Jackson v. Allstate Vehicle and Property Insurance Company
Filing
8
Memorandum Opinion and Order granting 6 Motion to Remand filed by Deniedra Jackson. The court ORDERS that defendant pay to plaintiff the sum of $1,000 as reasonable expenses, including attorney's fees, incurred as a result of the r emoval of this action. The court further ORDERS that plaintiff's motion to remand be, and is hereby, granted, and that this action be, and is hereby, remanded to the County Court at Law No. 3 of Tarrant County, Texas, from which it was removed. (Ordered by Judge John McBryde on 4/10/2017) (mpw)
U.S. DTSTRfC'T COURT
'NORTHER.L"\.f
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.· .. TEY.AS
IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION
DENIEDRA JACKSON,
COURT·~
APR l 0 2017
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§
Plaintiff,
Deputy
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§
vs.
§
NO. 4:17-CV-153-A
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ALLSTATE VEHICLE AND PROPERTY
INSURANCE COMPANY,
§
§
§
Defendant.
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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of plaintiff, Deniedra
Jackson, to remand. The court, having considered the motion, the
response of defendant, Allstate Vehicle and Property Insurance
Company, the record, and applicable authorities, finds that the
motion should be granted.
I.
Plaintiff's Claims
On January 12, 2017, plaintiff filed her original petition
in the County Court at Law No. 3 of Tarrant County, Texas. The
action was brought before this court by notice of removal.
Plaintiff alleged in her petition that she sustained
wind/hail damage to the roof and interior of her home on or about
April 1, 2015i that she reported a claim to defendanti and that
no payment was made. Defendant informed plaintiff that her roof
had been improperly installed, but it continued accepting her
premiums and extended the coverage on her property. On or about
March 17, 2016, plaintiff sustained significant damage from a
wind/hail storm. Plaintiff made a claim, which defendant refused
to pay.
In her petition, plaintiff asserted claims for breach of
contract, violation of the Texas Insurance Code chapter 541,
violation of the Texas Deceptive Trade Practices-Consumer
Protection Act, Tex. Bus. & Com. Code Ann. §§17.41-.63, breach of
duty of good faith and fair dealing, promissory estoppel, and
fraud and/or negligent misrepresentation. Plaintiff did not
allege an amount she sought to recover, although she did fill out
a civil case information sheet showing that the damages sought
were less than $100,000, including damages of any kind,
penalties, costs, expenses, prejudgment interest, and attorney's
fees.
II.
Basis for This Court's Jurisdiction
Defendant removed the action to this court on the basis of
diversity jurisdiction. There is no question that diversity of
citizenship exists, as plaintiff is a citizen of Texas and
defendant is a citizen of Illinois, where it is incorporated and
has its principal place of business. The issue is whether the
amount in controversy exceeds $75,000. 28 U.S.C. § 1332.
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When the amount in controversy is not shown in the
plaintiff's pleading, the removing party must establish by a
preponderance of the evidence that the jurisdictional amount is
met. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720,
723
(5th Cir. 2002). It may do this by setting forth summary
judgment-type evidence of facts in controversy that support a
finding of the requisite amount. Id. If a state statute provides
for attorney's fees,
they are included as part of the amount in
controversy. Id. Removal cannot be based upon conclusory
allegations. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335
(5th Cir. 1995). The jurisdictional facts that support the
removal are judged at the time of the removal. Id.
In this case, defendant attached to its notice of removal a
demand letter dated May 18, 2016, which had attached to it an
estimate for replacement of the roof totaling $14,850.42. Also
attached was a letter dated October 28, 2016, offering to settle
the entire matter in controversy for a total of $16,850 plus
$2,500 in attorney's fees to avoid the filing of the lawsuit.
Although plaintiff had earlier made a demand for $92,114.84, by
letter dated November 16, 2015, also attached to the notice of
removal, there is no basis for believing that such demand plays
any role in the amount now in controversy. Plaintiff has but one
roof she is now seeking to have replaced. And, defendant has not
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shown that even with statutory damages and attorney's fees the
amount in controversy exceeds the statutory minimum.
Defendant relies upon the insurance policy limits of
$693,206 in arguing that the amount in controversy is met.
However, this is not a case like Trigo v. State Farm Lloyds, No.
7:13-CV-147, 2013 WL 12140284
(S.D. Tex. July 3, 2013), upon
which defendant relies. There, the plaintiff had not pleaded an
amount in controversy nor provided his own estimate of damages,
instead relying on defendant's estimate to argue that the amount
in controversy was not met. Here, plaintiff's own roofer says the
cost of repair is less than $15,000 and plaintiff's demand was
based on that amount, plus interior damage and attorney's fees.
III.
Attorney's Fees
Plaintiff seeks an award of attorney's fees pursuant to 28
U.S.C.
§
1447(c). She attaches a letter sent to defendant prior
to the filing of the motion to remand pointing out that the
amount in controversy is not met. Defendant has no response. The
court finds that an award should be made. Since plaintiff has not
provided evidence to support the expenses she has actually
incurred, the court is satisfied that an award of $1,000 would be
reasonable and appropriate.
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IV.
Order
The court ORDERS that defendant pay to plaintiff the sum of
$1,000 as reasonable expenses, including attorney's fees,
incurred as a result of the removal of this action.
The court further ORDERS that plaintiff's motion to remand
be, and is hereby, granted, and that this action be, and is
hereby, remanded to the County Court at Law No. 3 of Tarrant
County, Texas, from which it was removed.
SIGNED April 10, 2017.
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