Case 1:17-cv-00307-MAC Document 8 Filed 09/29/17 Page 1 of 10 PageID #: 76
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` UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF TEXAS
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` CIVIL ACTION NO. 1:17-CV-307
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`ROBERT WAKEFIELD, §
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`§§
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`Plaintiff,
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`versus
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`ALLSTATE VEHICLE & PROPERTY
`INSURANCE COMPANY,
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`Defendant.
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`MEMORANDUM AND ORDER
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`Pending before the court is Plaintiff Robert Wakefield’s (“Wakefield”) Motion to Remand
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`and Supporting Brief (#4), wherein he asks the court to remand this action to the state court in
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`which it was originally filed. Having considered the pending motion, the submissions of the
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`parties, the pleadings, and the applicable law, the court is of the opinion that remand is warranted.
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`I.
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`Background
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`On June 8, 2017, Wakefield filed this case against Defendant Allstate Vehicle & Property
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`Insurance Company (“Allstate”) in the 356th Judicial District Court of Hardin County, Texas,
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`alleging that Allstate wrongfully denied his claim for damages under his homeowner’s insurance
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`policy (issued by Allstate). According to Wakefield, on March 25, 2017, a windstorm damaged
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`his swimming pool. Allstate denied Wakefield’s claim, which prompted Wakefield to file suit in
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`state court, asserting claims for breach of contract, violations of the Texas Insurance Code and the
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`Texas Deceptive Trade Practices Act (“DTPA”), and breach of the duty of good faith and fair
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`dealing. The petition states that “actual damages sought are less than $75,000.00.” Nonetheless,
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`Wakefield also seeks to recover consequential and incidental damages, special damages in the form
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`of lost use of property (both real and personal) and damage to credit, attorney’s fees, additional
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`statutory damages, mental anguish, and statutory treble damages.
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`On July 17, 2017, Allstate removed the case to federal court on the basis of diversity
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`jurisdiction.1 In response, Wakefield filed a motion to remand on the basis that the requisite
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`amount in controversy is lacking. Allstate did not file a responsive brief in opposition.
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`II.
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`Analysis
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`A.
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`Removal Jurisdiction
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`“Federal courts are courts of limited jurisdiction.” Gunn v. Minton, 133 S. Ct. 1059, 1064
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`(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); accord
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`Hotze v. Burwell, 784 F.3d 984, 999 (5th Cir. 2015), cert. denied, 136 S. Ct. 1165 (2016);
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`Scarlott v. Nissan N. Am., Inc., 771 F.3d 883, 887 (5th Cir. 2014). “They possess only that
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`power authorized by Constitution and statute, which is not to be expanded by judicial decree.”
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`Kokkonen, 511 U.S. at 377 (citations omitted). The court “must presume that a suit lies outside
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`this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party
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`seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.) (citing
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`Kokkonen, 511 U.S. at 377), cert. denied, 534 U.S. 993 (2001); accord Hertz Corp. v. Friend,
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`559 U.S. 77, 96 (2010); Clayton v. Conoco Phillips Co., 722 F.3d 279, 290 (5th Cir. 2013), cert.
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`denied, 134 S. Ct. 906 (2014). In an action that has been removed to federal court, a district court
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`is required to remand the case to state court if, at any time before final judgment, it determines
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`that it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Carlsbad Tech., Inc. v. HIF
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`Bio, Inc., 556 U.S. 635, 638 (2009); Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567,
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`1 It is undisputed that Wakefield is a citizen of Texas, and Allstate is a citizen of Illinois.
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`2
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`571 (2004); Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 592 (5th Cir. 2015); African
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`Methodist Episcopal Church v. Lucien, 756 F.3d 788, 793 (5th Cir. 2014).
