UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

BARBARA SLUSHER DBA SEW CHICK 

Plaintiff, 

v. 

MID-CENTURY INSURANCE 

COMPANY and GINGER NICOLE HESS 

Defendants.

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Case No. 5:20-cv-00607 

State Case No. 2020CI07462

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, 

Defendant Mid-Century Insurance Company, by and through the undersigned counsel of record, 

hereby removes this civil action to the United States District Court for the Western District of 

Texas, San Antonio Division from the 408th Judicial District of Bexar County, Texas, and 

respectfully shows as follows: 

PARTIES 

1. Plaintiff Barbara Slusher DBA Sew Chick (“Plaintiff”) is a resident of Bexar County, 

Texas. 

2. Defendant Mid-Century Insurance Company (“Mid-Century”) is a California corporation 

with its principal place of business in California. 

3. Defendant Ginger Nicole Hess (“Hess”) is a resident of Harris County, Texas who has 

not been served. Furthermore, Hess has been improperly joined as a Defendant in this suit 

solely for purposes of defeating diversity jurisdiction. Therefore, as further described 
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below, Hess’s citizenship should be disregarded for purposes of evaluating diversity in 

this matter. 

PROCEDURAL HISTORY 

4. On April 21, 2020, Plaintiff filed an action against Mid-Century in District Court in 

Bexar County, Texas, Cause No. 2020CI07462 (the “State Court Action”). 

5. A copy of the Petition and Citation from the State Court Action were served on MidCentury’s registered agent for service of process on April 29, 2020. 

6. Plaintiff’s Petition in the State Court Action alleges monetary damages of more than 

$100,000 for breach of contract; breach of the duty of good faith and fair dealing; and 

noncompliance with Chapters 541 and 542 of the Texas Insurance Code including: 

unfair settlement practices, misrepresentation of the insurance policy, failure to 

investigate Plaintiff’s claim within the statutorily mandated time of receiving notice of 

the claim, failure to accept or deny Plaintiff’s claim within statutorily mandated time of 

receiving notice of the claim, and wrongful denial of Plaintiff’s claim. 

7. Plaintiff failed to give the required 60 day pre-suit notice prior to filing and serving her 

claim against Mid-Century as required by Texas Insurance Code §541.154. 

8. On May 12, 2020, after Mid-Century had been served but before its deadline to appear or 

respond to Plaintiff’s Original Petition, Plaintiff filed a First Amended Original 

Complaint adding Hess, the claims adjuster who handled Plaintiff’s claim, as an 

individual Defendant. 

9. Plaintiff’s First Amended Original Petition includes conclusory allegations that Hess 

violated Chapters 541 and 542 of the Texas Insurance Code by: 
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A. misrepresenting one or more material facts and/or policy provisions relating to 

coverage; 

B. failing to attempt in good faith to effectuate a prompt, fair, and equitable 

settlement of a claim with respect to which liability had become reasonably clear; 

C. failing to attempt in good faith to effectuate a prompt, fair, and equitable 

settlement of a claim under one portion of a policy with respect to which liability 

had become reasonably clear in order to influence Plaintiff to settle her claims 

with respect to another portion of the policy; 

D. failing to promptly provide a reasonable explanation for the basis in law or fact 

for denial of Plaintiff’s claims; 

E. refusing to affirm or deny coverage within a reasonable time; 

F. refusing to conduct a reasonable investigation; 

G. ignoring damage known to be covered by the Policy; 

H. creating evidence to provide the carrier with a basis to deny coverage; and/or 

I. conducting an outcome-oriented investigation in order to provide the carrier with 

a basis to deny the claim. 

10. Plaintiff’s First Amended Complaint also alleges Hess and Mid-Century are liable for 

civil conspiracy to accomplish unspecified violations of the Texas Insurance Code. 

11. Plaintiff failed to give the required 60 day pre-suit notice prior to filing her claim against 

Hess as required by Texas Insurance Code §541.154. 

