Legal Document: Arynita Armstrong vs. First Community Insurance Company

On May 18, 2022 a Notice of Filing of Removal - Civil Action No. 4:22-cv-02038 - Removal to Federal Court was filed involving a dispute between Armstrong, Arynita, and First Community Insurance Company, for Consumer/Commercial Debt - Under $250,000 in the District Court of Montgomery County.

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CAUSE NO. 22 06398

ARYNITA ARMSTONG IN THE DISTRICT COURT OF

Plaintiff,

MONTGOMERY COUNTY, TEXAS

FIRST COMMUNITY INSURANCE
COMPANY

Defendant JUDICIAL DISTRICT

NOTICE OF FILING OF REMOVAL

NOTICE is hereby given that Defendant IRST COMMUNITY INSURANCE COMPANY

has filed Notice of Removal in the United States District Court for the Southern District of Texas,

Division, and that this cause has been removed from the Judicial District Court of

Montgomery County, Texas to the United States District Court for the Southern District of Texas

Division, for trial and determination of all issues. A copy of the Notice and all

accompanying exhibits are attached to this filing.

Respectfully submitted,

ALLOWAY OHNSON OMPKINS
URR

/s/ William D. Abbott
Les Pickett
State Bar No. 15980520
lpickett@gallowaylawfirm.com
William D. Abbott
State Bar No.
wabbott@gallowaylawfirm.com
1301 McKinney Street, Suite 1400
Houston, Texas 77010
(713) 599 telephone
(713) 599 facsimile
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been served via Electronic Court
Filing in accordance with the Texas Rules of Civil Procedure, to all counsel of record on June
23rd, 2022.

/s/ William D. Abbott
Les Pickett
William D. Abbott

2
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ARYNITA ARMSTONG, §
Plaintiff, §
§
v. §
§ CASE NO.
FIRST COMMUNITY INSURANCE §
COMPANY §
Defendant. §

NOTICE OF REMOVAL

TO THE HONORABLE JUDGE OF THE UNITED STATES DISTRICT COURT:

Defendant, FIRST COMMUNITY INSURANCE COMPANY (“FCIC”), in a cause styled

Arynita Armstrong v. First Community Insurance Company, originally pending as Cause No. 22-

05-06398 in the 284th Judicial District Court of Montgomery County, Texas, hereby respectfully

files this Notice of Removal of that cause to the United States District Court for the Southern

District of Texas, Houston Division, while fully reserving all rights and defenses, and as grounds

therefore would respectfully show the Court as follows:

NATURE OF THE PENDING STATE CASE

1. On May 18, 2022, Arynita Armstrong (“Plaintiff”) filed a civil action styled Arynita

Armstrong v. First Community Insurance Company, under Cause No. 22-05-06398 in the 284th

Judicial District Court of Montgomery County, Texas.

2. This case involves an insurance dispute wherein Plaintiff alleges in her Original

Petition that the subject property (“the Property”) located in Willis, Montgomery County, Texas,

insured under an insurance policy, Policy No. 42-0016031346-6-00, issued by FCIC, sustained

water damage on an undisclosed date. Plaintiff has sued FCIC alleging causes of action for breach
of contract, violations of the Texas Insurance Code, and breach of the duty of good faith and fair

dealing.

3. FCIC has attached the documents required to be filed with this Notice of Removal

in compliance with Local Rule 81.1

JURISDICTION

4. Pursuant to 28 U.S.C. § 1441(a), FCIC removes this action to the District Court of

the United States for the Southern District of Texas, Houston Division, because it is the District

and Division embracing the place where such action is pending. Additionally, this Court has

diversity jurisdiction, as shown below, because the parties are citizens of different states and the

amount in controversy exceeds $75,000.00, exclusive of interests and costs.

A. Diversity of the Parties

5. Plaintiff is an individual who is a citizen of Texas and who resides in Montgomery

County, Texas.2 Defendant FCIC is a foreign corporation organized in Florida with its principal

place of business in Sunrise, Florida. Therefore, the parties are citizens of different states and are

completely diverse.

