UNITED STATE DISTRICT COURT FOR THE 

WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

FINGER OIL & GAS, INC. 

Plaintiff, 

v. 

MID-CONTINENT CASUALTY 

COMPANY, MARSH USA, INC., AND 

KAREN OLIVIA 

Defendants 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Civil Action No. 5:20-cv-00712 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL 

TO THE HONORABLE COURT: 

Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446(a), Defendant Mid-Continent Casualty 

Company ("Mid-Continent" or "Defendant") files this Notice of Removal and respectfully shows 

that diversity subject-matter jurisdiction exists and removal is timely. 

I. Background Facts 

This is an insurance claim concerning whether or not a liability insurance policy provides 

coverage for damage to property owned by the insured. Plaintiff Finger Oil & Gas, Inc. ("Finger 

Oil") alleges that on or about July 11, 2019, a plugged well blew out. It contacted its 

commercial lines manager who allegedly represented that there was coverage under a 

commercial general liability policy issued by Finger Oil by Mid-Continent. See Exhibit 2.a., p. 

3. On August 23, 2019, Mid-Continent issued a reservation of rights letter, and ultimately 

denied the claim and issued the disclaimer letter on December 2, 2019. Id. Finger Oil disputes 

Mid-Continent's fmdings and asserts that expenses related to the well are covered damages. See 

Exhibit 2.b. 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 1 

D/1023255v1 

UNITED STATE DISTRICT COURT FOR THE 

WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

FINGER OIL & GAS, INC. 

Plaintiff, 

v. 

MID-CONTINENT CASUALTY 

COMPANY, MARSH USA, INC., AND 

KAREN OLIVIA 

Defendants 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Civil Action No. 5:20-cv-00712 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL 

TO THE HONORABLE COURT: 

Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446(a), Defendant Mid-Continent Casualty 

Company ("Mid-Continent" or "Defendant") files this Notice of Removal and respectfully shows 

that diversity subject-matter jurisdiction exists and removal is timely. 

I. Background Facts 

This is an insurance claim concerning whether or not a liability insurance policy provides 

coverage for damage to property owned by the insured. Plaintiff Finger Oil & Gas, Inc. ("Finger 

Oil") alleges that on or about July 11, 2019, a plugged well blew out. It contacted its 

commercial lines manager who allegedly represented that there was coverage under a 

commercial general liability policy issued by Finger Oil by Mid-Continent. See Exhibit 2.a., p. 

3. On August 23, 2019, Mid-Continent issued a reservation of rights letter, and ultimately 

denied the claim and issued the disclaimer letter on December 2, 2019. Id. Finger Oil disputes 

Mid-Continent's fmdings and asserts that expenses related to the well are covered damages. See 

Exhibit 2.b. 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 1 

D/1023255v1 

DEFENDANT MID-CONTINENT CASUALTY COMPANY’S NOTICE OF REMOVAL PAGE 1

D/1023255v1

UNITED STATE DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

FINGER OIL & GAS, INC.

Plaintiff,

v.

MID-CONTINENT CASUALTY

COMPANY, MARSH USA, INC., AND

KAREN OLIVIA

Defendants

§

§

§

§

§

§

§

§

§

Civil Action No. 5:20-cv-00712

DEFENDANT MID-CONTINENT CASUALTY COMPANY’S NOTICE OF REMOVAL

TO THE HONORABLE COURT:

Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446(a), Defendant Mid-Continent Casualty

Company (“Mid-Continent” or “Defendant”) files this Notice of Removal and respectfully shows

that diversity subject-matter jurisdiction exists and removal is timely.

I. Background Facts

This is an insurance claim concerning whether or not a liability insurance policy provides

coverage for damage to property owned by the insured. Plaintiff Finger Oil & Gas, Inc. (“Finger

Oil”) alleges that on or about July 11, 2019, a plugged well blew out. It contacted its

commercial lines manager who allegedly represented that there was coverage under a

commercial general liability policy issued by Finger Oil by Mid-Continent. See Exhibit 2.a., p.

3. On August 23, 2019, Mid-Continent issued a reservation of rights letter, and ultimately

denied the claim and issued the disclaimer letter on December 2, 2019. Id. Finger Oil disputes

Mid-Continent’s findings and asserts that expenses related to the well are covered damages. See

Exhibit 2.b.

Case 5:20-cv-00712 Document 1 Filed 06/18/20 Page 1 of 7
II. Removal is Timely 

On April 30, 2020, Plaintiff filed its Original Petition in state court in the case styled 

Finger Oil & Gas, Inc., v. Mid-Continent Casualty Company, Marsh USA, Inc., and Karen 

Olivia, Cause No. 2020CI07992 in the 45th Judicial District Court of Bexar County, Texas. See 

Exhibit 2.a. Defendant was not properly served until May 19, 2020, although return of service 

has yet to be filed. See Exhibit 1. 

