Valverde v. Maxum Casualty Insurance Company, 558 F.Supp.3d 385

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MARIA DE JESUS VALVERDE v. MAXUM CASUALTY INSURANCE COMPANY аnd RODGERS PAUL TRUITT

CIVIL ACTION NO. 7:21-cv-00240

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

August 31, 2021

Micaela Alvarez, United States District Judge

ENTERED August 31, 2021, Nathan Ochsner, Clerk

OPINION AND ORDER

The Court now considers “Defendant Maxum Casualty Insurance Company‘s 12(b)(6) Motion for Partial Dismissal.”¹ Plaintiff has not filed a response and the time for doing so has passed, rendering Defendant‘s motion unopposed by operation of this Court‘s Local Rule.² After considering the motion, record, and relevant authorities, the Court GRANTS Defendant‘s motion and DISMISSES Defendant Rodgers Paul Truitt from this case with prejudice.

I. BACKGROUND AND PROCEDURAL HISTORY

This is an insurance dispute. Plaintiff Maria De Jesus Valverde commenced this case with her original petition in the 92nd District Court of Hidalgo County, Texas, on May 18, 2021.³ Plaintiff sued her insurer, Defendant Maxum Casualty Insurance Company, and its insurance adjuster agent, Defendant Rodgers Paul Truitt,⁴ alleging that Defendant Truitt “performed an inadequate and outcome oriented investigation” of the wind and hаilstorm damages to Plaintiff‘s “strip center” in Hidalgo County and that Defendant Maxum wrongfully refused to pay insurance benefits.⁵ On June 14, 2021, Defendant Maxum filed a notice of election of responsibility pursuant to Texas Insurance Code § 542A.006 in state court.⁶ Later that same day, Maxum removed the case to this Court.⁷ Maxum is a Connecticut corporation and its principal place of business is in Connecticut.⁸

The parties filed their initial joint discovery/case management plan on July 12th.⁹ In the Court‘s subsequent order, the Court recognized that Defendant Truitt “appears to share Texas citizenship with Plaintiff” and that the Court may lack diversity jurisdiction under 28 U.S.C. § 1332 over this case.¹⁰ The Court accordingly ordered all parties to “clarify their positions vis-à-vis this Court‘s jurisdiction.”¹¹ Defendant Maxum‘s instant motion to dismiss Defendant Truitt followed on July 28th.¹² Plaintiff failed to timely respond and Defendant‘s motion is submitted unopposed for the Court‘s consideration.¹³

II. DISCUSSION

a. Legal Standards

It is a “well-settled principle that litigants can never consent to federal subject matter jurisdiction, and the lack of subject matter jurisdiction is a defense that cannot be waived.”¹⁴

District courts have limited jurisdiction and the authority to remove an action from state to federal court is solely conferred by the Constitution or by statute.¹⁵ “Removal [to federal court] is proper only if that court would have had original jurisdiction over the claim.”¹⁶ The Court has jurisdiction to assess its own federal jurisdiction,¹⁷ and may use this limited authority “to dismiss the party that has been improperly joined” to defeat federal jurisdiction.¹⁸ The Court determines its jurisdiction by considering the plaintiff‘s claims as they existed at the time of removal,¹⁹ which cannot be defeated by the plaintiff‘s later amendment.²⁰

If the removing party claims federal diversity jurisdiction under 28 U.S.C. § 1332, the removing party must demonstrate complete diversity: that each defendant is a citizen of a different state from each plaintiff²¹ and the amount in controversy exceeds $75,000.²² If each defendant is not a citizen of a different state from each plaintiff, a party—usually a removing defendant—may claim that the plaintiff improperly or fraudulently joined parties to defeat federal diversity jurisdiction. The citizenship of an improperly joined party is then disregarded in determining the Court‘s jurisdiction.²³ Although a single valid cause of action against a nondiverse defendant precludes federal jurisdiction and requires remand to state court,²⁴ if “there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant,” the party was improperly joined and federal jurisdiction vests.²⁵

b. Analysis

Defendant Maxum argues that, because Maxum elected to assume Truitt‘s liability after inception of this suit under Texas Insurance Code § 542A.006, Plaintiff has no cause of action against Truitt and the Court is therefore bound to dismiss any claim against him and retain diversity jurisdiction over this case.²⁶ This Court previously analyzed this issue in detail in Ramirez v. Allstate Vehicle & Property Insurance Co. and “induced a bright-line rule: a non-diverse defendant is improperly joined when ‘the [diverse] defendant has demonstrated that there is no possibility of recovery by the plaintiff against the in-state defendant.‘”²⁷ Because Maxum‘s § 542A.006 election renders Plaintiff unable to recover against Truitt,²⁸ the Court is inclined to follow its prior precedent and dismiss Truitt.

However, in the time between Ramirez and Defendant‘s motion to dismiss, the Honorable Mark T. Pittman of the United States District Court for the Northern District of Texas issued two opinions, Morgan and Kessler, disagreeing with this Court‘s analysis.²⁹ Both opinions were issued on May 25, 2021, within 38 minutes of each other, and they are substantially identical in their rejection of this Court‘s opinion that jurisdictional facts are determined at the time of removal, so the improper joinder rule requires dismissal of the nondiverse insurance adjuster after a § 542A.006 election, and their further rejection of this Court‘s judgment that the voluntary- involuntary doctrinal rule does not impair that result. In light of Judge Pittman‘s thoughtful opinions, the Court finds good cause to revisit Ramirez and ascertain whether dismissal of Defendant Truitt is still the right result in this case. In this opinion, the Court will focus on the later-issued Morgan, though the analysis is equally applicable to Kessler.