B. Amount in Controversy

6. To show that all the requisites for federal jurisdiction are met, a removing party

must demonstrate that the amount in controversy exceeds $75,000.3 The amount in controversy is

ordinarily established on the face of the complaint and the dollar-amount actually alleged.4 Here,

1
Plaintiff’s Original Petition, attached hereto as Exhibit “A”, Proof of Service, attached hereto as Exhibit “B”,
Defendant’s Original Answer, attached hereto as Exhibit “C”, An Index of Matters Being Filed, attached hereto as
Exhibit “D”, Copy of State Court Docket Sheet, attached hereto as Exhibit “E”, List of All Counsel of Record, attached
hereto as Exhibit F”, and Civil Cover Sheet, attached hereto as Exhibit “G”.
2
Exhibit A, pp. 1-2.
3
See 28 U.S.C. § 1332(a); Garcia v. Koch Oil Co. of Texas Inc., 351 F.3d 636, 638 (5th Cir. 2003).
4
See Garcia, 351 F.3d at 638 (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)); Allen
v. R & H Oil and Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

2
Plaintiff alleges in her petition that she seeks damages of more than $200,000 but no more than

$1,000,000.00.5 Plaintiff also specifically states that she “has over $75,000 in water related

damages that should have been covered.”6 Therefore, the amount in controversy exceeds the

jurisdictional minimum of $75,000.00, exclusive of interest and costs.

TIMING OF REMOVAL

7. FCIC was served with this lawsuit on May 24, 2022 by Plaintiff serving FCIC’s

Registered Agent, Corporation Service Company.7 Therefore, this Notice of Removal is being

filed within 30 days of service of the petition pursuant to 28 U.S.C. § 1446(b) and is filed less than

one year after commencement of the action, pursuant to 28 U.S.C. § 1446(c). This Notice is

therefore timely filed.

NOTICE TO ADVERSE PARTIES AND STATE COURT

8. As the removing party, FCIC will give Plaintiff prompt written notice of this Notice

of Removal pursuant to 28 U.S.C. § 1446(d).

9. FCIC will also file a copy of this Notice of Removal with the 284th Judicial District

Court of Montgomery County, Texas, where the state court action is currently pending, as required

by 28 U.S.C. § 1446(d).

ANSWER

10. FCIC filed a responsive pleading in the state court action and will timely file an

Amended Answer to Plaintiff’s lawsuit in this Honorable Court.

5
Exhibit A, at p. 13.
6
Exhibit A, at p. 3.
7
See Exhibit B.

3
JURY DEMAND

11. FCIC hereby requests a trial by jury pursuant to Rule 38 of the Federal Rules of

Civil Procedure.

CONCLUSION AND PRAYER

12. In light of the foregoing, Defendant FIRST COMMUNITY INSURANCE

COMPANY respectfully removes this civil action, styled Arynita Armstrong v. First Community

Insurance Company, under Cause No. 22-05-063398 in the 284th Judicial District Court of

Montgomery County, Texas.

13. FCIC prays for such other and further relief, both general and special, at law and in

equity, to which it may show itself justly entitled.

Respectfully submitted by,

GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH

/s/ William D. Abbott
Les Pickett
“Attorney-in-Charge”
Federal I.D. No. 14306
State Bar No. 15980520
lpickett@gallowaylawfirm.com
William D. Abbott
Federal I.D. No. 2789456
State Bar No. 24087069
wabbott@gallowaylawfirm.com
1301 McKinney Suite 1400
Houston, Texas 77010
(713) 599-0700 – Telephone
(713) 599-0777 – Facsimile

ATTORNEYS FOR DEFENDANT

4
CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of June, 2022, a copy of the above and foregoing Notice
of Removal was filed electronically with the Clerk of Court using the CM/ECF system, which will
send a notice of electronic filing to all CM/ECF participants.

/s/ William D. Abbott
Les Pickett
William D. Abbott

5
any insurance

EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
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EXHIBIT A
agents knew

Policy after

EXHIBIT A
EXHIBIT A
EXHIBIT A
and equitable

EXHIBIT A
EXHIBIT A
causing further

set forth

EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
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EXHIBIT A
EXHIBIT B
CAUSE NO. 22 06398

ARYNITA ARMSTONG IN THE DISTRICT COURT OF

Plaintiff,

MONTGOMERY COUNTY, TEXAS

FIRST COMMUNITY INSURANCE
COMPANY

Defendant JUDICIAL DISTRICT

DEFENDANT ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF THIS COURT:

Defendant, FIRST COMMUNITY INSURANCE COMPANY files its Original Answer

as follows:

