Turner et al v. Cook et al

Filing 91

ORDER AND REASONS: ORDERED that the plaintiffs' 56 Motion to Dismiss or for summary judgment is hereby DENIED. Signed by Judge Martin L.C. Feldman on 5/7/19. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TAMINIKA SHAUL, DERRICK
THOMAS, and RICHARD J. TURNER

CIVIL ACTION

V.

NO. 18-2851

CANAL INSURANCE COMPANY,
CHRISTOPHER C. COOK, and
TEXAS FREIGHT SERVICES, INC.

SECTION “F”

ORDER AND REASONS
Before the Court is the plaintiffs’ Rule 12(b)(6) motion to
dismiss

the

defendants’

amended

counterclaim,

alternative, Rule 56 motion for summary judgment.

or

in

the

For the reasons

that follow, the motion is DENIED.
Background
This personal injury action arises out of a motor vehicle
accident that allegedly occurred on the I-10’s Highrise Bridge in
New Orleans, Louisiana.
On November 29, 2017, Richard Turner, Taminika Shaul, and
Derrick

Thomas

traveling

were

westbound

riding
on

as

passengers

Interstate

10

in

in

a

the

Nissan
center

Murano
lane.

Christopher Cook was allegedly driving a Freightliner semi-truck
in the right-hand lane next to the Nissan.

It is alleged that,

“suddenly and without warning,” Mr. Cook “changed to the middle
lane,” causing his semi-truck to strike the Nissan.

1

On March 16, 2018, Richard Turner, Taminika Shaul, and Derrick
Thomas sued Christopher Cook, Texas Freight Services, Inc. (Cook’s
employer), and Canal Insurance Company (Texas Freight’s automobile
liability insurer), alleging that Cook’s negligence caused their
injuries and seeking damages in excess of $1,000,000.
In October of 2018, the defendants were granted leave to file
a counterclaim, alleging that the plaintiffs misrepresented and/or
staged the accident and/or misrepresented their injuries, causing
the defendants to sustain damages in the form of attorneys’ fees
and litigation expenses.
counterclaim

for

failure

The plaintiffs then moved to dismiss the
to

state

a

claim,

after

which

the

defendants filed an amended counterclaim on December 17, 2018.
In their amended counterclaim, the defendants allege that the
plaintiffs conspired together to cause and/or stage this accident.
For support, the defendants submit that Mr. Cook did not merge to
the left as plaintiffs allege or experience any type of impact
consistent with a motor vehicle accident.

They further allege

that there was no damage to the 18-wheeler and minimal damage to
the passenger side of the plaintiffs’ vehicle, which plaintiffs
attribute to the purported accident discussed in their complaint.
The defendants also allege that they have discovered over 30 other
accidents with similar factual scenarios, where 18-wheelers on the
I-10 or 6-10 in New Orleans are flagged down regarding accidents
of which their drivers are unaware.
2

According to the defendants,

plaintiff Richard Turner’s brother (Rashad Turner) was involved in
one of these similar accidents one week prior to this accident,
his

mother

(Tiffany

Turner)

and

sister

(Adonte

Turner)

were

involved in their own similar accident just a week before Rashad’s,
and Tiffany Turner’s former husband (Juan Matthews) was involved
in an accident with the same fact pattern about four months
earlier.
The plaintiffs now move to dismiss the defendants’ amended
counterclaim pursuant to Rule 12(b)(6), or in the alternative, for
summary judgment under Rule 56.
I.
A.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009) (citing Fed. R. Civ. P. 8).
“[T]he

pleading

standard

Rule

8
3

announces

does

not

require

‘detailed

factual

allegations,’

but

it

demands

more

than

an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Stated differently, Rule 8 “does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”

Id. at

678-79.
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”

See Thompson v. City of Waco,

Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012) (en banc)).

But, in deciding whether dismissal is

warranted, the Court will not accept conclusory allegations in the
complaint as true.

Id. at 502-03; see also Iqbal, 556 U.S. at 678

(“[W]e are not bound to accept as true a legal conclusion couched
as a factual allegation.”) (internal citations omitted).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th

Cir.