The Court first establishes the rules and doctrines at issue. Under 28 U.S.C. § 1446(b)(3), a defendant is entitled to remove a case from state court to federal court within 30 days after receipt of “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” In other words, a defendant may remove “as soon as the action assumes the shape of a removable case in the court in which it was brought.”³⁰ In this case, Defendant Maxum filed a motion and notice of election of legal responsibility under § 542A.006 in state court,³¹ then removed to this Court within 30 days of its election.³² In doing so, Maxum invoked the improper joinder rule.³³ The improper joinder rule is predicated on the language of 28 U.S.C. § 1441(b)(2), which provides that a case may not be removed to federal court on the basis of diversity jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”³⁴ A removing party may demonstrate improper joinder, and thus satisfy fеderal jurisdiction, by showing the “inability of the plaintiff to establish a cause of action against the non-diverse party in state court.”³⁵ If the foregoing were the only relevant laws and doctrines, dismissal of Defendant Truitt would be a foregone conclusion.³⁶

However, the voluntary-involuntary rule is an additional stricture:

“[W]here the case is not removable because of joinder of defendants,” only “the voluntary dismissal or nonsuit by [the plaintiff] of a party or of parties defendant [sic]” can convert a nonremovable case into a removable one.” [The Fifth Circuit has] described this “judicially-created voluntary-involuntary rule” as providing “an action nonremovable when commenced may become removable thereafter only by the voluntary act of thе plaintiff.”³⁷

The voluntary-involuntary rule forms the core of Morgan‘s disagreement with Ramirez. In Morgan, the insurer defendant elected to assume the liability of its insurance adjuster defendant under Texas Insurance Code § 542A.006 and moved to dismiss the adjuster in state court.³⁸ After the state court dismissed the adjuster against the plaintiff‘s will and the insurer subsequently removed to federal court, upon the plaintiff‘s motion to remand, Morgan held that the plaintiff did not voluntarily create federal diversity jurisdiction by choosing to dismiss the in-state adjuster defendant, so the insurer defendant could not establish improper joinder.³⁹ The Morgan decision, which ultimately ruled that the case must be remanded to state court, rests on three predicate determinations: (1) the improper joinder rule does not override and is not an exception to the voluntary-involuntary rule; (2) even if the improper joinder rule overrides the voluntary-involuntary rule, the insurance adjuster is not improperly joined ab initio so the improper joinder rule does not require finding federal jurisdiction; and (3) even if the plaintiff appears to have improperly joined an in-state defendant adjuster, lingering doubts must result in remand.⁴⁰ This Court respectfully disagrees with all three contentions for the following reasons.

1. The Improper Joinder Rule vs. ‍‌‌​​​​​‌‌​​​‌‌​​‌​‌​​​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​​​‌‌‌‌‌​‍the Voluntary-Involuntary Rule

Morgan holds that that the improper joinder rule and voluntary-involuntary rule are two judicial doctrines that protect different interests that “sit in tension: the voluntary-involuntary rule protects a plaintiff‘s right to choose its forum; the improper-joinder rule protects a defendant‘s right to a federal forum. Each rule must have some application, and neither can destroy the other.”⁴¹ Morgan relies on a 2008 student note to hold that, if the improper joinder rule functions as an exception to the voluntary-involuntary rule, that “view effectively wipes out the voluntary-involuntary rule” but the United States Supreme Court holds that the voluntary-involuntary rule has doctrinal vitality that the Fifth Circuit lacks the authority to degrade.⁴²

Determining whether Morgan is correct requires some exposition of the voluntary-involuntary rule, which is necessary to ascertaining the scope of its application when it conflicts with the improper joinder rule. The voluntary-involuntary rule has its doctrinal genesis in an 1898 Supreme Court case,⁴³ but took solid form in the 1900 case of Whitcomb v. Smithson, in which the state trial court (later affirmed by the state‘s highest appellate court) directed a verdict in favor of the in-state railway company defendant.⁴⁴ When the remaining out-of-state defendants petitioned to remove the case to federal court after the in-state railway company was effectively dismissed, the petition was denied, and the United States Supreme Court affirmed the denial by holding that the directed verdict “was a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent, and the trial court rightly held that it did not operate to make the cause then removable ....”⁴⁵ The Supreme Court strengthened the voluntary- involuntary rule in 1909, holding that a case was not removable to federal court even though the New York state court, later affirmed by the Appellate Division, dismissed the plaintiff‘s claims against the only in-state defendant against the plaintiff‘s will.⁴⁶ In 1915, the Supreme Court summarized the voluntary-involuntary rule as elaborated in Whitcomb‘s progeny:

[W]e think it fairly appears from [these сases] that where there is a joint cause of action against defendants resident of the same state with the plaintiff and a nonresident defendant, it must appear, to make the case a removable one as to a nonresident defendant because of dismissal as to resident defendants, that the discontinuance as to such defendants was voluntary on the part of the plaintiff, and that such action has taken the resident defendants out of the case, so as to leave a controversy wholly between the plaintiff and the nonresident defendant.⁴⁷

In short, only the plaintiff‘s voluntary act could create federal diversity jurisdiction.

However, weighing against the seeming imperviousness of the voluntary-involuntary rule are other Supreme Court opiniоns. In the 1878 case of Yulee v. Vose, the plaintiff sued numerous defendants to collect on a judgment that had been entered by the state court of New York in plaintiff‘s favor against a railroad company.⁴⁸ The state trial court dismissed all of the plaintiff‘s claims, but the state court of appeals reversed the judgment as to a single defendant who was an endorser “of the notes on which the judgment was rendered.”⁴⁹ The endorser defendant then sought to remove to federal court on the basis of diversity jurisdiction, since the plaintiff and endorser were citizens of different states.⁵⁰ The state trial court refused to cede its jurisdiction, the endorser lost at trial, and the state court of appeals affirmed the state court‘s jurisdiction and the verdict against the endorser.⁵¹ The United States Supreme Court reversed, holding that the state court of appeals’ decision “put the other defendants out of court, or determined that the suit as to them no longer existed,”⁵² so the out-of-state defendant was entitled to remove the case to federal court and the state trial court was not permitted to exercise its jurisdiction over the case.⁵³ Yulee v. Vose therefore squarely conflicts with the later-developed voluntary-involuntary rule⁵⁴: in 1878, a case was removable after the state court dismissed all non-resident defendants against the plaintiff‘s will, but in 1915, it was not.