Defendant files this Notice of Removal within the thirty-day time period required by 28 

U.S.C. § 1446(b). Accordingly, this Notice of Removal is timely. 

III. Diversity of Citizenship 

Removal is proper under 28 U.S.C. § 1332(a)(1) because there is currently a complete 

diversity of citizenship over Plaintiff's claim. 

Upon information and belief, Plaintiff Finger Oil & Gas, Inc. is a corporation organized 

and existing under the laws of the State of Texas. See Exhibit 2.a., p. 2. Plaintiff is not a citizen 

of Oklahoma, New York, or Delaware. 

Mid-Continent is an insurance company organized and existing under the laws of the 

State of Ohio and having its principal place of business in the State of Oklahoma. Defendant is 

not a citizen of Texas, New York, or Delaware. 

Upon information and belief, Marsh USA, Inc. ("Marsh"), is a corporation organized and 

existing under the laws of the State of Delaware and having its principal place of business in the 

State of New York. Marsh is not a citizen of Texas or Oklahoma. 

Upon information and belief, Defendant Karen Olivia is a citizen of the State of Texas 

and has been improperly joined as a defendant in order to defeat diversity jurisdiction. For 

reasons discussed below, Plaintiff has no possibility of recovery against Olivia and must be 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 2 

D/1023255v1 

II. Removal is Timely 

On April 30, 2020, Plaintiff filed its Original Petition in state court in the case styled 

Finger Oil & Gas, Inc., v. Mid-Continent Casualty Company, Marsh USA, Inc., and Karen 

Olivia, Cause No. 2020CI07992 in the 45th Judicial District Court of Bexar County, Texas. See 

Exhibit 2.a. Defendant was not properly served until May 19, 2020, although return of service 

has yet to be filed. See Exhibit 1. 

Defendant files this Notice of Removal within the thirty-day time period required by 28 

U.S.C. § 1446(b). Accordingly, this Notice of Removal is timely. 

III. Diversity of Citizenship 

Removal is proper under 28 U.S.C. § 1332(a)(1) because there is currently a complete 

diversity of citizenship over Plaintiff's claim. 

Upon information and belief, Plaintiff Finger Oil & Gas, Inc. is a corporation organized 

and existing under the laws of the State of Texas. See Exhibit 2.a., p. 2. Plaintiff is not a citizen 

of Oklahoma, New York, or Delaware. 

Mid-Continent is an insurance company organized and existing under the laws of the 

State of Ohio and having its principal place of business in the State of Oklahoma. Defendant is 

not a citizen of Texas, New York, or Delaware. 

Upon information and belief, Marsh USA, Inc. ("Marsh"), is a corporation organized and 

existing under the laws of the State of Delaware and having its principal place of business in the 

State of New York. Marsh is not a citizen of Texas or Oklahoma. 

Upon information and belief, Defendant Karen Olivia is a citizen of the State of Texas 

and has been improperly joined as a defendant in order to defeat diversity jurisdiction. For 

reasons discussed below, Plaintiff has no possibility of recovery against Olivia and must be 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 2 

D/1023255v1 

DEFENDANT MID-CONTINENT CASUALTY COMPANY’S NOTICE OF REMOVAL PAGE 2

D/1023255v1

II. Removal is Timely

On April 30, 2020, Plaintiff filed its Original Petition in state court in the case styled

Finger Oil & Gas, Inc., v. Mid-Continent Casualty Company, Marsh USA, Inc., and Karen

Olivia, Cause No. 2020CI07992 in the 45th Judicial District Court of Bexar County, Texas. See

Exhibit 2.a. Defendant was not properly served until May 19, 2020, although return of service

has yet to be filed. See Exhibit 1.

Defendant files this Notice of Removal within the thirty-day time period required by 28

U.S.C. § 1446(b). Accordingly, this Notice of Removal is timely.

III. Diversity of Citizenship

Removal is proper under 28 U.S.C. § 1332(a)(1) because there is currently a complete

diversity of citizenship over Plaintiff’s claim.

Upon information and belief, Plaintiff Finger Oil & Gas, Inc. is a corporation organized

and existing under the laws of the State of Texas. See Exhibit 2.a., p. 2. Plaintiff is not a citizen

of Oklahoma, New York, or Delaware.