2009)

(quoting

quotation marks omitted).

Iqbal,

556

U.S.

at

678)

(internal

“Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).”

Twombly, 550 U.S. at 555 (citations and
4

footnote omitted).

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged.”

that

the

defendant

is

liable

for

the

Iqbal, 556 U.S. at 678 (“The plausibility

standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.”).

This is a “context-specific task that requires the

reviewing court to draw on its judicial experience and common
sense.”

Id. at 679.

“Where a complaint pleads facts that are

merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

“[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires 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 (alteration in original) (citation omitted).
B.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
5

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
“[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence.”

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007) (internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
significantly

probative,”

summary

judgment

is

appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
6

Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.

Scott v. Harris, 550 U.S. 372, 378 (2007).

Although

the Court must “resolve factual controversies in favor of the
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013) (internal quotation marks and citation
omitted).
II.
The plaintiffs urge the Court that the fraud allegations in
the defendants’ amended counterclaim fail to satisfy Rule 9(b)’s
heightened pleading standard, and in any event, are not supported
by competent summary judgment evidence under Rule 56.
A.
The Court first considers whether the defendants’ amended
counterclaim with particularity alleges fraud.

Under Louisiana

law, “[f]raud is a misrepresentation or a suppression of the truth
made with the intention either to obtain an unjust advantage for
one party or to cause a loss or inconvenience to the other.”
Civ. Code art. 1953.

La.

“The elements of a Louisiana delictual fraud
7

or

intentional

misrepresentation

cause

of

action

are:

(a)

a

misrepresentation of a material fact, (b) made with the intent to
deceive,
injury.”

and

(c)

causing

justifiable

reliance

with

resultant

McGee-Hudson v. United States, No. 16-796, 2017 WL

6803767, at *3 (M.D. La. Oct. 31, 2017) (quoting Guidry v. U.S.
Tobacco, Inc., 188 F.3d 619, 627 (5th Cir. 1999)).

State law fraud

claims, such as those alleged by the defendants here, are subject
to the heightened pleading requirement set forth in Federal Rule
of Civil Procedure 9(b).

Dorsey v. Portfolio Equities, Inc., 540

F.3d 333, 338-39 (5th Cir. 2008).
Under Rule 9(b), “a party must state with particularity the
circumstances constituting fraud.”

Fed. R. Civ. Proc. 9(b).

However, “[m]alice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally.”

Id.

The Fifth Circuit

“‘interprets Rule 9(b) strictly, requiring a [party] pleading
fraud

to

specify

the

statements

contended

to

be

fraudulent,

identify the speaker, state when and where the statements were
made, and explain why the statements were fraudulent.’”

Dorsey,

540 F.3d at 339 (quoting Herrmann Holdings Ltd. v. Lucent Techs.
Inc., 302 F.3d 552, 564-65 (5th Cir. 2002)).

In other words, “Rule

9(b) requires the complaint to set forth ‘the who, what, when,
where, and how’ of the events at issue.”

Id. (quoting ABC

Arbitrage Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 350 (5th Cir.
2002)).

Because

the

particularity
8

demanded

by

Rule

9(b)

is

supplemental to Rule 8(a)’s pleading standard, “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).”

Lentz v. Trinchard, 730 F. Supp. 2d 567, 579 (E.D. La.

2010) (quoting U.S. ex rel. Thompson v. Columbia/HCA Healthcare
Corp., 125 F.3d 899, 901 (5th Cir. 1997)).
The Court finds that the defendants’ amended counterclaim
satisfies

Rule

9(b)’s

particularity

requirement.

Here,

the

alleged misrepresentation is the plaintiffs’ assertion in their
complaint that they were injured in a motor vehicle accident caused
by Christopher Cook on November 29, 2017.

According to the

defendants’ counterclaim, this assertion is untrue because the
plaintiffs intentionally caused or “staged” the accident.