Subsequent Supreme Court decisions further obscure the voluntary-involuntary rule. In 1918, the Supreme Court implied that the voluntary-involuntary rule only applied “in the absence of a fraudulent purpose to defeat removal.”⁵⁵ In 1939, the Supreme Court clarified that it is “always open to the non-resident defendant to show that the resident defendant has not been joined in good faith and for that reason should not be considered in determining the right to remove.”⁵⁶ These statements imply that a plaintiff‘s improper or fraudulent joinder of an in-state defendant may furnish grounds for any court, state or federal, to dismiss nondiverse defendants and therefore create or assume federal jurisdiction in spite of the plaintiff‘s objection. In short, the voluntary-involuntary rule is a thicket of jurisprudence⁵⁷ and is, in Morgan‘s words, “notoriously opaque”⁵⁸ such that Supreme Court precedents do not obviously compel any one conclusion with respect to the application of the voluntary-involuntary rule. To determine the propеr application of the voluntary-involuntary rule to this case, the Court must look elsewhere.

Congress could have brought (and possibly did bring) clarity and precision to this issue in 1949, when Congress amended the removal statutes.⁵⁹ The statute, as amended, provided:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.⁶⁰

This Court, in a 1961 opinion by the Honorable Reynaldo Guerra Garza (who was later elevated to the Fifth Circuit), confronted the amended 28 U.S.C. § 1446(b)‘s effect on the Supreme Court‘s jurisprudence on the voluntary-involuntary rule and held that the doctrinal rule “would defeat the purpose of the statute and would thwart the right of a trial in a federal court when the jurisdictional amount permits.”⁶¹ Other district courts in the Fifth Circuit agreed.⁶² But in 1967, in Weems v. Louis Dreyfus Corp., the Fifth Circuit thoroughly rebuked the idea that the amended statute overrode the voluntary-involuntary rule.⁶³ By 1992, every federal Court of Appeals to address “the voluntary/involuntary rule... held that it survived the enactment of section 1446(b).”⁶⁴ These appellate decisions were premised on the legislative history of the statute,⁶⁵ specifically, a single House Report that stated that the amendment to the removal statute “is intended to make clear that the right of removal may be exercised at a later stage of the case if the initial pleading does not state a remоvable case but its removability is subsequently disclosed. This is declaratory of the existing rule laid down by the decisions. (See for example, Powers v. Chesapeake etc., Ry. Co., 169 U. S. 92.).”⁶⁶ (Powers was the 1898 decision that first created the voluntary-involuntary rule).

Nothing supporting this statement may be found in the corresponding Senate Report.⁶⁷ Numerous authorities candidly concede that the language of the statute conflicts with, or is otherwise in tension with, the voluntary-involuntary rule.⁶⁸ One Eastern District of Pennsylvania opinion persuasively argues that the voluntary-involuntary rule did not survive Congress‘s 1949 amendment to the statute.⁶⁹ Nevertheless, this Court is bound by the Fifth Circuit‘s decision in Weems that the voluntary-involuntary rule persists.⁷⁰

“Complicating matters further, . . . the Fifth Circuit issued the Hoyt opinion” in 2019.⁷¹ In Hoyt, the plaintiffs sued two in-state defendants and one out-of-state defendant in state court.⁷² The state court granted summary judgment in favor of one in-state defendant (C.E.N.), and the plaintiffs voluntarily dismissed their claims against the other in-state defendant.⁷³ Five days later, the out-of-state defendant removed to federal court.⁷⁴ The district court denied two motions to remand and the Fifth Circuit affirmed.⁷⁵ The Fifth Circuit held simply, over the dissent of one judge, that the voluntary-involuntary rule did not apply because C.E.N. had been improperly joined.⁷⁶ Hoyt was fully cognizant of Weems and the development of the voluntary-involuntary rule, but held that, since there was no chance that C.E.N. could be brought back into the case because the summary judgment evidence established that C.E.N. simply was not involved in the facts of the case (it did not work on the culvert where the decedent was killed), the plaintiffs’ inability to establish a cause of action against C.E.N. rendered the voluntary-involuntary rule inapplicable.⁷⁷ Morgan insists that Hoyt effectively erased the voluntary-involuntary rule: “[The Hoyt majority held that] even a contested summary judgment fails to implicate the voluntary involuntary rule. If that is not an involuntary dismissal, then nothing is.”⁷⁸ Morgan forewarned that the Fifth Circuit‘s reasoning that the improper joinder rule is an exception to the voluntary involuntary rule “could herald the end of the [voluntary-involuntary] rule.”⁷⁹ This is why Morgan disagreed with Ramirez; Morgan held that Ramirez must be incorrect because “the Supreme Court has held that the voluntary-involuntary rule exists. The Fifth Circuit lacks the authority to overrule it. The voluntary-involuntary rule must have some application.”⁸⁰

However, there is a guiding lantern through the fog. One rule is consistent with the Supreme Court and Fifth Circuit jurisprudence on 28 U.S.C. § 1446(b)(3), the improper joinder rule, and the voluntary-involuntary rule and governs this case: A case may not be removed from state court to federal court on the basis of federal diversity jurisdiction unless (1) the plaintiff voluntarily dismisses all out-of-state defendants, or (2) the plaintiff improperly joined all out-of-state defendants such that no out-of-state defendant may be restored to the case by any court. The first exception is consistent with the voluntary-involuntary rule and preserves its continuing application. The second exception, contrary to Morgan‘s assertions, is also consistent with and does not efface the voluntary-involuntary rule for the following reasons. “Supreme Court cases . . . clearly indicate that the [voluntary-involuntary] doctrine has as its policy cornerstone the considerations of finality and efficiency,”⁸¹ which indicate the rule‘s proper scope. Commentators urge federal courts not to “woodenly” apply to the voluntary-involuntary rule without regard to its scope.⁸² The Second Circuit explained that the purpose undergirding the voluntary-involuntary rulе “is to protect against the possibility that a party might secure a reversal on appeal in state court of the non-diverse party‘s dismissal, producing renewed lack of complete diversity in the state court action,” so when a plaintiff has foregone her right to appeal the involuntary dismissal of nondiverse defendants, she has committed the functional equivalent of a voluntary dismissal,⁸³ which is important because then no court may restore a nondiverse defendant to the case. The Fourth Circuit concurs.⁸⁴ Crucially, the Fifth Circuit endorses this rationale and ‍‌‌​​​​​‌‌​​​‌‌​​‌​‌​​​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​​​‌‌‌‌‌​‍the proper scope of the voluntary-involuntary rule:

