Green et al v. Liberty Insurance Corporation

Filing 29

OPINION AND ORDER granting 11 Defendant's Motion for Judgment on Class Allegations and Dismissing Count II of Plaintiffs' Complaint. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT GREEN, et. al.,
Plaintiffs,
v.

Case No. 15-10434

LIBERTY INSURANCE CORPORATION,
Defendant.
/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON
CLASS ALLEGATIONS
Pending before the court is a “Motion for Judgment on Class Allegations,” (Dkt. #
11), filed on April 29, 2015 by Defendant Liberty Insurance Corporation (“Liberty”). The
matter has been fully briefed and the court concludes a hearing is unnecessary. See
E.D. Mich. LR 7.1(f)(2). For the reasons stated below, the court will grant the motion.
I. BACKGROUND
This is a run-of-the-mill insurance dispute. Plaintiffs Robert and Verge Green are
husband and wife and live, along with their son, Plaintiff Desmond Green, at 608 East
Ellen Street in Fenton, Michigan. (Dkt. # 11, Pg. ID 142; Dkt. # 15, Pg. ID 445.) On or
around January 29, 2014, Plaintiffs allegedly returned home to find their house
ransacked and several highly valuable items stolen including vintage guitars, musical
instruments, video games, and jewelry. (Id.) The Fenton Police Department
investigated the incident that night, and determined that the theft was the result of a
Breaking and Entering/Forced Entry. (Dkt. # 15, Pg. ID 445).

The next day, Plaintiff Robert Green filed a claim with his insurance company,
Defendant Liberty. (Dkt. # 11, Pg. ID 142; Dkt. # 15, Pg. ID 445.) Defendant
investigated the claim over the course of the next seven months, and on August 16,
2014 sent Plaintiffs a letter declining coverage. (Dkt. # 11, Pg. ID 143.) Plaintiffs then
filed this suit, alleging both an individual breach of contract claim, and broader class
allegations. (Dkt. # 1-1.)
II. STANDARD
Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for
judgment on the pleadings “[a]fter the pleadings are closed—but early enough not to
delay trial.” Fed. R. Civ. P. 12(c). When ruling on a Rule 12(c) motion, the court must
take as true “all well-pleaded material allegations of the pleadings of the opposing
party,” and “the motion may be granted only if the moving party is nevertheless clearly
entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th
Cir. 2007) (quoting So. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479
F.2d 478, 480 (6th Cir.1973)). However, the court “need not accept as true legal
conclusions or unwarranted factual inferences.” Id. at 581-82 (quoting Mixon v. Ohio,
193 F.3d 389, 400 (6th Cir.1999)). The court is to grant a Rule 12(c) motion “when no
material issue of fact exists and the party making the motion is entitled to judgment as a
matter of law.” Id. at 582 (quoting Paskvan v. City of Cleveland Civil Serv. Comm’n, 946
F.2d 1233, 1235 (6th Cir.1991)). “There must be no material issue of fact that could
prevent judgment for the moving party.” Monroe Retail, Inc. v. RBS Citizens, N.A.,
No.074263, 2009 WL 4749352, at *3 (6th Cir. Dec. 14, 2009).
III. DISCUSSION
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Defendant’s motion addresses no more than Plaintiffs’ class allegations in Count
II and, even if granted, will not resolve this litigation. Defendant’s motion leaves
unchallenged Count I of Plaintiff’s complaint, which alleges that Defendant breached its
contract with Plaintiffs by denying their insurance claim. (Dkt. # 1-1, Pg. ID 19.) The
court focuses exclusively on the class allegations in Count II of the Complaint. (Id. at
Pg. ID 20-21.)
As an initial matter, Plaintiffs argue that Defendant’s attachment of and reliance
on materials outside the pleadings converts its motion into one for summary judgment.