Mid-Continent is an insurance company organized and existing under the laws of the

State of Ohio and having its principal place of business in the State of Oklahoma. Defendant is

not a citizen of Texas, New York, or Delaware.

Upon information and belief, Marsh USA, Inc. (“Marsh”), is a corporation organized and

existing under the laws of the State of Delaware and having its principal place of business in the

State of New York. Marsh is not a citizen of Texas or Oklahoma.

Upon information and belief, Defendant Karen Olivia is a citizen of the State of Texas

and has been improperly joined as a defendant in order to defeat diversity jurisdiction. For

reasons discussed below, Plaintiff has no possibility of recovery against Olivia and must be

Case 5:20-cv-00712 Document 1 Filed 06/18/20 Page 2 of 7
dismissed from the case. Therefore, her Texas citizenship should be disregarded for the purposes 

of evaluating diversity in this matter. 

Based on the foregoing, the parties are completely diverse within the meaning of 28 

U.S.C. §1332. 

IV. Improper/Fraudulent Joinder 

Plaintiff's claims against Karen Olivia are improper and only used as an attempt to defeat 

diversity jurisdiction in this Court. Plaintiff has no valid, independent claim against Karen 

Olivia under Texas law and as such, the Court should disregard Karen Olivia as a non-diverse 

defendant. 

A. Standard of Review 

12. The removing party bears the burden of demonstrating improper joinder. Travis v. 

Irby, 326 F.3d 644, 649 (5th Cir. 2003). Improper joinder can be established in two ways: (1) 

actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to 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) (citing Travis, 326 F.3d at 646-47). Under the later method, 

the court determines whether the plaintiff has "any possibility of recovery against the party 

whose joinder is questioned. If there is arguably a reasonable basis for predicting that the state 

law might impose liability on the facts involved, then there is no [improper] joinder. This 

possibility, however, must be reasonable, not merely theoretical." Travis, 326 F.3d at 648 

(quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F. 3d 305, 312 (5th 

Cir. 2002)) (emphasis in original) (quotations omitted). 

13. A court may resolve this latter issue of whether there is a reasonable possibility of 

recovery in one of two ways. Solis, et al v. Wal-Mart Stores East, LP, 2008 U.S. Dist. LEXIS 

92641 (S.D. Tex. Nov. 14, 2008) (citing Smith v. Petsmart Inc., No. 06-60497, 278 FED. APP'X 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 3 

D/1023255v1 

dismissed from the case. Therefore, her Texas citizenship should be disregarded for the purposes 

of evaluating diversity in this matter. 

Based on the foregoing, the parties are completely diverse within the meaning of 28 

U.S.C. §1332. 

IV. Improper/Fraudulent Joinder 

Plaintiff's claims against Karen Olivia are improper and only used as an attempt to defeat 

diversity jurisdiction in this Court. Plaintiff has no valid, independent claim against Karen 

Olivia under Texas law and as such, the Court should disregard Karen Olivia as a non-diverse 

defendant. 

A. Standard of Review 

12. The removing party bears the burden of demonstrating improper joinder. Travis v. 

Irby, 326 F.3d 644, 649 (5th Cir. 2003). Improper joinder can be established in two ways: (1) 

actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to 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) (citing Travis, 326 F.3d at 646-47). Under the later method, 

the court determines whether the plaintiff has "any possibility of recovery against the party 

whose joinder is questioned. If there is arguably a reasonable basis for predicting that the state 

law might impose liability on the facts involved, then there is no [improper] joinder. This 

possibility, however, must be reasonable, not merely theoretical." Travis, 326 F.3d at 648 

(quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F. 3d 305, 312 (5th 

Cir. 2002)) (emphasis in original) (quotations omitted). 

13. A court may resolve this latter issue of whether there is a reasonable possibility of 

recovery in one of two ways. Solis, et al v. Wal-Mart Stores East, LP, 2008 U.S. Dist. LEXIS 

92641 (S.D. Tex. Nov. 14, 2008) (citing Smith v. Petsmart Inc., No. 06-60497, 278 FED. APP'X 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 3 

D/1023255v1 

DEFENDANT MID-CONTINENT CASUALTY COMPANY’S NOTICE OF REMOVAL PAGE 3

D/1023255v1

dismissed from the case. Therefore, her Texas citizenship should be disregarded for the purposes

of evaluating diversity in this matter.

Based on the foregoing, the parties are completely diverse within the meaning of 28

U.S.C. §1332.

IV. Improper/Fraudulent Joinder

Plaintiff’s claims against Karen Olivia are improper and only used as an attempt to defeat

diversity jurisdiction in this Court. Plaintiff has no valid, independent claim against Karen

Olivia under Texas law and as such, the Court should disregard Karen Olivia as a non-diverse

defendant.