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`When considering a motion to remand, “[t]he removing party bears the burden of showing
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`that federal jurisdiction exists and that removal was proper.” Barker v. Hercules Offshore Inc.,
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`713 F.3d 208, 212 (5th Cir. 2013) (quoting Manguno v. Prudential Prop. & Cas. Ins. Co., 276
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`F.3d 720, 723 (5th Cir. 2002)); accord African Methodist Episcopal Church, 756 F.3d at 793;
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`Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013); see 13E CHARLES A.
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`WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3602.1 (3d ed. 2013).
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`“This extends not only to demonstrating a jurisdictional basis for removal, but also necessary
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`compliance with the requirements of the removal statute.” Roth v. Kiewit Offshore Servs., Ltd.,
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`625 F. Supp. 2d 376, 382 (S.D. Tex. 2008) (quoting Albonetti v. GAF Corp. Chem. Grp., 520
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`F. Supp. 825, 827 (S.D. Tex. 1981)); accord Fort Worth & W. R.R. Co. v. Stevenson, No. 3:15-
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`CV-0906-B, 2015 WL 3867906, at *1 (N.D. Tex. June 22, 2015); Crossroads of Tex., L.L.C. v.
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`Great-West Life & Annuity Ins. Co., 467 F. Supp. 2d 705, 708 (S.D. Tex. 2006). “Only
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`state-court actions that originally could have been filed in federal court may be removed to federal
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`court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C.
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`§ 1441(a)); see Mumfrey, 719 F.3d at 397.
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`“The removal statute ties the propriety of removal to the original jurisdiction of the federal
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`district courts.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); see 28 U.S.C.
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`§ 1441(a); Camsoft Data Sys., Inc. v. S. Elec. Supply, Inc., 756 F.3d 327, 333 (5th Cir. 2014);
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`Barker, 713 F.3d at 228. Because removal raises significant federalism concerns, the removal
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`statutes are strictly and narrowly construed, with any doubt resolved against removal and in favor
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`of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); African
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`Methodist Episcopal Church, 756 F.3d at 793; Barker, 713 F.3d at 212. In short, any “doubts
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`regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.”
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`Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014) (quoting Acuna v. Brown
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`& Root Inc., 200 F.3d 335, 339 (5th Cir.), cert. denied, 530 U.S. 1229 (2000)); accord African
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`Methodist Episcopal Church, 756 F.3d at 793; Barker, 713 F.3d at 212.
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`B.
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`Diversity Jurisdiction
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`Federal courts have subject matter jurisdiction and are authorized to entertain causes of
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`action only where a question of federal law is involved or where there is diversity of citizenship
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`between the parties and the amount in controversy exceeds $75,000.00, exclusive of interest and
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`costs. 28 U.S.C. §§ 1331, 1332; Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006); Lincoln
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`Prop. Co. v. Roche, 546 U.S. 81, 89 (2005); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
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`U.S. 546, 552 (2005); Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 258-59
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`(5th Cir. 2014). In order to determine whether jurisdiction is present in a removed action, the
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`claims set forth in the state court petition are considered as of the date of removal. Standard Fire
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`Ins. Co. v. Knowles, 568 U.S. 588, 594 (2013); Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381,
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`391 (1998); Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 n.2 (5th Cir. 2007); McGowin v.
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`ManPower Int’l, Inc., 363 F.3d 556, 558 n.1 (5th Cir. 2004). In removed cases where, as here,
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`there is no suggestion that a federal question is involved, subject matter jurisdiction exists only
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`if there is complete diversity among the parties and the amount in controversy exceeds
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`$75,000.00. See 28 U.S.C. § 1332; Lincoln Prop. Co., 546 U.S. at 89; Exxon Mobil Corp., 545
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`U.S. at 552; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).
