Opinion
NO. 4:01-CV-0611-A
August 30, 2001
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of plaintiff, John P. Dougherty, Jr., to remand and the motion of defendant State Farm Lloyds ("State Farm") to dismiss fraudulently joined defendant or, in the alternative, for partial summary judgment. The court, having considered the motions, the responses, the record, and applicable authorities, finds that the motion to remand should be denied and that the motion to dismiss should be granted.
I. Plaintiff's claims
On June 4, 2001, plaintiff filed his original petition in the 236th Judicial District Court of Tarrant County, Texas. On July 16, 2001, State Farm filed its notice of removal, bringing the action before this court. Plaintiff alleges that plumbing leaks caused foundation damage to his home, which was insured by State Farm. Plaintiff asserts causes of action for breach of contract, unfair insurance practices under Article 21.21 of the Texas Insurance Code and in violation of the Texas Deceptive Trade Practices — Consumer Protection Act, and for the breach of the duty of good faith and fair dealing. Plaintiff joins as a defendant Grace A. Nivens ("Nivens"), State Farm's claims adjuster.
II. Grounds of the Motions
Plaintiff contends that this action should be remanded to the state court, because complete diversity jurisdiction does not exist. State Farm, on the other hand, alleges that Nivens was fraudulently joined in order to defeat diversity jurisdiction.
III. Standard of Review
The presence of Nivens as a defendant is to be disregarded for removal purposes if her joinder was fraudulent. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). Whether a case has been properly removed despite the presence in the suit of a resident defendant is determined by reference to the plaintiff's state court pleadings.Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999);Tedder v. FMC Corp., 590 F.2d 115, 116-17 (5th Cir. 1979). If there is no reasonable basis for predicting that state law might impose liability on the resident defendant under the facts alleged, then the claim is deemed fraudulent and its presence will not prevent removal.Tedder, 590 F.2d at 117. The court can consider affidavits and other evidentiary material in making such a prediction. B., Inc., 663 F.2d at 549. The court is obliged to resolve any contested issues of material fact and any ambiguity or uncertainty in the controlling state law in plaintiff's favor. Griggs, 181 F.3d at 699.
IV. Law Applied to the Facts
Plaintiff alleges that the foundation of his home has experienced differential movement as a result of plumbing leaks and that State Farm, in an effort to avoid paying his claim, hired a biased engineer to conduct an investigation of the cause of the damage to plaintiff's home. Further, State Farm, acting by and through its agents and employees, deliberately misrepresented the terms of the policy and wrongfully refused to pay for the damages to plaintiff's home. Plaintiff alleges that Nivens: (1) "represented the policy provided coverage for damage caused as a result of plumbing leaks"; (2) "disregarded all pertinent evidence relevant to why this damage was caused by the plumbing leaks"; (3) "failed to fully and properly investigate plaintiff's claim"; and (4) "engaged in an unconscionable course of action by misrepresenting and concealing material facts in connection with this insurance claim." Pl.'s Original Pet. at 4.
Plaintiff does not allege any specific facts to support a contention that he was damaged as a result of Nivens's actions. See TEX. INS. CODE ANN. art. 21.21, § 16(a). Rather, the record reflects that plaintiff's petition is simply a standard form petition developed for use in similar cases, and that such form is "purposefully designed to defeat federal court jurisdiction." Pl.'s Mot. to Remand at 5. The basis of plaintiff's motion to remand is that his attorney has been successful in remanding similar fraudulently pleaded cases and should also prevail in this instance. He does not make any attempt to show that he has a legitimate claim against Nivens. Indeed, Nivens has never been served and there is no indication that plaintiff intends to proceed further against her.
The only damages identified are those arising out of the alleged breach of contract, that is, failure of State Farm to pay plaintiff's claim.
The court is satisfied that the facts of this case fit the pattern ofGriggs, 181 F.3d 694. See also Bailey v. State Farm Lloyds, No. H-00-3638 (S.D. Tex. Apr. 12, 2001). Plaintiff does not contend in his response to the motion to dismiss that he can prevail on his breach of contract and breach of duty of good faith and fair dealing claims. The mere hypothetical possibility that another cause of action might exist against Nivens is insufficient to defeat the claim of fraudulent joinder. Griggs, 181 F.3d at 701. State Farm has shown that plaintiff has no legitimate claims against Nivens and that she was fraudulently joined to defeat diversity jurisdiction.
See Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex. 1995) (distinguishing the liability of a corporation and an individual for breach of contract).
See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 697-98 (Tex. 1994) (special relationship giving rise to duty of good faith and fair dealing exists only between insured and insurer as a result of the contract between them).
IV. ORDER
For the reasons discussed herein,
The court ORDERS that plaintiff's motion to remand be, and is hereby, denied and that State Farm's motion to dismiss be, and is hereby, granted and that plaintiff's claims against Nivens be, and are hereby, dismissed for failure to state a claim upon which relief can be granted.
The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of plaintiff's claims against Nivens.