A. Standard of Review

12. The removing party bears the burden of demonstrating improper joinder. Travis v.

Irby, 326 F.3d 644, 649 (5th Cir. 2003). Improper joinder can be established in two ways: (1)

actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to 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) (citing Travis, 326 F.3d at 646-47). Under the later method,

the court determines whether the plaintiff has “any possibility of recovery against the party

whose joinder is questioned. If there is arguably a reasonable basis for predicting that the state

law might impose liability on the facts involved, then there is no [improper] joinder. This

possibility, however, must be reasonable, not merely theoretical.” Travis, 326 F.3d at 648

(quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F. 3d 305, 312 (5th

Cir. 2002)) (emphasis in original) (quotations omitted).

13. A court may resolve this latter issue of whether there is a reasonable possibility of

recovery in one of two ways. Solis, et al v. Wal-Mart Stores East, LP, 2008 U.S. Dist. LEXIS

92641 (S.D. Tex. Nov. 14, 2008) (citing Smith v. Petsmart Inc., No. 06-60497, 278 FED. APP’X

Case 5:20-cv-00712 Document 1 Filed 06/18/20 Page 3 of 7
377, 379 (5th Cir. May 15, 2008). The court may conduct at Rule 12(b)(6)-type analysis, 

looking initially at the allegations of the complaint to determine whether the complaint states a 

claim under state law against the in-state defendant. Smallwood, 385 F.3d at 573. "A complaint 

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

of action will not do." Jamarillo v. City of McAllen, Texas, 306 Fed. App'x 140, 143 (5th Cir. 

2009). 

B. Plaintiff's Claims Against Olivia 

Plaintiff asserts that all defendants, including Ms. Olivia, misrepresented the benefits or 

advantages on the Mid-Continent policy, tracking the language of Section 541.051 nearly 

verbatim. See Exhibit 2.a.., p. 3; TEX. INS. CODE § 541.051. Plaintiff then conflates this claim 

with a violation of the Texas Deceptive Trade Practices Act ("DTPA") against all defendants 

without distinction. See Exhibit 2.a.., p. 4. Chapter 541 of the Texas Insurance Code regulates 

and prohibits unfair methods of competition and unfair or deceptive acts or practices in the 

insurance industry, with Section 051 pertaining to misrepresentations of the policy. TEx. INS. 

CODE §§ 541.001 and 541.051. To sustain a claim of misrepresentation, the plaintiff must show 

a specific misrepresentation by the individual. Aspen Specialty Ins. Co. v. Muniz Eng 'g, Inc., 

514 F.Supp. 2d 972, 984 (S.D. Tex. 2007). Indeed, claims alleging violations of the Texas 

Insurance Code and the DTPA are subject to the requirements of Rule 9(b). Atlantic Cas. Ins. 

Co. v. Primelending, a Plainscapital Co., 2016 WL 1322235, at *2-3 (N.D. Tex. Apr. 5, 2016), 

citing Frith v. Guardian Life Ins. Co., 9 F.Supp. 2d 734, 742 (S.D. Tex. 1998). "Rule 9(b) 

imposes a heightened pleading standard for fraud claims and requires that a party state with 

particularity facts supporting each element of fraud. At a minimum, Rule 9(b) requires 

allegations of the particulars of time, place, and contents of the false representations, as well as 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 4 

D/1023255v1 

377, 379 (5th Cir. May 15, 2008). The court may conduct at Rule 12(b)(6)-type analysis, 

looking initially at the allegations of the complaint to determine whether the complaint states a 

claim under state law against the in-state defendant. Smallwood, 385 F.3d at 573. "A complaint 

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

of action will not do." Jamarillo v. City of McAllen, Texas, 306 Fed. App'x 140, 143 (5th Cir. 

2009). 

B. Plaintiff's Claims Against Olivia 

Plaintiff asserts that all defendants, including Ms. Olivia, misrepresented the benefits or 

advantages on the Mid-Continent policy, tracking the language of Section 541.051 nearly 

verbatim. See Exhibit 2.a.., p. 3; TEX. INS. CODE § 541.051. Plaintiff then conflates this claim 

with a violation of the Texas Deceptive Trade Practices Act ("DTPA") against all defendants 

without distinction. See Exhibit 2.a.., p. 4. Chapter 541 of the Texas Insurance Code regulates 

and prohibits unfair methods of competition and unfair or deceptive acts or practices in the 

insurance industry, with Section 051 pertaining to misrepresentations of the policy. TEx. INS. 

