Todd v. State Farm Fire and Casualty Company
ORDER granting 3 Motion to Strike, and Count Two of the Complaint is stricken as redundant; granting Motion to Dismiss and Count Three of the Complaint is dismissed without prejudice. Defendant must file its Answer to the remaining claims by 5/30/18. Signed by District Judge William H. Steele on 5/16/18. (mbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CARLOS TODD, as Personal
Representative of the Estate of
Leslie Todd, Deceased,
STATE FARM FIRE AND CASUALTY
CIVIL ACTION 18-0175-WS-C
This matter comes before the Court on defendant’s Motion to Dismiss and to Strike (doc.
3). The court-ordered briefing schedule has expired, with no response by plaintiff.1 The Motion
is now ripe.
This action arises from the defendant’s denial of an insurance claim for fire damage to
plaintiff’s decedent’s insured property. According to the well-pleaded factual allegations of the
Complaint, Leslie Todd obtained a renewal certificate from defendant, State Farm Fire and
Casualty Company, extending his fire insurance coverage for a policy period of November 6,
2016 to November 6, 2017 (the “Policy”). (Doc. 1, Exh. B, at ¶ 3.) Todd was killed in an
On April 20, 2018, the Court entered an Order (doc. 6) specifically directing
plaintiff to respond to the Motion by no later than May 4, 2018. Plaintiff, who is represented by
counsel, elected not to do so, and has thus waived the opportunity to be heard on State Farm’s
Motion. That said, plaintiff’s failure to respond to the Motion to Dismiss neither constitutes a
legal abandonment of his claims nor authorizes the reflexive granting of said Motion without
examining its merits. See, e.g., Gailes v. Marengo County Sheriff’s Dep’t, 916 F. Supp.2d 1238,
1243-44 (S.D. Ala. 2013) (explaining that “the Court will not treat a claim as abandoned merely
because the plaintiff has not defended it in opposition to a motion to dismiss,” but “will review
the merits of the defendant’s position” instead); Long v. Patton Hospitality Management, LLC,
2016 WL 1677565, *1 n.1 (S.D. Ala. Apr. 26, 2016) (similar). That said, plaintiff’s omission is
at his peril. The Court will not undertake to fill in the blanks with arguments he could have
raised but did not.
automobile accident in September 2016, after which his Estate continued to make all premium
payments on the Policy. (Id., ¶¶ 6-9.) The insured property, a residence and its contents on Old
Shell Road in Mobile, Alabama, was destroyed by fire on March 13, 2017. (Id., ¶ 10.) The
Complaint alleges that, even though defendant accepted all premium payments and failed to
notify Todd or his Estate, State Farm canceled Todd’s Policy sometime after the loss was
reported. (Id., ¶¶ 13-16.) The Complaint further alleges that State Farm has refused to honor the
Estate’s claim for insurance benefits under the Policy. (Id., ¶¶ 17-18.)
Based on these facts, the Complaint purports to assert three causes of action against State
Farm. In Count One, the Estate alleges that State Farm’s “refusal to honor Plaintiff’s claim
constitutes a breach of contract with respect to State Farm Fire and Casualty Company’s refusal
to pay the insurance claim made herein.” (Id., ¶ 19.) The only substantive allegation presented
in Count Two is that State Farm “has refused, and continues to refuse, to honor and abide by the
contract of insurance between Plaintiff’s decedent, Leslie Todd, and State Farm.” (Id., ¶ 22.)
Finally, in Count III, the Estate alleges that State Farm “has been guilty of bad faith, outrageous
conduct, negligence, willfulness, oppressiveness, maliciousness, fraudulent conduct, and
recklessness by denying the claims of Plaintiff’s decedent, Leslie Todd, under the terms of the
aforementioned policy of fire insurance.” (Id., ¶ 24.) The ad damnum clause of the Complaint
specifies that the Estate seeks enumerated damages of $83,200 for the total loss of Todd’s
residence by fire, plus an additional $62,000 for the loss of household furnishings and other
personal property, for a total loss of $145,200. (Id. at 5.)
With respect to Count Two, State Farm has filed a Motion to Strike on the grounds that
Count Two is redundant of Count One, inasmuch as both claims assert only that State Farm’s
failure to pay the Estate’s claim under the Policy is a breach of contract. The Federal Rules of
Civil Procedure provide that “[t]he court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Rule 12(f), Fed.R.Civ.P.
(emphasis added). Federal courts routinely rely on Rule 12(f) to strike duplicative claims and
allegations from a pleading. See, e.g., Asten v. City of Boulder, 652 F. Supp.2d 1188, 1197 (D.
