United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE, UNITED STATES DISTRICT JUDGE
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. The court, having considered
the motions, the record, and applicable authorities, finds
that the motions should be granted.
operative pleading is plaintiffs' first amended
complaint, filed July 31, 2017, Doc. 16, as required by the
court's order of July 18, 2017, for
repleading. 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.
of the Motions
maintain that plaintiffs have failed to plead any plausible
causes of action against either of them.
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
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
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.
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 ...