(Dkt. # 15, Pg. ID 447.) While it is true that “on a motion under Rule . . . 12(c), matters
outside the pleadings are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56,” Fed. R. Civ. P. 12(d), the
Sixth Circuit has held that this rule does not apply to a court’s consideration of “matters
of public record, orders, items appearing in the record of the case, and exhibits attached
to the complaint,” Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (citing
Amini v. Oberlin Coll., 259 F.3d 492, 502 (6th Cir. 2001)); see also Nieman v. NLO, Inc.,
108 F.3d 1546, 1554 (6th Cir. 1997). Plaintiffs specifically object to “Defendant’s
attachment [and interpretation of] other lawsuits filed by Plaintiffs’ Counsel.” (Dkt. # 11,
Pg. ID 143.) Lawsuits, however, are “matters of public record,” and therefore do not

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convert the instant action into a motion for summary judgment.1 The court will consider
the instant action as filed.
Accordingly, when, as here, a defendant moves “to strike class action allegations
on the basis that class certification is precluded as a matter of law, the defendant bears
the burden of establishing that the plaintiff will be unable to demonstrate facts
supporting certification, even after discovery and the creation of a full factual record.”
Jimenez v. Allstate Indem. Co., No. 07-14494, 2010 WL 3623176, at *3 (E.D. Mich.
Sept. 15, 2010) (Murphy, J.). “When the defendant challenges class certification based
solely on the allegations in the complaint, the standard is the same as applied in
deciding a motion to dismiss under Rule 12(b)(6).” Id. (emphasis added). As such, the
complaint must present “[f]actual allegations . . . enough to raise a right to [class
certification] above the speculative level . . . on the assumption that all the allegations in
the complaint are true[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
court views the complaint in the light most favorable to the plaintiff and takes all wellpleaded factual allegations as true. Tackett v. M&G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009); Carrier Corp. v. Outokumu Oyj, 673 F.3d 430, 400 (6th Cir.
2012). “[W]here the well-pleaded facts do not permit the court to infer more than the

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Though Plaintiffs make no mention of the documents, the court notes that
Defendant has also attached two letters from Defendant to Plaintiff Robert Greene (Dkt.
## 11-2, 11-3). They are inconsequential to the court’s decision. Plaintiffs cited them
each only once in their fact section to support facts that are not in dispute. (Dkt. # 11,
Pg. ID 143.) The court therefore affirmatively rejects and excludes this evidence. See
Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 503 (6th Cir. 2006)
(“This court has found that the mere presentation of evidence outside of the pleadings,
absent the district court’s rejection of such evidence, is sufficient to trigger the
conversion of a Rule 12(c) motion to a motion for summary judgment.”).
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mere possibility of [class certification], the complaint has alleged—but it has not
shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009).
The substantive analysis, therefore, “must begin and end with a ‘rigorous
analysis’ into whether the prerequisites of Rule 23 are met.” Jimenez, 2010 WL
3623176, at *3. (citing Stubbs v. McDonald’s Corp., 224 F.R.D. 668, 674 (D. Kan.
2004); Thomas v. Moore USA, Inc., 194 F.R.D. 595, 597 (S.D. Ohio 1999)). Subsection
(a) of Rule 23 “states four threshold requirements applicable to all class actions:
(1) numerosity . . . ; (2) commonality . . . ; (3) typicality . . . ; and (4) adequacy of
representation.” Amchem Prods., Inc., v. Windsor, 521 U.S. 591, 613 (1997).
Subsection (b) also requires that “parties seeking class certification must show that the
action is maintainable under Rule 23(b)(1), (2), or (3).” Id. at 614. If the court concludes
that Plaintiff will be unable to meet the prerequisites of either subsection, the class
allegations must be stricken. Each factor will be discussed in turn.
