Garcia v. Certain Underwriters at Lloyd's, London

Filing 29

ORDER, OVERRULING Underwriters' 25 objections and ADOPTING 23 Report and Recommendation as the opinion of this Court. Thus, Garcia's claim for breach of contract survives Defendant's 7 motion to dismiss, and his bad faith claim is DISMISSED with prejudice. Signed by Senior Judge Callie V. S. Granade on 5/25/2017. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FELIPE GARCIA,
Plaintiff,
vs.
CERTAIN UNDERWRITERS AT
LLOYD’S, LONDON,
Defendant.

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) CIVIL ACTION NO. 16–635–CG–B
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ORDER
This matter is before the Court on the Report and Recommendation
(“R&R”) of the magistrate judge (Doc. 23) and Defendant Certain
Underwriters at Lloyd’s, London’s (“Underwriters” or “Defendant”) objection
(Doc. 25) and brief in support (Doc. 25-1). The magistrate judge recommended
dismissing Plaintiff Felipe Garcia’s (“Garcia”) bad faith claim with prejudice
as time barred but denying the dismissal of Garcia’s breach of contract claim.
(See Doc. 23, pp. 2–3, 9). The Underwriters object to the denial of the motion
to dismiss the breach of contract claim on the basis that the “Background
Facts” section “set[s] forth as true certain facts that remain in dispute” and
that the magistrate judge improperly dismissed the arguments based on
Federal Rule of Civil Procedure 9(c). (Doc. 25-1, p. 1).
After due and proper consideration of all portions of this file deemed
relevant to the issues raised, and a de novo determination of the R&R to

which objection is made, the magistrate judge’s Report and Recommendation
made under 28 U.S.C. § 636(b)(1)(B) and L. R. 72(a)(2)(S) is hereby
ADOPTED as the opinion of this Court.
As the Underwriters note in their objection, the Court must accept the
allegations of a complaint as true and construe them in the light most
favorable to the plaintiff. Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241,
1243–44 (11th Cir. 2016). The R&R does not, however, adopt those same facts
as beyond critique. Defendant may dispute facts, as supported by evidence, in
subsequent motions before this Court.
As to the second objection, this Court notes that a failure to plead
compliance with conditions precedent is not fatal. This defect is “subject to
amendment” and can be cured in an amended complaint. See Maguire v.
Federal Crop Ins. Corp., 181 F.2d 320, 322 (5th Cir. 1950).
For these reasons, the Court OVERRULES the Underwriters’
objections to the R&R and ADOPTS the R&R (Doc. 23) as the opinion of this
Court. Thus, Garcia’s claim for breach of contract survives Defendant's
motion to dismiss, and his bad faith claim is hereby DISMISSED with
prejudice.
DONE and ORDERED this 25th day of May, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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