[The voluntary-involuntary has] merit in that it prevents removal of those cases in which the issue of the resident defendant‘s dismissal has not been finally determined in the state courts. This avoids the duplication and expense which would result if a resident defendant was dismissed on an appealable ground, the nonresident was permitted to remove, and the plaintiff then obtained a reversal of the dismissal in the state appellate courts. On the other hand, that danger does not arise where a plaintiff voluntarily drops a resident defendant since appeal then is not available, and the elimination of the resident defendant from the case is final.⁸⁵

The second exception also harmonizes Weems with Hoyt despite their seeming inconsistency.⁸⁶ In Weems, the Fifth Circuit denied removal to federal court because the state court‘s directed verdict, “wholly involuntary to the plaintiff, is not final in the sense that it is appealable in the state courts.”⁸⁷ Similarly in Hoyt, the Fifth Circuit affirmed the denial of remand to state court because there was no possibility of an appeal of the state court‘s order remоving the nondiverse defendant.⁸⁸ The second exception also explains and gives application to the en banc Fifth Circuit‘s test for improper joinder. The Fifth Circuit requires this Court to examine “whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated 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.”⁸⁹ The Fifth Circuit‘s high bar for improper joinder does not override the voluntary-involuntary rule, but simply cabins the rule to its rational limitations so that it only has effect when there is the possibility of some court restoring an in-state defendant to the case, which would undo federal diversity jurisdiction.⁹⁰ The second exception is even consistent with the United States Supreme Court‘s 1915 American Car & Foundry Co. v. Kettelhake decision. In that case, the Supreme Court paid special attention to the fact that the “resident defendants had not ‘so completely disappeared from the case as to leave the controversy one entirely between the plaintiff and a nonresident corporation,‘” because the plaintiff had preserved her right to set aside her voluntary nonsuit, so there could be “a section of the suit in the United States court and a section [in state court]” if the state appellate court reversed the state trial court‘s dismissal of nondiverse defendants.⁹¹ Kettelhake, by expressing concern over the true finality of the out-of-state defendant‘s removal from the case, further supports the idea that the voluntary-involuntary rule does not override the improper joinder rule in instances in which there is no possibility that a nondiverse defendant will be restored to the case, which matches the Fifth Circuit‘s test for improper joinder. Wilson v. Republic Iron & Steel Co. further supports this reading.⁹²

Although the Court acknowledges the Northern District of Georgia‘s cogent argument, relied upon in Morgan, that the voluntary-involuntary rule “is not based upon an appealability/finality rationale,”⁹³ the Atlanta court‘s argument is not controlling⁹⁴ and is ultimately unpersuasive in light of the numerous appellate precedents, including in the Fifth Circuit, and scholarly commentary that identify the appealability/finality rationale as the underlying purpose and defining scope of the voluntary-involuntary rule. Similarly, Morgan is not controlling and ultimately unpersuasive in its imprecise holding that the Fifth Circuit has effectively abolished the voluntary-involuntary rule despite lacking the authority to do so.⁹⁵ The Court may read the Fifth Circuit‘s precedents to have folded the voluntary-involuntary rulе into the test for improper joinder,⁹⁶ because nondiverse defendants are only held to be improperly joined (and therefore remand to state court is denied over the plaintiff‘s objection), when the plaintiff has no possibility of recovery against the nondiverse defendants, or alternatively the plaintiff has voluntarily discontinued the plaintiff‘s attempts to pursue claims against all nondiverse defendants. In either case, the finality of the nondiverse defendants’ “exit” from the case is assured⁹⁷ and there is no concern over a later reversal and abolition of federal jurisdiction in the case, which is the whole reason for and only justification supporting the voluntary-involuntary rule.⁹⁸

Accordingly, the Court reaffirms its Ramirez holding that the improper joinder rule governs Defendant Maxum‘s election undеr Texas Insurance Code § 542A.006 and that the voluntary-involuntary rule does not require the Court to reach a different result.⁹⁹ This is not the end of the discussion, however, and the Court turns to the next point.

2. Improper Joinder is Assessed at the Time of Removal vs. Improper Joinder is Assessed at the Time of the Claim

Even if the improper joinder rule governs an insurer‘s § 542A.006 election of liability, Morgan contends that the improper joinder rule does not require remand “because, at the time of filing, [insured plaintiffs] had claims against the non-diverse defendant [adjuster].”¹⁰⁰ Morgan held that Ramirez‘s focus on the plaintiff‘s claims at the time of removal was a misinterpretation of precedent, and that “no Fifth Circuit case holds that the improper-joinder rule requires courts to pretend that a defendant that was initially joined properly became improperly joined later.”¹⁰¹

This Court respectfully disagrees. Morgan‘s central rеasoning is that the requirement that district courts consider the claims as they existed in the plaintiff‘s state court petition at the time of removal—as opposed to the time the plaintiff asserted such claims—“has never been part of Fifth Circuit holdings. None of the holdings cited in either Ramirez or Hoyt relied on the analysis‘s timing. In each opinion, no material facts changed between the plaintiff filing the case and the defendant‘s removal. This phrase is dicta.”¹⁰² But the Fifth Circuit itself has rebuked this reasoning. The Fifth Circuit held that its en banc decision in Smallwood v. Illinois Central Railroad Co.¹⁰³ “‘resolv[ed] issues surrounding removal based on improper joinder’ and ‘provides the procedural framework for deciding whether remand [is] required.’ We have routinely relied on our Smallwood opinion as the authoritative source of our improper-joinder analysis. We have nevеr suggested—much less held—that the analysis we offered there was dicta.”¹⁰⁴ Smallwood, for its part, held that the Court shall find a fraudulent joinder when “the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant,” and the Smallwood court attempted to reduce confusion by adopting that “phrasing of the required proof and reject all others, whether the others appear to describe the same standard or not.¹⁰⁵ Twelve years after Smallwood, the en banc Fifth Circuit clarified in Flagg v. Stryker Corp that, “to determine whether a plaintiff has improperly joined a non-diverse defendant, the district court must examine the plaintiff‘s possibility of recovery against that defendant at the time of removal.”¹⁰⁶ The en banc Fifth Circuit further held that “[j]urisdictional facts are determined at the time of removal,”¹⁰⁷ that district courts “properly discoun[t] the citizеnship” of defendants against whom the plaintiff will be unable to establish a cause of action in state court at the time of removal,¹⁰⁸ and that, when analyzing improper joinder, “the motive or purpose of the joinder of in-state defendants is not relevant,”¹⁰⁹ including if the purpose of joining in-state defendants was to state a valid claim against them in the first place. The Flagg court‘s holding that improper joinder is tested at the time of removal, not when the plaintiff‘s claims are first asserted, is consistent with numerous preceding Fifth Circuit authorities,¹¹⁰ and the Supreme Court‘s long-established holding.¹¹¹ Tellingly, Morgan does not cite Flagg. Contrary to Morgan‘s assertion,¹¹² the Fifth Circuit en banc and otherwise has repeatedly instructed district courts to test improper joinder at the time of removal, not as the plaintiff‘s claims “existed when first made.”¹¹³