For

support, the defendants allege that Mr. Cook did not feel any type
of impact consistent with a motor vehicle accident, that there was
no damage to the 18-wheeler and minimal damage to the plaintiffs’
vehicle, and that they have discovered over 30 other accidents
with similar factual scenarios, where 18-wheelers on the I-10 or
6-10 in New Orleans are flagged down regarding accidents of which
their drivers are unaware.
Notably,

the

defendants

allege

that

plaintiff

Richard

Turner’s mother, sister, brother, and former stepfather had been
involved in three accidents nearly identical this one, after which
they retained Vanessa Motta or Edwin Shorty, Jr. (the lead counsel
9

of record in this case) to represent them in asserting personal
injury claims.

Specifically, the defendants allege that Richard

Turner’s brother (Rashad Turner) was involved in one of these
similar accidents one week prior to this accident, that his mother
(Tiffany Turner) and sister (Adonte Turner) were involved in their
own

similar

accident

just

a

week

before

Rashad’s,

and

that

Tiffany’s former husband (Juan Matthews) was involved in another
accident with a similar fact pattern about four months earlier.
The defendants further allege that Tiffany Turner’s cellphone
records reveal that she has been associated with Ryan Harris, who
was involved in an accident with an 18-wheeler on the I-10 in March
of 2017 and is related to multiple individuals who have also been
involved in other similar accidents.
The defendants further submit that they have uncovered a
comment on one of Tiffany Turner’s Facebook photos, where an
individual named Marlene Kennedy states that Tiffany and her kids
have intentionally caused or faked accidents on the “blind side”
of 18 wheelers.

The counterclaim also includes a detailed chart

that delineates the plaintiffs in 20 strikingly similar lawsuits,
counsel for the plaintiffs in those lawsuits, when and where the
accidents allegedly occurred, and what circumstances caused the
underlying accidents.
plaintiffs

here

and

The defendants ultimately allege that the
those

in

the

10

20

similar

lawsuits

have

fraudulently

misrepresented

the

occurrence

of

motor

vehicle

accidents to defraud automobile insurance companies.
If accepted as true and considered together, these factual
allegations support an inference that the plaintiffs have made
misrepresentations in their complaint to collect damages from the
defendants for an accident that they staged.

And in being forced

to defend plaintiffs’ purportedly false claims, the defendants
have suffered damages in the form of attorneys’ fees and litigation
expenses. 1
The Court finds two recent rulings by Magistrate Judge van
Meerveld in related cases instructive.

In Frazier v. Runnels,

Judge van Meerveld held that allegations of fraud asserted against
Tiffany Turner, Adonte Turner, and Dimitri Frazier were stated
with particularity because the counterclaim alleged that “similar
accidents ha[d] been suffered by relatives of Tiffany Turner who
were represented by the same attorney who pursued other, similar
claims

on

previously

behalf
made

of

other

plaintiffs

questionable

convicted of forgery.”

and

insurance

that

claims

Tiffany
and

[]

ha[d]
been

See Order and Reasons dtd. 9/24/18, Rec.

Doc. 22, Civil Action No. 18-2340.

However, in Reff v. Werner

Enterprises, Inc., Judge van Meerveld determined that a fraud

1

The merits of defendants’ assertions will necessarily await
trial. If successful, this Court will have the discretion to refer
the matter to the office of the United States Attorney.
11

counterclaim

did

not

survive

Rule

9(b)’s

heightened

pleading

standard because it only alleged “some coincides, several of which
[we]re not that striking.”

See Order and Reasons dtd. 3/20/19,

Rec. Doc. 32, Civil Action No. 18-8350.

Distinguishing the Reff

counterclaim from the one asserted in Frazier, Judge van Meerveld
explained that “several of the ‘similar’ accidents cited by the
defendants in Frazier actually involved relatives of the Frazier
plaintiffs,” while the defendants in Reff only alleged that one of
the plaintiffs lived in the same vicinity as other purported
accident victims and speculated that he may be related to them.
Here, the inference of fraud is more analogous to that present
in Frazier than Reff.

Notably, the defendants have explained in

their amended counterclaim that plaintiff Richard Turner is the
son of Tiffany Turner, brother of Adonte and Rashad Turner, and
the

former

step-son

of

Juan

Matthews.

Thus,

the

alleged

connections to other similar accidents here are based on neither
geographic proximity to the residences of other plaintiffs nor
conjecture

about

familial

relationships.

