{00518390}

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

ROBERT L. GONZALEZ §

§

Plaintiffs, §

§

v. §

§

ALLSTATE FIRE AND CASUALTY 

INSURANCE COMPANY AND COREY 

TATE

§

§

§

Defendants. §

DEFENDANT ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY’S

NOTICE OF REMOVAL

TO THE HONORABLE COURT:

Defendant Allstate Fire and Casualty Insurance Company hereby removes this lawsuit 

which is currently pending in 83rd JUDICIAL DISTRICT, Val Verde County, Texas, Cause No. 

CAUSE NO.34767, to the United States District Court for the Western District of Texas, Del Rio

Division, pursuant to 28 U.S.C. §§ 1441 and 1446, on the grounds of diversity of citizenship, and 

would respectfully show the Court as follows:

BACKGROUND 

1. On August 29, 2019, Plaintiff filed his Original Petition, on February 11, 2020 

Plaintiff effectuated service on his Original Petition. The Original Petition is styled ROBERT L. 

GONZALEZ v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY AND COREY TATE,

in which Plaintiff alleges contractual and extra-contractual causes of action based on a claim for 

underinsured motorist benefits against Allstate and a claim for negligent misrepresentation against 

Allstate’s adjuster, COREY TATE. See Exhibit A (Plaintiff’s Original Petition).

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2. Plaintiff alleges that he was in an automobile accident, that Allstate provided him 

underinsured motorist coverage, that Allstate gave him permission to settle his claim against the 

allegedly at-fault driver (“the tortfeasor”), and that he settled his claim for the tortfeasor’s liability 

carrier’s policy limits. Id., ¶ 7. Plaintiff sues to establish his right to UIM benefits and for extracontractual causes of action. Id., ¶¶ 8–9.

3. Plaintiff further alleges that Defendant TATE is an employee of Allstate and was 

responsible for misrepresenting the terms, advantages, or other aspects of the police with regards 

to underinsured motorist benefits. Id., ¶ 11. 

4. From Plaintiff’s petition, it is clear that he does not have a judgment against the 

tortfeasor or Allstate establishing his right to receive benefits under the 

5. Plaintiff served Defendant with Plaintiff’s Original Petition and process on 

February 11, 2020, by certified mail on its registered agent. See Exhibit B (Transmittal of Service 

of Process). 

6. Defendant Allstate filed its original answer on March 9, 2020. See Exhibit C 

(Original Answer).

7. As by the online docket sheet from the Val Verde County Clerk, the original 

petition and answer constitute the state court’s complete file. See Exhibit D (online docket sheet 

from Val Verde County County Clerk)

8. Plaintiff affirmatively pleads for monetary relief between $200,000.00 and 

$1,000,000.00. Exhibit A, ¶ 2.

GROUNDS FOR REMOVAL

9. This Court has original jurisdiction of this suit based on 28 U.S.C. § 1332(a) 

because this suit involves a controversy between citizens of different states as to the properly 

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joined parties. Further, the amount in controversy, exclusive of interest and costs exceeds 

$75,000.00. 

A. Properly Joined Parties are Diverse

10. Plaintiff is a natural person who affirmatively alleges that he is a Texas resident. 

See Exhibit A, ¶ 3.

11. Defendant Allstate Fire and Casualty Insurance Company is an Illinois corporation 

with its principle place of business in Illinois and is a citizen of Illinois.

12. Defendant COREY TATE is alleged to be an insurance adjuster for Allstate and a 

resident of Texas, However, TATE has been improperly joined in this action solely to defeat 

diversity jurisdiction. There is no plausible cause of action against TATE. His residency should 

therefore be disregarded for purposes of evaluating diversity in this matter.1

B. Improper Joinder of COREY TATE

13. The doctrine of improper joinder, or fraudulent joinder, ensures that the presence 

of an improperly joined, non-diverse defendant does not defeat federal removal jurisdiction 

premised on diversity. Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009). Citizenship 

of an improperly joined party is totally disregarded in determining the Court’s subject matter 

jurisdiction. Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2003).

14. To show improper joinder, the removing party must show that there is no 

reasonable basis for the district court to predict that the plaintiff might be able to recover against 

the in-state defendant.” McDonald v. Abbot Labs., 408 F.3d 177, 183 (5th Cir. 2005). To determine 

that an in-state defendant has been improperly joined, the court must find that (1) the plaintiff has 

fraudulently alleged that a defendant is non-diverse, or (2) the plaintiff has failed to state a claim 

 

1 Because Allstate contends Defendant TATE is improperly joined, his consent to removal is not required. See 

Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993).

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against the non-diverse defendant. Smallwood, 385 F.3d at 573. In making this determination, a 

federal court must look to the original state court pleading but apply the federal pleading standard. 

Int’l Energy Ventures Mgmt., LLC v. United Energy Grp., Ltd., 818 F.3d 193, 205 (5th Cir. 2016).

15. The court may resolve claims of improper joinder by conducting a Rule 12(b)(6)-

type analysis. Smallwood, 385 F.3d at 573. The analysis requires the complaint must contain 

“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 547, 127 S. Ct. 1955 (2007). “A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1973 (2009).

16. Plaintiff’s claim for negligent misrepresentation must fail because he has no 

judgment against the tortfeasor or Allstate establishing his right to receive benefits under the 

policy, as apparent from his pleading. Underinsured motorist insurance (UIM) coverage “protects 

insureds who are legally entitled to recover from owners or operators of...underinsured motor 

vehicles damages for bodily injury... .” TEX. INS. CODE § 1952.101 (emphasis added); see also id. 

