Opinion
CASE NO. 2:09-cv-958-MEF, (WO_Do Not Publish).
January 4, 2010
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On October 21, 2009, two of the defendants in this case, The Travelers Insurance Companies, Inc. and The Travelers Indemnity Company, Inc. (collectively "the movants"), filed substantively identical motions to dismiss. (Docs. # 6 and # 7.) The movants argue the Court should dismiss them from this case under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court will deny both motions.
The movants also originally asserted that the Court should dismiss the case under Rules 12(b)(2), (3), (4), and (5). But the movants, after reviewing the plaintiffs' response, voluntarily withdrew these assertions. (Doc. # 15 at 3.) Nonetheless, the Court independently finds that it has jurisdiction over the parties and the case, and that venue is proper in this district.
II. LEGAL STANDARD
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint against the standard set out in Federal Rule of Civil Procedure 8: "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The Court must take the well-pleaded factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009). Even so, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007).
III. DISCUSSION
The movants contend they are not parties to the insurance policy that is the subject of this suit. This policy was issued to the plaintiffs, Michael and Lisa Eley, by a third defendant, The Automobile Insurance Company of Hartford, Connecticut, Inc., which is a separate legal entity from the movants. Asserting that "[a]ll of Plaintiffs' claims arise out of the policy," the movants argue they are not proper defendants and thus are entitled to be dismissed under Rule 12(b)(6). (Docs. # 6, ¶ 5 and # 7, ¶ 5.)
This assertion is wrong on the face of the complaint. The plaintiffs' claims are not for breach of the insurance policy itself. Rather, the plaintiffs allege in the sole count of the complaint that the "Defendants" (a term that necessarily must include the movants) — or, in the fact section of the complaint, "Travelers" (a term that, even if interpreted most narrowly, includes the movants because, of all the defendants, only the movants' names contain "Travelers") — made material misrepresentations to the plaintiffs about the status of the plaintiffs' insurance policy. (Doc. # 1-3 at 4-6.) This led the plaintiffs to believe their house was insured when, in fact, it was not. Consequently, the plaintiffs were not reimbursed for losses they incurred when the house was later burglarized.
In other words, this is a cause of action for misrepresentation, not for breach of contract. See Army Aviation Ctr. Fed. Credit Union v. Poston, 460 So. 2d 139, 142-43 (Ala. 1984) (setting out the elements for the state-law tort of misrepresentation, as found in § 6-5-100 of the Code of Alabama, 1975, and as construed by the Alabama courts); see also Nat'l Sec. Fire Cas. Co. v. Vintson, 414 So. 2d 49, 51 (Ala. 1982) (holding that a plaintiff who claimed that an insurance agent misrepresented the moment and time an insurance policy would take effect could present a breach-of-contract theory, a misrepresentation theory, or both theories). Therefore, this Court will not dismiss the movants from this case even if they are not parties to the insurance contract.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED that The Travelers Insurance Companies, Inc.'s Motion to Dismiss (Doc. # 6) and The Travelers Indemnity Company, Inc.'s Motion to Dismiss (Doc. # 7), both filed on October 21, 2009, are DENIED.
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CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal See also 3pro se 4. Effect of a notice of appeal 4
: Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , 368 (11th Ci r. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. : A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).