Flores v. Allstate Texas Lloyds

          ORDER

          Andrew S. Hanen, United States District Judge.

         Before 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 Summary Judgment.

         I. Background

         In May 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.).

         The day 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.^[1] (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.).

         On 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).

         In the 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).

         Allstate 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).

         Allstate 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 respond.

         II. Legal Standard

         Summary 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.

         This 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.

         That 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).

         A court 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 ...