3:25-cv-03146•A and C Construction and Remodeling LLC v. Pacific Life Insurance Company et al
A and C Construction and Remodeling LLC v. Pacific Life Insurance Company et al
3:25-cv-03146Txnd19.11.2025
Gesamter Gesetzestext
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION A&C CONSTRUCTION AND § REMODELING, LLC, § § Plaintiff, § § V. § No. 3:25-cv-3146-E-BN § PACIFIC LIFE INSURANCE § COMPANY and SERVIS ONE, INC. § d/b/a BSI FINANCIAL SERVICES, § § Defendants. § FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Plaintiff A&C Construction and Remodeling, LLC (“A&C”) filed a verified petition for breach of contract and application for a temporary restraining order against Defendants Pacific Life Insurance Company and Servis One, Inc. d/b/a BSI Financial Services in a Dallas County, Texas state court on November 3, 2025; A&C obtained a temporary restraining order the next day, with the state court setting a temporary injunction hearing for November 18, 2025; and, on November 18, Defendants removed, asserting that the Court has diversity subject-matter jurisdiction. See Dkt. No. 1. United States District Judge Ada Brown referred the removed lawsuit to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. Considering Defendants’ notice of removal, the undersigned recommends that the Court sua sponte remand this lawsuit for lack of subject matter jurisdiction but Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 1 of 10 PageID <pageID>
- 2 - retain jurisdiction to determine whether sanctions should be imposed based on this removal. Legal Standards A defendant may remove an action filed in state court to federal court if the action is one that could have originally been filed in federal court. See 28 U.S.C. § 1441(a). But the federal courts’ jurisdiction is limited, so they generally may only hear a case of this nature if it involves a question of federal law or where diversity of citizenship exists between the parties. See 28 U.S.C. §§ 1331 & 1332. Applicable here, Section 1332 requires that each plaintiff’s citizenship must be diverse from each defendant’s citizenship, and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a), (b). So the Court may “exercise diversity jurisdiction only when there is ‘complete diversity’ between the litigants.” Gilmore- Webster v. Bayou City Homebuyers, Inc., 845 F. App’x 329, 332 (5th Cir. 2021) (per curiam) (quoting Carden v. Arkoma Assocs., 494 U.S. 185, 187 (1990) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806))). That means that “no party on one side [is] a citizen of the same State as any party on the other side.” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974). And, because Defendants chose to remove this lawsuit to federal court, they undertook the burden to establish federal jurisdiction. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (“The burden of establishing subject matter jurisdiction in federal court rests on the party seeking to invoke it.” (cleaned Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 2 of 10 PageID <pageID>
- 3 - up)). And, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); accord Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 89 (1991). Analysis A&C filed this lawsuit against two defendants: Pacific Life and Servis One. See Dkt. No. 1 at 10-58. And the notice of removal provides that both Pacific Life and Servis One are removing A&C’s lawsuit to federal court. See Dkt. No. 1 at 1. But Defendants then only allege that there is complete diversity of citizenship based on the citizenships of A&C and Pacific Life. See id. at 2. Starting with A&C, Defendants assert that it is a Texas limited liability company with one member, alleged to be “an individual who is a resident of and domiciled in the State of Texas.” Id. That allegation is deficient. “For limited liability companies, § 1332 citizenship is determined by the citizenship of all of its members. To establish diversity jurisdiction in a suit by or against an LLC, a party must specifically allege the citizenship of every member of every LLC.” SXSW v. Fed. Ins. Co., 83 F.4th 405, 407-08 (5th Cir. 2023) (cleaned up)). And where the sole member is an individual, an allegation of that individual’s residency without more does not plausibly allege the citizenship of that individual or the LLC. Instead, “[f]or natural persons, § 1332 citizenship is determined by domicile, Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 3 of 10 PageID <pageID>
