IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

CHAMPION GLASS, LLC § 

Plaintiff, § 

§ 

v. § CIVIL ACTION NO. 5:20-cv-00484 

§ 

AMCO INSURANCE COMPANY § 

AND JOHNNY F. SOTO III § 

Defendants. § 

NOTICE OF REMOVAL 

Defendant AMCO Insurance Company (“Defendant”), through undersigned counsel and 

pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, files this Notice of Removal of the lawsuit 

captioned Champion Glass, LLC v. AMCO Insurance Company and Johnny F. Soto III; Cause 

No. 2019CI25107; In the 150th Judicial District Court of Bexar County, Texas. 

I. 

BACKGROUND 

1. On December 10, 2019, Plaintiff Champion Glass, LLC (hereinafter “Plaintiff”) 

and Defendant Amco Insurance Company (“AMCO”) filed a Joint Petition for the Court to 

Appoint an Appraisal Umpire in the matter styled Cause No. 2019CI25107; In the 150th Judicial 

District Court of Bexar County, Texas (the “State Court Action”). The Joint Petition contained 

no causes of action and requested the Court appoint an Appraisal Umpire pursuant to the 

provisions of the relevant insurance policy. The Court then selected an Umpire, and the Umpire 

and Appraiser selected by Champion Glass signed an Appraisal Award on or about March 2, 

2020. Plaintiff then filed an Amended Petition on April 9, 2020 seeking to enforce the appraisal 

award, adding adjuster Johnny F. Soto, III (“Soto”) as a defendant and seeking damages against 

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both Soto and Amco.1 The Joint Petition, Order Appointing Appraisal Umpire and the Appraisal 

Award are attached to Plaintiff’s First Amended Petition as Exhibits A, B and C. 

2. Mr. Soto has not yet been served with the lawsuit. 

3. Defendant Amco filed its Original Answer on April 17, 2020, asserting a general 

denial to the claims and allegations made in Plaintiff’s First Amended Petition.2

4. Pursuant to 28 USC § 1446(a), a copy of all process, pleadings, and orders served 

upon Defendant in the State Court Action are incorporated in Exhibit A. 

5. Pursuant to 28 U.S.C. § 1446(d), promptly after filing this Notice of Removal, 

Defendant will give written notice of the removal to Plaintiff through its attorney of record, and 

to the clerk of the 150th Judicial District Court of Bexar County, Texas. 

6. Pursuant to 28 USC §§ 1446(b)(1) and 1446(c)(1), this Notice of Removal has been 

timely filed within 30 days of service on Defendant Amco of Plaintiff’s First Amended Petition 

and less than one year after the commencement of this action. The State Court Action was not 

subject to removal before Plaintiff filed the First Amended Petition because Plaintiff did not seek 

any damages against Amco until Plaintiff filed the First Amended Petition. 

7. Obtaining consent from improperly joined parties for the removal of a case to 

federal court is not necessary.3

II. 

JURISDICTION 

8. This Court has original jurisdiction pursuant to 28 U.S.C. § 1332, and the matter 

is removable to this Court pursuant to 28 U.S.C. § 1441(a) because there is complete diversity of 

1 See Plaintiff’s First Amended Petition and Request to Enforce Appraisal Award, attached as Exhibit A. 

2 See Defendant’s Original Answer, attached as Exhibit B. 

3 See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 2003). 

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citizenship between the properly joined parties and the amount in controversy exceeds $75,000 

exclusive of interest and costs. 

A. Diversity of Parties 

9. Plaintiff is domiciled in Bexar County, Texas.4 Pursuant to 28 U.S.C. § 1332(a), 

therefore, Plaintiff is a citizen of the State of Texas. 

10. Defendant AMCO Insurance Company is organized under the laws of Iowa and 

maintains its principal place of business in Iowa. Pursuant to 28 U.S.C. § 1332(c)(1), therefore, 

Defendant is a citizen of the State of Iowa. 

11. Defendant Johnny F. Soto, III is a resident of Texas. However, Soto has not been 

served. “A non-forum defendant may remove an otherwise removable case even when a named 

defendant who has yet to be ‘properly joined and served’ is a citizen of the forum state.” Tex. 

Brine Co., L.L.C. v. Am. Arbitration Ass’n, No. 18-31184, 2020 U.S. App. LEXIS 10849, at *10 

(5th Cir. 2020). As such, this matter may be removed—despite Soto’s citizenship—because it is 

otherwise removal and Soto has not yet been “properly joined and served.” Further, Soto’s 

citizenship should be disregarded because he has been improperly joined to this action. 

12. Accordingly, there is complete diversity between the parties pursuant to 28 U.S.C. § 

1332(a). 

i. Improper Joinder of Defendant Johnny F. Soto, III

13. A defendant is improperly joined if the moving party establishes that (1) the plaintiff 

has stated a claim against a defendant that it improperly alleges is non-diverse, or (2) the plaintiff has 

4 See Plaintiff’s First Amended Petition ¶ 2. 

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not stated a claim against a defendant that it properly alleges is non-diverse.5 Because Soto is nondiverse, only the latter option is implicated in this case. 