CODE §§ 541.001 and 541.051. To sustain a claim of misrepresentation, the plaintiff must show 

a specific misrepresentation by the individual. Aspen Specialty Ins. Co. v. Muniz Eng 'g, Inc., 

514 F.Supp. 2d 972, 984 (S.D. Tex. 2007). Indeed, claims alleging violations of the Texas 

Insurance Code and the DTPA are subject to the requirements of Rule 9(b). Atlantic Cas. Ins. 

Co. v. Primelending, a Plainscapital Co., 2016 WL 1322235, at *2-3 (N.D. Tex. Apr. 5, 2016), 

citing Frith v. Guardian Life Ins. Co., 9 F.Supp. 2d 734, 742 (S.D. Tex. 1998). "Rule 9(b) 

imposes a heightened pleading standard for fraud claims and requires that a party state with 

particularity facts supporting each element of fraud. At a minimum, Rule 9(b) requires 

allegations of the particulars of time, place, and contents of the false representations, as well as 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 4 

D/1023255v1 

DEFENDANT MID-CONTINENT CASUALTY COMPANY’S NOTICE OF REMOVAL PAGE 4

D/1023255v1

377, 379 (5th Cir. May 15, 2008). The court may conduct at Rule 12(b)(6)-type analysis,

looking initially at the allegations of the complaint to determine whether the complaint states a

claim under state law against the in-state defendant. Smallwood, 385 F.3d at 573. “A complaint

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

of action will not do.” Jamarillo v. City of McAllen, Texas, 306 Fed. App’x 140, 143 (5th Cir.

2009).

B. Plaintiff’s Claims Against Olivia

Plaintiff asserts that all defendants, including Ms. Olivia, misrepresented the benefits or

advantages on the Mid-Continent policy, tracking the language of Section 541.051 nearly

verbatim. See Exhibit 2.a.., p. 3; TEX. INS. CODE § 541.051. Plaintiff then conflates this claim

with a violation of the Texas Deceptive Trade Practices Act (“DTPA”) against all defendants

without distinction. See Exhibit 2.a.., p. 4. Chapter 541 of the Texas Insurance Code regulates

and prohibits unfair methods of competition and unfair or deceptive acts or practices in the

insurance industry, with Section 051 pertaining to misrepresentations of the policy. TEX. INS.

CODE §§ 541.001 and 541.051. To sustain a claim of misrepresentation, the plaintiff must show

a specific misrepresentation by the individual. Aspen Specialty Ins. Co. v. Muniz Eng’g, Inc.,

514 F.Supp. 2d 972, 984 (S.D. Tex. 2007). Indeed, claims alleging violations of the Texas

Insurance Code and the DTPA are subject to the requirements of Rule 9(b). Atlantic Cas. Ins.

Co. v. Primelending, a Plainscapital Co., 2016 WL 1322235, at *2-3 (N.D. Tex. Apr. 5, 2016),

citing Frith v. Guardian Life Ins. Co., 9 F.Supp. 2d 734, 742 (S.D. Tex. 1998). “Rule 9(b)

imposes a heightened pleading standard for fraud claims and requires that a party state with

particularity facts supporting each element of fraud. At a minimum, Rule 9(b) requires

allegations of the particulars of time, place, and contents of the false representations, as well as

Case 5:20-cv-00712 Document 1 Filed 06/18/20 Page 4 of 7
the identity of the person making the misrepresentation and what he obtained thereby. Atlantic 

Cas., 2016 WL 1322235, at *3. 

Plaintiff fails to meet the pleading requirements as it does not state the particularized 

facts or specific allegations about Olivia's conduct regarding the policy. The original petition 

does not lay out the particulars of time, place, and contents of the false representations. See 

Exhibit 2.a. Rather, Plaintiff's entire basis for its misrepresentation claim against Olivia is 

premised on an email Olivia allegedly sent to a fellow Marsh employee, not to Plaintiff itself. 

Id. at 2. Plaintiff never alleges that Ms. Olivia made a statement to Finger Oil. Id. This singular 

threadbare allegation is not enough to make a presumption that Olivia misrepresented the 

benefits or advantages of the Mid-Continent policy. See Ashcroft v. lqbal, 556 U.S. 662 67 

(2009) (regarding facial plausible claims, "threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice"). 

Since the petition fails to state claims against Olivia upon which relief may be granted, 

Olivia is an improperly joined party and should be dismissed. As such, this Court should 

disregard Olivia as a party to this lawsuit in regard to the diversity of Plaintiff. 

