United States District Court, S.D. Texas, Laredo Division
REPORT AND RECOMMENDATION
SHELDON UNITED STATES MAGISTRATE JUDGE
case involves a first-party property insurance dispute
between Plaintiff Salvador Aviles (Aviles) and his insurer,
Defendant Allstate Fire and Casualty, Insurance Company
(Allstate). Pending before the Court is Allstate's motion
for partial dismissal as to Aviles' misrepresentation
claims. (Dkt. 2.) The District Court has referred the motion
to the undersigned Magistrate Judge. (Dkt. 6.) Having
considered the parties' filings and the applicable law,
the Undersigned recommends that the District Court
GRANT IN PART and DENY IN
PART the motion and DISMISS WITHOUT
PREJUDUCE Aviles' misrepresentations claims
under Texas Insurance Code Section 541.060(a)(1) WITH
LEAVE TO AMEND.
owns a home located in Laredo, Texas that was insured by
Allstate. (Dkt. 1-2 at 5.) Aviles alleges that on May 21,
2017, a severe wind and/or hailstorm caused substantial
damage to his home. (Id.) Aviles submitted a
property claim to Allstate. (Id. at 6.) Thereafter a
disagreement ensued between the parties regarding the cause
and damage to Aviles' home. (Id. at 6-7.)
Additionally, Aviles alleges that Allstate acted
"knowingly" when failing to properly investigate
and pay his claim. (Id. at 6-10.)
filed suit against Allstate in Webb County District Court
alleging claims for breach of contract and noncompliance with
the Texas Insurance Code, including making
misrepresentations, engaging in unfair settlement practices
and not promptly paying his claim. (Dkt. 1-2 at 7-14.) Aviles
also alleges that Allstate is vicariously liable for the acts
of its adjuster. (Id. at 13.) Allstate removed the
case to federal court based on diversity citizenship. (Dkt.
1.) After removing the case to federal court, Allstate filed
both an answer and a motion for partial dismissal. (Dkts. 2
and 3.) Allstate is seeking to dismiss Aviles'
misrepresentation claims under Federal Rules of Civil
Procedure, Rules 12(b)(6) and 9(b). (Dkt. 2.)
claim may be dismissed under Federal Rule of Civil Procedure
12(b)(6) if it does not 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). Federal
Rule of Civil Procedure 8(a)(2) provides the general
requirement for pleadings in federal court: Each cause of
action must include "a short and plain statement of the
claim showing that the pleader is entitled to relief."
While the complaint need not contain detailed factual
allegations, it must set forth "more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
at 555 (internal citation omitted). Rather, the
complaint's "[f]actual allegations must be enough to
raise a right to relief above the speculative level."
Id. While all well-pleaded facts in the complaint
are to be accepted as true, legal conclusions "are not
entitled to the assumption of truth," Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (citation omitted), nor
should a court strain to make unwarranted inferences
favorable to the plaintiff. R2 Invs. LDC v.
Phillips, 401 F.3d 638, 642 (5th Cir. 2005).
of fraud or mistake are subject to even a higher pleading
standard than other civil claims. Federal Rule of Civil
Procedure 9(b) provides that a party alleging fraud
"must state with particularity the circumstances
constituting fraud." What constitutes
"particularity" varies depending on the facts of
the case. Benchmark Elec, Inc. v. J.M. Huber Corp.,
343 F.3d 719, 724 (5th Cir. 2003). At a minimum, though, the
plaintiff must "allege the particulars of  time, 
place, and  contents of the false representations, as well
as  the identity of the person making the representation
and  what that person obtained thereby." Tuchman
v. DSC Commc'ns Corp., 14 F.3d 1061, 1068 (5th Cir.
1994) (internal quotation marks and alterations omitted). In
other words, a plaintiff must plead the "who, what,
when, where, and how" of the alleged fraud. Williams
v. WMX Techs., Inc., 112 F.3d 175, 179 (5th Cir. 1997).
In the Fifth Circuit, a dismissal under Rule 9(b) is
"treated as a dismissal for failure to state a claim
under Rule 12(b)(6)." United States ex rel. Thompson
v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 901 (5th
Analysis of Allstate's Motion to Dismiss Aviles*
moves to dismiss Aviles' misrepresentation claims alleged
under the Texas Insurance Code. (Dkt. 2 at 5-6 and 14.)
Specifically, Allstate asserts that Aviles failed to satisfy
the pleading standards under Rule 9(b) by either alleging
only legal conclusions and/or not providing the "who,
what, when, where, and how" of the misrepresentations.
(Id.) In response, Aviles argues that when his
complaint "is read as a whole, the complaint more than
meets the federal pleading standard." (Dkt. 4 at 2.)
following reasons, the Magistrate Judge concludes that
Aviles' misrepresentation claims alleged under Texas
Insurance Code Section 541.060(a)(1) fail to satisfy either
the Rule 8(a) and/or 9(b) pleading standards, ...