Frazier, et al v. Runnels, et al

Filing 85

ORDER AND REASONS DENYING 23 Motion to Dismiss for Failure to State a Claim, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 02/21/2019. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DIMITRI FRAZIER, ET AL.

CIVIL ACTION

VERSUS

NO. 18-2340

ROBERT L. RUNNELS, ET AL

SECTION "B"(1)

ORDER AND REASONS
Defendants-in-counterclaim/plaintiffs Dmitri Frazier, Adonte
Turner, and Tiffany Turner filed a motion to dismiss plaintiffsin-counterclaim/defendants Robert Runnels, Canal Insurance Company
and Whitestone Transportation, LLC’s counterclaims against them.
Rec.

Doc.

23.

Plaintiffs-in-counterclaim

filed

a

response

in

opposition. Rec. Doc. 26.
For the reasons discussed below,
IT IS ORDERED that defendants-in-counterclaim’s motion to
dismiss is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This action concerns a motor vehicle accident that occurred
on

November

13,

2017.

Rec.

Doc.

4.

Plaintiffs

alleged

that

defendant Robert Runnels was driving a semi within the course and
scope of his employment for Whitestone Transportation, L.L.C when
he suddenly switched lanes and caused a collision with plaintiffs’
vehicle. Id. at 2-3. Plaintiffs allege that they sustained severe
and

serious

bodily

injuries

because

of

the

accident.

Id.

Furthermore, plaintiffs assert that Runnels’ negligence was the

1

sole and proximate cause of the accident and that Whitestone is
vicariously liable. Id.
Defendants/plaintiffs-in-counterclaim sought leave to file a
counterclaim claiming that there was no accident as alleged by
plaintiffs/defendants-in-counterclaim and that the accident was
intentionally caused by defendants-in-counterclaim who suffered no
injury. Rec. Doc. 11-2. The Magistrate Judge denied leave to file
the proposed counterclaim but granted leave to file a revised
counterclaim

providing

counterclaim’s

a

factual

allegations.

basis

plaintiffs-in-

Doc.

Rec.

for
14.

Plaintiffs-in-

counterclaim filed an amended counterclaim, with additional facts
in support of their allegations. Rec. Doc. 15. Defendants-incounterclaim filed a motion to strike the amended counterclaim
pursuant to Federal Rule of Civil Procedure 12(f) on the basis
that

it

presented

unverified

and

immaterial

allegations

and

alleging that plaintiffs-in-counterclaim did not plead fraud with
sufficient particularity as required by Rule 9(b). Rec. Doc. 171.

In

her

order

and

reasons,

defendants-in-counterclaim’s
relevant

part,

that

the

motion

Magistrate
to

strike,

plaintiffs-in-counterclaim

Judge

denied

holding,
had

met

in
the

requirements of pleading fraud under Rule 9(b) by stating their
allegations with sufficient particularity, and therefore satisfied
Rule 9(b)’s purpose of providing fair notice of the claims against
them. Rec. Doc. 22 at 7-8.
2

Defendants-in-counterclaim

filed

the

instant

motion

to

dismiss the amended counterclaim pursuant to F.R.C.P. 12(b)(6)
claiming plaintiffs-in-counterclaim did not satisfy the heightened
pleading standard for fraud under Rule 9(b). Rec. Doc. 23-1.
Plaintiffs-in-counterclaim

filed

a

response

in

opposition

asserting their allegations provide sufficient factual allegations
to demonstrate a plausible claim for relief as required at the
12(b)(6) stage. Rec. Doc. 26 at 4. Additionally, leave was granted
after judicial review to file a second supplemental and amended
counterclaim providing additional factual allegations in support
of the fraud claims. Rec. Doc. 37.
LAW AND ANALYSIS
Rule 9(b) states that “[i]n alleging fraud . . . a party must
state with particularity the circumstances constituting fraud.”
Fed.R.Civ.P. 9(b). Thus, “Rule 9(b) requires, at a minimum, that
a plaintiff set forth the who, what, when, where, and how of the
alleged fraud.” U.S. ex rel. Steury v. Cardinal Health, Inc., 625
F.3d 262, 266 (“Steury I”) (5th Cir.2010) (citations and internal
quotation marks omitted). “A dismissal for failure to plead fraud
with particularity under Rule 9(b) is treated as a dismissal for
failure to state a claim under Rule 12(b)(6).” United States ex
rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 n. 8 (5th Cir.2009)
(citation and internal quotation marks omitted). U.S. ex rel.
Steury v. Cardinal Health, Inc., 735 F.3d 202, 204 (5th Cir. 2013)
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To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff’s complaint “must contain ‘enough
facts to state a claim to relief that is plausible on its face.’”
Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when the plaintiff pleads facts that allow the
court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. In the context of this
Rule 12(b)(6) motion, we must accept all well-pleaded facts as
true and must draw all reasonable inferences in favor of the
plaintiffs-in-counterclaim. Lormand v. U.S. Unwired, Inc., 565
F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196
(5th Cir. 1996). However, the court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S.
at

678.