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`4
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`The state court petition is usually consulted to determine the amount in controversy, and
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`the sum claimed by the plaintiff controls if the claim is apparently made in good faith. Dart
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`Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553 (2014); Danial v. Daniels,
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`162 F. App’x 288, 290 (5th Cir.) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
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`283, 288 (1938)), cert. denied, 549 U.S. 820 (2006); Manguno, 276 F.3d at 723 (citing St. Paul
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`Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)). Texas law requires
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`plaintiffs to plead for damages that fall within certain ranges. TEX. R. CIV. P. 47; Mumfrey, 719
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`F.3d at 398 & n.9 (noting that prior to March 1, 2013, Texas law prohibited plaintiffs from
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`pleading for a specific amount of damages). The lowest range of damages that can be pleaded is
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`“monetary relief of $100,000 or less.” TEX. R. CIV. P. 47(c)(1).
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`In situations such as this one, where the petition alleges only a range of damages (“actual
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`damages sought are less than $75,000.00”) and not a specific amount in controversy, removal is
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`proper if the removing party establishes by a preponderance of the evidence that the amount in
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`controversy exceeds $75,000.00. Felton v. Greyhound Lines, Inc., 324 F.3d 771, 773 (5th Cir.
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`2003); Manguno, 276 F.3d at 723; Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir.
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`2000). The removing party can satisfy that burden (1) by showing that “it is apparent from the
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`face of the petition that the claims are likely to exceed $75,000.00, or, alternatively, (2) [by setting
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`forth] ‘summary judgment type evidence’ of facts in controversy that support a finding of the
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`requisite amount.” Manguno, 276 F.3d at 723 (citing Simon v. Wal-Mart Stores, Inc., 193 F.3d
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`848, 850 (5th Cir. 1999)); accord Robertson v. Exxon Mobil Corp., 814 F.3d 236, 240 (5th Cir.
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`2015); Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 639 (5th Cir. 2003); Grant v. Chevron
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`Phillips Chem. Co. L.P., 309 F.3d 864, 868 (5th Cir. 2002), cert. denied, 538 U.S. 945 (2003).
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`If a defendant satisfies its burden, remand is not warranted unless the plaintiff establishes
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`“to a legal certainty that the claim is really for less than the jurisdictional amount . . . .” St. Paul
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`Mercury Indem. Co., 303 U.S. at 289; see Ditcharo v. United Parcel Serv., Inc., 376 F. App’x
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`432, 437 (5th Cir. 2010); Grant, 309 F.3d at 869; Manguno, 276 F.3d at 724. “In other words,
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`where the plaintiff’s claims can be proved to be of the type that are worth more than [$75,000.00],
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`they can be removed unless the plaintiff can show he is legally bound to accept less.” Vielma v.
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`ACC Holding, Inc., No. EP-12-CV-501, 2013 WL 3367494, at *5 (W.D. Tex. Apr. 16, 2013)
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`(quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)); accord Ervin v.
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`Sprint Commc’ns Co. LP, 364 F. App’x 114, 117 (5th Cir. 2010). The plaintiff “may establish
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`this by identifying a statute, or by filing a binding stipulation, that so limits [his] recovery.”
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`Manguno, 276 F.3d at 724 (citing De Aguilar v. Boeing Co. (“De Aguilar II”), 47 F.3d 1404,
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`1412 (5th Cir.), cert. denied, 516 U.S. 865 (1995)); accord Griffin, 562 F. Supp. 2d at 778. The
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`United States Court of Appeals for the Fifth Circuit has “emphasized that ‘this is not a burden-
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`shifting exercise’; rather, the ‘plaintiff must make all information known at the time he files the
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`complaint.’” Grant, 309 F.3d at 869 (quoting De Aguilar II, 47 F.3d at 1412).