14. A non-diverse defendant is improperly joined if “there is no reasonable basis for 

the district court to predict that the plaintiff might be able to recover against” the non-diverse 

defendant.6 A non-diverse defendant is improperly joined if there is merely a theoretical 

possibility of recovery.7

15. Courts may “conduct a Rule 12(b)(6)-type analysis, looking initially at the 

allegations of the complaint to determine whether the complaint states a claim” against the nondiverse defendant.8

 Under such analysis, the critical question is whether the allegations of 

plaintiff’s petition “contain[s] sufficient factual matter, accepted as true, to state a claim to relief 

under Texas law.”9 In undertaking this decision, courts are to apply the federal pleading 

standards to the asserted state court claims.10 The facts supporting removal must be judged at the 

time of removal.11 A plaintiff’s obligation to provide the grounds for entitlement to relief 

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 

of action will not do.12 Put simply, the plaintiff must plead “enough facts to state a claim to relief 

that is plausible on its face.”13

5

Int’l Energy Ventures Mgmt., LLC v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016). 

6

Id. at 200 (citing Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)); see also Mumfrey v. 

CVS Pharmacy, Inc., 719 F.3d 392, 401 (5th Cir. 2013). 

7 Kling Realty Co. v. Chevron USA, Inc., 575 F.3d 510, 513 (5th Cir. 2009) (quoting Campbell v. Stone Ins. 

Inc., 509 F.3d 665, 669 (5th Cir. 2007)).

8 Kling Realty Co., 575 F.3d at 513. 

9 Trang v. Bean, 600 Fed. App’x 191, 193 (5th Cir. 2015) (internal citations omitted). 

10 Int’l Energy Ventures, 818 F.3d at 200-08. 

11 Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). 

12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Importantly, a court is not to strain to find inferences 

favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal 

conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005). 

13 Twombly, 550 U.S. at 570. 

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16. In this case, Plaintiff has asserted the following causes of action against Soto: Breach 

of Contract, violations of Chapters 541 and 542 of the Texas Insurance Code, violations of the Texas 

Deceptive Trade Practices Act, and Breach of the Duty of Good Faith and Fair Dealing. However, 

Plaintiff’s First Amended Petition fails to plead any factual allegations against Soto to support any of 

the causes of actions brought against him and Plaintiff cannot recover on some of the claims as a 

matter of law. For instance, Plaintiff cannot succeed on his breach of contract claim against Soto 

because Soto was not a party to the insurance contract under which Plaintiff sues.14 Plaintiff also 

cannot recover on his claim of violation of the breach of the duty of good faith and fair dealing since 

the duty of good faith and fair dealing is a non-delegable duty owed by insurance companies to their 

insured.15 In regards to Plaintiff’s claim of violation of Chapter 542 of the Texas Insurance Code, 

Plaintiff would not be able to recover on such a claim as Chapter 542 only applies to insurers and 

does not apply to adjusters.16

17. There is also no reasonable basis for the court to predict that Plaintiff might be able to 

recover on his allegations of violations of Chapter 541 and the DTPA against Soto because Plaintiff 

lumps the allegations on which these claims are based together with his allegations against AMCO. 

14 Avila v. Metro. Lloyds Ins. Co., 2017 U.S. Dist. LEXIS 50361, at *19 (N.D. Tex. 2017) (“It is well settled 

under Texas law that an insurance [adjuster] cannot be held liable for breach of contract or breach of duty 

of good faith and fair dealing absent a contract giving rise to a ‘special relationship’ with the insured.” As 

can be plainly seen from the Policy issued by Amco, Soto is not a party to the Policy. See Policy 

Declarations attached hereto as Exhibit C. 

15 See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (“[Plaintiff] asks this Court to extend the 

common-law duty of good faith and fair dealing...to bind entities and individuals in the insurance industry 

that are not in contractual privity with the claimant. Because the existence of a contract, vesting the insurer 

with "exclusive control over the evaluation, processing, and denial of claims,"...that gives rise to a "special 

relationship" is a necessary element of the duty of good faith and fair dealing, we decline to do so.”) 

16 Tex. Ins. Code § 542.002 (“This subchapter applies to the following insurers whether organized as a 

proprietorship, partnership, stock or mutual corporation, or unincorporated association . . .”); Tex. Ins. 

Code § 542.003(a)-(b) (“(a) An insurer engaging in business in this state may not engage in an unfair claim 

settlement practice. (b) Any of the following acts by an insurer constitutes unfair claim settlement 

practices: . . .”) (emphasis added); Lopez, 197 F. Supp. 3d at 951; Terry v. Safeco Ins. Co. of Am., 930 F. 