GENERAL DENIAL

At this time, Defendant asserts a General Denial as authorized by Rule 92 of the

Texas Rules of Civil Procedure, and respectfully requests that the Court and Jury require Plaintiff

to prove Plaintiff claims, charges, and allegations by that standard of evidence as required by the

Constitution and Laws of the State of Texas and the Constitution and Laws of the United States of

America

AFFIRMATIVE AND SPECIFIC DEFENSES

Pleading further and in the alternative, Defendant would show that the occurrence

in question, as well as the damages complained of, were proximately caused or producingly

caused, in whole or in part, by the acts, omissions, fault, negligence, or other conduct of Plaintiff

Pleading further and in the alternative, Defendant would show that the occurrence

in question, as well as the damages complained of, were proximately caused or producingly

caused, in whole or in part, by the acts, omissions, fault, negligence, or other conduct of third

parties or persons or entities over whom Defendant has no right of control nor for whom Defendant

EXHIBIT C
is legally responsible. Accordingly, Defendant is entitled to a jury instruction on sole proximate

cause and new and independent or superseding cause.

Pleading further and in the alternative, Defendant would show that, in the event it

is found liable to Plaintiff, any such liability being expressly denied, then, in that event, Defendant

is entitled to a reduction for the negligence, liability, fault, or other conduct which is attributable

to any other party in accordance with the Doctrine of Comparative Fault or Causation as enunciated

by the Supreme Court of the State of Texas.

Pleading further and in the alternative, Defendant says that it is entitled to a credit

or offset for all monies or consideration paid to Plaintiff by virtue of any type or form of settlement

agreement entered into by and between Plaintiff and any defendant herein or any other person or

entity not a party to this litigation. Further, Defendant would assert the affirmative defenses of

accord and satisfaction, release, payment, credit, offset, res judicata, excessive demand, collateral

estoppel, waiver and laches, as provided under Rule 94 of the Texas Rules of Civil Procedure.

Pleading further and in the alternative, Defendant would show that, in the event it

is found liable to Plaintiff, any such liability being expressly denied, Defendant is entitled to

contribution, credit, and/or indemnity, as provided by the laws and statutes of the State of Texas,

including, but not limited to, the provisions of Chapter 32 and Chapter 33 of the Texas Civil

Practice and Remedies Code, as well as other applicable laws and statutes.

Defendant would further show that, to the extent applicable, it has fully complied

with all provisions, terms, and conditions set forth in the policy of insurance made the basis of this

action.

Defendant would further show that Plaintiff failed to meet the conditions of the

policy made the basis of this action.

Defendant would further show that the policy made the basis of this action contains

EXHIBIT C
terms and conditions expressly excluding the coverage sought by Plaintiff

Pleading further and in the alternative, Defendant would show that Plaintiff has

failed to mitigate Plaintiff’s damages.

Further answering and without waiving the foregoing, Defendant would show that

certain acts or omissions of Plaintiff were relied upon by Defendant. Therefore, Defendant asserts

the affirmative defense of estoppel.

Further answering and without waiving the foregoing, Defendant would show that

the imposition of punitive, treble, or exemplary damages upon Defendant for the allegations made

Plaintiff ates the contract clause of Article I, Section 20, Clause I of the Constitution of

the United States of America, the equal protection clause contained in the Fourteenth Amendment

of the Constitution of the United States of America, the due process Clause contained in the

Fourteenth Amendment of the Constitution of the United States of America, the excessive fines

clause contained in the Eighth Amendment of the Constitution of the United States of America,

the illegal seizures clause contained in the Fourth Amendment of the Constitution of the United

States of America, the deprivation of property without due process clause contained in the Fifth

Amendment of the Constitution of the United States of America, the excessive fines clause

contained in Article I, Section 13 of the Constitution of the State of Texas, and the contract clause

in Article I, Section 16 of the Constitution of the State of Texas.

Further answering and without waiving the foregoing, Defendant would show that

the insurance policy made the basis of this lawsuit was negotiated between parties of equal

bargaining power and that no “special relationship” existed so that no duty of good faith and fair

dealing could arise from the contract made the basis of this lawsuit.

For any claims for punitive damages and/or pre judgment interest, Defendant

invokes the limitations on punitive damages and prejudgment interest contained in Sections 41.007

EXHIBIT C
and 41.008 of the Texas Civil Practice and Remedies Code. Pursuant to Section 41.008 of the

Texas Civil Practice and Remedies Code, such limitations may not be known to the jury.