Accordingly, the Court may apply the improper joinder tеst to Defendant Maxum‘s election of liability, because the election was filed in state court before removal to federal court,¹¹⁴ and therefore governs whether Plaintiff can state a claim against the nondiverse Truitt at the time of removal.¹¹⁵ However, there is one final hurdle to the application of Ramirez to the facts of this case. The Court turns to Morgan‘s last argument that remand is still required.

3. The Court Must Exercise Diversity Jurisdiction vs. The Court Must Remand a Doubtful Case

Morgan holds that, because a Court must presume a suit lies outside its limited jurisdiction and resolve all doubts and ambiguities in favor of remand, remand is required in the face of confusing precedents governing the improper joinder and voluntary-involuntary rules.¹¹⁶

This Court respectfully disagrees, not with the proposition that doubts and ambiguities in the facts and law should result in remand, but with the proposition that the controlling law is sufficiently ambiguous that remand must be permitted. For all of the rеasons discussed in Sections II.b.1–2 of this opinion, especially the Fifth Circuit‘s decisions illuminating the proper application of the voluntary-involuntary rule and the improper joinder rule, the Court does not find that the Fifth Circuit has left the law in such disarray that the Court is entitled to breezily remand a case over which diversity jurisdiction evidently attaches. The Court may not decline jurisdiction properly vested:

It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. . . . We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to thе constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.¹¹⁷

The canon that removal statutes are to be interpreted strictly against removal and for remand “does not trump a plain language reading of the [removal] statute‘s terms.”¹¹⁸ The Court declines to simply say that there are doubts in the controlling law that require remand, rather than resolving those doubts to the best of the Court‘s ‍‌‌​​​​​‌‌​​​‌‌​​‌​‌​​​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​​​‌‌‌‌‌​‍ability to identify the proper contours of federal and state jurisdiction.

III. CONCLUSION AND HOLDING

In light of Morgan and Kessler,¹¹⁹ the Court reaffirms its September 29, 2020 opinion in Ramirez v. Allstate Property Insurance Co.¹²⁰ Therefore, Defendant Maxum Casualty Insurance Company‘s election of liability for Defendant Truitt under Texas Insurance Code § 542A.006 in state court prior to removal to federal court¹²¹ “effectively and irreversibly dismisses the agent from the case and results in no reasonable basis fоr the District Court to predict that the plaintiff may be able to recover against the agent, thereby resulting in a disregard of the citizenship of the agent for purposes of analyzing diversity jurisdiction under 28 U.S.C. § 1332(a).”¹²² The Court also finds that Plaintiff‘s ad damnum clause for $250,000 or less,¹²³ together with her breach of contract; violation of Texas Insurance Code; unfair insurance practice; knowing deceptive trade practice; breach of the covenant of good faith and fair dealing; exemplary damages; and attorney fees claims for “extensive” damages to Plaintiff‘s commercial strip center‘s “roof, exterior, and suite interiors,”¹²⁴ establish as a matter of “common sense”¹²⁵ that it is “more likely than not that the amount of the claim will exceed” $75,000.¹²⁶

Accordingly, for all the foregoing reasons, the Court GRANTS Defendant Maxum‘s motion to dismiss,¹²⁷ DISMISSES Defendant Truitt from this case with prеjudice, and holds that this Court has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332.

IT IS SO ORDERED.

DONE at McAllen, Texas, this 31st day of August 2021.

Micaela Alvarez

United States District Judge

Notes

1

Dkt. No. 10.

2

LR7.4 (“Failure to [timely] respond to a motion will be taken as a representation of no opposition.“).

3

Dkt. No. 1-3.

4

Plaintiff may have misnamed this Defendant. In one filing, Defendant Maxum refers to Defendant Rodgers Paul Truitt as “Roger Paul Truitt,” Dkt. No. 1-5 at 2, ¶ 1, but in another filing, Defendant Maxum uses “Rodgers Paul Truitt.” Dkt. No. 3 at 2, ¶ 4. The potential misnomer appears to be irrelevant. Compare Dkt. No. 1-5 at 3, ¶ 3 (accepting Truitt‘s liability to Plaintiff Valverde), with TEX. INS. CODE ANN. § 542A.006(a) (West 2021) (providing that “an insurer that is a party to the action may elect to accept whatever liability an agent might have to the claimant for the agent‘s acts or omissions related to the claim“).

5

Id. at 12-13, ¶¶ 10-14.

6

Dkt. No. 1-5.

7

Dkt. No. 1.

8

Dkt. No. 1 at 2, ¶ 4; Dkt. No. 3 at 1, ¶ 1.

9

Dkt. No. 6.

10

Dkt. No. 7 at 1.

11

Id. at 2.

12

Dkt. No. 10.

13

See LR7.3-7.4.

14

Gonzalez v. Guilbot, 255 F. App‘x 770, 771 (5th Cir. 2007) (citing Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996)); see 28 U.S.C. § 1447(c).

15

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

16

Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 323 (5th Cir. 2001); accord Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 294 (5th Cir. 2010)

17

United States v. Ruiz, 536 U.S. 622, 622 (2002).

18

Int‘l Energy Ventures Mgmt. v. United Energy Grp., 818 F.3d 193, 209 (5th Cir. 2016).