12. Hess has not been served. 

13. On May 20, 2020, Mid-Century informed Plaintiff of its election pursuant to Section 

542A.006 of the Texas Insurance Code to accept liability, if any, Hess may have for acts, 
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omissions, statutory violations or other wrongdoing related to the claim referenced in 

Plaintiff’s First Amended Original Petition. 

14. As a result of Mid-Century Insurance Company's election, Plaintiff has no causes of 

action against Hess. 

VENUE 

15. Under 28 U.S.C. § 1441, any civil action brought in a state court of which the district 

courts of the United States have original jurisdiction may be removed to the district court 

of the United States for the district and division embracing the place where the action is 

pending. The San Antonio Division of the Western District of Texas is the United States 

District and Division embracing Bexar County, Texas, the county in which the State 

Court Action is pending. See 28 U.S.C. § 124(d)(4). 

DIVERSITY JURISDICTION 

16. This Court has original jurisdiction over this action under 28 U.S.C. §1332(a) because 

there is complete diversity of citizenship between the properly joined and served parties 

and the matter in controversy exceeds the sum or value of $75,000 exclusive of interest 

and costs. 

17. Plaintiff is a natural person. Plaintiff was at the time the State Court Action was filed, and 

is currently, domiciled in the state of Texas. Plaintiff was at the time the State Court 

Action was filed, and is currently, a citizen of the state of Texas. See Exhibit A 

(Plaintiff’s Original Petition and Plaintiff’s First Amended Original Petition). 

18. Mid-Century is a California corporation with its principal place of business in California. 

Mid-Century was at the time the State Court Action was filed, and is currently, a citizen 

of the state of California. At the time the State Court Action was commenced, and at the 
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time of removal, Mid-Century was, and remains, diverse in citizenship from the Plaintiff. 

28 U.S.C. § 1332(a)(1). 

19. Plaintiff’s Original Petition and First Original Amended Petition in the State Court 

Action allege damages of more than $100,000 and additionally pleads for costs of suit 

and interest. See Exhibit A (Plaintiff’s Original Petition and Plaintiff’s First Amended 

Original Petition). 

20. The allegations in Plaintiff’s Original Petition and First Original Amended Petition in the 

State Court Action establish the amount in controversy exceeds $75,000, exclusive of 

interests and costs. 

21. Defendant denies that it is liable to Plaintiff for any amount of damages. 

JOINDER OF HESS IS INCOMPLETE 

22. 28 U.S.C 1441(b)(2) prohibits removal only where a forum defendant has been “properly 

joined and served.” 

23. Hess has not been served at the time of removal, and, therefore her presence as a forumstate named defendant cannot render removal improper. 

24. An otherwise proper removal is not rendered defective by the presence of a forum 

defendant in the action who had not been served at the time of removal. Parker v. J.B. 

Hunt Transport, Inc., No. 5:19-CV-969-DAE, 2019 WL 6048002, at *2 (W.D. Tex. Sept. 

12, 2019); LMN Consulting, Inc. v. DaVincian Healthcare, Inc., No. A-18-CV-1085-LY, 

2019 WL 2565281, at *2 (W.D. Tex. Mar. 29, 2019). 

25. Complete diversity is established and removal is proper on this basis alone. 
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JOINDER OF HESS IS IMPROPER

26. Furthermore, Hess has been improperly joined in an attempt to defeat diversity 

jurisdiction. 

27. The doctrine of improper joinder allows the Court to disregard the citizenship of a nondiverse defendant when: (1) there is actual fraud in the pleading of jurisdictional facts; or 

(2) a plaintiff cannot establish a cause of action against the non-diverse party in state 

court. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004). 

28. Plaintiff cannot establish a cause of action against Hess in state court and her citizenship 

is properly disregarded. 

29. When determining if the second ground for improper joinder is met, the Court evaluates 

the pleading under a Fed. R. Civ. P. 12(b)(6) analysis to determine if there is a 

“reasonable basis” to support plaintiff’s claim against the non-diverse party. Smallwood, 

385 F.3d at 573. This requires “a reasonable possibility of recovery, not merely a 

theoretical one.” Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007) (internal 

quotation omitted). 

