United States District Court, S.D. Texas, Houston Division
HONORABLE ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE.
the Court are Fernando Abascal's ("Plaintiff) Motion
to Remand (Doc. #4) and United Property & Casualty
Insurance Company's ("Defendant") Response
(Doc. #5). After reviewing the parties' arguments and the
applicable legal authority, the Court denies Plaintiffs
Motion to Remand.
insured Plaintiffs property against windstorm damages. Doc.
#4 at 1. As a result of Hurricane Harvey, Plaintiffs property
was damaged. Id. Consequently, Plaintiff filed an
insurance claim with Defendant. Id. Defendant then
retained an independent adjuster to assess Plaintiffs loss.
Doc. #5 at 5. Based on the independent adjuster's
findings, Defendant partially denied Plaintiffs claim.
Id. Plaintiff then filed his Original Petition in
state court. Doc. #4 at 1. Subsequently, Defendant removed
the case to federal court. Doc. #1.
now presents a Motion to Remand. Doc. #4. Plaintiff argues
remand is proper because he stated in his Original Petition
that he "will never ask, receive, or take a judgment for
any amount exceeding $75, 000." Doc. #1, Ex. 3 at 11-12.
Defendant argues that Plaintiffs statement does not qualify
as a binding stipulation and that the Original Petition
demonstrates on its face that the amount in controversy
exceeds $75, 000. Doc. #1, Ex. 3 at 8.
questions before the Court are whether Defendant has
established-by a preponderance of the evidence-that the
amount in controversy exceeds the jurisdictional amount and
whether Plaintiff has stipulated with legal certainty that
the amount in controversy is below $75, 000.
courts have original jurisdiction over all civil actions
where the amount in controversy exceeds $75, 000, exclusive
of interest and costs. 28 U.S.C § 1332(a). When a case
is removed to federal court, the "removing party bears
the burden of establishing whether federal jurisdiction
exists." Cantu v. State Farm Lloyds, No.
7:14-CV-456, 2016 WL 5372542, at *2 (S.D. Tex. Sept. 26,
2016). If the removing party can "show that the amount
in controversy exceeds the jurisdictional amount," the
party seeking remand "must then show with legal
certainty that he will not be able to recover more than the
jurisdictional amount." De Aguilar v. Boeing
Co., 47 F.3d 1404, 1411 (5th Cir. 1995). "The Fifth
Circuit has explained that 'once the district court's
jurisdiction is established, subsequent events that reduce
the amount in controversy to less than $75, 000 generally do
not divest the court of diversity jurisdiction.'"
Williams v. Companion Prop. & Cas. Ins. Co., No.
4T3-CV-733, 2013 WL 2338227, at *3 (S.D. Tex. May 27, 2013)
(citing De Aguilar II, 47 F.3d at 1411-12).
Original Petition, Plaintiff stated that damages would not
exceed $75, 000. Doc. #1, Ex. 3 at 11-12. However, Texas law
does not permit a plaintiff to plead that the damages sought
will not exceed $75, 000. Chavez v. State Farm
Lloyds, No. 7:15-CV-487, 2016 WL 641634, at *2 (S.D.
Tex. Feb. 18, 2016) (discussing Tex.R.Civ.P. 47). Defendant
argues that based on "the causes of actions alleged and
the types of damages sought," it is apparent that
Plaintiff seeks damages in excess of $75, 000. Doc. #5 at 8.
In order to satisfy the burden of establishing that federal
jurisdiction exists, the Defendant may show that it is
"apparent from the face of the petition that the claims
are likely to exceed $75, 000." Cantu, 2016 WL
5372542, at *2.
Plaintiff alleges that he "has incurred economic damages
of $19, 303.41." Doc. #4, Ex 1 at 2. In addition to
actual economic damages, Plaintiff is seeking prejudgment and
post judgment interest, compensatory damages to include:
economic hardship, losses due to nonpayment of the amount the
insurer owed and damages for mental anguish and emotional
distress. Doc. # 1, Ex. 3 at 10-11. Furthermore, Plaintiff is
seeking treble damages, eighteen percent penalty interest,
attorney's fees, court costs, "punitive and
exemplary damages" for alleged violations of the Texas
Insurance Code, fraud, and breach of good faith and fair
in Chavez, a plaintiff pleaded an itemized damage
model which sought damages for: mental anguish, eighteen
percent penalty interest, attorney's fees, taxable court
costs, exemplary damages, treble damages, and for
pre-judgment interest. 2016 WL 641634, at *2. In
Chavez, the court found that because the plaintiffs
original petition sought treble damages and exemplary damages
in addition to her other requested damages it was clear that
the amount in controversy exceeded $75, 000. Id.
looking on the face of Plaintiff s Original Petition-which
seeks treble damages, penalty damages, and exemplary
damages-it is clear that the amount in ...