United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER OF REMAND
H. Miller Senior United States District Judge
Phan VM Holding, LLC sued Defendant Evanston Insurance
Company on June 10, 2019, in the County Civil Court at Law
No. 1 of Harris County, Texas, under Cause No. 1135312.
See Dkt. 1-1 (Plaintiff's Original Petition)
(“Pet.”). Defendant removed the action to this
court on July 19, 2019. Dkt. 1. Pending before this court is
Plaintiff's motion to remand (Dkt. 5) and Defendant's
response (Dkt. 8). Having considered the motion, response,
and applicable law, the court finds that Plaintiff's
motion should be GRANTED, and this action remanded to the
County Civil Court at Law.
an insurance dispute about damage to Plaintiff's
property, which was insured under Defendant's policy.
Dkt. 1 ¶ 1. Plaintiff filed a claim with Defendant for
damages allegedly sustained to its property during Hurricane
Harvey. Id. Upon inspection, the independent
adjusting company hired by Defendant found no damages that
exceeded the policy's two percent deductible of $70, 000
and so denied Plaintiff's claim. Id. Plaintiff
then filed suit in state court seeking actual damages,
attorney fees, and a court order requiring Defendant to
participate in appraisal. Dkt. 1-1, Pet. ¶ 19a-d.
Defendant subsequently removed this action to federal court,
and now Plaintiff seeks remand to state court.
courts have original jurisdiction over all civil actions
between citizens of different states where the amount in
controversy exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(a)(1). “The party seeking
to assert federal jurisdiction, in this case [Defendant], has
the burden of proving by a preponderance of the evidence that
subject matter jurisdiction exists.” New Orleans
& Gulf Coast Ry Co. v. Barrois, 533 F.3d 321, 327
(5th Cir. 2008). “[I]f a defendant can show that the
amount in controversy actually exceeds the jurisdictional
amount, the plaintiff must be able to show that, as a matter
of law, it is certain that he will not be able to recover
more than the damages for which he has prayed . . . .”
De Aguilar v. Boeing Co., 47 F.3d 1404, 1411 (5th
Cir. 1995). “‘[L]itigants who want to prevent
removal must file a binding stipulation or affidavit with
their complaints'” that limits recovery to an
amount below the jurisdictional threshold. Id. at
1412 (quoting In re Shell Oil Co., 970 F.2d 355, 356
(7th Cir. 1992) (per curiam)). “Any ambiguities are
construed against removal because the removal statute should
be strictly construed in favor of remand.” Manguno
v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002) (citing Acuna v. Brown & Root,
Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
undisputed that the parties are citizens of different states.
Dkt. 5 ¶ 3. Plaintiff argues remand is proper because,
“[p]rior to this case being removed . . . Plaintiff
filed a binding stipulation in which he states that neither
he nor his attorney will seek or accept any damages exceeding
$75, 000.00.” Id. ¶ 5; see also
Dkt. 5-1 at A-31 (Plaintiff's Binding Stipulation).
Defendant claims that “the actual amount in controversy
is the dispute over Plaintiff's $848, 972.11 estimate
which Plaintiff seeks to have determined by appraisal.”
Dkt. 8 ¶ 7. Defendant argues that Plaintiffs binding
stipulation is “misleading” (id ¶
2), because “Plaintiff s pleadings do not bar an
appraisal award within [the constraints of the
stipulation]” (id. ¶ 7). However, a
“statement in the stipulation that [Plaintiff] and
counsel will neither seek nor accept more than $75, 000 in
state court after remand establishes to a legal certainty
that [Plaintiff] will not be able to recover more than $75,
000 ” Williams v. Companion Prop. & Cas. Ins.
Co., 2013 WL 2338227, at *2 (S.D. Tex. May 27, 2013)
(citing De Aguilar, 47 F.3d at 1412)
(Rosenthal, J.). Here, Plaintiffs stipulation contains both
such provisions. Accordingly, Plaintiff s binding
stipulation establishes to a legal certainty that Plaintiff
will not be able to recover more than $75, 000, thereby
depriving this court of jurisdiction.
reasons stated above, Plaintiff s motion to remand (Dkt. 5)
is GRANTED. The case is REMANDED to the Harris County Civil
Court at Law Number One.
 While Plaintiff s stipulation does not
explicitly state that Plaintiff will not seek more
than $75, 000 exclusive of interests and costs, three
provisions operate to limit Plaintiffs ability to seek more
than $75, 000 in damages. See Dkt. 5-1 at A-31
¶¶ 2, 4, 5. More importantly, Plaintiffs
stipulation is explicit about not accepting more
than $75, 000 exclusive of interests and costs. Dkt. 5-1 at
A-31 ¶ 3. It is the stipulation not to accept
more than the jurisdictional amount that is determinative.
See Williams, 2013 WL 2338227, at *2 ...