Mauldin v. Allstate Insurance Company et al
MEMORANDUM OPINION AND ORDER: The court ORDERS that plaintiff's motion to remand be, and is hereby, denied. The court further ORDERS that plaintiff's claims against Gonzalez be, and are hereby, dismissed. (Ordered by Judge John McBryde on 10/2/2017) (bdb)
U.S. DISTRlCT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA .OURT
FORT WORTH DIVISION
WILLIAM MAULDIN, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE
ESTATE OF PAULINE GIBSON,
OCT - 2 2017
-~-~,.---·-· '• ·-
CLERK, U.S. DISTRICT COURT
t . __ _ __.:.......:..____- - - - - - ·
ALLSTATE INSURANCE COMPANY,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of plaintiff, William
Individually and as representative of the Estate of
Pauline Gibson, Deceased, to remand. The court, having considered
the response of defendants, Allstate Insurance
Company ("Allstate"), Mayella Gonzalez' ("Gonzalez"), and Theresa
("Hernandez"), the reply, the record, and applicable
authorities, finds that the motion should be denied and that the
claims against Gonzalez should be dismissed.
On June 30, 2017, plaintiff filed his original petition
(including discovery requests) in the 153rd Judicial District
'Gonzalez says that plaintiff has misspelled her last name as Gonzales.
Court of Tarrant County, Texas. Doc.' 1, Ex. B-1. Plaintiff
He, William Mauldin ("Mauldin), is the grandson, sole heir,
and court-appointed representative of the Estate of Pauline
Gibson, Deceased ("Gibson"). Gibson and Mauldin lived together.
Their residence and personal property was damaged. They timely
notified Allstate, which insured against the losses. "[I]n due
course all of the Defendants became involved in this matter .
. " Doc. 1, Ex. B-1 at 4. Plaintiffs [sic] were led to believe
that their claims would be paid, but that did not happen.
•a ridiculously small sum of money was tendered in
the form of a check" that has never been cashed or presented. Id.
at 5. Plaintiffs [sic] did everything they were supposed to do,
but claims were not paid promptly or fairly.
Plaintiff asserts causes of action for violation of the
Texas Insurance Code, violation of the •prompt pay statute,"
violation of the "Texas D.T.P.A.," fraud, bad faith tortious
misconduct, negligence, and gross negligence. Doc. 1, Ex. B-1 at
7. Plaintiff declares that he seeks to recover monetary damages
of "over $200,000.00 but not more than $1,000,000.00." Id. at 34.
The "Doc._" reference is to the number of the item on the docket in this action.
On August 3, 2017, Allstate filed its notice of removal,
bringing the action before this court. Doc. 1. Allstate alleged
that removal was proper on the basis of diversity because the
amount in controversy exceeds $75,000 and defendant Gonzalez had
been improperly joined, there being complete diversity of
citizenship between the remaining parties. Id. at 4-8.
Grounds of the Motion
The grounds of plaintiff's motion are too numerous to
concisely list here, as will be discussed below.
Applicable Legal Standards
Under 28 U.S.C.
1441(a), a defendant may remove to federal
court any state court action of which the federal district court
would have original jurisdiction.' "The removing party bears the
burden of showing that federal subject matter jurisdiction exists
and that removal was proper."
Ins. Co., 276 F.3d 720, 723
Manguno v. Prudential Prop. & Cas.
(5th Cir. 2002)
"Moreover, because the effect of removal is to deprive the state
The removal statute provides, in pertinent part, that: [A]ny civil action brought in a State coutt
of which the district courts of the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States for the district and division
embracing the place where such action is pending. 28 U.S.C. § 144l(a) (emphasis added).
court of an action properly before it, removal raises significant
federalism concerns .
. which mandate strict construction of
the removal statute.• Carpenter v. Wichita Falls Indep. Sch.
Dist., 44 F.3d 362, 365-66 (5th Cir. 1995). Any doubts about
whether removal jurisdiction is proper must therefore be resolved
against the exercise of federal jurisdiction. Acuna v. Brown &
Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).
Fraudulent or Improper Joinder
To determine whether a party was fraudulently or improperly
joined to prevent removal,
"the court must analyze whether (1)
there is actual fraud in pleading jurisdictional facts or (2)
plaintiff is unable to establish a cause of action against the
Campbell v. Stone Ins.,
(5th Cir. 2007).