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`Generally, penalties, statutory damages, punitive damages, and attorney’s fees are included
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`in the amount in controversy. Greenberg, 134 F.3d at 1253. Specifically, attorney’s fees are
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`included in the amount in controversy when assessing the jurisdictional amount if they are
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`provided for by contract or state statute. Grant, 309 F.3d at 869; Manguno, 276 F.3d at 723;
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`Greenberg, 134 F.3d at 1253; Lawson v. Parker Hannifin Corp., No. 4:13-cv-923, 2014 WL
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`1158880, at *2-3 (N.D. Tex. Mar. 20, 2014), aff’d, 614 F. App’x 725 (5th Cir. 2015); Watson
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`v. Provident Life & Acc. Ins. Co., No. 3:08-CV-2065, 2009 WL 1437823, at *6 (N.D. Tex. May
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`6
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`22, 2009). Texas law authorizes an award of “reasonable attorneys’ fees from an individual or
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`corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral
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`or written contract.” TEX. CIV. PRAC. & REM. CODE § 38.001(8); see Navigant Consulting, Inc.
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`v. Wilkinson, 508 F.3d 277, 298 (5th Cir. 2007); Fluorine On Call, Ltd. v. Fluorogas Ltd., 380
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`F.3d 849, 866 (5th Cir. 2004); In re Nalle Plastics Family Ltd. P’ship., 406 S.W.3d 168, 172
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`(Tex. 2013). Indeed, an award of reasonable attorney’s fees is mandatory under § 38.001 if the
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`plaintiff recovers damages for a breach of contract claim. Crisalli v. ARX Holding Corp., 177 F.
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`App’x 417, 421 (5th Cir. 2006); Coffel v. Stryker Corp., 284 F.3d 625, 640 (5th Cir. 2002).
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`Attorney’s fees are also available under § 541 of the Insurance Code and the DTPA. Because
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`Wakefield has asserted claims for breach of contract and violations of the DTPA as well as the
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`Insurance Code, attorney’s fees are recoverable in this case if he prevails and, therefore, must be
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`included in the amount in controversy.
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`Further, prevailing on a DTPA or Insurance Code statutory cause of action would enable
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`Wakefield to collect treble damages if Allstate acted knowingly or intentionally, as alleged. See
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`TEX. BUS. & COM. CODE ANN. § 17.50(b)(1). An award of treble damages under the DTPA or
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`Insurance Code is considered part of the amount in controversy. Hartford Ins. Grp. v. Lou-Con,
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`Inc., 293 F.3d 908, 912 (5th Cir. 2002); Greco v. Jones, 992 F. Supp. 2d 693, 700 (N.D. Tex.
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`2014); Premium Plastics v. Seattle Specialty Ins. Servs., Inc., No. H-10-3960, 2011 WL 11199,
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`at *3 (S.D. Tex. Jan. 3, 2011).
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`District courts in this circuit differ as to when it is facially apparent that the amount in
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`controversy is satisfied, particularly in insurance disputes. Some courts are reluctant to find the
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`requirement satisfied when there is no reasonable indication of the extent of property damage in
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`the state court petition. See Hannah v. Allstate Tex. Lloyd’s, No. EP-11-CV-269-KC, 2011 WL
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`5325257, at *4-5 (W.D. Tex. Nov. 2, 2011) (“In the absence of some factual context regarding
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`the extent of property damage, the Court cannot estimate an amount that could be tripled under
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`the Texas Insurance Code, awarded as consequential damages, or accrued as attorney’s fees.”);
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`Tanet v. USAA Ins. Co., No. 09-6779, 2011 WL 39036, at *2 (E.D. La. Jan. 5, 2011) (finding
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`that the amount in controversy was not facially apparent where plaintiff did not allege a specific
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`amount of damages nor did she indicate that she sought “insurance policy limits or that [Hurricane
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`Gustav] resulted in total destruction of her property”); Premium Plastics, 2011 WL 11199, at *3
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`(“[B]ecause the petition identifies only categories of damage and not the specifics of the nature of
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`the damage sustained, it is not facially apparent that the amount in controversy exceeds
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`$75,000.00.”); Vanguard Mach. Int’l LLC v. Smith Publ’g, Inc., No. H-07-3490, 2008 WL
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`416254, at *2 (S.D. Tex. Feb. 13, 2008) (“[W]hether it is facially apparent that a plaintiff’s claims
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`will likely exceed the jurisdictional amount largely depends on whether the facts alleged in the
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`petition warrant such an inference.”); see also Dow Agrosciences LLC v. Bates, 332 F.3d 323,
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`326 (5th Cir. 2003) (finding that the amount in controversy was not facially apparent even though
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`plaintiffs requested treble damages under the DTPA and attorneys’ fees in addition to other
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`damages), vacated on other grounds by 544 U.S. 431 (2005).