A. Numerosity
Federal Rule of Civil Procedure 23(a)(1) requires a proposed class to be “so
numerous that joinder of all members is impracticable.” While “often referred to as the
‘numerosity’ requirement . . . the Rule’s core requirement is that joinder be
impracticable.” William Rubenstein, Alba Conte, & Herbert B. Newberg, Newberg on
Class Actions § 3:11 (5th ed. 2013). As such, “[t]here is neither one specific ‘magic
number’ nor . . . is numerosity alone necessarily determinative.” Id. Rather, “the
numerosity requirement requires examination of the specific facts of each case and
imposes no absolute limitations.” Gen. Tel. Co. V. EEOC, 446 U.S. 318, 330 (1980).
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“[W]hile the exact number of class members need not be pleaded . . . impracticability of
joinder must be positively shown, and cannot be speculative.” In re OnStar Contract
Litigation, 278 F.R.D. 352, 373 (E.D. Mich. 2011) (Cox, J.). Plaintiffs “must ‘show some
evidence of or reasonably estimate the number of class members.” Turner v. Grant Cty.
Det. Ctr., No. 05-148, 2008 WL 821895 (E.D.Ky. March 26, 2008) (quoting Schwartz v.
Upper Deck, 183 F.R.D. 672 (S.D. Cal. 1999)).
Here, Plaintiffs have pleaded that
This action is brought by Plaintiffs for themselves and for all other injured
persons similarly situated, whose joinder in this action is impracticable
because the Class is so numerous. The Class consists of persons who
have sustained injuries, monetary and/or physical, as a result of
LIBERTY’s deceptive and unlawful trade practices: its disregard for the
sanctitty of written Contracts; representations allowing members of the
public to pay insurance premiums, LIBERTY’s confirmation that Plaintiffs
were properly insured; LIBERTY’s unilateral denial of insurance benefits
that are in clear contravention of the terms and conditions of the Policy of
Insurance especially based on some generic and vague denial of claims,
and/or denying insurance claims that should be covered under its policy of
insurance, and/or putting into the stream of commerce policies of
insurance that are conscionable and/or repungant to public policy.
(Dkt. # 1, Pg. ID 20.) Said allegations constitute nothing more than “a formulaic
recitation of the elements” of numerosity and “will not do.” Twombly, 550 U.S. at 555.
Plaintiffs’ pleading has not positively shown even a rough estimate, let alone a
reasonable one, of the number of class members, and therefore cannot satisfy this
prerequisite. Numerosity is not established.
B. Commonality
Rule 23(a)(2) requires a party seeking class certification to show that “there are
questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This
requirement “is generally satisfied by the existence of a single issue of law or fact that is
common across all class members and is thus easily met in most cases.” Rubenstein,
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Conte, & Newberg, supra, at § 3:18. Nevertheless, in Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 349-50 (2011), the Supreme Court held that
Commonality requires the plaintiff to demonstrate that the class members have
suffered the same injury. This does not mean merely that they have all suffered
a violation of the same provision of law . . . . Their claims must depend upon a
common contention—for example, the assertion of discriminatory bias on the part
of the same supervisor. That common contention, moreover, must be of such a
nature that it is capable of classwide resolution—which means that determination
of its truth or falsity will resolve an issue that is central to the validity of each one
of the claims in one stroke.
(emphasis added). In short, what matters to class certification “is not the raising of
common ‘questions’—even in droves—but, rather the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the litigation.
Dissimilarities within the proposed class are what have the potential to impede the
generation of common answers.” Id. (quoting Richard A. Nagareda, Class Certification
in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009) (emphasis in the
original).)
In the instant action, Plaintiffs have alleged
That there are questions of law or facts common to the members of the
Class that predominate over questions of law or facts affecting only
Plaintiffs themselves. The questions of law or facts common to all
members of the Class are whether, [sic] LIBERTY engage [sic] in unlawful
trade practices, committed fraud and misrepresentations, improperly deny
or limit insurance claims, and a host of other improprieties, some of which
have been set forth herein.
