Cento v. Allstate Property & Casualty Insurance Company
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion To StrikePlaintiffs Amended Complaint For Failure To State A Claim (Docket No. 12) is denied without prejudice. IT IS FURTHER ORDERED that plaintiff shall have to and including January 14, 2013 to file an amended pleading. No extensions will be granted. Plaintiff is cautioned that failure to respond to this Order may result in the imposition of sanctions, including the dismissal of her case. Denying 12 Motion to Strike Response to Court due by 1/14/2013. Signed by Magistrate Judge Frederick R. Buckles on 1/4/13. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ALLSTATE PROPERTY & CASUALTY
Case No. 4:12CV85 FRB
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion To
Strike Plaintiff’s Amended Complaint For Failure To State A Claim
(Docket No. 12), filed pursuant to Rule 12 of the Federal Rules of
All matters are pending before the undersigned
United States Magistrate Judge, with consent of the parties,
pursuant to 28 U.S.C. § 636(c).
(“plaintiff”) filed a petition in the Circuit Court of Jefferson
County, Missouri, against defendant Allstate Property & Casualty
Insurance Company (“defendant”), asserting negligence on behalf of
defendant in connection with water damage that occurred at her
On January 17, 2012, defendant removed this matter to this
Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332(a).
On January 18, 2012, defendant filed Defendant’s Motion To Strike
For Failure To State A Claim (Docket No. 6).
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argued that plaintiff’s petition failed to state a claim upon which
preempted by Missouri statutory law, and because she failed to
adequately state a claim for breach of contract and/or vexatious
refusal to pay.
Plaintiff did not file a timely response to Defendant’s
Motion To Strike.
On February 29, 2012, this court entered an
order directing plaintiff to file a response.
(Docket No. 9).
March 7, 2012, plaintiff filed Plaintiff’s Response To Defendant’s
Motion To Strike For Failure To State A Claim (Docket No. 10), and
an Amended Complaint (Docket No. 11).
In her Response, plaintiff
averred that she was filing the Amended Complaint with the consent
of defense counsel.1
Following the filing of the Amended Complaint, defendant
filed the instant Motion To Strike Plaintiff’s Amended Complaint
For Failure To State A Claim.
(Docket No. 12).
failed to file a timely response.
On April 3, 2012, however,
plaintiff filed a Second Amended Complaint, (Docket No. 14), and a
Motion For Leave To File Second Amended Complaint.
Upon defendant’s motion, those pleadings were stricken from
(Docket No. 19).
Subsequently, plaintiff sought and
received an extension of time to respond to the instant motion, and
filed a response on October 9, 2012.
Defendant has not filed a
reply, and the time for doing so has passed.
Defendant acknowledges that it gave such consent.
No. 16 at page 2).
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therefore considers the Motion.
In the instant Motion, defendant argues that plaintiff’s
plaintiff failed to plead facts sufficient to show that defendant
and plaintiff had a contract that required defendant to abate the
water in plaintiff’s home and/or remedy or prevent further damage
and/or bodily injury.
Defendant also argues that, because the
Amended Complaint fails to state a claim for breach of contract, it
likewise fails to state a claim for vexatious refusal or delay.
Finally, defendant argues that plaintiff appears to state claims
sounding in tort, which would be preempted as a matter of law.
In her response, plaintiff writes: “[i]nitially, the
plaintiff would argue that the failure to allege the conditions
precedent is a procedural defect that can be addressed by the court
granting the motion of the plaintiff seeking leave to file an
Plaintiff proposes to file an amended petition
which more explicitly alleges the conditions precedent which would
(Docket No. 22 at page 1).
Plaintiff continues in this
manner, describing how her proposed amended pleading would correct
the deficiencies noted in defendant’s motion.
states that she is not trying to assert a claim for personal
injury, and only included facts regarding the negative health
consequences of mold in order to complete her claim for breach of
contract. In conclusion, plaintiff writes that she “seeks leave to
amend pleadings in accordance with the foregoing paragraphs and
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does offer a proposed amended petition for this courts [sic]
While plaintiff did submit a proposed second amended
complaint and a motion for leave to do so on April 1, 2012, both of
those pleadings were stricken from the record pursuant to this
Court’s order of September 21, 2012.
Plaintiff filed her response
to the instant Motion on October 9, 2012.
Plaintiff has not, since
September 21, 2012, filed a motion for leave to file an amended
pleading or any other document that could be construed as such, nor
has she submitted a proposed amended pleading.
Because this matter is before this Court pursuant to
substantive law, and federal procedural law.
Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938) (federal court sitting in diversity
procedural law); see also Winthrop Resources Corp. v. Stanley
Works, 259 F.3d 901, 904 (8th Cir.
When reviewing a motion to dismiss for failure to state
a claim under Fed. R. Civ. P. 12, the Court must accept as true all
factual allegations contained in the complaint, and review the
complaint to determine whether its allegations show that the
pleader is entitled to relief.
U.S. 544, 555-56 (2007).
Bell Atlantic Corp. v. Twombly, 550
The purpose of a motion to dismiss for
failure to state a claim is to test the legal sufficiency of the
challenged claim. A claim must be dismissed under Rule 12(b)(6) if
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it does not plead “enough facts to state a claim to relief that is
plausible on its face.”
Twombly, 550 U.S. at 570 (abrogating the
“no set of facts” standard set forth in Conley v. Gibson, 355 U.S.
41, 45-46 (1957)).