- 4 - which requires residency plus an intent to make the place of residency one’s permanent home.” SXSW, 83 F.4th at 407. And, while the party invoking subject-matter jurisdiction is not required to prove an intent to make the place of residency a party’s permanent home, [i]n determining a litigant’s domicile, the court must address a variety of factors. No single factor is determinative. The court should look to all evidence shedding light on the litigant’s intention to establish domicile. The factors may include the places where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver’s and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family. Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996) (citations omitted). So, where the party invoking subject-matter jurisdiction under Section 1332 (1) merely concludes that a party is domiciled where he or she is alleged to currently reside and (2) fails to meaningfully address any Coury factor as to any party, a court cannot find that a party’s domicile has been plausibly alleged and that complete diversity supports subject-matter jurisdiction under Section 1332. See Union Pac. R.R. Co. v. Nuefuel TX LLC, No. 3:23-cv-1206-L, 2024 WL 2970013, at *1 (N.D. Tex. June 11, 2024) (“An allegation of residency alone ‘does not satisfy the requirement of an allegation of citizenship.’” (quoting Strain v. Harrelson Rubber Co., 742 F.2d 888, 889 (5th Cir. 1984) (per curiam))); accord J.A. Maters Invs. v. Beltramini, 117 F.4th 321, 322 (5th Cir. 2024) (per curiam). What’s more troubling, the notice of removal ignores the citizenship of Servis One, which A&C’s verified petition alleges “is a Texas corporation.” Dkt. No. 1 at 10. And, while the notice of removal is purportedly filed by both Defendants, even Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 4 of 10 PageID <pageID>
- 5 - if Pacific Life was removing this lawsuit prior to service on Servis One, the Court cannot “disregard the citizenship of unserved defendants when determining whether complete diversity exists.” Salvador v. Circle K Stores, Inc., No. 3:25-cv-1531-S-BN, 2025 WL 2025003, at *3 (N.D. Tex. June 23, 2025) (cleaned up), rec. accepted, 2025 WL 2023458 (N.D. Tex. July 17, 2025); accord Beechum v. Anointed Touch, Inc., No. 6:21-CV-00370-JDK, 2022 WL 538968, at *1 (E.D. Tex. Jan. 18, 2022) (“Although a defendant may remove a case before all the defendants are served, the Court may not disregard the citizenship of unserved defendants in determining diversity jurisdiction. And because the unserved defendant here is a citizen of Texas, the Court lacks subject matter jurisdiction under § 1332.”). And Defendants make no attempt to argue – much less carry the burden to demonstrate – as an exception to the complete-diversity requirement that A&C improperly joined Servis One to prevent removal to federal court. And, even if they had, a defendant alleging that a non-diverse defendant is improperly joined has the heavy burden of “demonstrating either ‘(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.’” Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006) (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). And, only if the removing defendant makes one of those two showings may the Court “disregard the citizenship of [the non-diverse] defendant, dismiss the non- diverse defendant from the case, and exercise subject matter jurisdiction over the Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 5 of 10 PageID <pageID>
- 6 - remaining diverse defendant.” Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016). But, under the first method, it would be hard for Defendants to argue that A&C fraudulently pleaded the jurisdictional facts as to Servis One where Defendants ignore those facts in their notice of removal. And “[a] defendant establishes the second method by ‘demonstrating that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.’” Priester v. Deutsche Bank Nat’l Tr. Co., 832 F. App’x 240, 244 (5th Cir. 2020) (per curiam) (quoting Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc)). The Court conducts the “improper joinder analysis on the basis of claims in the state court complaint as it exists at the time of removal” and “will not entertain new theories not raised in state court.” Palmquist v. Hain Celestial Grp., Inc., 103 F.4th 294, 301 (5th Cir. 2024) (cleaned up). And the United States Court of Appeals for the Fifth Circuit has clarified that the federal pleading standard, not a state pleading standard, applies when determining whether a nondiverse defendant has been improperly joined. See Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 200-01 (5th Cir. 2016). The Federal Rule of Civil Procedure “12(b)(6)-type analysis ... is shorthand for the federal pleading standard itself ... promulgated by the Supreme Court in the Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 6 of 10 PageID <pageID>
