Bishop v. Northland River Stone Ranch, LLC et al

Filing 8

REPORT AND RECOMMENDATIONS re 3 Motion to Dismiss, Motion for More Definite Statement filed by Northland Investment Corporation, Northland River Stone Ranch, LLC. RECOMMENDS that the District Court DENY Defendants Motion to Dismiss but RECOMMENDS that the District Court GRANT Defendants Alternative Motion for More Definite Statement (Clerks Doc. No. 3)).. Signed by Judge Andrew W. Austin. (jk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JEFFREY ALLEN BISHOP

§
§
§
v.
§
§
NORTHLAND RIVER STONE RANCH, §
LLC, AND NORTHLAND INVESTMENT §
CORPORATION
§

A-12-CV-399-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendants’ Motion to Dismiss or in the Alternative Motion for More

Definite Statement (Clerk’s Doc. No. 3) filed on May 11, 2012; Plaintiff’s Response (Clerk’s Doc.
No. 5) filed on June 14, 2012; and Defendants’ Motion to Strike and Reply (Clerk’s Doc. No. 6)
filed on June 20, 2012. The District Court referred the above-Motion to the undersigned Magistrate
Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil
Procedure 72 and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for
the Western District of Texas, as amended.
I. FACTUAL BACKGROUND
Plaintiff Jeffrey Allen Bishop (“Plaintiff”) rented an apartment for several years at an
apartment complex owned and managed by Defendants Northland River Stone Ranch, LLC and
Northland Investment Corporation (collectively “Northland”). On March 22, 2012, Plaintiff filed this
lawsuit against Northland in state court alleging that Northland violated their rental agreement,
violated several provisions of the Texas Property Code and committed fraud. See Petition in Jeffrey
Allen Bishop v. Northland River Stone Ranch, LLC, et al, No. D-1-GN-12-000856 (200th Dist. Ct.,

Travis County, March 22, 2012). Specifically, Plaintiff alleges that Northland failed to perform
maintenance requests and repairs, failed to return security deposits to Plaintiff, failed to follow
renewal procedures, failed to provide adequate security and overcharged Plaintiff. Plaintiff also
alleges that Northland failed to repair the garage door attached to his apartment which subsequently
came off the tracks, and struck him in the face causing him serious injury. Plaintiff further avers that
Northland falsified the accident report which led to his insurance company denying his insurance
claim.
On May 4, 2012, Northland removed this case to federal court on the basis of diversity
jurisdiction pursuant to 28 U.S.C. §§ 1332(a), 1441 and 1446. Northland has now filed the instant
Motion to Dismiss or in the Alternative Motion for a More Definite Statement pursuant to Federal
Rules of Civil Procedure 12(b)(6), 8 and 9(b).
II. ANALYSIS
A.

Standards of Review
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for

failure to state a claim upon which relief can be granted. FED . R. CIV . P. 12(b)(6). In deciding a Rule
12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts all well-pleaded facts as
true, viewing them in the light most favorable to the [nonmovant].” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted), cert. denied, 552 U.S.
1182 (2008). To survive the motion, a nonmovant 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, 555 (2007). “The court’s task
is to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to
evaluate the plaintiff's likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010). “A claim has facial plausibility when the [nonmovant] pleads
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factual content that allows the court to draw the reasonable inference that the [movant] is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id.
Rule 8(a)(2) of the Federal Rules of Civil Procedure 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.
Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted). 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. See Id. 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. See Iqbal,
556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations”).
A motion to dismiss pursuant to Fed.R.Civ.P. 9(b), which provides that “[i]n alleging fraud
or mistake, a party must state with particularity the circumstances constituting fraud or mistake,” tests
the factual sufficiency of the plaintiffs’ allegations. See Tel–Phonic Services, Inc. v. TBS
International, Inc., 975 F.2d 1134, 1138 (5th Cir.1992). Pleading fraud with particularity in this
circuit requires “[a]t a minimum. . .the particulars of time, place and contents of the false
representations, as well as the identity of the person making the misrepresentation and what he
obtained thereby.” Id. at 1139.

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II. ANALYSIS
After reviewing Plaintiff’s Petition, the Court finds that Plaintiff has plead “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The Court finds that
Plaintiffs’ pleadings are sufficient to withstand dismissal at this time. However, the Court agrees with
Northland that a More Definite Statement would be beneficial in this case. Accordingly, the Court
RECOMMENDS that the District Court Order Plaintiff to file a more definite statement which repleads his breach of contract, fraud and Texas Property Code claims in greater detail. Specifically,
Plaintiff’s More Definite Statement must address each prima facie element of his breach of contract,
fraud and Texas Property Code claims, as well as setting forth the factual basis for each claim. The
Court further advises Plaintiff that his fraud claim must comply with Federal Rule of Civil Procedure
9(b). Finally, the Court HEREBY WARNS Plaintiff that failure to file a More Definite Statement
that fully complies with the Court’s instructions and the deadline set by the District Court will result
in his case being dismissed pursuant to Federal Rule of Civil Procedure 12(e) and 41(b).
III. RECOMMENDATION
The undersigned RECOMMENDS that the District Court DENY Defendants’ Motion to
Dismiss but RECOMMENDS that the District Court GRANT Defendants’ Alternative Motion for
More Definite Statement (Clerk’s Doc. No. 3). The Court FURTHER RECOMMENDS that the
District Court ORDER Plaintiff to file a More Definite Statement with the Court which complies
with the above-instructions contained in this Report and Recommendation.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.

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The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United
States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return receipt
requested.
SIGNED this 9th day of July, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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