United States District Court, S.D. Texas, Houston Division
S. Hanen, United States District Judge.
the Court is Defendant Allstate Texas Lloyds'
("Allstate") Second Motion for Summary Judgment
(Doc. No. 26). Plaintiffs Areclia and Wil Flores have not
responded, and the time in which to do so has passed. Having
considered Plaintiffs' First Amended Petition, the Motion
for Summary Judgment, and applicable law, the Court hereby
GRANTS Allstate's Second Motion for
2015, Plaintiffs obtained a homeowner's insurance policy
through Allstate (the "Policy"). (Doc. No. 26, Ex.
A-l). A storm allegedly damaged both the interior and
exterior of Plaintiffs' house in August 2015. (Doc. No.
1, Ex. 4 at 3). Plaintiffs filed a claim on the Policy on
January 25, 2016. (Doc. No. 26, Ex. A-2). Allstate sent an
insurance adjuster, Baxter Fullen, to evaluate
Plaintiffs' home two days later. (Id.).
after Fullen evaluated the house, Allstate sent Plaintiffs:
(1) an estimate for covered damages to the exterior of the
residence; and (2) a claim denial letter as to the
house's internal damage. (See id.; see also Doc.
No. 26, Ex. A-3). Allstate did not take any further action.
Plaintiffs assert that Fullen "conducted substandard
inspections" and "failed to include all of the
damages." (Doc No. 1, Ex. 4 at 3). The First Amended
Petition also denies receiving a "report or estimate for
the exterior damage" from Allstate. (Id.).
August 16, 2017, Plaintiffs filed this lawsuit in the
District Court of Fort Bend County, Texas. (Doc. No. 1-3).
Plaintiffs' counsel did not serve Allstate with the
summons and citation. In February 2018, Plaintiffs filed
their First Amended Petition. (Doc. No. 1-4). This is when
Allstate was served for the first time. (Doc. No. 1-5).
First Amended Petition, Plaintiffs asserted the following
claims: (1) breach of contract; (2) noncompliance with the
Texas Insurance Code by engaging in unfair settlement
practices under Chapter 541 of the Texas Insurance Code
("Chapter 541 Claims"); (3) noncompliance with
Chapter 542 of the Texas Insurance Code by not issuing prompt
payment of claims ("Chapter 542 Claims"); (4)
breach of the duty of good faith and fair dealing; and (5)
fraud. (Doc. No. 1-4 at 7-10). Allstate removed the case to
this Court based on diversity jurisdiction. (Doc. No. 1).
initially filed a summary judgment motion on the grounds
that: (1) the case is barred by statute of limitations; and
(2) Plaintiffs failed to timely designate experts and thus
cannot prove causation or damages. (Doc. No. 14). Plaintiffs
subsequently filed a Notice of Serving Expert Designation on
June 24, 2019 - nearly three months after the Court's
Scheduling Order mandated. (See Doc. No. 16).
moved to strike that designation and exclude Plaintiffs
experts (Doc. No. 20), which the Court granted. (Doc. No.
22). The Court also denied Allstate's initial Motion for
Summary Judgment on the statute of limitations issue. (Doc.
No. 23). It, however, gave Allstate leave to file a second
summary judgment motion on the merits by August 23, 2019.
(Doc. No. 25). Plaintiffs were given until September 6, 2019
to respond. (Id.). Allstate timely filed its Second
Motion for Summary Judgment (Doc. No. 26). Plaintiffs did not
judgment is warranted "if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). Once a movant submits a properly supported motion, the
burden shifts to the nonmovant to show that the court should
not grant the motion. Celotex Corp. v. Catrett, 477
U.S. 317, 321- 25 (1986). The nonmovant then must provide
specific facts showing that there is a genuine dispute.
Id. at 324; Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute
about a material fact is genuine 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 draw all
reasonable inferences in the light most favorable to the
nonmoving party in deciding a summary judgment motion.
Id. at 255. The key question on summary judgment is
whether a hypothetical, reasonable factfinder could find in
favor of the nonmoving party. Id. at 248.
Court's Local Rules state that "[f]ailure to respond
to a motion will be taken as a representation of no
opposition." S. Dist. Tex. L.R. 7.4; see also
Hanen L.R. 7(D). As stated above, Plaintiffs failed to
respond to Allstate's motion by the Court's September
6, 2019 deadline. (See Doc. No. 25). Therefore, the
local rules would allow the Court to grant Allstate's
motion as it should be considered unopposed.
being said, the Fifth Circuit has explained that
"although we have endorsed the adoption of local rules
that require parties to file responses to opposed motions, we
have not approved the automatic grant, upon failure to comply
with such rules, of motions that are dispositive of the
litigation." See Johnson v. Pettiford, 442 F.3d
917, 918 (5th Cir. 2006) (citing Johnson v.
Louisiana, 757 F.2d 698, 707-09 (5th Cir. 1985);
Ramsey v. Signal Delivery Serv., 631 F.2d 1210,
1213-14 (5th Cir. 1980)). In other words, where a party does
not respond to a summary judgment motion, such failure does
not permit the court to enter a "default" summary
judgment. Eversley v. Mbank Dall, 843 F.2d 172, 174
(5th Cir. 1988).
is, however, permitted to accept the movant's facts as
undisputed when no response or opposition is filed.
Id. Normally, "[a] summary judgment nonmovant
who does not respond to the motion is relegated to her
unsworn pleadings, which do not constitute summary judgment
evidence." Bookman v. Schubzda, 945 F.Supp.
999, 1002 (N.D. Tex. 1996) (citing Solo Serve Corp. v.
Westowne Assocs.,929 F.2d 160, 165 (5th Cir. 1991)). In
this case, Plaintiffs have not filed a response to the motion
and their pleadings are not verified, and, therefore,
Plaintiffs have presented no summary judgment evidence to
dispute Allstate's version of the facts or ...