- 7 - Bell v. Twombly and Ashcroft v. Iqbal opinions.” Id. at 203. Under that standard, “[a] complaint must have contained enough facts to state a claim to relief that is plausible on its face.” Id. at 200, 208 (cleaned up). And “a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” and, “where the well- pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not shown – that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) In making the improper-joinder determination, the Court will “evaluate all of the factual allegations in the plaintiff’s state court pleadings in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff” and “any ambiguities of state law in the plaintiff’s favor,” and “then examine relevant state law and resolve all uncertainties in favor of the nonremoving party.” Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 765 (5th Cir. 2016) (cleaned up); Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 260 n.8, 264 (5th Cir. 1995) (cleaned up). Under these standards, the undersigned has reviewed A&C’s factual allegations as to Servis One in support of the breach of contract claim and cannot find that – had Defendants raised improper joinder – Defendants would have successfully shown that the Court should disregard Servis One’s citizenship. And, so, Defendants, as the parties invoking the Court’s subject-matter Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 7 of 10 PageID <pageID>
- 8 - jurisdiction through removal, have not shown – contrary to their conclusion otherwise – that “[t]here is complete diversity as to the parties and this removal is authorized under Federal Law pursuant to 28 U.S.C. § 1332.” Dkt. No. 1 at 2. The Court should therefore remand this lawsuit. And, if the Court agrees with this recommendation, it retains jurisdiction to impose sanctions based on what appears to be at least an improper – if not also a frivolous – removal. Take first 28 U.S.C. § 1447(c), which “permits a district court to award just costs and any actual expenses, including attorney’s fees that are incurred as a result of the removal.” Howard v. St. Germain, 599 F.3d 455, 457 (5th Cir. 2010) (cleaned up); see Coward v. AC & S, Inc., 91 F. App’x 919, 921-22 (5th Cir. 2004) (per curiam) (holding “that a district court is not divested of jurisdiction to award attorney fees and costs pursuant to § 1447(c) after a remand has been certified” (citing Cooter v. Hartmarx Corp., 496 U.S. 384, 396 (1990); citations omitted)); see also, e.g., Schwarz v. Bowles, No. H-07-CV-0410, 2007 WL 9735986, at *1 (S.D. Tex. Apr. 11, 2007) (“Because Defendants’ removal was not only improper but patently frivolous, this Court, in its discretion, awards Plaintiffs attorney’s fees in the amount of $6,300…. Defendants and their counsel … shall be jointly and severally liable for these fees.”). The undersigned also observes that, after remand, the Court retains jurisdiction to impose sanctions under Federal Rule of Civil Procedure 11. See, e.g., Park Nat’l Bank of Hous. v. Kaminetzky, 976 F. Supp. 571, 573 n.2 (S.D. Tex. 1996) (“Although this Court does not have jurisdiction over the merits of the remanded Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 8 of 10 PageID <pageID>
- 9 - action, the Court retained jurisdiction to impose sanctions, costs, and fees.” (citing FED . R. CIV. P. 11(c)(2)(B); citations omitted); see also BP P.L.C. v. Mayor & City Council of Baltimore, 593 U.S. 230, 141 S. Ct. 1532, 1542-43 (2021) (“[T]hanks to § 1447(c) a district court may order a defendant to pay the plaintiff’s costs and expenses (including attorney’s fees) if it frivolously removes a case from state court. Additionally, the Federal Rules of Civil Procedure allow courts to sanction frivolous arguments made in virtually any context. Rules 11(b)-(c).”). And, so, while this case should be immediately remanded to state court, the Court retains jurisdiction – and this case should remain referred to the undersigned to make findings and conclusions – to determine whether sanctions should be imposed based on this removal. Recommendation On its own motion, the Court should remand this action to the state court from which it was removed and retain jurisdiction to determine whether sanctions should be imposed based on this removal. A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED . R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, and recommendation Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 9 of 10 PageID <pageID>
- 10 - where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). DATED: November 19, 2025 _________________________________________ DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE Case 3:25-cv-03146-E-BN Document 4 Filed 11/19/25 Page 10 of 10 PageID <pageID>
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