Colo. 2009) (“pursuant to Federal Rule of Civil Procedure 12(f) … plaintiff’s second claim for
relief is stricken as redundant”); Lamke v. Sunstate Equipment Co., 387 F. Supp.2d 1044, 1047
(N.D. Cal. 2004) (“[C]ourts will strike a claim as ‘redundant’ when it essentially repeats another
claim in the same complaint.”) (citation omitted); Munie v. Stag Brewery, Div. of G. Heileman
Brewing Co., 131 F.R.D. 559, 559-60 (S.D. Ill. 1989) (ordering Count II stricken pursuant to
Rule 12(f) where “Counts I and II are identical counts alleging premises liability and personal
injury damages against defendant Stag Brewery”); Brown v. Royal Caribbean Cruises, Ltd.,
2000 WL 34449703, *7 (S.D.N.Y. Aug. 24, 2000) (“Because the Fourth and Fifth Counts are
virtually identical to the Second and Third Counts, … the Court finds these claims to be
redundant and strikes them pursuant to Fed.R.Civ.P. 12(f).”). On its face, Count Two is
needlessly repetitive of Count One. It adds no new allegations, no new theories and no new
claims for relief, but simply restates the same claim for relief presented in Count One. Despite
being an afforded an opportunity to be heard, plaintiff has identified no justification or proper
purpose for such repetition in the Complaint. Accordingly, the Motion to Strike is due to be
granted pursuant to Rule 12(f).
As for Count Three, State Farm has filed a Motion to Dismiss, principally on the grounds
of insufficient pleading. In framing that claim in the Complaint, the Estate merely strings
together a series of unsupported, conclusory labels. Specifically, the Complaint alleges that State
Farm’s denial of the subject fire insurance claim constituted “bad faith, outrageous conduct,
negligence, willfulness, oppressiveness, maliciousness, fraudulent conduct, and recklessness.”
The Complaint is devoid of factual allegations that might lend credence to any of these
To withstand Rule 12(b)(6) scrutiny and satisfy the minimum pleading requirements
prescribed by Rule 8(a), a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face,” so as to “nudge [his] claims across the line from conceivable to
plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 2d
929 (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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation
omitted). “This necessarily requires that a plaintiff include factual allegations for each essential
element of his or her claim.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir.
2012). Thus, minimum pleading standards “require more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
As the Eleventh Circuit has explained, Twombly / Iqbal principles demand that a complaint’s
allegations be “enough to raise a right to relief above the speculative level.” Speaker v. U.S.
Dep’t of Health and Human Services Centers for Disease Control and Prevention, 623 F.3d
1371, 1380 (11th Cir. 2010) (citations omitted). “To survive a 12(b)(6) motion to dismiss, the
complaint does not need detailed factual allegations, … but must give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Randall v. Scott, 610 F.3d
701, 705 (11th Cir. 2010) (citations and internal quotation marks omitted). The allegations “must
… state a claim for relief that is plausible – and not merely possible – on its face.” Almanza v.
United Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017).
In its current form, the Estate’s Complaint presents no factual allegations that might
bolster the premise that State Farm’s denial of the fire insurance claim on Leslie Todd’s
residence was fraudulent, oppressive, malicious, taken in bad faith, or any of the other cursory
characterizations found in Count Three. “The general rule in Alabama is that the mere failure to
perform a contractual obligation will not sustain an action sounding in tort.” Temploy, Inc. v.
National Council on Compensation Ins., 650 F. Supp.2d 1145, 1153 (S.D. Ala. 2009).2 Thus,
most of plaintiff’s conclusory labels are not cognizable as viable claims here. To be sure,
Alabama does recognize “the tort of bad faith in regard to the failure to pay an insurance claim”
in circumstances where the insurer has engaged in “intentional refusal to settle a direct claim,”
and either has actual knowledge of the absence of any arguable reason for such refusal or
intentionally failed to determine whether there was a lawful basis for such refusal. State Farm
Fire and Cas. Co. v. Brechbill, 144 So.3d 248, 257 (Ala. 2013). In its current form, however, the
Complaint is devoid of facts constituting a plausible showing that (i) State Farm intentionally
refused to pay the claim; (ii) State Farm actually knew it lacked a debatable reason for denying
the claim; or (iii) State Farm intentionally failed to determine whether there was an arguable
reason for refusal to pay the claim.
Simply put, Count Three fails to satisfy the minimum pleading threshold of stating a
plausible claim for relief under Twombly, whether couched as a general claim for tortious breach
See also Buckentin v. SunTrust Mortg. Corp., 928 F. Supp.2d 1273, 1290 (N.D.
Ala. 2013) (“Alabama law does not recognize a tort-like cause of action for the breach of a duty
created by a contract. … A negligent failure to perform a contract … is but a breach of the
contract.”) (citations and internal marks omitted); Geodesic Consulting, LLC v. Compass Bank,
2017 WL 4882381, *9 (N.D. Ala. Oct. 30, 2017) (“A tort-like cause of action for the breach of a
duty created by contract is not recognized in Alabama.”).
of contract (which is not cognizable under Alabama law) or as a claim of bad faith (as to which
no supporting facts are presented as to multiple elements of the corresponding Alabama cause of
action). In its current form, Count Three fails to state a claim upon which relief can be granted.
For all of the foregoing reasons, it is ordered as follows:
Defendant’s Motion to Strike (doc. 3) is granted, and Count Two of the
Complaint is stricken as redundant, pursuant to Rule 12(f), Fed.R.Civ.P.;
Defendant’s Motion to Dismiss (doc. 3) is granted, and Count Three of the
Complaint is dismissed without prejudice, pursuant to Rule 12(b)(6),
Fed.R.Civ.P., for failure to meet the minimum pleading standards prescribed by
Rule 8(a); and
Defendant must file its Answer to the remaining claims and allegations in the
Complaint by no later than May 30, 2018.
DONE and ORDERED this 16th day of May, 2018.
UNITED STATES DISTRICT JUDGE
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