19

Camрbell v. Stone Ins., Inc., 509 F.3d 665, 668 n.2 (5th Cir. 2007); see Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939) (holding that removal is to be “determined according to the plaintiffs’ pleading at the time of the petition for removal“).

20

Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995).

21

Corfield v. Dall. Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003); see McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004) (quotation omitted) (“[A]ll persons on one side of the controversy [must] be citizens of different states than all persons on the other side.“).

22

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005).

23

Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 572 (5th Cir. 2004) (en banc) (quoting 28 U.S.C. § 1441(b)).

24

Gray ex rel. Rudd v. Beverly Enters.-Miss., Inc., 390 F.3d 400, 412 (5th Cir. 2004).

25

McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (quoting Smallwood, 385 F.3d at 573).

26

Dkt. No. 10 at 3, ¶ 6.

27

Morgan v. Chubb Lloyds Ins. Co. of Tex., No. 4:21-cv-00100-P, 2021 WL 2102065, at *5 (N.D. Tex. May 25, 2021) (Pittman, J.) (alteration in original) (quoting Ramirez v. Allstate Vehicle & Prop. Ins. Co., 490 F. Supp. 3d 1092, 1105 (S.D. Tex. 2020) (Alvarez, J.)).

28

See Ramirez, 490 F. Supp. 3d at 1110-11 & nn.130-38.

29

Morgan, 2021 WL 2102065; Kessler v. Allstate Fire & Cas. Ins. Co., No. 4:21-cv-00173-P, 2021 WL 2102067 (N.D. Tex. May 25, 2021) (Pittman, J.).

30

Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92, 101 (1898).

31

Dkt. No. 1-5.

32

Maxum‘s receipt of notice that its motion had been filed in state court creates removal jurisdiction under 28 U.S.C. § 1446(b)(3). Cf. Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002).

33

Dkt. No. 1 at 4, ¶ 9.

34

Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 572 (5th Cir. 2004) (en banc) (emphasis in original).

35

McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (quotation omitted).

36

See Ramirez v. Allstate Vehicle & Prop. Ins. Co., 490 F. Supp. 3d 1092, 1107-08 (S.D. Tex. 2020) (Alvarez, J.).

37

Hoyt v. Lane Constr. Corp., 927 F.3d 287, 295 (5th Cir. 2019) (second alteration in original) (emphasis in original) (first quoting Great N. Ry. Co. v. Alexander, 246 U.S. 276, 281 (1918); then quoting Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006)).

38

Morgan v. Chubb Lloyds Ins. Co. of Tex., No. 4:21-cv-00100-P, 2021 WL 2102065, at *1 (N.D. Tex. May 25, 2021).

39

Id. at *10.

40

Id. at *6-10.

41

Id. at *2.

42

Id. at *9 (citing Jeff Fisher, Note, Everybody Plays the Fool, Sometimes; There‘s no Exception to the Rule: Procedural Misjoinder is not an Exception to the Voluntary-Involuntary Rule, 60 BAYLOR L. REV. 993, 1013, 1017 (2008)).

43

See Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92, 102 (1898) (holding that a case was removable because the plaintiff had discontinued its action against all nondiverse citizens).

44

175 U.S. 635, 638 (1900).

45

Id.

46

Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 215 U.S. 246, 249-51 (1909).

47

Am. Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 315-16 (1915).

48

99 U.S. 539, 539 (1878).

49

Id. at 540.

50

Id.

51

Id. at 541.

52

Id. at 544.

53

Id. at 546.

54

See Strandholm v. Gen. Constr. Co., 222 F. Supp. 12 (D. Or. 1963) (holding, under facts similar to those in Yulee, that the voluntary-involuntary rule precluded federal jurisdiction), cited in John D. Hastie, Note, Federal Practice: Removal After Resident Defendant is Involuntarily Dismissed, 17 OKLA. L. REV. 333, 339 (1964).

55

Great N. Ry. Co. v. Alexander, 246 U.S. 276, 282 (1918).

56

Pullman Co. v. Jenkins, 305 U.S. 534, 541 (1939).

57

See Hoyt v. Lane Constr. Corp., 927 F.3d 287, 295 (5th Cir. 2019) (“But this is an area thick with binding precedent.“).

58

Morgan v. Chubb Lloyds Ins. Co. of Tex., No. 4:21-cv-00100-P, 2021 WL 2102065, at *10 (N.D. Tex. May 25, 2021).

59

See Act of May 24, 1949, Pub. L. No. 81-72, 63 Stat. 89.

60

28 U.S.C. § 1446(b) (1952).

61

Parkhill Produce Co. v. Pecos Valley S. Ry. Co., 196 F. Supp. 404, 406 (S.D. Tex. 1961) (Garza, J.).

62

E.g., Lyon v. Ill. Cent. R.R., 228 F. Supp. 810, 811 (S.D. Miss. 1964) (“Something must be read into this statute which the Congress did not write into it before it can be said that a case can become removable from a state court during the trial only in the event a plaintiff voluntarily does something to extricate and completely remove the resident defendant from the suit.“).

63

380 F.2d 545, 549 (5th Cir. 1967) (“We hold that the voluntary-involuntary rule survived the 1949 amendment....“).

64

Poulos v. Naas Foods, Inc., 959 F.2d 69, 72 (7th Cir. 1992) (citing Quinn v. Aetna Life & Cas. Co., 616 F.2d 38, 40 n.2 (2d Cir. 1980); Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir. 1988); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 548 (5th Cir. 1967); In re Iowa Mfg. Co., 747 F.2d 462, 464 (8th Cir. 1984); Self v. Gen. Motors Corp., 588 F.2d 655, 657-60 (9th Cir. 1978); and DeBry v. Transam. Corp., 601 F.2d 480, 486-88 (10th Cir. 1979)).

65

See, e.g., In re Iowa Mfg. Co., 747 F.2d at 464 (holding that the history of the statute “suggests that the [voluntary-involuntary] rule as announced by the Supreme Court” was incorporated into the statute‘s meaning).

66

H.R. REP. NO. 81-352, at 14 (1949), reprinted in 1949 U.S.C.C.A.N. 1254, 1268; cf. Comment, The Effect of Section 1446(b) on the Nonresident‘s Right to Remove, 115 U. PA. L. REV. 264, 270 (1966) (alteration in original) (quoting 95 CONG. REC. 6,246, 6,249 (1949)) (“This legislation was introduced in the House as making “not a single substantive change in the law. This is purely corrective [of the revision of titles 18 and 28 of the United States Code passed on June 25, 1948].“).

