United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
March 2019, Nancy Roberson sued Allstate Vehicle and Property
Insurance Company in state court, asserting contract breach,
Texas Insurance Code and Deceptive Trade Practices Act
violations, breach of the duty of good faith and fair
dealing, and common-law fraud. (Docket Entry No. 1-5 at
14-19). Allstate timely removed and moved for judgment on the
pleadings and to dismiss, arguing that Roberson's claims
are either time-barred or do not comply with federal pleading
standards. (Docket Entry Nos. 1, 5). Roberson responded.
(Docket Entry No. 13).
careful review of the pleadings, the motion and response, and
the applicable law, the court grants Allstate's motions
for judgment on the pleadings and to dismiss for failure to
state a plausible claim. (Docket Entry No. 5). Roberson's
nonfraud claims are time-barred and dismissed, with prejudice
and without leave to amend, because amendment would be
futile. Her fraud claim fails to satisfy Federal Rule of
Civil Procedure 9(b) and is dismissed, without prejudice and
with leave to amend. Roberson must file an amended complaint
no later than August 30, 2019. The reasons
for these rulings are explained in detail below.
has an Allstate insurance policy covering her home in
Montgomery, Texas. (Docket Entry No. 1-5 at 6-7). In February
2016, she filed a claim with Allstate for hail damage to her
roof. (Id. at 7). Allstate adjuster Britt Morton
inspected Roberson's home a week later. (Id.).
He found some roof damage but determined that the shingles
were in “great condition, ” concluding that
Roberson's loss was below her deductible. (Id.).
April 2016, a tree fell on Roberson's home during a
storm, damaging the roof, exterior fascia, air-conditioning
system, and a bedroom, bathroom, and closet. (Id.).
After Roberson asked Allstate to cover the damage, the
company sent Kristee Eldridge and Edward Felchak to adjust
the claim. (Id.). Felchak, the exterior adjuster,
found that 20% of the roof needed to be replaced at a cost of
$8, 163.01. (Id. at 8). According to Roberson,
Felchak failed to account for other storm damage the roof
sustained and that he should have recommended replacing the
entire roof. (Id.). Although Eldridge, the interior
adjuster, found mold inside Roberson's home caused by
storm, she did not revise Felchak's assessment.
(Id.). Roberson hired a third party to inspect her
home in August 2016. (Id.). The petition alleges
that the third-party adjuster found $13, 482.73 in roof
damage, $5, 000 more than what Felchak found two months
before. (Id. at 10).
asserts that Morton, Felchak, and Eldridge gave
“problematic” assessments, and that they
“either intentionally or recklessly overlooked”
roof damage. (Id. at 9). According to Roberson,
Allstate's adjusters “had a vested interest in
undervaluing the claims assigned to them . . . to maintain
their employment, ” and the disparity between the
third-party adjuster's report and the Allstate
assessments “is evidence of fraud.”
(Id.). Roberson asserts that she had to pay out of
pocket for repairs, and that Allstate has not covered the
damage or reinspected the property. (Id. at 10-11).
Roberson's third suit against Allstate. She first sued
the company in state court in September 2016, but she
voluntarily dismissed the case “to re-plead . . . at a
higher level of damages.” (Id. at 13).
Roberson refiled the petition in state court in May 2018, and
Allstate removed to the Southern District of Texas.
(Id.). Roberson voluntarily dismissed the second
case after Allstate moved for an abatement. (Id. at
filed this action in March 2019 in the 284th Judicial
District of Montgomery County, Texas. (Id. at 5).
Allstate timely removed. (Docket Entry No. 1). The company
has moved for judgment on the pleadings, arguing that
Roberson's nonfraud claims are time-barred because the
two-year limitations periods expired before this action was
filed. (Docket Entry No. 6 at 6-11). Allstate has also moved
to dismiss under Rule 12(b)(6) on the basis that the fraud
claim fails to comply with federal pleading standards.
(Id. at 11-12).
The Legal Standards
Rules 12(b)(6) and 12(c)
Rule 12(b)(6) and Rule 12(c) standards are the same.
Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir.
2010). Rule 12(b)(6) allows dismissal if a plaintiff fails
“to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Rule 8 “does
not require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“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. (quoting Twombly,
550 U.S. at 556).
withstand a Rule 12(b)(6) motion, [a] complaint must allege
‘more than labels and conclusions, '” and
“a formulaic recitation of the elements of a cause of
action will not do.” Norris v. Hearst Tr., 500
F.3d 454, 464 (5th Cir. 2007) (quoting Twombly, 550
U.S. at 555). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (alteration in original)
(quoting Twombly, 550 U.S. at 557). A
“complaint ‘does not need detailed factual
allegations,' but must provide the plaintiff's
grounds for entitlement to relief-including factual
allegations that when assumed to be true ‘raise a right
to relief above the speculative level.'”
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (quoting Twombly, 550 U.S. at 555).
“Conversely, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, this basic deficiency should be exposed at the point
of minimum expenditure of time and money by the parties and
the court.” Id. (quotation and alteration
court should generally give the plaintiff a chance to amend
under Rule 15(a) before dismissing the action with prejudice,
unless to do so would be futile. See Carroll v. Fort
James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006);
Great Plains, 313 F.3d at 329 (“[D]istrict
courts often afford plaintiffs at least one opportunity to
cure pleading deficiencies before dismissing a case, unless
it is clear that the defects are incurable or the plaintiffs
advise the court that they are unwilling or unable to amend
in a manner that will avoid dismissal.”). A court has
discretion to deny a ...