30. Plaintiff fails to plead facts sufficient to establish a reasonable basis for recovery against 

Hess. Plaintiff’s pleading merely contains vague and conclusory recitations of the alleged 

violations of the Texas Insurance Code with little to no factual support. See Exhibit A 

(Plaintiff’s First Amended Original Petition at 6-8). Specifically, Plaintiff only pleads 

three specific factual allegations with regard to Hess: 1) she had a phone conversation 

with Plaintiff; 2) she sent Plaintiff a denial letter; and 3) a vague allegation about Hess’s 

representation regarding the Policy coverage. See Exhibit A (Plaintiff’s First Amended 

Original Petition at 7). 
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31. Plaintiff’s remaining allegations with regard to Hess do nothing more than track the 

language of the Texas Insurance Code. See Exhibit A (Plaintiff’s First Amended Original 

Petition at 6-8). “Threadbare recitals of the elements of a cause of action supported by 

mere conclusory statements” are not adequate to state a claim under federal standards. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where the facts alleged in the pleading are 

not specific enough to permit the Court to predict a reasonable likelihood of Plaintiff's 

recovery against the defendant, joinder is improper. Barrera v. Allstate Insurance 

Company, Civil Action No. DR–16–CV–0037, 2017 WL 3274469, at *11, 13 (W.D. Tex. 

March 6, 2017); see also Cherry v. Liberty Ins. Corp., C.A. No. 6:17–cv–00274, 2018 

WL 1833252, at *4-5 (W.D. Tex. Feb. 1, 2018). 

32. For example, Plaintiff’s pleading alleges that Hess failed “to attempt in good faith to 

effectuate a prompt, fair, and equitable settlement of a claim with respect to which 

liability had become reasonably clear.” The Texas Insurance Code imposes liability on a 

person engaged in the business of insurance for “failing to attempt in good faith to 

effectuate a prompt, fair, and equitable settlement of . . . a claim with respect to which the 

insurer’s liability has become reasonably clear.” Tex. Ins. Code § 541.060(a)(2)(A). 

Essential to liability under this subsection are (1) that the person had the ability/authority 

to make a settlement of the claim and (2) that the insurer’s liability had become 

reasonably clear. Plaintiff pleads no facts from which the Court could conclude Hess had 

authority to settle Plaintiff’s claim and fails to demonstrate when or how Hess would 

know that the insurer’s liability became reasonably clear. See Messersmith v. Nationwide 

Mut. Fire Ins. Co., 10 F. Supp. 3d 721, 724 (N.D. Tex. 2014) (holding that an adjuster 

cannot be held liable under this section because an adjuster does not have settlement 
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authority on behalf of the insurer). Thus, there is no reasonable basis for the Court to 

predict Plaintiff might recover against Hess. 

33. Plaintiff further pleads that Hess failed “to promptly provide a reasonable explanation for 

the basis in law or fact for denial of Plaintiff’s claims.” The Texas Insurance Code 

imposes liability on a person engaged in the business of insurance for “failing to 

promptly provide a policy holder a reasonable explanation of the basis in the policy, in 

relation to the fact or applicable law, for the insurer’s denial of a claim or offer of a 

compromise settlement of the claim.” Tex. Ins. Code § 541.060(a)(3). Plaintiff fails to 

allege sufficient facts showing how Hess violated this statute. 

34. Likewise, Plaintiff alleges Hess refused “to affirm or deny coverage within a reasonable 

time.” The Texas Insurance Code prohibits a person engaged in the business of insurance 

from “failing within a reasonable time to . . . affirm or deny coverage of a claim to a 

policyholder; or . . . submit a reservation of rights to a policyholder.” Texas Insurance 

Code § 541.060(a)(4). Hess, however, can have no liability under this subsection without 

authority to affirm or deny the claim. See One Way Invs., Inc. v. Century Sur. Co., No. 