V. Venue is Proper 

Venue in this district is proper under 28 U.S.C. §§ 124(d)(4) and 1446(a) because the 

Western District of Texas, San Antonio Division, encompasses Bexar County, Texas and is "the 

district and division embracing the place where such action is pending." 

VI. Amount in Controversy 

Plaintiff alleges that it incurred $641,590.90 related to service on the well and seeks to 

recover from Mid-Continent the amount in excess of $1,000,000. See Exhibit 2.a., p. 3 & 5. 

Therefore, because the amount in controversy exceeds the $75,000 threshold required to invoke 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 5 

D/1023255v1 

the identity of the person making the misrepresentation and what he obtained thereby. Atlantic 

Cas., 2016 WL 1322235, at *3. 

Plaintiff fails to meet the pleading requirements as it does not state the particularized 

facts or specific allegations about Olivia's conduct regarding the policy. The original petition 

does not lay out the particulars of time, place, and contents of the false representations. See 

Exhibit 2.a. Rather, Plaintiff's entire basis for its misrepresentation claim against Olivia is 

premised on an email Olivia allegedly sent to a fellow Marsh employee, not to Plaintiff itself. 

Id. at 2. Plaintiff never alleges that Ms. Olivia made a statement to Finger Oil. Id. This singular 

threadbare allegation is not enough to make a presumption that Olivia misrepresented the 

benefits or advantages of the Mid-Continent policy. See Ashcroft v. lqbal, 556 U.S. 662 67 

(2009) (regarding facial plausible claims, "threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice"). 

Since the petition fails to state claims against Olivia upon which relief may be granted, 

Olivia is an improperly joined party and should be dismissed. As such, this Court should 

disregard Olivia as a party to this lawsuit in regard to the diversity of Plaintiff. 

V. Venue is Proper 

Venue in this district is proper under 28 U.S.C. §§ 124(d)(4) and 1446(a) because the 

Western District of Texas, San Antonio Division, encompasses Bexar County, Texas and is "the 

district and division embracing the place where such action is pending." 

VI. Amount in Controversy 

Plaintiff alleges that it incurred $641,590.90 related to service on the well and seeks to 

recover from Mid-Continent the amount in excess of $1,000,000. See Exhibit 2.a., p. 3 & 5. 

Therefore, because the amount in controversy exceeds the $75,000 threshold required to invoke 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 5 

D/1023255v1 

DEFENDANT MID-CONTINENT CASUALTY COMPANY’S NOTICE OF REMOVAL PAGE 5

D/1023255v1

the identity of the person making the misrepresentation and what he obtained thereby. Atlantic

Cas., 2016 WL 1322235, at *3.

Plaintiff fails to meet the pleading requirements as it does not state the particularized

facts or specific allegations about Olivia’s conduct regarding the policy. The original petition

does not lay out the particulars of time, place, and contents of the false representations. See

Exhibit 2.a. Rather, Plaintiff’s entire basis for its misrepresentation claim against Olivia is

premised on an email Olivia allegedly sent to a fellow Marsh employee, not to Plaintiff itself.

Id. at 2. Plaintiff never alleges that Ms. Olivia made a statement to Finger Oil. Id. This singular

threadbare allegation is not enough to make a presumption that Olivia misrepresented the

benefits or advantages of the Mid-Continent policy. See Ashcroft v. Iqbal, 556 U.S. 662 67

(2009) (regarding facial plausible claims, “threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice”).

Since the petition fails to state claims against Olivia upon which relief may be granted,

Olivia is an improperly joined party and should be dismissed. As such, this Court should

disregard Olivia as a party to this lawsuit in regard to the diversity of Plaintiff.

V. Venue is Proper

Venue in this district is proper under 28 U.S.C. §§ 124(d)(4) and 1446(a) because the

Western District of Texas, San Antonio Division, encompasses Bexar County, Texas and is “the

district and division embracing the place where such action is pending.”

VI. Amount in Controversy

Plaintiff alleges that it incurred $641,590.90 related to service on the well and seeks to

recover from Mid-Continent the amount in excess of $1,000,000. See Exhibit 2.a., p. 3 & 5.

Therefore, because the amount in controversy exceeds the $75,000 threshold required to invoke

Case 5:20-cv-00712 Document 1 Filed 06/18/20 Page 5 of 7
this Court's jurisdiction, removal is proper. 28 U.S.C. § 1332(a); see St. Paul Reinsurance Co., 

Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (noting the district court examines the 

complaint to determine whether it is facially apparent that the claim exceeds the jurisdictional 

minimum); see also KVOS, Inc. v. Associated Press, 299 U.S. 269, 277 (1936) (holding 

allegation in pleading is sufficient to establish amount in controversy). 

