United States District Court, S.D. Texas, Corpus Christi Division
GONZALES RAMOS UNITED STATES DISTRICT JUDGE.
December 2018, Plaintiff MJ & JJ, LLC, d/b/a Peacock
Manor Apartments (“Plaintiff”), filed this
insurance action in Texas state court against Defendants
Clear Blue Specialty Insurance Company (“Clear
Blue”), Madsen, Kneppers & Associates, Inc.
(“MKA”), Hylton Cruickshank, and Charles
Jendrusch. See D.E. 1-1. Clear Blue removed the
action to this Court on the basis of diversity jurisdiction.
D.E. 1. MKA, Cruickshank, and Jendrusch (“the MKA
Defendants”) filed a motion to dismiss (D.E. 23), and
Plaintiff filed a motion to remand (D.E. 25). After initial
review, the Court issued its Order (D.E. 31), converting the
motion to dismiss to a motion for summary judgment. No.
additional evidence was submitted by the deadline given.
See D.E. 32.
parties agree that Jendrusch and Cruickshank are not diverse,
but the MKA Defendants contend that they were improperly
joined and that removal to federal court was thus proper.
Although the motion to remand raises a jurisdictional
question, the legal standard for the two motions is the same
and they will be addressed together. For the reasons
discussed further below, Plaintiff's motion to remand
(D.E. 25) is DENIED and the MKA Defendants' motion to
dismiss (D.E. 23) is GRANTED.
STANDARD OF REVIEW
motion to remand, “[t]he removing party bears the
burden of showing that federal jurisdiction exists and that
removal was proper.” Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
“Any ambiguities are construed against removal because
the removal statute should be strictly construed in favor of
joinder can be established by showing that the plaintiff is
unable to establish a cause of action against the non-diverse
party in state court. Travis v. Irby, 326 F.3d 644,
647 (5th Cir. 2003). The defendant must demonstrate that
there is no possibility of recovery by the plaintiff against
the in-state defendant. Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 573 (5th Cir. 2004). This test is
similar to the test for resolving a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Travis,
326 F.3d at 648. However, the Court may “pierce the
pleadings” and consider summary-judgment style evidence
when addressing a motion to remand. Id. at 648-49;
Smallwood, 385 F.3d at 573-74 (further discussing
when a court may pierce the pleadings).
converted the Rule 12 motion to a Rule 56 motion, the Court
applies the summary judgment standard of review to the
request to dismiss. Summary judgment is proper if there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
A genuine issue exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The Court must view the facts in the
light most favorable to the non-moving party and draw all
reasonable inferences in its favor. Salazar-Limon v. City
of Houston, 826 F.3d 272, 274-75 (5th Cir. 2016).
moving party bears the initial burden of showing the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
demonstrates an absence of evidence supporting the nonmoving
party's case, then the burden shifts to the nonmoving
party to come forward with specific facts showing that a
genuine issue for trial does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). To sustain this burden, the nonmoving party cannot
rest on the mere allegations of the pleadings.
Anderson, 477 U.S. at 248.
although the motion to remand raises a jurisdictional
question that this Court must address before considering the
merits of the motion to dismiss, both motions ultimately
require the same analysis, and the resolution of one dictates
the resolution of the other. The motion to remand and
accompanying responses merely cite to the parties'
substantive arguments raised regarding the motion to dismiss.
(See D.E. 25 at 7; D.E. 27 at 2-3; D.E. 30 at 1-2).
As such, the two motions will be addressed together.
Complaint and Claims
December 7, 2018, Plaintiff filed this lawsuit in the 156th
District Court for San Patricio County, Texas. D.E. 1-1.
Clear Blue removed the case to this Court on the basis of
diversity jurisdiction, stating that, although Plaintiff,
Cruickshank, and Jendrusch were all citizens of Texas,
complete diversity existed because Cruickshank and Jendrusch
were improperly joined and the claims against them should be
disregarded for diversity purposes. D.E. 1 at 2-9.
first amended complaint filed in this Court, Plaintiff
alleges that it is the owner of a Clear Blue insurance policy
for an apartment complex located in San Patricio County,
Texas. D.E. 18 at 3. In August 2017, a hurricane caused
extensive damage to the property's roof, along with
substantial damage to the exterior and interior of the
buildings. Plaintiff submitted an insurance claim to cover
the costs of repairs. Id.
Blue assigned adjuster Joe Hornbeck to inspect the damage.
Id. at 4. Hornbeck informed Plaintiff that there was
severe damage and that he would submit an estimate including
the full scope of damages to the roof, siding, interior
electrical system, and sheetrock. Clear Blue then retained
MKA, which assigned Cruickshank and Jendrusch to adjust the
damages. Cruickshank and Jendrusch severely underscoped,
undervalued, and denied the damage caused by the hurricane.
They omitted almost all roof damage, allowed only minimum
charges for interior ...