Moore v. Allstate Texas Lloyds

Filing 18

MEMORANDUM OPINION AND ORDER granting 14 Motion to Dismiss filed by Allstate Texas Lloyds. The court ORDERS that defendant's motion to dismiss be, and is hereby, granted, and that plaintiff's claims against defendant be, and are hereby, dismissed. (Ordered by Judge John McBryde on 7/11/2017) (tln)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF 'IEXAS

FIL

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IN THE UNITED STATES DISTRICT CO
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
GLEN MOORE,

JUL

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""I

II \2017

CLERK, U.S. :LiSIRlCl COURT

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Plaintiff,

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vs.

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NO. 4:17-CV-287-A

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ALLSTATE TEXAS LLOYDS,

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Defendant.

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MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Allstate
Texas Lloyds, to dismiss. The court, having considered the
motion, the response of plaintiff, Glen Moore, the record, and
applicable authorities, finds that the motion should be granted.
I.

Proceedings
On January 16, 2017, plaintiff filed his original petition
in the 236th Judicial District Court of Tarrant County, Texas. On
April 5, 2017, defendant filed its notice of removal, bringing
the action before this court. Doc. 1 1.
By order signed May 8, 2017, the court ordered plaintiff to
file an amended complaint consistent with the pleading
requirements of the Federal Rules of Civil Procedure and Local
Civil Rules of this court. Doc. 12. On May 19, 2017, plaintiff
filed his amended complaint. Doc. 13. On June 5, 2017, defendant

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The "Doc.

"reference is to the number of the item on the docket in this action.

filed its motion to dismiss and supporting memorandum of law.
Docs. 14 & 15.
II.
Plaintiff's Claims
Plaintiff owns property located at 4503 Cresthaven,
Colleyville, Texas

(the "property"). Doc. 13 at 2,

~~

4, 5.

Plaintiff purchased a residential insurance policy from defendant
to cover the property for a loss due to storm-related events.
Id., ~ 6. On or around November 28, 2015, the property suffered
damage due to storm related conditions. Id.,

~

7. On or around

January 3, 17, and 30, 2016, defendant conducted inspections of
the property. Id. at 2-3,

~~

9, 13, 14. Defendant sent

correspondence to plaintiff dated February 15, 2016,

"stating a

laundry list of perils, which [defendant] would not cover under
the claim." Id. at 3,

~15.

Plaintiff refers to this as

defendant's "no storm damage determination." Id. at 4,

~

20.

Plaintiff says that he did not receive the damage coverage for
which he had contracted. Id. at 5,

~

25.

Plaintiff asserts claims for breach of contract, breach of
duty of good faith and fair dealing, violations of the Texas
Insurance Code, and violations of the Texas Deceptive Trade
Practices-Consumer Protection Act

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("DTPA") and "tie-in-statutes."

III.
Ground of the Motion
Defendant maintains that plaintiff has failed to plead any
claim that is plausible on its face.
IV.
Applicable Pleading Standards
Rule 8(a) (2) of the Federal Rules of Civil Procedure
provides, in a general way, the applicable standard of pleading.
It requires that a complaint contain "a short and plain statement
of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a) (2),

"in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
quotation marks and ellipsis omitted) .

(2007)

(internal

Although a complaint need

not contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a cause
of action.

Twombly, 550 U.S. at 555 & n.3.

Thus, while a court

must accept all of the factual allegations in the complaint as
true,

it need not credit bare legal conclusions that are

unsupported by any factual underpinnings.
556 U.S. 662, 679 (2009)

See Ashcroft v. Iqbal,

("While legal conclusions can provide

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the framework of a complaint, they must be supported by factual
allegations.") .
Moreover, to survive a motion to dismiss for failure to
state a claim, the facts pleaded must allow the court to infer
that the plaintiff's right to relief is plausible.
U.S. at 678.