(Dkt. # 1-1, Pg. ID 20.) As with numerosity, Plaintiffs have merely parroted the
elements of commonality and provided no facts to support their contention. Plaintiffs
have painted with an exceptionally broad brush: the alleged question of fact common to
all class members could be correctly summarized as whether Defendant has wronged
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them all somehow in some way. Such vague allegations of commonality do not suggest
that class members have all suffered the same injury, nor do they facilitate the
generation of common answers. Accordingly, Plaintiffs have not pleaded sufficient facts
to satisfy the prerequisite of this subsection. Commonality is not established.
C. Typicality
Even assuming arguendo that Plaintiffs have alleged sufficient facts to satisfy the
numerosity and commonality requirements, Plaintiffs have not demonstrated that class
claims are typical. Rule 23(a)(3) requires “the claims or defenses of the representative
parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). In
contradistinction to the first two prerequisites which “identify the characteristics of a
class that make representative litigation appropriate,” this subsection, along with Rule
23(a)(4), “focus[es] on the desired attributes of the class’s representative.” Rubenstein,
Conte, & Newberg, supra, at § 3:28.
A named plaintiff’s claim is typical of the purported class only “if it arises from the
same event or practice or course of conduct that gives rise to the claims of other class
members, or if his or her claims are based on the same legal theory.” Beattie v.
CenturyTel., Inc., 511 F.3d 554, 561 (6th Cir. 2007) (internal quotations omitted). “[T]he
interests and claims of the various plaintiffs need not be identical.” Reese v. CNH Am.,
LLC, 227 F.R.D. 483, 487 (E.D. Mich. 2005). Rather, the question is simply “whether a
sufficient relationship exists between the injury to the named plaintiff and the conduct
affecting the class, so that the court may properly attribute a collective nature to the
challenged conduct.” Beattie, 511 F.3d at 561. “[T]he typicality requirement is not
satisfied, however, when a plaintiff can prove his own claim but not ‘necessarily have
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proved anybody’s [sic] else’s claim’” Id. (quoting In re Am. Med. Sys., Inc., 75 F.3d at
1082.) Furthermore, “[w]here a class definition encompasses many individuals who
have no claim at all to the relief requested, or where there are defenses unique to the
individual claims of the class members . . . the typicality premise is lacking.” Serrano v.
Cintas Corp., Nos. 04-40132, 06-1231, 2009 WL 910702, at *8, (E.D. Mich. March 31,
2009) (Cox, J.) (citing Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d. Cir. 2006)); In re
OnStar, 278 F.R.D. at 375 (“[W]here a defendant has unique defenses against each
class member’s individual claim, a case is unsuitable for class action.”).
Plaintiffs have once again provided only a threadbare recitation of the elements,
alleging that “[t]he claims of the named Plaintiffs are for monetary damages proximately
caused by LIBERTY’s unlawful trade practices, fraud, breach of contract and
misrepresentations, directly and/or through its Adjustors(s) which is true of the entire
class and therefore typical of the claims of the class.” (Dkt. # 1-1, Pg. ID 20.) They
later add that “Plaintiffs are typical and representative of all individuals who were
materially injured by LIBERTY’s unlawful and deceptive trade practices.” (Id. at Pg. ID
21.) These statements are factually inadequate to satisfy the Twombly standard.
However, Defendant argues that even if Plaintiffs’ allegations were sufficiently
pleaded, Plaintiffs’ claim would still not be typical of the class because “Liberty’s
defense of each claim would be unique to the facts and circumstances of that claim.”
The court agrees that, given the broad description of the class as a whole, the validity of
each class member’s claim would hinge on the specific details of his or her individual
contract and the circumstances surrounding each incident—variability which naturally
gives rise to unique defenses in each case. Cf. Vega v. T-Mobile USA, Inc., 564 F.3d
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1256, 1276 (11th Cir. 2009) (“Without a common contract, it is impossible for [the
plaintiff] to bring a case typical of all other members.”). Typicality is not established.