3:14-CV-2839-D, 2014 WL 6991277, at *4 (N.D. Tex. Dec. 11, 2014) (holding an 

adjuster cannot be liable under Tex. Ins. Code § 541.060(a)(4) because an adjuster does 

not have authority on behalf of the insurer to affirm or deny coverage of a claim to the 

policyholder). Plaintiff’s generic allegations and lack of specific facts showing that Hess 

had authority to affirm or deny the claim or how Hess allegedly violated this provision do 

not form a reasonable basis of recovery against Hess. 

35. Plaintiff’s civil conspiracy claim fails both because Plaintiff’s pleading fails to support 

the underlying violations and because Plaintiff fails to allege any facts to show a 
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conspiracy between Hess and Mid-Century, again doing nothing more than reciting the 

elements of the cause of action. See Exhibit A (Plaintiff’s First Amended Original 

Petition at 8). 

36. Furthermore, Plaintiff fails to allege how she was damaged by Hess’s alleged violations 

independent from the injury allegedly caused by the wrongful denial of her claim. “There 

can be no recovery for extra-contractual damages for mishandling of claims unless the 

complained of actions or omissions caused injury independent of those that would have 

resulted from a wrongful denial of policy benefits.” Parkan Int., LLC v. Zurich Ins. Co., 

299 F.3d 514, 519 (5th Cir. 2002) (citing Provident American Ins. Co. v. Castaneda, 988 

S.W.2d 189, 198-99 (Tex. 1998)). Plaintiff has failed to plead facts supporting a 

reasonable basis of recovery against Hess because she does not plead independent 

damages caused by Hess which are separate and apart from the alleged damages arising 

out of the alleged wrongful denial of policy benefits by Mid-Century. See Exhibit A 

(Plaintiff’s First Amended Original Petition). Rather, Plaintiff’s Original Petition and 

First Amended Original Petition indicate that the amount of damages Plaintiff is seeking 

is the same as between Mid-Century and Hess. See Exhibit A (Plaintiff’s Original 

Petition and Plaintiff’s First Amended Original Petition). 

37. Because the pleaded facts do not form more than a theoretical basis for recovery, Plaintiff 

fails to allege a cause of action against Hess. 

38. In addition to Plaintiff’s failure to plead facts sufficient to establish a cause of action 

against Hess, Plaintiff has no cause of action against Hess by virtue of Mid-Century’s 

election under Section 542A.006 of the Texas Insurance Code. Mid-Century made its 
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election before Hess was served, and, as a result, no cause of action exists as to Hess. 

Tex. Ins. Code. § 542A.006(b). 

39. In a case where the Plaintiff’s pleading has “omitted discrete facts that would determine 

the propriety of joinder,” a court “may, in its discretion, pierce the pleadings and conduct 

a summary inquiry.” Smallwood, 385 F.3d at 573. The Court may consider MidCentury’s Section 542A.006 election letter as part of its jurisdictional inquiry. Electro 

Grafix, Corp. v. Acadia Ins. Co., Civil Action No. SA-18-CA-589, 2018 WL 3865416, at 

*4 (W.D. Tex. Aug. 14, 2018). 

40. Jurisdiction is fixed at the time of removal, and the jurisdictional facts supporting 

removal must be examined as of the time of removal. La. v. Am. Nat'l Prop. Cas. Co., 

746 F.3d 633, 636-37 (5th Cir. 2014); Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 

883 (5th Cir. 2000); see also Barrera v. Allstate Ins. Co., Civil Action No. DR–16–CV–

0037, 2017 WL 3274469, *6 (W.D. Tex. March 6, 2017); Dean v. State Farm Lloyds,

No. 5:16–CV–1321, 2017 WL 5197872, at *3 (W.D. Tex. June, 13, 2017). 