Iqbal, 556

To allege a plausible right to relief, the facts

pleaded must suggest liability; allegations that are merely
consistent with unlawful conduct are insufficient. Id. In other
words, where the facts pleaded do no more than permit the court
to infer the possibility of misconduct, the complaint has not
shown that the pleader is entitled to relief. Id. at 679.
"Determining whether a complaint states a plausible claim for
relief .

[is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common
sense."

Id.

As the Fifth Circuit has explained: "Where the complaint is
devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the
requirement of notice pleading." Anderson v. U.S. Dep't of
Housing & Urban Dev., 554 F.3d 525, 528

(5th Cir. 2008). In sum,

"a complaint must do more than name laws that may have been
violated by the defendant; it must also allege facts regarding
what conduct violated those laws. In other words, a complaint

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must put the defendant on notice as to what conduct is being
called for defense in a court of law." Id. at 528-29.
Rule 9(b) sets forth the heightened pleading standard
imposed for fraud claims: "In alleging fraud or mistake, a party
must state with particularity the circumstances constituting
fraud or mistake." The Fifth Circuit requires a party asserting
fraud to "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." Hermann
Holdings, Ltd. v. Lucent Techs., Inc., 302 F.3d 552, 564-65 (5th
Cir. 2002) (internal quotations and citations omitted). Succinctly
stated, Rule 9{b) requires a party to identify "the who, what,
when, where, and how" of the events constituting the purported
fraud. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th
Cir. 2008). Claims alleging violations of the Texas Insurance
Code and DTPA of the kind asserted here are subject to the
requirements of Rule 9(b). Onmi USA, Inc. v. Parker-Hannifin
Corp., 798 F. Supp. 2d 831, 836

(S.D. Tex. 2011); Frith v.

Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 742
1998).

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(S.D. Tex.

v.
Analysis
As defendant notes, plaintiff has pleaded very few facts at
all. He has not explained what happened or the nature of, or even
the extent of, the damages his property allegedly incurred. He
says that defendant inspected the property three times, but he
does not explain what defendant did or failed to do that he
alleges made the inspections inadequate. He does not plead the
date on which he made his claim or explain why he says
defendant's response was untimely. He recites laundry list items
from various statutes, but alleges no facts to explain or support
the allegations.
As the court previously noted in a similar case, no
plausible cause of action for breach of contract can be stated
unless there is an allegation as to the exact nature of the
contract, including a statement as to the defendant's obligations
under the contract, how the defendant failed to comply with its
contractual obligations, and how that damaged the plaintiff.
Radenbaugh v. State Farm Lloyds, No. 4:13-CV-339-A, 2013 WL
4442024, at *4

(N.D. Tex. Aug. 16, 2013). Here, at most,

plaintiff's complaint seems to be that he did not get paid as
much as he thinks he should have been paid, but he has not

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alleged any facts to show that defendant breached a contract
between them.
There can be no recovery for extra-contractual damages for
mishandling claims unless the complained of acts or omissions
caused an injury independent of those that would have resulted
from a wrongful denial of policy benefits. Parkans Int'l LLC v.
Zurich Ins. Co., 299 F.3d 514, 519 (5th Cir. 2002). In other
words, the manner in which the claims was investigated must by
the proximate cause of the damages alleged. Provident Am. Ins.
Co. v. Castaneda, 988 S.W.2d 189, 198-99 (Tex. 1998)

Here,

plaintiff has not alleged such a separate injury.
In response to the motion, plaintiff does not cite or
discuss any authorities to support his contention that he has
pleaded sufficiently to state a claim. Rather, he simply
maintains that his conclusory allegations and regurgitation of
the Texas Insurance Code and DTPA are sufficient. However,
threadbare recitals and conclusory statements do not suffice to
set out a viable cause of action. See Luna v. Nationwide Prop. &
Cas. Ins. Co., 798 F. Supp. 2d 821, 827

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(S.D. Tex. 2011).

VI.
Order
The court ORDERS that defendant's motion to dismiss be, and
is hereby, granted, and that plaintiff's claims against defendant
be, and are hereby, dismissed.
SIGNED July 11, 2017.

District

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