Because

the

fraud

allegations in the defendants’ amended counterclaim are stated
with

particularity,

dismissal

under

Rule

12(b)(6)

is

not

appropriate.
B.
The Court next considers whether the defendants’ counterclaim
survives

the

plaintiffs’

motion
12

for

summary

judgment.

The

plaintiffs contend that the defendants’ fraud allegations are
supported by only two pieces of evidence, neither of which is
competent: (1) the unsworn statement of Marlene Kennedy given to
a private investigator on April 20, 2018; and (2) a Facebook post
purportedly made by Ms. Kennedy on September 26, 2016.

The

plaintiffs further submit that the defendants’ decision to settle
a personal injury claim filed by Sade Thomas, the driver of the
car in which the plaintiffs were riding, undermines the defendants’
fraud counterclaim.
In response, the defendants present the following evidence to
substantiate their fraud allegations: (1) the deposition testimony
of each plaintiff in this case; (2) certified cellphone records;
(3) certified accident reports from similar alleged incidents; (4)
pleadings filed in lawsuits arising out of those accidents; and
(5) the report of Wayne Winkler, an accident reconstruction expert.
First, the deposition testimony of plaintiff Richard Turner
confirms that he is related to at least three other plaintiffs
involved in two similar accidents.

During his deposition on

October 11, 2018, Richard Turner testified that he is the son of
Tiffany Turner and the brother of Adonte Turner and Rashad Turner. 2

2

On April 3, 2019, Tiffany Turner, Adonte Turner, and Dimitri
Frazier moved to dismiss their own personal injury claims, which
were pending before Judge Lemelle in another Section of this Court.
The motion to dismiss was filed approximately two weeks after the
Frazier plaintiffs submitted affidavits, attesting that they would
13

Richard Turner also stated, under oath, that he was living with
his mother, sister, and brother when the accident alleged in this
occurred.
Certified cellphone records, in turn, establish a consistent
pattern

of

communication

Tiffany Turner.

between

plaintiff

Taminka

Shaul

and

Notably, Ms. Shaul’s cellphone records document

approximately ten calls between her number and Tiffany Turner’s on
the day of this alleged accident, followed by a dozen calls the
next

day. 3

deposition

The

defendants

testimony

to

next

establish

point
a

to

link

plaintiff in this case and Tiffany Turner.

Derrick
between

Thomas’s
the

third

During his deposition

on October 11, 2018, Derrick Thomas acknowledged that he had met
or seen Tiffany Turner and that he knew where she was living at
the time of the accident in which he was involved.
Finally,

the

defendants

submit

the

report

of

accident

reconstruction expert, Wayne Winkler, in which he opines that the
“the claims arising out of this incident stem from intentional
and/or staged acts.”

In reaching his conclusion, Mr. Winkler

explains, in part, that the “magnitude and characteristics of the
damage on the [plaintiffs’] vehicle were consistent with the
actions of a driver who purposely made contact with the tires on

assert their Fifth Amendment privilege against self-incrimination
if called to testify at trial.
3 During her deposition on June 11, 2018, Tiffany Turner testified
that her cell phone number was 504-535-8171 in November of 2017.
14

a commercial semi-trailer” and that Ms. Shaul and Mr. Thomas’s
testimony

regarding

the

accident

were

inconsistent

with

the

minimal physical damage on the vehicle in which they were riding.
Together, this evidence raises a serious issue of material fact as
to whether Richard Turner, Taminika Shaul, and Derrick Thomas made
misrepresentations in their complaint to collect damages for an
accident that they staged. 4
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the plaintiffs’ motion to dismiss or for summary judgment is hereby
DENIED.

New Orleans, Louisiana, May 7, 2019

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

4

The admissibility of Sade Thomas’s settlement is the subject of
a motion in limine by the defendants that is set for hearing on
the trial date, June 3, 2019. For purposes of this motion, the
Court need not decide whether such evidence is admissible because,
even if it is considered, there is nonetheless a genuine dispute
of material fact as to whether this accident did not occur as the
plaintiffs allege.
15