“[C]onclusory

allegations

or

legal

conclusions

masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376,
378 (5th Cir. 2002). When deciding whether a plaintiff has met
their

burden,

a

court

“accept[s]

all

well-pleaded

factual

allegations as true and interpret[s] the complaint in the light
most favorable to the plaintiff, but ‘[t]hreadbare recitals of the
elements

of

statements’

a

cause

cannot

of

action,

establish

supported
facial

4

by

mere

conclusory

plausibility.”

Snow

Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir.
2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Fifth Circuit has noted that “the frequently stated,
judicially-created standard for a sufficient fraud complaint . .
. instructs a plaintiff to plead the time, place and contents of
the false representation, as well as the identity of the person
making

the

misrepresentation

and

what

that

person

obtained

thereby.” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 186
(5th Cir. 2009). The purpose of Rule 9(b) is to serve as “a
gatekeeper to discovery, a tool to weed out meritless fraud claims
sooner than later.” Id.
In the present case, plaintiffs-in-counterclaim have provided
a sufficient factual basis for their allegations to proceed past
this screening stage. The amended counterclaim, and the second
amended and supplemental counterclaim, lay out sufficient factual
allegations, that if taken as true, make a plausible claim for
relief.

Plaintiffs-in-counterclaim

have

alleged

the

“the

who,

what, when, where, and how” of their claim. Their counterclaim
identified Dmitri Frazier, Adonte Turner, and Tiffany Turner as
the alleged perpetrators of the fraud occurring on November 13,
2017 on Interstate 10 eastbound shortly before milepost 246. Rec.
Doc.

15

at

1.

Plaintiffs-in-counterclaim

allege

that

Robert

Runnels has testified and maintains that he did not experience
impact consistent with a motor vehicle accident and the data system
5

on the 18-wheeler did not document any impact, whereas there was
significant

damage

to

the

vehicle

occupied

by

defendants-in-

counterclaim. Id. at 2. Furthermore, plaintiffs-in-counterclaim
allege they have uncovered evidence of numerous other accidents
with similar factual scenarios to the present case, all occurring
on I-10 or 610 in New Orleans, in which an unknown third vehicle
waves down an 18-wheeler driver who is unaware that he/she was
allegedly involved in an accident. Id. at 3. The counterclaim also
asserts that the same attorney as retained by defendants-incounterclaim was retained in these similar accidents and the
alleged

victims

include

known

associates

and

relatives

of

defendants-in-counterclaim. Rec. Doc. 37 at 4-5. Plaintiffs-incounterclaim further allege that defendant-in-counterclaim has a
prior conviction for forgery and has filed questionable insurance
claims in the past. Id. at 6. Finally, the counterclaim provides
a

Facebook

photograph

of

Ms.

Turner

on

which

an

individual

commented about defendants-in-counterclaim’s alleged involvement
in intentionally causing fraudulent accidents with 18-wheelers.
Id. Taken together, these factual allegations, if true, put forth
a plausible claim for relief. Additionally, these allegations are
not

conclusory

allegations

or

legal

conclusions,

but

rather

particular factual allegations as required by Rule 9(b). Lastly,
the Magistrate Judge found the allegations of fraud were stated
with sufficient particularity to satisfy Rule 9(b). Rec. Doc. 22.
6

At this stage, it is not for the Court to determine the strength
of plaintiff-in-counterclaim’s allegations or whether they are
likely to be true. Rather, the Court must only determine whether
plaintiffs-in-counterclaim

have

pled

factual

allegations

with

sufficient particularity to present a facially plausible claim for
relief. Defendants-in-counterclaim have fair notice of the claims
against them. The requirements of Rule 9(b) pleading have been
met.
New Orleans, Louisiana, this 21st day of February, 2019

____________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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