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
Ashcroft v. Iqbal,556 U.S. 662, 663 (2009)
(citing Twombly, 550 U.S. at 570).
In Missouri, to state a cause of action for breach of
must allege: (1) a valid and enforceable
contract between the plaintiff and defendant; (2) the rights of
plaintiff and the obligations of defendant thereunder;
violation thereof by defendant; and (4)
plaintiff from the breach.
damages resulting to
Teets v. American Family Mut. Ins. Co.,
272 S.W.3d 455, 461 (Mo. Ct. App. 2008); Trotter’s Corporation v.
Ringleader Restaurants, Inc., 929 S.W.2d 935, 941 (Mo. Ct. App.
A party “fails to state a claim for breach of contract [if]
it does not set out [the claimant’s] rights or [the defendant’s]
unspecified “agreements” are insufficient.
See Midwest Special
Surgery, P.C. v. Anthem Ins. Cos., No. 4:09CV646 TIA, 2010 WL
716105, at *6 (E.D. Mo. Feb. 24, 2010) (citing iCARD Stored Value
Solutions, L.L.C. v. West Suburban Bank, No. 4:07CV1539 CAS, 2008
WL 619236, at *2 (E.D. Mo. March 3, 2008) (dismissing breach of
contract claim where plaintiff made only vague references and
failed to plead sufficient facts concerning the general nature of
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the contract and the damages).
Jurisdiction,” and “Factual Allegations.”
(Docket No. 11).
Amended Complaint does not label the claims plaintiff is asserting
or contain sections identifying individual counts, but as defendant
observes in the instant motion and as plaintiff agrees in response,
the Amended Complaint attempts to allege at least one claim for
breach of contract.
Essentially, plaintiff alleges that defendant
permitted water from a covered loss to remain unabated, and that
plaintiff’s home unsafe, caused serious bodily injury, and caused
damage to property and personal property.
The Amended Complaint
aforementioned loss” and that the loss was “a ‘covered event’ which
entitle[d] Plaintiff to certain payments and repairs pursuant to
limits in the policy.
The insurance policy is hereby incorporated
(Docket No. 11 at page 2).
While plaintiff alludes to an insurance policy, she fails
to identify it with sufficient specificity, leaving it unclear
whether it was a valid, enforceable contract between plaintiff and
incorporating it is impossible without any information identifying
the particular policy to incorporate. As noted above, plaintiff is
required to plead, inter alia, the existence of a valid and
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enforceable contract between herself and defendant.
S.W.3d at 461.
contained within the unidentified insurance policy that required
defendant to take any of the action plaintiff complains defendant
failed to take, and that entitle her to the relief she seeks.
party “fails to state a claim for breach of contract [if] it does
obligations under the contract.” Trotter’s Corporation, 929 S.W.2d
Vague allegations regarding the parties’ rights and
obligations do not suffice.
See iCARD Stored Value Solutions,
L.L.C., 2008 WL 619236, at *2.
A plaintiff is required to plead “more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.... Factual allegations must be enough to
raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.
Based upon the standard articulated in Twombly and
its progeny, and based upon the elements of breach of contract
required in Missouri, plaintiff’s Amended Complaint fails to state
a claim for breach of contract.
As noted above, in opposition to the instant motion,
plaintiff acknowledged defendant’s arguments and indicated her wish
to file an amended pleading.
While not required to do
defendant did not file a reply indicating opposition to the relief
Recognizing that leave to amend should be freely granted when
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justice so requires, Fed. R. Civ. P. 15(a), plaintiff will be given
leave to file an amended pleading.
Defendant’s motion, although
well-taken, will be denied at this time without prejudice.
“vexatious refusal to pay.”
(Docket No. 11 at page 2).
instant Motion, defendant argues that plaintiff has not properly
plead a claim for vexatious refusal to pay because such a claim is
premised upon a breach of contract claim, which plaintiff has
failed to properly plead.2
In her response, plaintiff does not
address defendant’s arguments regarding a purported claim for
vexatious refusal to pay, and it is unclear from the Amended
Complaint whether plaintiff intended to assert such a claim or
whether she merely used that language to describe defendant’s
conduct. Given the other deficiencies in the Amended Complaint and
the order entered on this date, the undersigned will not address
this issue at this time.
The Amended Complaint also includes
language describing personal injury, with which defendant also
In response, plaintiff indicated that she used such
language not in an attempt to assert a claim for personal injury,
but to describe the impact of defendant’s alleged wrongdoing.
Hopefully, if a Second Amended Complaint is filed, it will state
plaintiff’s claims with sufficient specificity, removing all doubt
Briefly, to establish a claim for vexatious refusal to pay,
a plaintiff must show that she had an insurance policy with the
insurer, the insurer refused to pay, and that such refusal lacked
reasonable cause or excuse. Hensley v. Shelter Mut. Ins. Co., 210
S.W.3d 455, 464 (Mo. Ct. App. 2007) (internal citation omitted).
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regarding these issues.
IT IS HEREBY ORDERED that Defendant’s Motion To Strike
Plaintiff’s Amended Complaint For Failure To State A Claim (Docket
No. 12) is denied without prejudice.
IT IS FURTHER ORDERED that plaintiff shall have to and
including January 14, 2013 to file an amended pleading.
No extensions will be granted.
Plaintiff is cautioned that failure to respond to this
Order may result in the imposition of sanctions, including the
dismissal of her case.
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 4th day of January, 2013.
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