of the
parties.” Howery v. Allstate Ins. Co., 243
F.3d 912, 919 (5th Cir. 2001) (citation and internal
quotations omitted). And, if no amount of damages was alleged
in the state court petition, a removing ...