Carvajal et al v. Allstate Texas Lloyd's et al DO NOT DOCKET. CASE HAS BEEN REMANDED.

Filing 8

ORDER granting 6 Motion to Remand.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JUAN CARVAJAL, et al,
Plaintiffs,
VS.
ALLSTATE TEXAS LLOYD’S, et al,
Defendants.

September 02, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:16-CV-286
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ORDER GRANTING MOTION TO REMAND
Plaintiffs Juan and Margaret Carvajal filed this action in state court against
Defendants Allstate Texas Lloyd’s (Allstate) and its adjuster, David Evans (Evans), for
failure to properly assess and pay insurance proceeds under a policy covering property
damage suffered in a hailstorm. On July 11, 2016, Allstate removed the action to this
Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332, alleging that non-diverse
Evans was improperly joined, that Plaintiffs and Allstate are diverse, and that the
required amount in controversy is satisfied.
On August 10, 2016, Plaintiffs timely filed their motion to remand (D.E. 6).
Plaintiffs do not dispute the requisite amount in controversy or the diversity between
them and Allstate. And there is no question that Evans is non-diverse. Plaintiffs’
argument, supported by proper legal authority, is that their claim against Evans is
cognizable, contrary to Allstate’s representations. For the reasons set out below, the
Court GRANTS the motion and remands this action.

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Allstate admits that an insurance adjuster can be held liable pursuant to the types
of claims Plaintiffs asserted in this case. Its improper joinder argument is based not on a
lack of a cause of action but on the factual pleading requirements of Ashcroft v. Iqbal,
556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Fifth
Circuit recently clarified the confusion regarding the standard for reviewing the
pleadings, declaring that the courts are to apply a Rule 12(b)(6) analysis using the
federal—not state—pleading standards in an improper joinder/removal dispute. Int'l
Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 200-08 (5th
Cir. 2016) (IEVM).1
Allstate, quoting Plaintiffs’ representations in its motion to remand, contends that
the factual representations are insufficient to support a finding that Plaintiffs’ claims are
plausible—as opposed to speculative—in this particular instance. D.E. 7, p. 5. But the
question identified in IEVM is not whether the facts stated in Plaintiffs’ motion are
adequate but whether the facts stated in their pleading are adequate. Id. at 208. Thus the
Court looks at Plaintiffs’ state court petition (D.E. 6-1) to determine whether it alleges
sufficient facts to make their claims plausible under federal standards. In so doing, the
Court focuses on joinder, not on the merits of the claims. Id. at 209-10 (citing Smallwood
v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004)).
According to Plaintiffs, who reference Evans’ estimate of their property damage
repairs, Evans

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The court may also pierce the pleadings and conduct a summary inquiry. Id. at 207. But that is an alternative
review that the court may, in its discretion, apply instead of the Rule 12(b)(6) review.

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severely undervalued the damage to the roof, fascia, siding,
screens, columns, and shutters. Furthermore, Evans omitted
damage to the garage door, fence, shed and pergolas. Evans
failed to include overhead and profit in the calculated total of
his estimate.
D.E. 6-1, p. 5. The pleading goes on to allege that Evans provided the estimate to
Allstate knowing that Allstate would rely on it and Allstate did, in fact, rely on it in trying
to settle the claim with Plaintiffs. Additionally, Plaintiffs allege that Evans engaged in
misrepresentations regarding whether their damages were covered by Allstate’s policy.
Id., p. 7. Allstate has provided no reason to view these factual allegations as insufficient.
The Court finds that they provide a plausible basis to support some of the legal theories
alleged against Evans regarding violations of the Texas Insurance Code. Consequently,
the joinder of Evans is not improper.
For these reasons, the Court GRANTS the motion to remand (D.E. 6) and remands
this action to the 79th Judicial District Court, Jim Wells County, Texas, the court from
which it was removed.2
ORDERED this 1st day of September, 2016.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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The case was originally filed in the County Court at Law of Jim Wells County and was transferred to the 79th
Judicial District Court. D.E. 1-2.

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