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Cruz v. Allstate Vehicle and Property Insurance Co.

United States District Court, N.D. Texas, Fort Worth Division

September 5, 2017

GILBERTO CRUZ, et al., Plaintiffs,
v.
ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE, UNITED STATES DISTRICT JUDGE

         Came on for consideration the motions of defendants, Alstate Vehicle and Property Insurance Company ("Allstate"), and Robert White ("White"), to dismiss. Plaintiffs, Gilberto Cruz and Carina Cruz, have failed to respond to the motions, which are ripe for ruling.[1] The court, having considered the motions, the record, and applicable authorities, finds that the motions should be granted.

         I.

         Plaintiffs' Claims

         The operative pleading is plaintiffs' first amended complaint, filed July 31, 2017, Doc.[2] 16, as required by the court's order of July 18, 2017, for repleading.[3] Doc. 13. Under the section titled "Facts" plaintiffs allege that they are owners of an insurance policy issued by Allstate covering property owned by them in Tarrant County, Texas; that on or about March 17, 2106, a hail or wind storm caused severe damage to their property; they submitted a claim; on or about April 2, 2016, White, the adjustor assigned by Allstate, inspected the property; and, White corresponded with plaintiffs by letter dated April 2, 2016. Under the section titled "Causes of Action, " plaintiffs allege (1) White's noncompliance with the Texas Insurance Code provisions on unfair settlement practices; (2) both defendants' engaging in fraud and conspiracy to commit fraud; and (3) Allstate's breach of contract, noncompliance with the Texas Insurance Code unfair settlement practices and prompt payment of claims provisions, and breach of duty of good faith and fair dealing.

         II.

         Grounds of the Motions

         Defendants maintain that plaintiffs have failed to plead any plausible causes of action against either of them.

         III.

         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 (2007) (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. 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. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide 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. Iqbal, 556 U.S. at 678. 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 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 (5thCir. 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 (5thCir. 2008). Claims alleging violations of the Texas Insurance Code and DTPA of the kind asserted here are ...


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