Galindo v. Allstate Fire and Casualty Insurance Company et al DO NOT DOCKET. CASE REMANDED to the 125th Judicial District Court of Harris County, Texas)., No. 4:2021cv01869 - Document 9 (S.D. Tex. 2021)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND - Pltf's 4 MOTION to Remand is GRANTED, and this case is REMANDED to the 125th District Court of Harris County, Texas...*** Case terminated on 9/21/21. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Galindo v. Allstate Fire and Casualty Insurance Company et al...rict Court of Harris County, Texas). Doc. 9 Case 4:21-cv-01869 Document 9 Filed on 09/21/21 in TXSD Page 1 of 4 United States District Court Southern District of Texas ENTERED September 21, 2021 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MARIBETH GALINDO, Nathan Ochsner, Clerk § § Plaintiff, § § V. § TIMOTHY G. JACKSON and ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, § CIVIL ACTION NO. H-21-1869 § § § § Defendants. § MEMORANDUM OPINION AND ORDER OF REMAND Plaintiff Maribeth Galindo ("Plaintiff") filed this action on June 1, 2021, against defendants Timothy G. Jackson ("Jackson") and Allstate Fire and Casualty (collectively, "Defendants") Harris Texas, County, Insurance in asserting the Company 125th claims of ("Allstate") District negligence Court of against Jackson and underinsured · motorist protection against Allstate. 1 Ross filed a Notice of Removal on June 9, 2021. 2 the court is Plaintiff's Motion to Remand Pending before (Docket Entry No. 4). 1 Plaintiff's Original Petition ("Original Petition"), Exhibit C to Defendant Allstate's Notice .of Removal ("Notice of Removal"), Docket Entry No. 1-3, pp. 4-s 1f 9-16. All page numbers for docket entries in the record refer to the pagination inserted at the top of the page by the court's electronic filing system, CM/ECF. 2 Notice of Removal, Docket Entry No. 1. Dockets.Justia.com Case 4:21-cv-01869 Document 9 Filed on 09/21/21 in TXSD Page 2 of 4 For the reasons stated below, Plaintiff's Motion to Remand will be granted. It is undisputed that Allstate is an Illinois corporation and that Plaintiff and Jackson are both Texas citizens. 3 lack of diversity nonetheless 1332, means Plaintiff removed Plaintiff's U.S.C. § 1332. 4 § between action to Jackson, this Allstate court under 28 "To properly allege diversity jurisdiction under the parties need to allege 'all and Despite the persons on one side of 'complete diversity.' the controversy [must] That be citizens of different states than all persons on the other side.'" Midcap Media Finance, F.3d 310, 313 L.L.C. (5th Cir. 2019) v. Pathway Data, Incorporated, 929 (quoting McLaughlin v. Mississippi Power Co., 376 F.3d 344, 353 (5th Cir. 2004)). Allstate relies on the "snap removal" provision, § 1441(b) (2), 28 U.S. C. to argue that removal was proper because the non- diverse defendant (Jackson) had not yet been served at the time of removal. 5 Allstate also relies on Texas Brine Company, L.L.C. v. American Arbitration Association, Inc., 955 F. 3d 482 (5th Cir. 2020) and Mirman Group, LLC v. Michaels Stores Procurement Company, Inc., Civil Action No. 3:20-CV-1804-D, 2020 WL 5645217 (N.D. Tex. See Notice of Removal, Docket Entry No. 1, p. 3 ~~ 11-13; Plaintiff's Motion to Remand,. Docket Entry No. 4, p. 6 ~ 7 ( stating that "Plaintiff and Defendant Jackson are both Texas citizens."). 3 4 See Notice of Removal, Docket Entry No. 1, p. 2 5 Response to Remand, Docket Entry No. -2- s, p. l ~~ ~ 9. 1-2. Case 4:21-cv-01869 Document 9 Filed on 09/21/21 in TXSD Page 3 of 4 Sept. 22, 2020) to support this argument. 6 misplaced. Under 28 U.S.C. Allstate's reliance is 1441(b) (2), § [a] civil action otherwise removable solely on the basis of the jurisdiction under [28 U.S.C. § 1332(~)] may not be removed 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. The question in Brine was whether 28 U.S.C. § 144l(b) (2) prohibits a non-forum defendant from removing a case when a notyet-served defendant is a citizen of the forum state. F.3d at 485. Brine, 955 The Fifth Circuit concluded that it does not, id. at 486, but only after recognizing that the rule of the statute "is a procedural rule and not a jurisdictional one." Id. at 485. The ruling in Brine depended on the fact that "the district court had subject-matter jurisdiction because each defendant was diverse from the plaintiff." at *2 Id. (concluding The same was true in Mirman, 2020 WL 5645217, that § 1441 (b) (2) did not preclude removal "because Mirman and Michaels [were] completely diverse citizens"). "[T]he very issue of snap removal presupposes that the citizenship of the unserved forum defendant matters for determining diversity." Bingabing v. Estate of Warren, 2020 WL 3639662, at *2 (N.D. Civil Action No. Tex. July 6, 2020) 3:20-cv-0951-B, " [W] he ther a defendant is served or unserved is irrelevant for jurisdictional purposes." 6 Id. at *3. Id. at 1-2 ~~ 1, 3. -3- Case 4:21-cv-01869 Document 9 Filed on 09/21/21 in TXSD Page 4 of 4 The court concludes that it lacks subject matter jurisdiction over this action because Plaintiff and Jackson are both citizens of Texas. See 28 U.S.C. § 1332. Accordingly, Plaintiff's Motion to Remand (Docket Entry No. 4) is GRANTED, and this case is REMANDED to the 125th District Court of Harris County, Texas. The Clerk will promptly provide a copy of · this Memorandum Opinion and Order of Remand to the District Clerk of Harris County, Texas. SIGNED at Houston, Texas, on this 21st day of September, 2021. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -4-
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