VII. The Removal is Procedurally Correct 

Pursuant to 28 U.S.C. §1446(a), all pleadings, process, orders, and all other filings 

available in the State Action are attached to this Notice. Attached hereto as Exhibit "1" is the 

Index of Matter Being Filed. A copy of the Bexar County Clerk's Docket Sheet and file for this 

case is attached as Exhibit "2.", which includes true and correct copies of pleadings and answers. 

Pursuant to 28 U.S.C. §1446(d), promptly after Defendant files this Notice, written notice 

of the filing will be given to Plaintiff, the adverse party. 

Pursuant to 28 U.S.C. §1446(d), promptly after Defendant files this Notice of Removal, a 

true and correct copy will be filed with the Clerk of the Bexar County District Court, the state 

court from which this action was removed. 

Marsh consents to this removal. Although consent of an improperly joined party is not 

necessary for removal, Olivia consents to removal. 

VIII. Relief Requested 

This notice was filed timely. The amount in controversy exceeds $75,000. Complete 

diversity of citizenship exists as to Plaintiffs and the properly joined Defendants. This Court has 

jurisdiction over this action pursuant to 28 U.S.C. § 1332. Accordingly, the action is properly 

removed pursuant to 28 U.S.C. § 1441. 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 6 

D/1023255v1 

this Court's jurisdiction, removal is proper. 28 U.S.C. § 1332(a); see St. Paul Reinsurance Co., 

Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (noting the district court examines the 

complaint to determine whether it is facially apparent that the claim exceeds the jurisdictional 

minimum); see also KVOS, Inc. v. Associated Press, 299 U.S. 269, 277 (1936) (holding 

allegation in pleading is sufficient to establish amount in controversy). 

VII. The Removal is Procedurally Correct 

Pursuant to 28 U.S.C. §1446(a), all pleadings, process, orders, and all other filings 

available in the State Action are attached to this Notice. Attached hereto as Exhibit "1" is the 

Index of Matter Being Filed. A copy of the Bexar County Clerk's Docket Sheet and file for this 

case is attached as Exhibit "2.", which includes true and correct copies of pleadings and answers. 

Pursuant to 28 U.S.C. §1446(d), promptly after Defendant files this Notice, written notice 

of the filing will be given to Plaintiff, the adverse party. 

Pursuant to 28 U.S.C. §1446(d), promptly after Defendant files this Notice of Removal, a 

true and correct copy will be filed with the Clerk of the Bexar County District Court, the state 

court from which this action was removed. 

Marsh consents to this removal. Although consent of an improperly joined party is not 

necessary for removal, Olivia consents to removal. 

VIII. Relief Requested 

This notice was filed timely. The amount in controversy exceeds $75,000. Complete 

diversity of citizenship exists as to Plaintiffs and the properly joined Defendants. This Court has 

jurisdiction over this action pursuant to 28 U.S.C. § 1332. Accordingly, the action is properly 

removed pursuant to 28 U.S.C. § 1441. 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 6 

D/1023255v1 

DEFENDANT MID-CONTINENT CASUALTY COMPANY’S NOTICE OF REMOVAL PAGE 6

D/1023255v1

this Court’s jurisdiction, removal is proper. 28 U.S.C. § 1332(a); see St. Paul Reinsurance Co.,

Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (noting the district court examines the

complaint to determine whether it is facially apparent that the claim exceeds the jurisdictional

minimum); see also KVOS, Inc. v. Associated Press, 299 U.S. 269, 277 (1936) (holding

allegation in pleading is sufficient to establish amount in controversy).

VII. The Removal is Procedurally Correct

Pursuant to 28 U.S.C. §1446(a), all pleadings, process, orders, and all other filings

available in the State Action are attached to this Notice. Attached hereto as Exhibit “1” is the

Index of Matter Being Filed. A copy of the Bexar County Clerk’s Docket Sheet and file for this

case is attached as Exhibit “2.”, which includes true and correct copies of pleadings and answers.

Pursuant to 28 U.S.C. §1446(d), promptly after Defendant files this Notice, written notice

of the filing will be given to Plaintiff, the adverse party.

Pursuant to 28 U.S.C. §1446(d), promptly after Defendant files this Notice of Removal, a

true and correct copy will be filed with the Clerk of the Bexar County District Court, the state

court from which this action was removed.

Marsh consents to this removal. Although consent of an improperly joined party is not

necessary for removal, Olivia consents to removal.

