Broxterman v. State Farm Lloyds
Filing
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MEMORANDUM OPINION AND ORDER - DENYING 32 MOTION to Dismiss (Motion for Partial Dismissal of Plaintiff's First Amended Complaint) filed by State Farm Lloyds. Signed by Judge Amos L. Mazzant, III on 2/2/2016. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CATHY BROXTERMAN
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v.
STATE FARM LLOYDS
CIVIL ACTION NO 4:14-CV-661
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant State Farm Lloyds’s Motion for Partial Dismissal
of Plaintiff’s First Amended Complaint (Dkt. #32). After reviewing the relevant pleadings, the
Court finds that the motion should be denied.
BACKGROUND
The above-referenced case arises out of dispute between a policyholder and her insurer
regarding the extent of damages and amount of loss suffered to Plaintiff’s property located at 920
Wandering Way Drive, Allen, TX 75002 (the “Property”) (Dkt. #9 at p. 2). Plaintiff purchased a
residential insurance policy from Defendant State Farm Lloyds (“State Farm”) to cover the
Property for a loss due to storm-related events (Dkt. #9 at p. 2).
On or about April 3, 2014, the Property suffered damage due to storm-related conditions
(Dkt. #9 at p. 2). In her First Amended Complaint, Plaintiff contends that that State Farm failed
to adequately compensate her for damages to the Property, and she seeks to recover damages
based on the following claims: (1) breach of contract, (2) violations of the Texas Deceptive
Trade Practices Act and Tie-In Statutes, (3) violations of the Texas Insurance Code, (4) breach of
the common law duty of good faith and fair dealing, (5) unfair insurance practices, and (6)
intentional or negligent misrepresentation (Dkt. #32 at p. 1; see Dkt. #9).
On October 16, 2014, State Farm removed the case to this Court under diversity
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jurisdiction. On October 24, 2014, the Court ordered the parties “to replead as necessary to
comply with the Federal Rules of Civil Procedure and the Court’s Local Rules.” (Dkt. #7 at p.1).
On November 10, 2014, Plaintiff filed her First Amended Complaint (Dkt. #9).
On September 28, 2015, Defendant filed its Motion for Partial Dismissal of Plaintiff’s
First Amended Complaint on Plaintiff’s extra-contractual claims (Dkt. #32). On October 13,
2015, Plaintiff filed her response (Dkt. #34). On October 21, 2015, Defendant filed its reply
(Dkt. #37).
LEGAL STANDARD
Defendant moves to dismiss Plaintiff’s extra-contractual claims under Federal Rule of
Civil Procedure 12(b)(6).
A Rule 12(b)(6) motion to dismiss argues that, irrespective of
jurisdiction, the complaint fails to assert facts that give rise to legal liability of the defendant.
The Federal Rules of Civil Procedure require that each claim in a complaint include “a short and
plain statement…showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The
claim must include enough factual allegations “to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
Rule 12(b)(6) provides that a party may move for dismissal of an action for failure to
state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The Court must accept
as true all well-pleaded facts contained in the plaintiff’s complaint and view them in the light
most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In deciding a
Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the
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speculative level.” Twombly, 550 U.S. at 555; Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009).
“The Supreme Court expounded upon the Twombly standard, explaining that ‘[t]o
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.’” Gonzalez, 577 F.3d at 603 (quoting Iqbal,
556 U.S. at 678). “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.” Id. Therefore, “where the well-pleaded facts do not permit the court to infer more than
a mere possibility of misconduct, the complaint has alleged – but it has not ‘shown’ – ‘that the
pleader is entitled to relief.’” Id.
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal,
556 U.S. at 664. Second, the court “consider[s] the factual allegations in [the complaint] to
determine if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary claims or elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679.
In determining whether to grant a motion to dismiss, a district court may generally not
“go outside the complaint.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).
However, a district court may consider documents attached to a motion to dismiss if they are
referred to in the plaintiff’s complaint and are central to the plaintiff’s claim. Id.
Defendant also moves to dismiss Plaintiff’s extra-contractual claims under Federal Rule
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of Civil Procedure 9(b). Rule 9(b) states, “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.” FED. R. CIV. P. 9(b).
Rule 9(b)’s particularity requirement generally means that the pleader must set forth the
“who, what, when, where, and how” of the fraud alleged. United States ex rel. Williams v. Bell
Helicopter Textron, Inc., 417 F.3d 450, 453 (5th Cir. 2005). A plaintiff pleading fraud 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.”
Herrmann
Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 564-65 (5th Cir. 2002). The goals of Rule
9(b) are to “provide[] defendants with fair notice of the plaintiffs’ claims, protect[] defendants
from harm to their reputation and goodwill, reduce[] the number of strike suits, and prevent[]
plaintiffs from filing baseless claims.” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190
(5th Cir. 2009) (citing Melder v. Morris, 27 F.3d 1097, 1100 (5th Cir. 1994)). Courts are to read
Rule 9(b)’s heightened pleading requirement in conjunction with Rule 8(a)’s insistence on
simple, concise, and direct allegations. Williams v. WMX Techs., Inc., 112 F.3d 175, 178 (5th
Cir. 1997). However, this requirement “does not ‘reflect a subscription to fact pleading.’”
Grubbs, 565 F.3d at 186. “Claims alleging violations of the Texas Insurance Code and the
DTPA and those asserting fraud, fraudulent inducement, fraudulent concealment, and negligent
misrepresentation are subject to the requirements of Rule 9(b).” Frith v. Guardian Life Ins. Co.
of Am., 9 F. Supp. 2d 734, 742 (S.D. Tex. 1998); see Berry v. Indianapolis Life Ins. Co., No.
3:08-CV-0248-B, 2010 WL 3422873, at *14 (N.D. Tex. Aug. 26, 2010) (“‘[W]hen the parties
have not urged a separate focus on the negligent misrepresentation claims,’ the Fifth Circuit has
found negligent misrepresentation claims subject to Rule 9(b) in the same manner as fraud
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claims.”). Failure to comply with Rule 9(b)’s requirements authorizes the Court to dismiss the
pleadings as it would for failure to state a claim under Rule 12(b)(6). United States ex rel.
Williams v. McKesson Corp, No. 3:12-CV-0371-B, 2014 WL 3353247, at *3 (N.D. Tex. July 9,
2014) (citing Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996)).
ANALYSIS
After reviewing the current complaint, the motion to dismiss, the response, and the reply,
the Court finds that Plaintiff has stated plausible claims for purposes of defeating a Rule 12(b)(6)
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and a Rule 9(b) motion to dismiss.
CONCLUSION
It is therefore ORDERED that Defendant State Farm Lloyds’s Motion for Partial
Dismissal of Plaintiff’s First Amended Complaint (Dkt. #32) is hereby DENIED.
SIGNED this 2nd day of February, 2016.
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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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