Allen v. Infinity County Mutual Insurance Company

Filing 14

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDRA JEAN ALLEN,
Plaintiff,
v.
INFINITY COUNTY MUTUAL
INSURANCE COMPANY,
Defendant.

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February 17, 2017
David J. Bradley, Clerk

CASE NO. 4:16-CV-3684

MEMORANDUM AND ORDER
Plaintiff Sandra Jean Allen, proceeding pro se and in forma pauperis, has
sued Defendant Infinity County Mutual Insurance Co. (“Infinity”), asserting
Infinity has wrongfully denied her coverage under a personal automobile policy.
Pending before the Court is Infinity’s “12(B)(1) Motion to Dismiss Plaintiff’s
Original Petition” (“Motion”) [Doc. # 8]. Allen has filed a Response [Doc. # 11],
to which Infinity has replied [Doc. # 13]. Because the Court lacks subject matter
jurisdiction, Infinity’s Motion is granted.
I.

LEGAL STANDARD AND ANALYSIS
A.

Liberal Construction of Pro Se Pleadings

A document filed pro se must be “liberally construed” and “a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
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(internal quotation marks omitted). See FED. R. CIV. P. 8(e) (“Pleadings must be
construed so as to do justice”); Hood v. Pope, 627 F. App’x 295, 299 n.7 (5th Cir.
2015).
B.

Federal Subject Matter Jurisdiction
1.

Legal Standard

Federal courts are courts of limited jurisdiction. Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001). There are generally two possible sources
of federal jurisdiction for a district court: (1) federal-question jurisdiction, for cases
arising under the Constitution or federal law, and (2) diversity of citizenship. 28
U.S.C. §§ 1331–1332. The burden to establish federal jurisdiction is on the party
invoking jurisdiction. Howery, 243 F.3d at 916.
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court’s
subject matter jurisdiction. “Under Rule 12(b)(1), a claim is properly dismissed
for lack of subject-matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the claim.” In re FEMA Trailer Formaldehyde
Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (quotation omitted). “The
pleading’s allegations are presumed to be true, and ‘[i]f those allegations
sufficiently allege a claim for recovery the complaint stands and the federal court
must entertain the suit.’” Walter v. Old Am. County Mut. Fire Ins. Co., Civil
Action No. H–12–2581, 2012 WL 5818227, at *1 (S.D. Tex. Nov. 14, 2012)
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(quoting Jones v. SuperMedia Inc., 281 F.R.D. 282, 286 (N.D. Tex. 2012)).
2.

Federal Question Jurisdiction

Federal district courts have federal question jurisdiction over cases “arising
under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
Generally, “[t]he presence or absence of federal-question jurisdiction is governed
by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists
only when a federal question is presented on the face of the plaintiff’s properly
pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Even
generously construed, Allen’s Complaint does not allege any claims arising under
federal law.

Allen asserts claims against Infinity for “negligent infliction,

defamation, calumny, libel, slander, actual malice, intentional torts, and dignitary
torts.”1

None of Allen’s claims implicate federal law.

Federal question

jurisdiction is not present.
3.

Diversity Jurisdiction

The other general basis for federal subject matter jurisdiction requires
complete diversity of citizenship between plaintiffs and defendants, as well as
more than $75,000 in controversy. See 28 U.S.C. § 1332(a). “Complete diversity

1

See Complaint [Doc. # 1], at ECF 6-7. In her Response [Doc. # 11], Allen adds a
state law claim for “extreme emotional distress.” See Response [Doc. # 11] at
ECF 3.

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‘requires that all persons on one side of the controversy be citizens of different
states than all persons on the other side.’” See Harvey v. Grey Wolf Drilling Co.,
542 F.3d 1077, 1079 (5th Cir. 2008) (quoting McLaughlin v. Mississippi Power
Co., 376 F.3d 344, 353 (5th Cir. 2004)).
Allen, in her Complaint, states that she is a citizen of Texas. See Complaint
[Doc. # 1], at ECF 2. Infinity, a corporation organized and existing under the laws
of Texas with a principal place of business in Birmingham, Alabama, is also a
citizen of Texas.

See 28 U.S.C. § 1332(c).2 Allen points out that Infinity’s

counsel, admitted pro hac vice, is a Florida firm. She is correct. Diversity,
however, is determined with respect to the citizenship of the parties, not their
lawyers. See Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016) (“if any
plaintiff is a citizen of the same State as any defendant, then diversity jurisdiction
does not exist.”).

Accordingly, federal subject matter jurisdiction based on

diversity of citizenship is absent.
II.

CONCLUSION AND ORDER
For the reasons stated above, it is hereby
ORDERED that Defendant Infinity County Mutual Insurance Company’s

12(B)(1) Motion to Dismiss Plaintiff’s Original Petition [Doc. # 8] is GRANTED.
2

See Complaint [Doc. # 1], at ECF 2; Affidavit of Stephanie McGuire, Exh. 1 to
Motion [Doc. # 8-1].

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It is further
ORDERED that this case is DISMISSED without prejudice for lack of
subject matter jurisdiction. The Court will issue a separate Dismissal Order.
SIGNED at Houston, Texas, this 17th day of February, 2017.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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