Inc., 509 F.3d
Because defendants have not alleged
actual fraud in the pleadings, the applicable test for improper
whether the defendant has demonstrated that there is no
possibility of recovery by the plaintiff against an
in- state defendant., which sta.ted differently means that
there is no reasonable basis for the district court to
predict that the plaintiff might be able to recover
against an in-state defendant.
Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573
To answer this question, the court may either:
(5th Cir. 2004).
(1) conduct a Rule
12 (b) (6) -type analysis or (2) in rare cases, make a summary
inquiry •to identify the presence of discrete and undisputed
facts that would preclude plaintiff's recovery against the instate defendant."
A Rule 12(b) (6)-type analysis
of plaintiff's claims appears to be the proper method here to
determine whether there exists a reasonable basis for a
conclusion that plaintiff might be able to recover against
The Pleading Standard to be Used in the Rule 12 (b) ( 6) Type Analysis
Although there has been some uncertainty as to the pleading
standard to be applied, the Fifth Circuit. has most recently held
that federal courts should use the federal court pleading
standard when conducting the Rule 12 (b) (6) -type analysis of an
improper joinder claim in a motion to remand to determine if the
plaintiff has stated a claim against a nondiverse defendant.
Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd.,
818 F. 3d 193, 208
(5th Cir. 2016). 4 Rule 8 (a) (2) of the Federal
Rules of Civil Procedure provides, in a general way, the
applicable standard of pleading. It requires that a complaint
contain "a short and plain statement of the claim showing that
the pleader is entitled to relief," Fed. R·. Civ. P. 8 (a) (2),
The court notes that Texas now has a failure-to-state-a-claim rule that is substantially the same
as the federal rule and that Texas courts have interpreted their Rule 9la as requiring a Federal Rule
12(b)(6)-type analysis and have relied on federal case law in applying Rule 9la. Se~, Wooley v.
Schaffer, 447 S.W.3d 71,76 (Tex. App.-Houston [14'h Dist.] 2014, pet. denied); GoDaddy.com. LLC v.
Toups, 429 S.W.3d 752,754-55 (Tex. App.-Beaumont 2014, pet. denied). Thus, the outcome would be
the same if the cowi were to apply the Texas pleading standard.
order to give the defendant fair notice of what the claim is and
the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)
(internal quotation marks and ellipsis
Although a complaint need not contain detailed factual
allegations, the "showing" contemplated by Rule 8 requires the
plaintiff to do more than simply allege legal conclusions or
recite the elements of a cause of action.
555 & n.3.
Twombly, 550 U.S. at
Thus, while a court must accept all of the factual
allegations in the complaint as true, it need not credit bare
legal conclusions that are unsupported by any factual
See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
("While legal conclusions can provide the framework of a
complaint, ·they must be supported by factual allegations.").
Moreover, to survive a motion to dismiss for failure to
state a claim under Rule 12(b) (6), the facts pleaded must allow
the court to infer that the plaintiff's right to relief is
Iqbal, 556 U.S. at 678.
To allege a plausible right
to relief, the facts pleaded must suggest liability; allegations
that are merely consi~tent with unlawful conduct are
insufficient. Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to :r·elief. Id. at 679.
"Determining whether a complaint
states a plausible claim for relief .
[is] a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense."
Rule 9(b) sets forth the heightened pleading standard
imposed for fraud claims:
"In alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud o:r· mistake." The Fifth Circuit requires a party asserting
fraud to "specify the statements contended to be fraudulent,
identify the speaker, state when and where the statements were
made, and explain why the statements were fraudulent." Hermann
Holdings, Ltd. v. Lucent Techs.,
Inc., 302 F.3d 552, 564-65 (5th
Cir. 2002) (internal quotations and citations omitted). Succinctly
stated, Rule 9(b) requires a party to identify in its pleading
"the who, what, when, where, and how" of the events constituting
the purported fraud. Dorsey v. Portfolio Equities, Inc.,
(5th Cir. 2008). Rule 9(b) applies to all cases where
the gravamen of the claim is fraud even though the theory
supporting the claim is not technically termed fraud. Frith v.
Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 742
1998). Claims alleging violations of the Texas Insurance Code and
the Texas DTPA as well as those for fraud,
fraudulent concealment, and negligent misrepresentation are
subject to the requirements of Rule 9(b)
Berry v. Indianapolis
Life Ins. Co., 608 F. Supp. 2d 785, 800
(N.D. Tex. 2009); Frith,
9 F. Supp. 2d at 742.
Alleged Procedural Failings
Plaintiff first complains that Allstate has failed to file
all state court case documents and that it has filed extraneous
documents along with the notice of removal. The removal statute
requires that the notice contain "a short and plain statement of
the grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or defendants."
1446(a). Local Civil Rule LR 81.1(a) requires that
the removing party provide to the clerk for filing: a completed
civil cover sheet, a supplemental civil cover sheet, a notice of
removal with an index of all documents (clearly identifying each
and the date it was filed in state court), a copy of the docket
sheet in the state court action, each document filed in the state
court action (except discovery materials) , and a separately
signed certificate of interested persons. The record reflects
that Allstate complied with the substance of these requirements.
Plaintiff says that certain "citation documents" and a civil
case information sheet were contained in the state court clerk's
file but copies were not attached to the notice of removal.
Plaintiff does not explain what possible relevance those items
would have. The citations do not reflect that they were filed in
the state court, but the returns (which necessarily include the
citations) reflecting service on defendants were and were filed
with the notice of removal. And, the civil information sheet
plaintiff references does not appear to contain any information
not otherwise in the papers attached to the notice of removal.
As the court has previously noted, technical defects in a notice
of removal are not jurisdictional and are not a basis for remand.
Jana Food Serv., Inc. v. Nationwide Agribusiness Ins. Co., No.
4:16-CV-864-A, 2016 WL 7165973, at *1 n.1 (N.D. Tex. Dec. 7,
Plaintiff also complains that Allstate •filed a veritable
'flurry' of extraneous documents." Doc. 23 at 13, , 3. And, he
alleges that Allstate's filing of a paper copy of its notice of
removal •contained all sorts of things attached to it
. as a
'hodge-podge.'" Id., , 4. Plaintiff insinuates that there is some
difference between the electronic and paper versions of the
notice of removal, but does not explain what it is or why it is
material.' Plaintiff never identifies the alleged extraneous
'The court does note that the civil information sheet confirms that plaintiff if seeking to recover
more than $200,000 but not more than $1,000,000. Doc. 24, App. Ex. p. 1.
As best the court can tell, the documents appear to be substantially the same, as they are
(continued ... )
documents to which he refers. Nor does he cite any authority to
support the contention that their inclusion would be cause for
Plaintiff further complains that the individual defendants
did not join in the notice of removal. Plaintiff asserts that
there must be some kind of proof of consent but does not cite any
authority for that proposition. As the Fifth Circuit has noted,
the removal statute does not require that each served defendant
must sign the notice of removal, but only that there must be some
timely filed written indication that the defendant has actually
consented to the removal. Getty Oil Corp. v. Ins. Co. of N. Am.,
841 F.2d 1254, 1262 n.11 (5th Cir. 1988). Here, the notice of
removal clearly reflects that Hernandez consents to the removal
and the notice is signed by the attorney acting on her behalf.
Doc. 1 at 9,
3.6. And, as stated in that same paragraph,
consent of Gonzalez, who is alleged to have been improperly
joined, is not required. Rico v. Flores, 481 F.3d 234, 239
Cir. 2007); Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th
'( ... continued)
required to be.
'It appears that plaintiff is referring to the insurance contract to which he refers in his petition but
which was not attached thereto.
Alleged Substantive Failings
Plaintiff alleges that Allstate has not established that the
court has diversity jurisdiction. He says that there is no proof
that the amount in controversy exceeds $75,000 and that Allstate
admits that there is not complete diversity of citizenship.
The cases plaintiff cites in support of his argument
regarding amount in controversy involve pleadings where the
plaintiffs did not specify an amount in controversy. Doc. 23 at
10 (citing DeAguilar v. Boeing Co., 11 F.3d 55 (5'h Cir. 1993),
and Allen v. R&H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995)).
The law is clear that where the plaintiff has alleged a sum
certain that exceeds the requisite amount in controversy, that
amount controls if made in good faith. St. Paul Mercury Indem.