Supp. 2d 702, 714 (S.D. Tex. 2013); Mainali Corp., 2015 WL 5098047, at *6 (“Chapter 542 only applies to 

specifically listed ‘insurers,’ and Summers, an adjuster, is not an insurer.”). 

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In the improper joinder context, “[m]erely lumping diverse and non-diverse defendants together in 

undifferentiated liability averments of a petition does not satisfy the requirement to state specific 

actionable conduct against the non-diverse defendant.”17 Because Plaintiff has failed to plead any 

specific actionable conduct against Soto, Plaintiff has failed to state any claim for relief rendering 

removal proper on the basis that Soto was improperly joined. 

B. Amount in Controversy

18. It is facially apparent from Plaintiff’s live petition that the amount in controversy in 

this case exceeds $75,000, rendering removal proper. Generally, “the sum demanded in good faith in 

the initial pleading shall be deemed to be the amount in controversy.”18 Removal is proper if it is 

“facially apparent” from the complaint that the claims asserted exceed the jurisdictional amount.19 In 

addition, penalties, exemplary damages, and attorneys’ fees are included as part of the amount in 

controversy.20

19. Here, Plaintiff seeks “monetary relief over $100,000 but not more than 

$1,000,000.”21 The threshold for diversity jurisdiction, $75,000, is therefore met by the allegations 

of Plaintiff’s First Amended Original Petition. 

20. Plaintiff further seeks compensation for actual damages, attorney’s fees, and preand post-judgment interest. Plaintiff has also alleged that Amco’s conduct was wrongful and done 

17 See Lakeside FBCC, LP v. Everest Indem. Ins. Co., No. SA-17-CV-00491-XR, 2017 WL 3448190, at *3 

(W.D. Tex. Aug. 10, 2017) (Rodriguez, J.) (emphasis in original) (citing Stephenson v. Standard Ins. Co., 

No. SA:12-CV-01081-DAE, 2013 3146977, at *13 (W.D. Tex. Aug. 10, 2017) (Ezra, J.)); see also King v. 

Provident Life and Accident Ins. Co., No. 1:09-CV-989, 2010 WL 2730890, at *3 (E.D. Tex. June 4, 2010). 

18 28 U.S.C. § 1446(c)(2); see also Santiago v. State Farm Lloyds, No. 7:13-CV-83, 2013 WL 1880845, at *1 

(S.D. Tex. May 3, 2013). 

19 Puckitt v. Wells Fargo Bank, N.A., No. G-09-0056, 2010 WL 2635626, at *3 (S.D. Tex. June 28, 2010)

(citing Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)). 

20 See H&D Tire & Automotive-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000); see 

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

21 Plaintiff’s First Amended Original Petition, at ¶ 5. 

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knowingly, entitling him to a trebling of actual damages under the DTPA and Texas Insurance 

Code Chapter 541.22

21. The amount in controversy plainly exceeds $75,000, exclusive of interest and 

costs.23 Accordingly, the amount in controversy requirement of 28 U.S.C. § 1332(b) is satisfied. 

III. 

CONCLUSION 

22. Removal of this action under 28 U.S.C. § 1441(a) is proper as the district courts of 

the United States have original jurisdiction over the matter pursuant to 28 U.S.C. § 1332, and as all 

requirements for removal under 28 U.S.C. § 1446 have been met. 

23. WHEREFORE, Defendant AMCO Insurance Company hereby provides notice 

that this action is duly removed. 

Respectfully submitted, 

/s/ Patrick M. Kemp

Patrick M. Kemp 

Texas Bar No. 24043751 

pkemp@smsm.com 

Robert G. Wall 

Texas Bar No. 24072411 

rwall@smsm.com 

Ethan D. Carlyle 

Texas Bar No. 24031794 

ecarlyle@smsm.com 

Segal McCambridge Singer & Mahoney 

100 Congress Avenue, Suite 800 

Austin, Texas 78701 

(512) 476-7834 

(512) 476-7832 - Facsimile 

ATTORNEYS FOR DEFENDANT 

AMCO INSURANCE COMPANY 

22 Plaintiff’s First Amended Original Petition, at ¶ 32. 

23 See Plaintiff’s First Amended Original Petition. 

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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has been served 

electronically via regular mail this the 17th day of April, 2020 to: 

Carlos E. Solis 

Paul A. Smith, Jr. 

Solis & Smith, P.C. 

12703 Spectrum Drive, Suite 100 

San Antonio, Texas 78249 

carlos@solisandsmithlaw.com 

paul@solisandsmithlaw.com 

Raul A. Rios 

The Rios Law Firm 

1923 Culebra Road 

San Antonio, Texas 78201 

ATTORNEYS FOR PLAINTIFF 

 /s/ Patrick M. Kemp

Patrick M. Kemp 

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