United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBryde, United States District Judge
for consideration the motion of defendant, Allstate Texas
Lloyds, for partial dismissal. The court, having considered
the motion, the response of plaintiffs, Cheryl Fernandez and
Joel Fernandez, the record, and applicable authorities, finds
that the motion should be granted.
August 11, 2017, plaintiffs filed their original petition in
the District Court of Tarrant County, Texas, 153rd Judicial
District, asserting claims against defendant and its
adjustor. The action was removed to this court on the basis
of diversity jurisdiction. Plaintiffs filed a motion to
remand, which was denied by memorandum opinion and order
signed October 27, 2017. The court determined that the
adjustor had been improperly joined and dismissed
plaintiffs' claims against him. By separate order signed
October 27, 2017, the court ordered the parties to replead in
keeping with the requirements of the Federal Rules of Civil
Procedure, Local Civil Rules of the court, and the
undersigned's judge-specific requirements.
November 8, 2017, plaintiffs filed their amended complaint,
which basically tracks the language of the original petition
but omits references to the insurance adjustor by name.
Plaintiffs assert causes of action for breach of contract,
violation of the prompt payment provisions of the Texas
Insurance Code, §§ 542.051-.061, unfair settlement
practices in violation of Texas Insurance Code §
541.060(a), violation of the Texas Deceptive Trade
Practices-Consumer Protection Act, Tex. Bus. & Com. Code
§§ 17.41-.63 ("DTPA"), and breach of duty
of good faith and fair dealing.
Grounds of the Motion
asserts that plaintiffs have not pleaded sufficient facts to
state any plausible extra-contractual claims.
Applicable Pleading Principles
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. Further, the complaint
must specify the acts of the defendants individually, not
collectively, to meet the pleading standards of Rule 8(a).
See Griggs v. State Farm Lloyds, 181 F.3d 694, 699
(5th Cir. 1999); see also Searcy v. Knight (In
re Am. Int'l Refinery), 402 B.R. 728, 738 (Bankr.
W.D. La. 2008) .
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 in its
pleading "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). Rule 9(b) applies to all cases
where the gravamen of the claim is fraud even though the
theory supporting the claim is not technically termed fraud.
Frith v. Guardian Life Ins. Co. of Am., 9 F.Supp.2d
734, 742 (S.D. Tex. 1998). Claims alleging violations of the
Texas Insurance Code and the Texas DTPA as ...