United States District Court, E.D. Louisiana
DIMITRI FRAZIER, ET AL.
ROBERT L. RUNNELS, ET AL
ORDER AND REASONS
Dmitri Frazier, Adonte Turner, and Tiffany Turner filed a
motion to dismiss plaintiffs-in-counterclaim/defendants
Robert Runnels, Canal Insurance Company and Whitestone
Transportation, LLC's counterclaims against them. Rec.
Doc. 23. Plaintiffs-in-counterclaim filed a response in
opposition. Rec. Doc. 26.
reasons discussed below, IT IS ORDERED that
defendants-in-counterclaim's motion to dismiss is
BACKGROUND AND PROCEDURAL HISTORY
action concerns a motor vehicle accident that occurred on
November 13, 2017. Rec. Doc. 4. Plaintiffs alleged that
defendant Robert Runnels was driving a semi within the course
and scope of his employment for Whitestone Transportation,
L.L.C when he suddenly switched lanes and caused a collision
with plaintiffs' vehicle. Id. at 2-3. Plaintiffs
allege that they sustained severe and serious bodily injuries
because of the accident. Id. Furthermore, plaintiffs
assert that Runnels' negligence was the sole and
proximate cause of the accident and that Whitestone is
vicariously liable. Id.
sought leave to file a counterclaim claiming that there was
no accident as alleged by
plaintiffs/defendants-in-counterclaim and that the accident
was intentionally caused by defendants-in-counterclaim who
suffered no injury. Rec. Doc. 11-2. The Magistrate Judge
denied leave to file the proposed counterclaim but granted
leave to file a revised counterclaim providing a factual
basis for plaintiffs-in-counterclaim's allegations. Rec.
Doc. 14. Plaintiffs-in-counterclaim filed an amended
counterclaim, with additional facts in support of their
allegations. Rec. Doc. 15. Defendants-in-counterclaim filed a
motion to strike the amended counterclaim pursuant to Federal
Rule of Civil Procedure 12(f) on the basis that it presented
unverified and immaterial allegations and alleging that
plaintiffs-in-counterclaim did not plead fraud with
sufficient particularity as required by Rule 9(b). Rec. Doc.
17-1. In her order and reasons, the Magistrate Judge denied
defendants-in-counterclaim's motion to strike, holding,
in relevant part, that plaintiffs-in-counterclaim had met the
requirements of pleading fraud under Rule 9(b) by stating
their allegations with sufficient particularity, and
therefore satisfied Rule 9(b)'s purpose of providing fair
notice of the claims against them. Rec. Doc. 22 at 7-8.
filed the instant motion to dismiss the amended counterclaim
pursuant to F.R.C.P. 12(b)(6) claiming
plaintiffs-in-counterclaim did not satisfy the heightened
pleading standard for fraud under Rule 9(b). Rec. Doc. 23-1.
Plaintiffs-in-counterclaim filed a response in opposition
asserting their allegations provide sufficient factual
allegations to demonstrate a plausible claim for relief as
required at the 12(b)(6) stage. Rec. Doc. 26 at 4.
Additionally, leave was granted after judicial review to file
a second supplemental and amended counterclaim providing
additional factual allegations in support of the fraud
claims. Rec. Doc. 37.
9(b) states that “[i]n alleging fraud . . . a party
must state with particularity the circumstances constituting
fraud.” Fed.R.Civ.P. 9(b). Thus, “Rule 9(b)
requires, at a minimum, that a plaintiff set forth the who,
what, when, where, and how of the alleged fraud.”
U.S. ex rel. Steury v. Cardinal Health, Inc., 625
F.3d 262, 266 (“Steury I”) (5th Cir.2010)
(citations and internal quotation marks omitted). “A
dismissal for failure to plead fraud with particularity under
Rule 9(b) is treated as a dismissal for failure to state a
claim under Rule 12(b)(6).” United States ex rel.
Grubbs v. Kanneganti, 565 F.3d 180, 185 n. 8 (5th
Cir.2009) (citation and internal quotation marks omitted).
U.S. ex rel. Steury v. Cardinal Health, Inc., 735
F.3d 202, 204 (5th Cir. 2013)
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff's complaint “must
contain ‘enough facts to state a claim to relief that
is plausible on its face.'” Varela v.
Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the plaintiff
pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In the context of
this Rule 12(b)(6) motion, we must accept all well-pleaded
facts as true and must draw all reasonable inferences in
favor of the plaintiffs-in-counterclaim. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
However, the court is not bound to accept as true legal
conclusions couched as factual allegations. Iqbal,
556 U.S. at 678. “[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002). When deciding whether a plaintiff has met their
burden, a court “accept[s] all well-pleaded factual
allegations as true and interpret[s] the complaint in the
light most favorable to the plaintiff, but
‘[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements' cannot
establish facial plausibility.” Snow
Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512,
520 (5th Cir. 2016) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
Fifth Circuit has noted that “the frequently stated,
judicially-created standard for a sufficient fraud complaint
. . . instructs a plaintiff to plead the time, place and
contents of the false representation, as well as the identity
of the person making the misrepresentation and what that
person obtained thereby.” U.S. ex rel. Grubbs v.
Kanneganti, 565 F.3d 180, 186 (5th Cir. 2009). The
purpose of Rule 9(b) is to serve as “a gatekeeper to
discovery, a tool to weed out meritless fraud claims sooner
than later.” Id.
present case, plaintiffs-in-counterclaim have provided a
sufficient factual basis for their allegations to proceed
past this screening stage. The amended counterclaim, and the
second amended and supplemental counterclaim, lay out
sufficient factual allegations, that if taken as true, make a
plausible claim for relief. Plaintiffs-in-counterclaim have
alleged the “the who, what, when, where, and how”
of their claim. Their counterclaim identified Dmitri Frazier,
Adonte Turner, and Tiffany Turner as the alleged perpetrators
of the fraud occurring on November 13, 2017 on Interstate 10
eastbound shortly before milepost 246. Rec. Doc. 15 at 1.
Plaintiffs-in-counterclaim allege that Robert Runnels has
testified and maintains that he did not experience impact
consistent with a motor vehicle accident and the data system
on the 18-wheeler did not document any impact, whereas there
was significant damage to the vehicle occupied by
defendants-in-counterclaim. Id. at 2. Furthermore,
plaintiffs-in-counterclaim allege they have uncovered
evidence of numerous other accidents with similar factual
scenarios to the present case, all occurring on I-10 or 610
in New Orleans, in which an unknown third vehicle waves down
an 18-wheeler driver who is unaware that he/she was allegedly
involved in an accident. Id. at 3. The counterclaim
also asserts that the same attorney as retained by
defendants-in-counterclaim was retained in these similar
accidents and the alleged victims include known associates
and relatives of defendants-in-counterclaim. Rec. Doc. 37 at
4-5. Plaintiffs-in-counterclaim further allege that
defendant-in-counterclaim has a prior conviction for forgery
and has filed questionable insurance claims in the past.
Id. at 6. Finally, the counterclaim provides a
Facebook photograph of Ms. Turner on which an individual
commented about defendants-in-counterclaim's alleged
involvement in intentionally causing fraudulent accidents
with 18-wheelers. Id. Taken together, these factual
allegations, if true, put forth a plausible claim for relief.
Additionally, these allegations are not conclusory
allegations or legal conclusions, but rather particular
factual allegations as required by Rule 9(b). Lastly, the