VIII. Relief Requested

This notice was filed timely. The amount in controversy exceeds $75,000. Complete

diversity of citizenship exists as to Plaintiffs and the properly joined Defendants. This Court has

jurisdiction over this action pursuant to 28 U.S.C. § 1332. Accordingly, the action is properly

removed pursuant to 28 U.S.C. § 1441.

Case 5:20-cv-00712 Document 1 Filed 06/18/20 Page 6 of 7
Defendant Mid-Continent Casualty Company respectfully requests that the United States 

District Court for the Western District of Texas, San Antonio Division, accept and file the Notice 

of Removal, assume jurisdiction of this lawsuit, and issue all such further orders and processes as 

may be necessary. 

Respectfully submitted, 

By: /s/ R. Brent Cooper 

R. BRENT COOPER, Attorney-In-Charge 

Texas State Bar No. 04783250 

Brent.Cooper@cooperscully.com 

ROBERT J. WITMEYER 

Texas State Bar No. 24091174 

Robert.Witmeyer@cooperscully.com 

AARON G. STENDELL 

Texas State Bar No. 24073062 

Aaron.Stendell@cooperscully.com 

COOPER & SCULLY, P.C. 

900 Jackson Street, Suite 100 

Dallas, Texas 75202 

Telephone: (214) 712-9500 

Telecopy: (214) 712-9540 

ATTORNEYS FOR DEFENDANT, 

MID-CONTINENT CASUALTY COMPANY 

CERTIFICATE OF SERVICE 

I hereby certify that on June 18, 2020, I electronically submitted the foregoing document 

with the clerk of the court for the U.S. District Court for the Western District of Texas, using the 

electronic filing system of the court. 

/s/ R. Brent Cooper 

R. BRENT COOPER 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 7 

D/1023255v1 

Defendant Mid-Continent Casualty Company respectfully requests that the United States 

District Court for the Western District of Texas, San Antonio Division, accept and file the Notice 

of Removal, assume jurisdiction of this lawsuit, and issue all such further orders and processes as 

may be necessary. 

Respectfully submitted, 

By: /s/ R. Brent Cooper 

R. BRENT COOPER, Attorney-In-Charge 

Texas State Bar No. 04783250 

Brent.Cooper@cooperscully.com 

ROBERT J. WITMEYER 

Texas State Bar No. 24091174 

Robert.Witmeyer@cooperscully.com 

AARON G. STENDELL 

Texas State Bar No. 24073062 

Aaron.Stendell@cooperscully.com 

COOPER & SCULLY, P.C. 

900 Jackson Street, Suite 100 

Dallas, Texas 75202 

Telephone: (214) 712-9500 

Telecopy: (214) 712-9540 

ATTORNEYS FOR DEFENDANT, 

MID-CONTINENT CASUALTY COMPANY 

CERTIFICATE OF SERVICE 

I hereby certify that on June 18, 2020, I electronically submitted the foregoing document 

with the clerk of the court for the U.S. District Court for the Western District of Texas, using the 

electronic filing system of the court. 

/s/ R. Brent Cooper 

R. BRENT COOPER 

DEFENDANT MID-CONTINENT CASUALTY COMPANY'S NOTICE OF REMOVAL PAGE 7 

D/1023255v1 

DEFENDANT MID-CONTINENT CASUALTY COMPANY’S NOTICE OF REMOVAL PAGE 7

D/1023255v1

Defendant Mid-Continent Casualty Company respectfully requests that the United States

District Court for the Western District of Texas, San Antonio Division, accept and file the Notice

of Removal, assume jurisdiction of this lawsuit, and issue all such further orders and processes as

may be necessary.

Respectfully submitted,

By: /s/ R. Brent Cooper

R. BRENT COOPER, Attorney-In-Charge

Texas State Bar No. 04783250

Brent.Cooper@cooperscully.com

ROBERT J. WITMEYER

Texas State Bar No. 24091174

Robert.Witmeyer@cooperscully.com

AARON G. STENDELL

Texas State Bar No. 24073062

Aaron.Stendell@cooperscully.com

COOPER & SCULLY, P.C.

900 Jackson Street, Suite 100

Dallas, Texas 75202

Telephone: (214) 712-9500

Telecopy: (214) 712-9540

ATTORNEYS FOR DEFENDANT,

MID-CONTINENT CASUALTY COMPANY

CERTIFICATE OF SERVICE

I hereby certify that on June 18, 2020, I electronically submitted the foregoing document

with the clerk of the court for the U.S. District Court for the Western District of Texas, using the

electronic filing system of the court.

/s/ R. Brent Cooper __________________

R. BRENT COOPER

Case 5:20-cv-00712 Document 1 Filed 06/18/20 Page 7 of 7