Burrell v. Allstate Property and Casualty Insurance Company et al

Filing 51

ORDER granting Allstate's Motion to Dismiss Burrell II. Signed by District Judge Carlton W. Reeves on 1/7/2015. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
SHARON BURRELL

PLAINTIFF

V.

CAUSE NO. 3:13-CV-493-CWR-FKB
consolidated with
CAUSE NO. 3:14-CV-791-CWR-FKB

ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY;
SOUTHERN PROPERTY; RICHARD
GILLY; KERRI STEGER; JOHN AND
JANE DOES A-H

DEFENDANTS

ORDER
Before the Court is Allstate’s motion to dismiss Sharon Burrell’s second lawsuit on this
subject matter, Burrell v. Allstate, No. 3:14-CV-791-CWR-FKB (S.D. Miss. 2014) [hereinafter
Burrell II]. Although the cases have been consolidated before the undersigned, the second
lawsuit remains pending. See Miller v. U.S. Postal Serv., 729 F.2d 1033, 1036 (5th Cir. 1984)
(“Consolidation does not so completely merge the two cases as to deprive a party of any
substantial rights that he may have had if the actions had proceeded separately, for the two suits
retain their separate identities and each requires the entry of a separate judgment.”).
The defendants argue that Burrell II should be dismissed because the plaintiff
“intentionally, vexatiously, and fraudulently filed a new complaint in this matter due to
dissatisfaction with a ruling by Judge Reeves on September 29, 2014” in the first lawsuit, Burrell
v. Allstate, No. 3:13-CV-493-CWR-FKB (S.D. Miss. 2013) [hereinafter Burrell I]. The plaintiff
responds that the two lawsuits should simply be consolidated before the same Judge. Since
consolidation has now occurred, the question is whether the second lawsuit should be dismissed.

In the Fifth Circuit, a plaintiff is not allowed to split her causes of actions among multiple
proceedings, advancing one part of her claim in one suit and another part in a later suit. Texas
Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 501 (5th Cir. 1988).
[T]he rule against claim splitting prohibits a plaintiff from prosecuting its case
piecemeal and requires that all claims arising out of a single wrong be presented
in one action. In a claim splitting case, the second suit will be barred if the claims
involves the same parties and arises out of the same transaction or series of
transactions as the first claim.
Ameritox, Ltd. v. Aegis Sciences Corp., No. 3:08-CV-1168, 2009 WL 305874, at *4 (N.D. Tex.
Feb. 9, 2009) (citations omitted); see also Hearn v. Bd. of Supervisors of Hinds County, Miss.,
No. 3:12-CV-417-CWR-FKB, 2013 WL 1305586, at * 2 (S.D. Miss. Mar. 27, 2013). “Under this
approach, the critical issue is whether the two actions were based on the same nucleus of
operative facts. In this inquiry, we look to the factual predicate of the claims asserted, not the
legal theories upon which the plaintiff relies.” Eubanks v. F.D.I.C., 977 F.2d 166, 171 (5th Cir.
1992) (quotation marks and citations omitted).
“A main purpose behind the rule preventing claim splitting is to protect the defendant
from being harassed by repetitive actions based on the same claim.” Matter of Super Van Inc., 92
F.3d 366, 371 (5th Cir. 1996) (citations omitted). “This rule finds particular application where, as
here, the plaintiff files the second complaint to achieve procedural advantage by circumventing
the rules pertaining to the amendment of complaints.” Friends of the Earth, Inc. v. Crown Cent.
Petrol. Corp., 95 F.3d 358, 362 (5th Cir. 1996) (quotation marks and citation omitted).
This motion presents a straightforward example of claim-splitting. Burrell I and Burrell
II arise out of the same nucleus of operative facts – the fire at the plaintiff’s home – and both
lawsuits seek to hold Allstate liable for its mishandling of the plaintiff’s resulting homeowners
insurance claim. It was error for the suits to be filed separately.

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The plaintiff’s mistake was not innocuous. Burrell II was filed the week after this Court
issued a ruling in Burrell I which the plaintiff likely found unfavorable. In fact, the preemption
theory she asserts in Burrell II is one that, if successful, would render the Court’s Order in
Burrell I null and void. This suggests an attempt to evade this Court’s jurisdiction and authority.
The fact that the plaintiff refused to seek to amend her complaint confirms that Burrell II is a
prohibited attempt “to achieve procedural advantage by circumventing the rules pertaining to the
amendment of complaints.” Id.
Dismissal for claim-splitting is appropriate where, as here, “the only explanation for the
duplicative litigation in the pending consolidated action is to expand Plaintiff[’s] procedural
rights, upset the trial schedule, harass Defendants, and avoid the requirements of amendment of
Plaintiff[’s] claims.” S. Snow Mfg. Co. v. SnoWizard Holdings, Inc., 921 F. Supp. 2d 527, 543
(E.D. La. 2013), aff’d in part, rev’d in part, 567 F. App’x 945 (Fed. Cir. 2014).
Accordingly, the motion to dismiss is granted. Burrell II is dismissed with prejudice. A
separate Final Judgment shall issue upon the resolution of Burrell I.
SO ORDERED, this the 7th day of January, 2015.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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