D. Adequacy of Representation
Finally, Rule 23(a)(4) requires that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(3). “Adequate
representation is . . . the capstone of the Rule 23(a) requirements: it ensures that the
class’s champion will pursue its interests sufficiently well so as to produce a judgment
that can fairly bind all members of a group who cannot appear before the court
individually.” Rubenstein, Conte, & Newberg, supra, at § 3:50. As such, courts
consider two factors: (1) whether the representative has “common interests with
unnamed members of the class;” and (2) whether it appears “that the representative will
vigorously prosecute the interests of the class through qualified counsel.” In re OnStar,
278 F.R.D. at 375. Adequate representation “brings into play any concerns about the
competency of class counsel and any conflicts of interest that may exist.” Davidson, 302
F.R.D. at 438.
As with the previous factors, Plaintiffs have not satisfied the pleading
requirements of Twombly. In their Complaint, Plaintiffs allege only that “as
representative parties, [they] fairly and adequately protect the interests of the class.”
(Dkt. # 1-1, Pg. ID 21). Plaintiffs have failed to support this assertion with well-pleaded
facts. For this reason, Plaintiffs fail to establish adequacy of representation.
E. Rule 23(b) Requirements
In addition to meeting the threshold requirements in Rule 23(a), a party seeking
to certify a class must show that
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(1) “prosecuting separate actions by . . . individual class members would create
the risk of” either “inconsistent or varying adjudications with respect to individual
class members that would establish incompatible standards of conduct for the
party opposing the class” or “adjudications with respect to individual class
members that, as a practical matter, would be dispositive of the interests of the
other members not parties to the individual adjudications or would susbtantially
impare or impede their ability to protect their interests,” Fed. R. Civ. P. 23(b)(1);
(2) “the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole,” Fed. R. Civ. P.
23(b)(2); or
(3) “that questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and effectively adjudicating the
controversy,” Fed. R. Civ. P. 23(b)(3).
Plaintiffs have once again failed to plead sufficient facts to survive a Rule 12(c) motion,
reciting only that the “maintenance of this action as a Class action is superior to other
available methods of adjudication in promoting the convenient administration of justice.”
Accordingly, because Plaintiffs have not satisfied any of the prerequisites of Rule
23(a) or (b), the court will grant “Defendant’s Motion for Judgment on Class Allegations.”
(Dkt. 11).
F. Need for Discovery
Plaintiffs argue that resolving the instant action would be premature because
“absolutely no discovery has been provided on Plaintiffs [sic] claims.” (Dkt.
# 15, Pg ID 457.) While it is true the Sixth Circuit has stated that a district court “should
defer decision on class classification issues and allow discovery if the existing record is
inadequate for resolving the relevant issues,” In re Am. Med. Sys., Inc., 75 F.3d at 1086,
that does not dispose of Twombly’s pleading requirements. The general rule “does not
apply if it is clear from the face of the complaint that a proposed class cannot satisfy the
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requirements of Rule 23.” Bearden v. Honeywell Int’l, Inc., 720 F. Supp. 932, 942 (M.D.
Tenn. 2010). Due to the utter absence of specific facts required to undergird Plaintiffs’
allegations, it is not necessary to wait until the conclusion of discovery to make a
determination on class certification. It is clear from the face of the Complaint that
Plaintiffs have not satisfied the requirements of Rule 23. The court rejects Plaintiffs’
argument and grants judgment on Count II.2
VI. CONCLUSION
IT IS ORDERED that Defendant’s “Motion for Judgment on Class Allegations”
(Dkt. # 12) is GRANTED.
IT IS FURTHER ORDERED that Count II of Plaintiffs’ Complaint (Dkt. 1-1)
containing class allegations is STRICKEN.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 30, 2016

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With the disposition of the instant motion in favor of the moving party, Plaintiffs’
motion (or “request”) for monetary sanctions against Defendant—appended
inappropirately, according to the Local Rules, as a section of Plaintiffs’ Response—is
revealed as without merit and will be terminated in a marginal docket notation.
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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 30, 2016, by electronic and/or ordinary mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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