O'Brien v. Allstate Insurance Company et al
Filing
46
MEMORANDUM OPINION AND ORDER: Denying 27 Motion for Reconsideration re 25 Order on Motion to Dismiss, Order on Motion to Remand Memorandum & Opinion ;and Denying as moot 28 Alternative Motion for Reconsideration re 25 Order on Motion to Dismiss, Order on Motion to Remand, Memorandum & Opinion. Signed by Senior Judge Frederick P. Stamp, Jr on 6/17/11. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALBERTA O’BRIEN, as Executrix of
the Estate of SHIRLEY FERGUSON,
Plaintiff,
v.
Civil Action No. 5:10CV40
(STAMP)
ALLSTATE INSURANCE COMPANY,
LARRY D. POYNTER, individually,
and ED STEEN, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
OF AND RELIEF FROM MEMORANDUM OPINION AND ORDER
AND DENYING AS MOOT THE DEFENDANTS’
ALTERNATIVE MOTION FOR RECONSIDERATION
I.
Background
The plaintiff filed this civil action in the Circuit Court of
Marshall County, West Virginia against the above-named defendants
alleging violations of the West Virginia Unfair Trade Practices Act
(“UTPA”), common-law bad faith, and civil conspiracy.
Alberta
O’Brien, as executrix of the estate of Shirley Ferguson, alleges
that Ferguson was injured in an automobile accident with an
underinsured motorist on April 18, 1988 and that Allstate Insurance
Company (“Allstate”) allegedly failed to pay “stacked” underinsured
motorist coverage in the amount of $150,000.00 rather than a single
vehicle limit of $50,000.00.
plaintiff
also
sued
Larry
In addition to suing Allstate, the
Poynter
and
adjusters (“the adjuster defendants”).
Court
entered
a
memorandum
opinion
Ed
Steen,
nondiverse
On December 20, 2010, this
and
order
denying
the
plaintiff’s motion to remand, granting the adjuster defendants’
motion to dismiss, and granting in part and denying in part
defendant Allstate’s motion to dismiss.
The plaintiff filed a motion for reconsideration and relief
from the memorandum opinion and order.
The defendants then filed
an alternative motion for reconsideration, asking that if this
Court granted the plaintiff’s motion for reconsideration, that it
also reconsider the portion of the memorandum opinion and order
addressing the statute of limitations.
For the reasons set forth
below, this Court denies the plaintiff’s motion for reconsideration
and relief and denies as moot the defendants’ alternative motion
for reconsideration.
II.
Applicable Law
The plaintiff files her motion to alter or amend pursuant to
Federal Rule of Civil Procedure 59(e).
The United States Court of
Appeals for the Fourth Circuit has recognized three grounds for
amending an earlier judgment: (1) to accommodate an intervening
change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.
Pacific Ins. Co. v. Am. Nat’l Fire
Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
“Rule 59(e) motions
may not be used . . . to raise arguments which could have been
raised prior to the issuance of the judgment, nor may they be used
to argue a case under a novel legal theory that the party had the
ability to address in the first instance.”
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Id.
A Rule 59(e)
motion may not be used to relitigate old matters and is an
extraordinary remedy that should be used sparingly.
Id.
It is
improper to use such a motion to ask the court to “rethink what the
court has already thought through--rightly or wrongly.”
Above the
Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.
Va. 1983).
III.
Discussion
The plaintiff filed a motion for reconsideration of and relief
from the December 20, 2010 memorandum opinion and order, arguing
that she specifically pled claims for common-law fraud and deceit
and that the memorandum opinion and order did not mention or
discuss the viability of the plaintiff’s fraud and deceit claims
asserted against the defendants.
The
plaintiff’s
argument
reconsider its findings.
does
not
cause
this
Court
to
While the plaintiff has expanded her
argument, she has not submitted any new evidence that would warrant
altering or amending the earlier order.
Furthermore, there has
been no change in the controlling law since this Court issued its
order, and this Court does not find that altering or amending the
order is necessary to prevent manifest injustice.
The plaintiff states that she pled an independent fraud and
deceit claim in paragraphs 18, 19, and 20 of her complaint.
However, in paragraph 25, the plaintiff states that “[t]he acts and
omissions of the Defendants as outlined in paragraphs 14 through 24
above violated numerous provisions of the West Virginia Unfair
3
Trade Practices Act as well as the regulations promulgated by the
Office of the West Virginia Insurance Commissioner pursuant to that
act” (emphasis added).
Later, in paragraph 29, the plaintiff
alleges fraud and deceit as a general business practice which
violates the UTPA. This Court stated in its memorandum opinion and
order that the plaintiff did not allege a fraud or deceit claim and
that the underlying fraud and deceit components to the common-law
bad faith and UTPA claims in the plaintiff’s complaint did not
transform them into fraud and deceit claims.
Mem. Op. & Order 7,
Dec. 20, 2010 (citing Martin v. State Farm Mut. Auto. Ins. Co.,
2010 WL 3852337, *3 (S.D. W. Va. Sept. 30, 2010)).
Alternatively, even if this Court had found that the plaintiff
alleged a separate claim for fraud and deceit, the Federal Rules of
Civil
Procedure
particularity.
require
that
a
plaintiff
Fed. R. Civ. P. 9(b).
plead
fraud
with
In alleging a claim for
fraud, a plaintiff must plead with particularity “the time, place,
and contents of the false representations, as well as the identity
of the person making the misrepresentation and what he obtained
thereby.”
Harrison v. Westinghouse Savannah River Co., 176 F.3d
776, 784 (4th Cir. 1999) (internal citations omitted).
This Court
has carefully examined the plaintiff’s complaint and finds that she
has not met the heightened pleading standard required by Rule 9(b).
Here, the plaintiff makes only conclusory statements regarding
fraud in paragraphs 18 and 19 of her complaint.
As stated in the
memorandum opinion and order, to survive a motion to dismiss, a
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plaintiff must provide more than “labels and conclusions” and “a
formulaic recitation of the elements of a cause of action.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Bell
Because the
plaintiff has failed to allege detailed factual allegations of
fraud sufficient to raise a right to relief above the speculative
level as to any defendant in this civil action, this Court must
deny the plaintiff’s motion for reconsideration.
Furthermore,
because
this
Court
reconsideration,
denies
the
the
plaintiff’s
motion
for
defendants’
alternative
motion
for
reconsideration is denied as moot.
IV.
Conclusion
For the reasons stated above, the plaintiff’s motion to
reconsider this Court’s December 20, 2010 memorandum opinion and
order (Document No. 27) is DENIED and the defendants’ alternative
motion for reconsideration (Document No. 28) is DENIED AS MOOT.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this order to the
counsel of record herein.
DATED:
June 17, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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