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`Conversely, when the plaintiff’s petition describes the extent of property damage in more
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`detail, courts are more likely to find that it is facially apparent that the amount in controversy
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`exceeds $75,000.00. See Jiminez v. State Farm Lloyds, No. 7:14-CV-294, 2015 WL 13188304,
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`at *2 (S.D. Tex. Mar. 9, 2017) (finding it facially apparent that the claimed damages exceeded
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`$75,000 where the plaintiffs alleged property damage in the amount of at least $22,000); Randall
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`v. State Farm Fire & Cas. Co., No. 11-1358, 2011 WL 3204705, at *2 (E.D. La. July 27, 2011)
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`(finding the amount in controversy facially apparent when plaintiff’s petition alleges her property
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`was “severely damaged and/or destroyed,” the amounts already paid under the policy are known,
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`and she demands statutory penalties); Caldwell Mem’l Hosp., Inc. v. Trimark Catastrophe Servs.,
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`Inc., No. 06-1319, 2007 WL 471180, at *3 (W.D. La. Feb. 8, 2007) (finding that it was facially
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`apparent that the amount in controversy was satisfied where various forms of property damage
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`occurred in a hospital setting). The general principle behind these cases is that a defendant cannot
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`simply point to the numerous categories of damages in a plaintiff’s state court petition, without
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`more, and thereby establish that it is facially apparent that the amount in controversy is at least
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`$75,000.00. See Wright Family Invs., LLC v. Jordan Carrier, Inc., No. 12-CV-0826, 2012 WL
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`2457664, at *3 (W.D. La. June 25, 2012) (“A stubbed toe petition filed in city court does not
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`become a federal case because the plaintiff’s attorney was creative enough to list several damage
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`categories in the petition.”).
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`Although generally the nature and extent of the property damage alleged could well be
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`sufficient to justify a damage award surpassing the requisite amount in controversy, that is not the
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`case here. Indeed, the sole factual averment mentioning property damage is that Wakefield
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`submitted a claim “for damage to his pool” as a result of a windstorm. Without some factual
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`context regarding the extent of Wakefield’s property damage, the court cannot estimate an amount
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`of actual damages that could be trebled under the DTPA, awarded as consequential damages, or
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`accrued as attorney’s fees. Consequently, it is not apparent from the face of the petition that the
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`amount in controversy exceeds $75,000.
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`Moreover, Allstate fails to set forth “summary judgment type evidence” of any facts in
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`controversy that support a finding that the amount in controversy exceeds $75,000. Indeed, the
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`pre-suit demand letter that Allstate claims Wakefield failed to send is attached to Wakefield’s
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`motion to remand, along with facsimile confirmation that it was sent on June 7, 2017. In the
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`letter, Wakefield’s counsel lists categories of damages sought, including treble damages, the 18%
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`penalty, mental anguish, and attorney’s fees. The amount contained therein totals $49,928.91.
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`Based on this evidence, Allstate’s failure to file a response in opposition, and the settled rule that
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`any doubt must be resolved against removal and in favor of remand, the court finds the requisite
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`amount in controversy lacking.
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`III.
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`Conclusion
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`An evaluation of the relevant facts and controlling law reveals that this court does not have
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`subject matter jurisdiction over this action. Although complete diversity of citizenship exists
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`between the parties, the amount in controversy is less than $75,000.00. Therefore, this case was
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`improperly removed, and remand is warranted. Accordingly, Wakefield’s motion to remand is
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`GRANTED. An order of remand will be entered separately.
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