Donnell v. Hartford Central Property Claims Region et al

Filing 77

ORDER denying 19 Motion to Dismiss for the reasons set out in the order. Signed by District Judge Daniel P. Jordan III on June 3, 2015. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOSEPH DONNELL

PLAINTIFF

V.

CIVIL ACTION NO. 3:13CV761 DPJ-FKB

THE HARTFORD CENTRAL PROPERTY
CLAIMS REGION, ET AL.

DEFENDANTS

CONSOLIDATED WITH
HARTFORD UNDERWRITERS INSURANCE CO.
V.

PLAINTIFF
CIVIL ACTION NO. 3:14CV344 DPJ-FKB

JOSEPH DONNELL

DEFENDANT
ORDER

This insurance-coverage dispute is before the Court on Defendant Donan Engineering
Co., Inc.’s Motion to Dismiss [19]. On December 30, 2014, pro se Plaintiff Joseph Donnell filed
a response [57], and Donan filed a reply shortly thereafter. Having fully considered the premises,
the Court finds that Donan’s motion should be denied.
I.

Background
Donnell filed this suit seeking damages related to the repair of storm damage to his home

and named as Defendants his homeowners’ insurance company (Hartford), the company that
performed the repairs (J&S Enterprise), and the forensic engineering firm retained by the insurer
(Donan Engineering). Generally speaking, Donnell complains of negligence, fraud, breach of
contract, and violation of the “Miss. Deceptive Trade Act.” Compl. [1] at 1. On February 2,
2014, Donan sought dismissal under Federal Rule of Civil Procedure 12(b)(6). There have been
a number of procedural twists, but the motion is now ripe for consideration.

II.

Motion to Dismiss Standard
In considering a motion under Rule 12(b)(6), the “court accepts ‘all well-pleaded facts as

true, viewing them in the light most favorable to the plaintiff.’” Martin K. Eby Constr. Co. v.
Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999) (per curiam)). To overcome a Rule 12(b)(6) motion, a plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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).” Id. at 555 (citations and footnote omitted).
“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 (2009) (citing Twombly, 550 U.S. at 556). It follows that
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show [n]’—‘that the pleader is entitled to
relief.’” Id. at 679 (quoting Fed. R. Civ.P. 8(a)(2)). “This standard ‘simply calls for enough fact
to raise a reasonable expectation that discovery will reveal evidence of’ the necessary claims or
elements.” In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (citing Twombly,
550 U.S. at 556). In addition, when a party alleges fraud, that “party must state with particularity
the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “To plead fraud
adequately, the plaintiff must ‘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.’” Sullivan v. Leor Energy, LLC, 600 F.3d 542, 551 (5th Cir. 2010). Finally, when, as
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here, a party represents himself, the complaint is “‘held to less stringent standards than formal
pleadings drafted by lawyers.’” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002) (quoting Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)).
III.

Analysis
In general terms, Donnell alleges in his Complaint that his home suffered damage during

a storm in December 2010 but that Hartford refused certain repairs, claiming the damage was
caused by “improper repair of [Hurricane] Katrina damages” in 2005. Compl. [1] at 2–3.
Donnell also alleges that Hartford concealed certain damage caused by the 2010 storm. Id. at
3–4. As for Donan Engineering, the Complaint states:
The Donan, “Provided Harford with it’s last of (5) five Restatements:” Allowing
Hartford to re-inspect damages post-denial and post-litigation. “Damages that
The Hartford had inspected during insurance/claim adjustment.”
2.
That The Donan and The Hartford, committed fraudulent
“Misrepresentation of relevant material evidence, by using foreign, non-relevant
photo/evidence, as being/reflecting serious, (failure to mitigate damages) damages
in my home, that didn’t/doesn’t exist . . . .
3.
The Donan, nor The Hartford, “Have admitted or denied Their erroneous,
use of the above foreign-photos.” Nor to adequately explain their use. Plaintiff’s
Offer for approval; “That the photos, supported Hartford’s allegations of failure to
mitigate damages.” In error. . . .
4.
The Donan’s 4/28/11 “post-denial inspection, and 5/10/11 report
eliminated mold and rotted wood that Hartford had/was concealing at the time of
the 4/28/11 inspection.” The evidence of record, (intended or not) shows that the
defendants actions and inactions, “Was in Bad Faith, and showed disregard for the
damages done to Plaintiff and his family.” And will continuing With a Court
order to end the alleged Bad Faith.
Id. at 6–7 (quoted as drafted, “sic” not used).

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Plaintiff is proceeding pro se, and his Complaint and Response are candidly difficult to
follow. While the Court is sympathetic to Donan’s position and its motion to dismiss, the
Complaint must be viewed in a light most favorable to Plaintiff. And when so read, he appears
to assert in Paragraph 4 that Donan withheld information in its report. The Court finds the facts
pled are sufficient to survive Donan’s Rule 12(b)(6) motion. Should Donan wish to pursue
dismissal, it may do so through a motion for summary judgment, with the benefit of discovery
and evidentiary support.
IV.

Conclusion

IT IS, THEREFORE, ORDERED that Defendant Donan Engineering’s Motion to
Dismiss [19] is denied.
This case is currently set for a settlement conference before Magistrate Judge F. Keith
Ball on July 31, 2015. If Donan believes it needs additional discovery and/or an extension of the
dispositive motion deadline, which is also set for July 31, 2015, it may file a motion before Judge
Ball after the settlement conference.
SO ORDERED AND ADJUDGED this the 3rd day of June, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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