Defendant gives notice to all parties that Defendant intends to use any and all

documents that are produced by a party against that party and/or others in any pretrial proceedings

or a trial pursuant to Tex. R. Civ. P. 193.7 without the necessity of authenticating the documents.

Defendant respectfully demands a trial by jury on all contested issues of fact.

PRAYER

WHEREFORE, Defendant prays that Plaintiff suit against it be dismissed at Plaintiff

cost and that the Court grant all other and further relief, both special and general, at law and in

equity, to which Defendant may show itself justly entitled

Respectfully submitted,

ALLOWAY OHNSON OMPKIN URR

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been served via electronic service,
in accordance with the Texas Rules of Civil Procedure all known counsel of record

/s/ William D. Abbott
Les Pickett
William D. Abbott

EXHIBIT C
EXHIBIT C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ARYNITA ARMSTONG
Plaintiff

CASE NO.
FIRST COMMUNITY INSURANCE
COMPANY
Defendant.

INDEX

Exhibit “A” Plaintiff Original Petition.

Exhibit “B” Proof of Service

Exhibit “ Defendant’s Original Answer.

Exhibit “D” Index of Matters Being Filed.

Exhibit “E” Copy of State Court Docket Sheet/Record.

Exhibit “F” List of All Counsel of Record.

Exhibit “G” Civil Cover Sheet.

EXHIBIT
odyssey.mctx.org/Unsecured/CaseDetail.aspx?CaseID=2539498

Case Type:

William D. Abbott

211 East 7th Street, Suite 620

Jury Trial Requested

Jury Trial (Judicial Officer

Total Financial Assessment
Total Payments and Credits

Transaction Assessment

EXHIBIT E
odyssey.mctx.org/Unsecured/CaseDetail.aspx?CaseID=2539498 1/1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHE DISTRICT OF TEXAS
HOUSTONDIVISION

ARYNITA ARMSTONG

Plaintiff,

CASE NO.

FIRST COMMUNITY INSURANCE
COMPANY

Defendant.

COUNSEL OF RECORD

ATTORNEYS FOR PLAINTIFFS
Benjamin R. Crowell, III
State Bar No. 24087360
ben@ck firm.com
Brennan M. Kucera
State Bar No. 24706491
brennan@ck-firm.com
CROWELL KUCERA, PLLC
2028 E. Ben White Blvd. Ste. 240-2015
Austin, TX 78741
Telephone: (512870-7099
Facsimile: (388-9520

TTORNEYS FOR DEFENDANT
Les Pickett
State Bar No. 15980520
lpickett@gallowaylawfirm.com
William D. Abbott
State Bar No. 24087069
wabbott@gallowaylawfirm.com
GALLOWAY JOHNSON TOMPKINS
BURR & SMITH
1301 McKinney, Suite 1400
Houston, Texas 77010
(713) 599-0700 – Telephone
(713) 599-0777 – Facsimile

EXHIBIT F
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the

irst Community Insurance Company
County of Residence of First Listed County of Residence of First Listed Defendant

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF

Les Pickett and William D. Abbott, Galloway Law Firm;
78741 (512) 870-7099 1301 McKinney, Suite 1400, Houston, TX 77010;
II. BASIS OF JURISDICTION III. CITIZENSHIP OF PRINCIPAL PARTIES
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Citizen of This State 1 1 Incorporated Principal Place 4 4

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated Principal Place 5 5

3 3 Foreign Nation 6 6

IV. NATURE OF SUIT
FORFEITURE/PENALTY BANKRUPTCY
PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical
& Enforcement of Judgment Slander Personal Injury
151 Medicare Act 330 Federal Employers’ Product Liability
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated
Student Loans 340 Marine Injury Product
(Excludes Veterans) 345 Marine Product Liability
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
Product Liability 380 Other Personal 720 Labor/Management
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights 791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty

446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -

V. ORIGIN
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict

Cite the U.S. Civil Statute under which you are filing
VI. CAUSE OF ACTION

VII. REQUESTED IN
Yes No
VIII. RELATED CASE(S)

EXHIBIT G

Case Info

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Bays, Kristin Track Judge’s New Case

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Document Filed Date

June 23, 2022

Case Filing Date

May 18, 2022

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