67

See S. REP. NO. 81-303, reprinted in 1949 U.S.C.C.A.N. 1248.

68

E.g., DeBry v. Transam. Corp., 601 F.2d 480, 486 (10th Cir. 1979) (“If s 1446(b) were to be given effect in accordance with its terms, removal would be an occasion for redetermining the diversity jurisdiction. There has been, however, a reluctance to give this section literal effect.“); 14C JOAN E. STEINMAN, MARY KAY KANE & A. BENJAMIN SPENCER, FEDERAL PRACTICE ‍‌‌​​​​​‌‌​​​‌‌​​‌​‌​​​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​​​‌‌‌‌‌​‍AND PROCEDURE § 3723 (3d ed. 1998 & Supp. Apr. 2021) (“Read literally the reference to ‘order’ in the statute could permit removal when a non-diverse party is eliminated by a court order related to the merits of the dispute, over plaintiff‘s objection, and some courts have so held.“); 16 JAMES WM. MOORE ET AL., MOORE‘S FEDERAL PRACTICE – CIVIL § 107.140[3][a][ii][C] (4th ed.) (citation omitted) (“Section 1446(b)(3) permits removal within 30 days after receipt by defendant of a paper from which it may first be ascertained that the case is removable. On its face, this appears to conflict with the voluntary-involuntary rule.“); Comment, The Effect of Section 1446(b) on the Nonresident‘s Right to Remove, 115 U. PA. L. REV. 264, 269 (1966) (“It is true that the words of the statute, examined without referring to the legislative history, might be interpreted to sanction this result—i.e., it is not inconsistent with the words of the statute to hold that any ‘order’ of a state court which creates diversity would make the case ‘removable.“).

69

See Bolger v. Utermohlen, 485 F. Supp. 3d 588, 593-94 (E.D. Pa. 2020).

70

Although outside the scope of this Court‘s decision, the Court briefly comments that Weems and similar decisions appear to be grounded on an interpretation of 28 U.S.C. § 1446(b) together with its legislative history, rather than interpreted strictly upon the words of the statute, as more recent Supreme Court decisions command. See, e.g., Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 254 (1992) (quotation omitted) (“When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.“); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020) (“This Court normally interprets a statute in accord with the ordinary public meaning оf its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President.“). The difference between the 54-year-old Weems and seemingly incompatible 2-year-old Hoyt opinion, as the Court will elaborate more fully below, seems easily explicable by the textualist judicial philosophy‘s prevailing over purposivist judicial philosophies in the intervening time. See Diarmuid F. O‘Scannlain, “We Are All Textualists Now“: The Legacy of Justice Antonin Scalia, 91 ST. JOHN‘S L. REV. 303, 304-06 (2017). The Court suggests that the Fifth Circuit firmly clarify the scope of the voluntary-involuntary rule.

71

Morgan v. Chubb Lloyds Ins. Co. of Texas, No. 4:21-cv-00100-P, 2021 WL 2102065, at *6 (N.D. Tex. May 25, 2021).

72

Hoyt v. Lane Constr. Corp., 927 F.3d 287, 291 (5th Cir. 2019).

73

Id. at 291–92.

74

Id. at 292.

75

Id.

76

Id. at 295–96.

77

Id. at 297 n.4 (citing Hoyt v. Lane Constr. Corp., No. 4:17-cv-780-A, 2017 U.S. Dist. LEXIS 222992, at *4–5 (N.D. Tex. Dec. 4, 2017)).

78

Morgan v. Chubb Lloyds Ins. Co. of Tex., No. 4:21-cv-00100-P, 2021 WL 2102065, at *9 (N.D. Tex. May 25, 2021).

79

Id. (quoting Jeff Fisher, Note, Everybody Plays the Fool, Sometimes; There‘s no Exception to thе Rule: Procedural Misjoinder is not an Exception to the Voluntary-Involuntary Rule, 60 BAYLOR L. REV. 993, 1017 (2008)).

80

Id.

81

Self v. Gen. Motors Corp., 588 F.2d 655, 662 (9th Cir. 1978) (Ely, J., dissenting).

82

Note, Removal of Suits to Federal Courts After the Statutory Deadline: An Old Formula Re-Examined, 60 HARV. L. REV. 959, 961–62 (1947); accord Comment, The Effect of Section 1446(b) on the Nonresident‘s Right to Remove, 115 U. PA. L. REV. 264, 274 (1966) (opining that “the only rational reason for having the voluntary-involuntary rule” is “the court‘s interest in avoiding cost, delay and duplication” of court proceedings).

83

Quinn v. Aetna Life & Cas. Co., 616 F.2d 38, 40 n.2 (2d Cir. 1980).

84

See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir. 1988) (“If the plaintiff voluntarily dismissed the state action against the non-diverse defendant, creating complete diversity, the state action may be removed because there is no risk that diversity will be destroyed later on. The voluntary act has demonstrated the plaintiff‘s desire not to pursue the case against the non-diverse party. However, this is not the situation if the non-divеrse party has been involuntarily dismissed by order of the state judge. The plaintiff may choose to appeal the dismissal. Although complete diversity may temporarily exist between the parties, suggesting that removal is proper, diversity jurisdiction may ultimately be destroyed if the state appellate court reverses the dismissal of the non-diverse party. Therefore, some cases are not removable despite complete diversity between the parties.“).

85

Weems v. Louis Dreyfus Corp., 380 F.2d 545, 546 (5th Cir. 1967).

86

The Court finds this approach superior to Morgan‘s decision to openly defy the Fifth Circuit‘s opinion in Hoyt. See Morgan v. Chubb Lloyds Ins. Co. of Tex., No. 4:21-cv-00100-P, 2021 WL 2102065, at *5 n.2 (N.D. Tex. May 25, 2021) (“With due respect to the learned and distinguished Fifth Circuit panel, the undersigned must disagree with [Hoyt‘s] conclusion.“).

