Cruz et al v. State Farm Lloyds

Filing 8

ORDER ABATING CASE granting 7 Motion to Abate.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
HECTOR CRUZ, et al,
Plaintiffs,
VS.
STATE FARM LLOYDS,
Defendant.

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August 10, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 2:18-CV-165

ORDER ABATING CASE
Before the Court is “Defendant State Farm Lloyds’ Verified Motion to Abate
Subject to 12(b)(6) Motion for Partial Dismissal” (D.E. 7). Plaintiffs filed this action in
state court on April 13, 2018, to recover damages arising from Defendant’s handling of
their insurance claim for property destruction wrought by Hurricane Harvey on August
25, 2017. D.E. 1-1, p. 2. On May 29, 2018, Plaintiffs filed their first amended petition,
adding State Farm Lloyds as a Defendant and promising to non-suit the prior Defendant,
State Farm Lloyds, Inc. D.E. 1-1, pp. 89, 100.
Defendant State Farm Lloyds timely removed the case to this Court and now
timely seeks abatement because Plaintiffs failed to give it the 60-day statutory notice of
their claims and attorney’s fees as required by Texas Insurance Code, §§ 541.154 and
542A.003, as well as the Deceptive Trade Practices Act, Texas Business and Commerce
Code (DTPA) § 17.505(a). According to Defendant’s verified motion, Plaintiffs failed to
give it any notice at all prior to filing their claims.

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Pursuant to Insurance Code § 542A.005(c) and DTPA § 17.505(d), Plaintiffs were
required to file an affidavit before the 11th day after the filing of the motion to abate in
order to prevent the automatic abatement of the lawsuit. Plaintiffs did not file such an
affidavit. Thus, under the letter of Texas law, this matter should be considered abated—
automatically and without necessity of court order—as of July 21, 2018.
When a federal court sits in diversity jurisdiction, procedural matters are governed
by federal law. E.g., Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996).
Pursuant to Local Rule 7.3, opposed motions will be submitted to the judge 21 days from
filing. The motion to abate was filed on July 10, 2018, and its submission date was July
31, 2018. Respondents have not filed a response to the motion. Pursuant to Local Rule
7.4, failure to respond is taken as a representation of no opposition to the relief sought.
The Court need not determine whether the Texas Insurance Code and DTPA
deadline for a controverting affidavit is a matter of substantive or procedural law. On the
record of this case, whether the 10-day Texas requirement is imposed or the 21-day
federal procedural requirement is imposed, Plaintiffs failed to take the action necessary to
controvert Defendant’s claim to relief.

After reviewing Defendant’s request for

abatement on the merits, the Court finds that the motion is well-taken.
Therefore, the Court ORDERS that the motion (D.E. 7) is GRANTED and this
action is ABATED until the sixty-first day after Plaintiffs give Defendant the necessary
notice of their claims and the amount of attorney’s fees.
Despite the abatement, Plaintiffs are ORDERED to file with the Court their
advisory stating that they have given Defendant the necessary notice within five (5) days
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of the date such notice is provided so that the Court may calculate the date the abatement
is to be lifted.
ORDERED this 10th day of August, 2018.
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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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