When a claim gets denied and the insured has to file a lawsuit, a decision has to be made as to which Court the lawsuit should be filed. For the insured, that decision is usually to file suit in the State or County Court. However, the insurance company is virtually always going to remove the case to Federal Court when it can do so.
The above brings us to a 2020, opinion from the Western District of Texas, San Antonio Division. The opinion styled, Pablo Cerda v. Allstate Fire and Casualty Insurance Company, discusses what sometimes happens if everything is not done properly by the attorney.
The undisputed facts show Cerda filed an Original Petition in State Court naming Allstate as the sole defendant on March 27, 2020. On May 6, 2020, at 3:21 p.m., Allstate filed in this Federal Court its Notice of Removal, attaching the Original Petition and other required documents. Also on May 6, 2020, at 3:27 p.m., Cerda filed in State Court a First Amended Petition. Finally, at 3:51 p.m., on May 6, 2020, Allstate filed in State Court its Notice of Removal of the case to this federal court.
Cerda then moved to remand the case to State Court adding a non-diverse defendant. While Cerda produces and attaches to his Motion to Remand a Notice of Filing of the First Amended Petition, he does not attach, or otherwise present to this Court, a copy of the First Amended Petition. Cerda did not seek leave to amend his Complaint in this Court. Cerda also asserts in his Motion to Remand he served Mr. Tate by electronic service in state court. The proof of filing shows only Allstate’s attorney received notice of this filing through electronic service. This form of service does not appear to be proper pursuant to Federal Rule 4(e), or Texas Rule 106(a), or Texas Rule 107(a)-(c). Cerda does not produce or otherwise present to this Court any proof of service pursuant to the Federal or Texas Rules of Civil Procedure. At the Initial Pretrial hearing held on August 12, 2020, Cerda stated he does not intend to seek leave to amend the Original Complaint, that is, the Original Petition filed in state court. The Scheduling Order deadline to amend pleadings is now passed.
At the time Allstate removed this action to this Court on May 6, 2020 at 3:21p.m., Cerda’s Original Petition was the live pleading. Allstate properly attached the Original Petition to the Notice of Removal, and this Original Petition is properly before the Court. Allstate’s Notice of Removal, and the Original Petition satisfy its burden to demonstrate both the jurisdictional basis for removal and compliance with the requirements of the removal statute.
Cerda asserts in his Motion to Remand that he filed in state court a First Amended Petition adding Tate, a non-diverse defendant. However, Cerda did not attach the First Amended Petition to his Motion to Remand or otherwise present it to this Court. Cerda does not dispute he filed the First Amended Petition only in state court after Allstate removed the case to this Court. Therefore, the First Amended Petition is not part of the record this Court may review. Cerda’s reference to the First Amended Petition in his Motion to Remand is not evidence. Cerda indicated to this Court he does not intend to seek leave to amend his Complaint pursuant to 28 U.S.C., Section 1447(e), and the Scheduling Order deadline to do so is now passed. Consequently, the Complaint and evidence properly before this Court demonstrate the only named defendant at the time of removal, Allstate, holds diverse citizenship from Cerda and is not a citizen of Texas. These facts are undisputed. Consequently, Allstate demonstrates this Court held diversity jurisdiction at the time of removal, and Cerda has not shown any evidence to refute this showing. Cerda’s Motion to Remand is denied on this basis.