§ 1952.106 (requiring UIM coverage to “provide payment to the insured of all amounts that the 

insured is legally entitled to recover as damages”). “Legal entitlement” is a term of art in the UIM 

context. To be “legally entitled” to recover UIM benefits, an insured must have a judgment that 

establishes the liability of a third-party and the insured’s damages. Id. at 818. Until an insured 

obtains such a judgment, the insurer’s contractual obligation to pay benefits simply does not arise. 

See id.; see also Wellisch v. United Servs. Auto. Ass’n, 75 S.W.3d 53, 57 (Tex. App.—San Antonio 

2002, pet. denied) (“[A]n insurer has the right to withhold payment of UIM benefits until the 

insured’s legal entitlement is established.”). Stated another way, the covered event in UIM 

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litigation is not the accident itself, but rather the insured’s establishment of the fact via judgment 

that she is entitled to benefits in excess of the tortfeasor’s available policy limits.

17. Because of the unique nature of UIM insurance, Plaintiff has no reasonable basis 

to recover against TATE for negligent misrepresentation. The elements of negligent 

misrepresentation are: (1) the representation is made by a defendant in the course of his business, 

or in a transaction in which he has a pecuniary interest; (2) the defendant supplies “false 

information” for the guidance of others in their business; (3) the defendant did not exercise 

reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff 

suffers pecuniary loss by justifiably relying on the representation. Fed. Land Bank Ass’n of Tyler 

v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991).

18. Plaintiff alleges that Tate issued, circulated, or made a statement misrepresenting 

the police or benefits under the policy, among other conduct See Exhibit A, ¶¶ 7, 11. Plaintiff 

cannot show these are misrepresentations: they are an accurate statement of Texas law regarding 

UIM insurance. Furthermore, Plaintiff cannot show any pecuniary loss from any alleged 

misrepresentation. Plaintiff has not yet obtained a judgment establishing Allstate’s obligation 

under the policy to pay UIM benefits for any of Plaintiff’s alleged damages. Plaintiff’s problem is 

that he has no judgment showing that his bodily injury damages from the collision exceeded the 

tortfeasor’s liability coverage, i.e., that the tortfeasor is underinsured. Accordingly, Plaintiff has 

no reasonable chance of recovery against TATE, and TATE should be dismissed without prejudice 

from the lawsuit.

C. Amount in Controversy 

19. The party seeking federal jurisdiction must prove by a preponderance of the 

evidence that the amount in controversy exceeds $75,000.00. Grant v. Chevron Phillips Chem. Co. 

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L.P., 309 F.3d 864, 868 (5th Cir. 2002). The removing party may satisfy its burden by either 

(1) demonstrating that it is “facially apparent” from the petition that the claim likely exceeds 

$75,000.00, or (2) “by setting forth the facts in controversy—preferably in the removal petition,

but sometimes by affidavit—that support a finding of the requisite amount.” Allen v. R & H Oil 

& Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). 

20. Here, it is facially apparent from Plaintiff’s petition that the claim exceeds 

$75,000.00. Specifically, Plaintiff alleges he seeks monetary relief between $200,000 and 

$1,000,000. See Exhibit A, ¶ 2.

21. Based on the foregoing, the amount in controversy exceeds $75,000.00. 

REMOVAL IS PROCEDURALLY PROPER

22. This notice of removal is timely filed within thirty (30) after service of process upon 

Defendant. See 28 U.S.C. §1441(b)(1).

23. Venue is proper in this Court under 28 U.S.C. §1441(a) because this District and 

Division of this Court embraces Val Verde County, Texas, the place where the State Court suit 

was filed. 

24. Pursuant to 28 U.S.C. §1446(a), all pleadings, process, and orders served upon 

Defendant in the state court action are attached herein as Exhibit A and Exhibit C. Furthermore, 

Exhibits A, and C contain all the pleadings and orders filed in the state court.

25. Pursuant to 28 U.S.C. §1446(d), Defendant will promptly provide a true and correct 

copy of this Notice of Removal to Plaintiff and to the County Clerk of Val Verde County. 

PRAYER FOR RELIEF

26. Defendant Allstate Fire and Casualty Insurance Company prays that the Court 

accept jurisdiction over the state court action for the reasons set forth above, dismiss Defendant 

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TATE without prejudice as improperly joined, and grant Defendant any such other and further 

relief to which it may show itself justly entitled. 

Respectfully submitted,

VALDEZ & TREVIÑO,

ATTORNEYS AT LAW, P.C.

Callaghan Tower

8023 Vantage Drive, Suite 700

San Antonio, Texas 78230

Phone: 210–598–8686

Fax: 210–598–8797

 /s/ Mathews J. Metyko 

Robert E. Valdez

State Bar No. 20428100

revaldez@valdeztrevino.com

Mathews J. Metyko

State Bar No. 24096574

mmetyko@valdeztrevino.com

Counsel for Defendant Allstate Fire and 

Casualty Insurance Company 

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CERTIFICATE OF SERVICE

I do hereby certify that the foregoing instrument was served on the following counsel this 

10th day of March 2020, pursuant to Rule 21a, Texas Rules of Civil Procedure, via electronic 

service:

Anne E. Shaffer

Donald L. Crook, Jr.

WAYNE WRIGHT, LLP

5707 Interstate 10 West

San Antonio, Texas 78201

Counsel for Plaintiff

/s/ Mathews J. Metyko

Mathews J. Metyko

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