Co. v. Red Cab Co., 303 U.S. 283, 288
(1938). Here, plaintiff has
pleaded that the amount in controversy lies between $200,000 and
$1,000,000. Doc. 1, Ex. B-1 at 3-4, 8. Thus, the jurisdictional
amount is met. 28 U.S.C.
As for the citizenship of the parties, complete diversity
exists but for the joinder of Gonzalez. And, after a review of
plaintiff's pleading, the court is satisfied that this is but
another in a long line of cases where a plaintiff joins as a
defendant an insurance adjustor or other non-diverse party in an
effort to defeat removal jurisdiction.' Plaintiff argues that his
petition gives adequate notice of the theories of liability
pleaded against defendants and thus removal was improper because
he has stated viable claims against each defendant. Doc. 23 at
17. However, a plaintiff's obligation to provide the grounds of
his entitlement to relief requires more than a formulaic
recitation of the elements of a cause of action or mere labels
and conclusions. Iqbal, 556 U.S. at 678.
Here, plaintiff has done nothing more than make conclusory
allegations without any plausible facts to support them. He has
made no attempt to spell out the who, what, when, where, and how
of the purported fraud and other statutory violations. He does
not even mention the individual defendants by name or identify
who they are and what role they played. He only says that "in due
course all of the Defendants became involved in this matter."
Doc. 1, Ex. B-1 at 4. After a study of plaintiff's state court
pleading, and a review of applicable authorities, for essentially
'See, e.g., Aguilar v. State Farm Lloyds, No.4: 15-CV -565-A, 2015 WL 5714654 (N.D.
Tex. Sept. 28, 2015); Parish v. State Farm Lloyds, No. 4:15-CV-339-A, 2015 U.S. Dist. LEXIS
79293 (N.D. Tex. June 18, 2015); Ogden v. State Farm Lloyds, No. 4:15-CV-139-A, 2015 WL
3450298 (N.D. Tex. May 28, 2015); Gonzalez v. State Farm Lloyds, No. 4:15-CV-305-A, 2015
WL 3408106 (N.D. Tex. May 27, 2015); Vann v. Allstate Texas Lloyds, No. 4:15-CV-277-A,
2015 WL 2250243 (N.D. Tex. May 12, 2015); SYP-Empire L.C. v. Travelers Cas. Ins. Co. of
Am., No. 4:15-CV-213-A, 2015 WL 2234912 (N.D. Tex. May 12, 2015); Davis v. Metropolitan
Lloyds Ins. Co., No. 4:14-CV-957-A, 2015 WL 456726 (N.D. Tex. Feb. 3, 2015); Plascencia v.
State Farm Lloyds, No. 4:14-CV-524-A, 2014 WL 11474841 (N.D. Tex. Sept. 25, 2014).
the same reasons given in the cases cited in footnote 8 why the
claims adjustors were improperly joined in those cases, the court
concludes that plaintiff named Gonzalez as a defendant in this
action for the purpose of attempting to defeat federal court
jurisdiction. 9 Gonzalez was improperly joined. None of the claims
asserted against her would survive a motion to dismiss for
failure to state a claim upon which relief may be granted, with
the consequence that her citizenship should be disregarded in
determining whether diversity jurisdiction exists.
court has concluded, for the same reason,
that the claims against
her should be dismissed. 10
The court ORDERS that plaintiff's motion to remand be, and
is hereby, denied.
The court further ORDERS that plaintiff's claims against
Gonzalez be, and are hereby, dismissed.
The comt is satisfied that plaintiff joined both of the individual defendants for an improper
purpose in hopes of defeating removal jurisdiction. Plaintiff apparently believed that Hernandez was a
citizen of Texas as she could be served in Dallas, Texas, but does not now dispute that she is a citizen of
Ohio. Nevettheless, the issue of whether plaintiff has stated any claims against her is not now before the
The coutt need not undertake an analysis of whether plaintiffs claims should be governed by
Texas or Oklahoma law. Plaintiff simply has not alleged facts sufficient to state any claim against
The court determines that there is no just reason for delay
in, and hereby directs, entry of final judgment as to the
dismissal of plaintiff's claims against Gonzalez.
The court further ORDERS that the caption of this action be,
and is hereby, amended to reflect that Allstate and Hernandez are
the only defendants.
SIGNED October 2, 2017.
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