87

Id. at 548 (emphasis added); see Jenkins v. Nat‘l Union Fire Ins. Co. of Pa., 650 F. Supp. 609, 612 (N.D. Ga. 1986) (omission in original) (quoting LGP Gem, Ltd. v. Cohen, 636 F. Supp. 881, 883 (S.D.N.Y. 1986) (“The reasoning of the Weems decision indicates that the finality of the dismissal, not the plaintiff‘s participation in it, is the fаctor that determines removability.“)).

88

Hoyt v. Lane Constr. Corp., 927 F.3d 287, 297 & n.4 (5th Cir. 2019). While this Court finds nothing in the opinion that supports the majority‘s conclusion that the plaintiff could not appeal the summary judgment, that was the court‘s finding.

89

McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (emphases added) (quoting Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th Cir. 2004) (en banc)), quoted in Vaillancourt v. PNC Bank, NA, 771 F.3d 843, 847 (5th Cir. 2014) (per curiam).

90

See supra notes 82–85; cf. Insinga v. LaBella, 845 F.2d 249, 254 (11th Cir. 1988) (per curiam) (“Fraudulent joinder is a well established exception to the voluntary-involuntary rule.“).

91

236 U.S. 311, 316–17 (1915) (emphases added).

92

See 257 U.S. 92, 97–98 (1921) (holding, in a case in which the plaintiff sued his diverse employer and nondiverse co-employee, that the plaintiff had only joined the co-employee in bad faith without any intention to prosecute and that the diverse defendant‘s “right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy“).

93

Jenkins v. Nat‘l Union Fire Ins. Co. of Pa., 650 F. Supp. 609, 614 (N.D. Ga. 1986).

94

Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 JAMES WM. MOORE ET AL., MOORE‘S FEDERAL PRACTICE - CIVIL § 134.02[1][d] (3d ed. 2011)) (“A decision of a federal district сourt judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.“).

95

See Morgan v. Chubb Lloyds Ins. Co. of Tex., No. 4:21-cv-00100-P, 2021 WL 2102065, at *9 (N.D. Tex. May 25, 2021).

96

See Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006) (“The tobacco defendants counter that the voluntary-involuntary rule is inapplicable because the health care defendants were not properly-joined parties. We agree.“).

97

See Hoyt v. Lane Constr. Corp., 927 F.3d 287, 297 (5th Cir. 2019).

98

See supra notes 81–92 and accompanying text.

99

See Ramirez v. Allstate Vehicle & Prop. Ins. Co., 490 F. Supp. 3d 1092, 1106–08, 1111 (S.D. Tex. 2020) (Alvarez, J.).

100

Morgan, 2021 WL 2102065, at *8.

101

Id. at *9.

102

Id. at *8 (citations omitted).

103

385 F.3d 568 (5th Cir. 2004) (en banc).

104

Int‘l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., 818 F.3d 193, 207 (5th Cir. 2016) (quoting Holder v. Abbott Labs., 444 F.3d 383, 387 (5th Cir. 2006)).

105

385 F.3d at 573.

106

819 F.3d 132, 137 (5th Cir. 2016) (en banc) (emphasis in original).

107

Id. (alteration in original) (quoting Louisiana v. Am. Nat‘l Prop. & Cas. Co., 746 F.3d 633, 635 (5th Cir. 2014)).

108

Id. at 138.

109

Id. at 136 (quoting Smallwood, 385 F.3d at 574).

110

E.g., Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (emphasis added) (“To determine whether jurisdiction is present for removal, we consider the claims in the state court petition as they existed at the time of removal.“); Chavez v. State Farm Lloyds, 746 F. App‘x 337, 340–41 (5th Cir. 2018) (quotation omitted) (“The court determines whether there is federal jurisdiction based on the claims in the state court petition as they existed at the time of removal.“), abrogated on other grounds by Agredano v. State Farm Lloyds, 975 F.3d 504 (5th Cir. 2020).

111

Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939) (emphasis added) (instructing lower courts to determine a party‘s right to remove to federal court “according to the plaintiffs’ pleading at the time of the petition for removal“).

112

See Morgan v. Chubb Lloyds Ins. Co. of Tex., No. 4:21-cv-00100-P, 2021 WL 2102065, at *8 (N.D. Tex. May 25, 2021).

113

Ramirez v. Allstate Vehicle & Prop. Ins. Co., 490 F. Supp. 3d 1092, 1104 (S.D. Tex. 2020) (Alvarez, J.).

114

See Dkt. No. 1-5.

115

See Ramirez, 490 F. Supp. 3d at 1111 (footnotes omitted) (“Because Defendant [insurer‘s] § 542A.006(a) election cannot be nullified, Plaintiff has no reasonable possibility of establishing a cause of action against the non-diverse party in state court and the Court holds that Defendant‘s election has no reasonable possibility of being reversed on appeal. The Court agrees with Defendants that Defendant [adjuster] was improperly joined at the time of removal.“).

116

Morgan, 2021 WL 2102065 at *10 (first quoting Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001); then quoting Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007); and then quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999)).

117

Cohens v. Virginia, 19 U.S. 264, 404 (1821).

118

Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002).

119

Morgan, 2021 WL 2102065; Kessler v. Allstate Fire & Cas. Ins. Co., No. 4:21-cv-00173-P, 2021 ‍‌‌​​​​​‌‌​​​‌‌​​‌​‌​​​‌​‌​​‌‌‌‌‌‌‌‌‌‌‌​​​​‌‌‌‌‌​‍WL 2102067 (N.D. Tex. May 25, 2021).

120

490 F. Supp. 3d 1092 (S.D. Tex. 2020) (Alvarez, J.).

121

Dkt. No. 1-5.

122

Ramirez, 490 F. Supp. 3d at 1111.

123

Dkt. No. 1-3 at 10, ¶ 2.

124

Id. at 12, ¶ 10.

125

Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995).

126

St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 n.13 (5th Cir. 1998).

127

Dkt. No. 10.

Case Details

Case Name: Valverde v. Maxum Casualty Insurance Company

Court Name: District Court, S.D. Texas

Date Published: Aug 31, 2021

Citations: 558 F.Supp.3d 385; 7:21-cv-00240

Docket Number: 7:21-cv-00240

Court Abbreviation: S.D. Tex.