United States District Court, W.D. Texas, San Antonio Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETSY") CHESTNEY, UNITED STATES
Honorable United States District Judge Fred Biery:
Report and Recommendation concerns Defendant Allstate Vehicle
and Property Insurance Company's First Amended Motion for
Partial Dismissal Under Rule 9(b) and 12(b)(6) [#25]. All
dispositive pretrial matters in this case have been referred
to the undersigned for disposition pursuant to Western
District of Texas Local Rule CV-72 and Appendix C [#8]. The
undersigned has authority to enter this recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons
set forth below, it is recommended that Defendant's
motion be GRANTED.
insurance dispute arises from a hail and windstorm that
allegedly caused property damage to Plaintiff's property
located at 725 Cimarron Square, Poteet, Texas 78065.
Plaintiff's Amended Complaint [#24] contends that
Defendant Allstate Vehicle and Property Insurance Company
insured her property against losses from wind damage but
Defendant's estimate undervalued the damage. Plaintiff
asserts causes of action against Defendant for breach of
contract, violations of the Texas Insurance Code, violations
of the Texas Deceptive Trade Practices-Consumer Protection
Act (“DTPA”), and breach of the duty of good
faith and fair dealing, and she seeks attorney's fees.
after Plaintiff filed her Amended Complaint, Defendant filed
the motion to dismiss that is the subject of this report and
recommendation. By its motion, Defendant seeks partial
dismissal of Plaintiff's Amended Complaint, arguing that
Plaintiff's claims based on misrepresentation and fraud
arising under the Texas Insurance Code and DTPA should be
dismissed for failure to satisfy the heightened pleadings
standards under Rule 9(b) and the general pleading standards
under Rule 8.
motion was filed on September 19, 2019. According to this
Court's Local Rules, Plaintiff's response to the
motion was due within 14 days of the motion's filing, on
or before October 3, 2019. See Loc. R. CV-7(e) (responses to
dispositive motions due within 14 days of motion's
filing). To date, Plaintiff has not filed a response to the
motion. Pursuant to Local Rule CV-7(e), if there is no
response filed within the time period prescribed by the
rules, the court may grant the motion as unopposed.
Nevertheless, because this is a dispositive motion, the Court
will evaluate its merits as well.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.
“Although a complaint “does not need detailed
factual allegations, ” the “allegations must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. The
allegations pleaded must show “more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678.
reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court “accepts all well-pleaded
facts as true, viewing them in the light most favorable to
the plaintiff.” Martin K. Eby Const. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(internal quotation omitted). However, a Court need not
credit conclusory allegations or allegations that merely
restate the legal elements of a claim. Chhim v. Univ. of
Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016)
(citing Iqbal, 556 U.S. at 678). In short, a claim
should not be dismissed unless the court determines that it
is beyond doubt that the plaintiff cannot prove a plausible
set of facts that support the claim and would justify relief.
See Twombly, 550 U.S. at 570.
9(b) imposes a heightened pleading standard for claims
sounding in fraud. See Fed.R.Civ.P. 9(b) (“In alleging
fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”). The
Fifth Circuit has clarified that Rule 9 requires the
plaintiff to 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) (quoting
Melder v. Morris, 27 F.3d 1097, 1100 n.5 (5th Cir.
partial motion to dismiss should be granted. Defendant
challenges the sufficiency of Plaintiff's allegations as
to her misrepresentation and fraud claims arising under the
Texas Insurance Code and DTPA. The requirements of Rule 9(b)
“apply to all cases where the gravamen of the claim is
fraud even though the theory supporting the claim is not
technically termed fraud.” Partain v. Mid-Continent
Specialty Ins. Servs., Inc., 838 F.Supp.2d 547, 557
(S.D. Tex. 2012), aff'd sub nom. Graper v.
Mid-Continent Cas. Co., 756 F.3d 388 (5th Cir. 2014)
(internal quotation omitted). Texas district courts apply the
heightened pleading requirements of Rule 9(b) to claims under
the Texas Insurance Code and the DTPA, where such claims are
“substantively identical” to a claim of fraud.
Id.; see also Jaime v. Allstate Texas
Lloyds, No. 4:17-CV-00253-O-BP, 2017 WL 4676631, at *2
(N.D. Tex. Sept. 29, 2017), report and recommendation adopted
sub nom. Jaime v. Lloyds, No. 4:17-CV-00253-O-BP,
2017 WL 4620902 (N.D. Tex. Oct. 16, 2017) (collecting cases);
Berry v. Indianapolis Life Ins. Co., 608 F.Supp.2d
785, 800 (N.D. Tex. 2009).
factual allegations in Plaintiff's Amended Complaint are
insufficient to state claims under the Texas Insurance Code
or DTPA based on misrepresentation or fraud and do not
satisfy federal pleading standards. Plaintiff alleges
Defendant violated Section 541.060(a) of the Texas Insurance
Code by engaging in unfair settlement practices. Section
541.060(a)(1) prohibits “misrepresenting to a claimant
a material fact or policy provision relating to coverage at
issue.” The only factual allegation regarding any
misrepresentation contained in Plaintiff's Amended
Complaint is that Defendant sent Plaintiff two letters (dated
August 6, 2018 and March 26, 2019) misrepresenting the extent
of damage to Plaintiff's property and that the policy at
issue provided coverage for some but not all of the damage.
(Am. Compl. [#24] at ¶¶ 13, 15, 19.) Plaintiff
contends that this conduct constituted knowing and reckless
false representations in violation of Section 541.060(a) of
the Texas Insurance Code. (Id. at ¶¶ 27,
36.) Although Plaintiff identifies the date of the ...