41. When an insurer makes an election under Section 542A.006, it is final and cannot be 

revoked or nullified, and it requires that the agent must be dismissed from the action, 

rendering a plaintiff “unable (not merely unlikely) to succeed on their claims” against a 

non-diverse agent. See Tex. Ins. Code §§ 542A.006(b), (c), (f); Flores v. Allstate Vehicle 

and Property Insurance Co. Company, Civil Action No. SA-18-CV-742, 2018 WL 

5695553, at *5 (W.D. Tex. April 22, 2019). Accordingly, where a diverse insurer elects 

to accept liability for a non-diverse defendant under Section 542A.006, and that election 

establishes the impossibility of recovery against the non-diverse defendant in state court 

at the time of removal, the non-diverse defendant is improperly joined and its citizenship 
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may be disregarded for diversity jurisdiction purposes. Bexar Diversified MF-1, LLC v. 

General Star Indemnity Co., SA-19-CV-00773, 2019 WL 6131455, at *4 (W.D. Tex. 

Nov. 18, 2019); Yan Qing Jiang v. Travelers Home and Marine Ins. Co., 1:18-CV-758, 

2018 WL 6201954, at *2 (W.D. Tex. Nov. 28, 2018); Electro Grafix, Corp., 2018 WL 

3865416, at *4. 

REMOVAL IS TIMELY 

42. Under 28 U.S.C. § 1446(b), an action is timely removed if the notice of removal is filed 

within thirty days after receipt by the defendant of a copy of the initial pleading setting 

forth the claim for relief upon which such action or proceeding is based, or within thirty 

days after the service of summons if such initial pleading has been filed in court and is 

not required to be served on the defendant. Mid-Century was served with a copy of 

Plaintiff's initial pleading in the State Court Action on April 29, 2020. This Notice of 

Removal is being filed within thirty days after service of Plaintiff's initial pleading. As 

such, this removal is timely. 

 PROCEDURAL REQUIREMENTS 

43. Mid-Century has complied with all applicable provisions of 28 U.S.C. § 1441 et seq., the 

applicable Federal Rules of Civil Procedure, and the Local Rules of this District. 

44. Mid-Century attached hereto those materials required to be filed upon removal in 

accordance with the applicable provisions of 28 U.S.C. § 1441 et seq., the applicable 

Federal Rules of Civil Procedure, and the Local Rules of this District. Additionally, the 

filing fee has been tendered to the Clerk of the United States District Court for the 

Western District of Texas, San Antonio Division, along with the original Notice of 

Removal. 
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45. Pursuant to 28 U.S.C. § 1446(d), Mid-Century shall file a copy of this Notice of Removal 

with the District Clerk of Bexar County, Texas and the Clerk of the 408th Judicial 

District, the Court where the State Court Action is pending. 

46. True and correct copies of the following documents are attached in support of this Notice 

of Removal: 

A. Exhibit A – All pleadings asserting causes of action, and all answers to such 

pleadings filed in the State Court Action; 

B. Exhibit B – The docket sheet from the State Court Action; 

C. Exhibit C – A list of all counsel of record, including addresses, telephones and 

parties represented; 

D. Exhibit D – Notice of Filing Notice of Removal to be filed in State Court Action; 

and 

E. Exhibit E – Mid-Century’s May 20, 2020 Section 542A.006 election letter. 

WHEREFORE, Mid-Century prays that this Honorable Court take full jurisdiction of this 

action as if it had been originally filed here to the exclusion of any further proceedings in the 

State Court Action, in accordance with law, and for any such other or further relief to which 

Mid-Century may show itself entitled to herein. 

Dated: May 20, 2020 
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Respectfully submitted, 

By: /s/ Bruce D. Oakley 

Bruce D. Oakley 

Texas SBN 15156900 

HOGAN LOVELLS US LLP 

609 Main Street, Suite 4200 

Houston, Texas 77002 

T (713) 632-1400 

D (713) 632-1420 

F (713) 632-1401 

bruce.oakley@hoganlovells.com 

Counsel for Defendant 

Mid-Century Insurance Company 

CERTIFICATE OF SERVICE 

I hereby certify that on May 20, 2020, all counsel of record received service of this 

document via the Court’s electronic-filing system. 

 /s/ Bruce D. Oakley 

Bruce D. Oakley