Total RX Care Llc v. Great Northern Insurance Company

Brief/Memorandum in Support

N.D. Tex.November 17, 2016

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION TOTAL RX CARE, LLC § § Plaintiff, § § v. § CIVIL ACTION NO. 3:16-cv-2965 § GREAT NORTHERN INSURANCE COMPANY § § § JURY DEMANDED Defendant. § GREAT NORTHERN INSURANCE COMPANY’S BRIEF IN SUPPORT OF AMENDED MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant Great Northern Insurance Company (“Great Northern”) files this Brief in Support of Amended Motion to Dismiss for Failure to State a Claim against Total RX Care, LLC (“Total RX”), which is filed contemporaneously hereto pursuant to Local Rule 7.1. I. EXECUTIVE SUMMARY This Court should dismiss Total RX’s fraudulent inducement claim under Rule 12(b)(6) for failure to state a claim. Under Texas law, such a claim relates only to a contract between the parties—in other words, Total RX and Great Northern—but Total RX bases this claim on a contract to which Great Northern is not a party. This Court should also dismiss Total RX’s pattern and practice claim because it is entirely devoid of any factual support. This is insufficient to plead a claim upon which relief can be granted even though the allegations are based on “information and belief.” Additionally, this Court should dismiss Total RX’s claim under the Deceptive Trade Practices Act (the “DTPA”) for two reasons. First, the DTPA does not apply to the alleged transaction between Total RX and Belfor because it involves consideration exceeding $500,000. Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 1 of 14 PageID 976 2 Second, the alleged “misrepresentation” is really a claim that Great Northern breached a contractual obligation to pay under the policy, which is not actionable under the DTPA. This Court should also dismiss Total RX’s promissory estoppel claim because it is based on a “promise” covered by the terms of the policy. Under Texas law, when a valid contract between the parties covers the alleged promise, promissory estoppel is not applicable to that promise and the wronged party must seek damages under the contract. Finally, this Court should dismiss Total RX’s fraud claim because the alleged harm—sums owed under the terms of the policy on the Belfor contract—is merely the economic loss of a contractual benefit. Accordingly, the fraud claim is barred by the independent injury doctrine. II. TABLE OF CONTENTS Page I. Executive Summary .............................................................................................................1 II. Table of Contents .................................................................................................................2 III. Table of Authorities .............................................................................................................3 IV. Standard for Rule 12(b)(6) Motion to Dismiss ....................................................................5 V. Argument and Authorities....................................................................................................5 A. The Court should dismiss Total RX’s fraudulent inducement claim because there are no allegations that it was fraudulently induced into a contract with Great Northern. .............................................................................. 5 B. The Court should dismiss Total RX’s pattern and practice claim because it is entirely devoid of any factual support. ............................................... 6 C. This Court should dismiss Total RX’s DTPA claim. ............................................. 7 1. The DTPA does not apply to the alleged transaction because it involves consideration exceeding $500,000. ........................................... 7 2. The alleged “misrepresentation” is really a claim that Great Northern breached a contractual obligation, which is not actionable under the DTPA. ........................................................................ 9 D. The Court should dismiss Total RX’s promissory estoppel claim because the alleged “promise” is covered by the terms of the policy and therefore not actionable under a theory of promissory estoppel. ................... 10 Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 2 of 14 PageID 977 3 E. This Court should dismiss Total RX’s fraud claim because it is barred by the independent injury doctrine. ........................................................... 11 VI. Prayer .................................................................................................................................12 III. TABLE OF AUTHORITIES Cases Page(s) Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 127 S. Ct. 1955 (2007). .......................................................................................5 Berry v. Indianapolis Life Ins. Co., 608 F. Supp. 2d 785 (N.D. Tex. 2009). .................................................................................5, 7 BP America Prod. Co. v. Zaffirini, 419 S.W.3d 485 (Tex. App.—San Antonio 2013, pet. denied). ..............................................10 Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285 (5th Cir. 2004). ....................................................................................................5 Celtic Bank Corp. v. Jacobs, No. A-13-CA-040-SS, 2013 WL 5918156 (W.D. Tex. Oct. 31, 2013). ....................................8 Citizens Nat’l Bank v. Allen Rae Inves., Inc., 142 S.W.3d 459 (Tex. App.—Fort Worth 2004, no pet.). .........................................................8 City of Clinton, Ark. v. Pilgrim’s Pride Corp., 654 F. Supp.2d 536 (N.D. Tex. 2009). ....................................................................................11 Crawford v. Ace Sign, Inc., 917 S.W.2d 12 (Tex. 1996) (per curiam). ............................................................................9, 12 Disalvatore v. Foretravel, Inc., No. 9:14-CV-150, 2016 WL 3951426 (E.D. Tex. June 30, 2016). ...........................................8 U.S. ex rel. Doe v. Dow Chem. Co., 343 F.3d 325 (5th Cir. 2003). ....................................................................................................7 East Hill Marine, Inc. v. Rinker Boat Co., Inc., 229 S.W.3d 813 (Tex. App.—Fort Worth 2007, pet. denied) ...................................................8 El Paso Healthcare Sys., Ltd. v. Piping Rock Corp., 939 S.W.2d 695 (Tex. App.—El Paso 1997, writ denied).......................................................10 Elite Ctr. for Minimally Invasive Surgery, LLC v. Health Care Servs. Corp., —F. Supp. 3d—, 2016 WL 6236328 (S.D. Tex. Oct. 24, 2016). ......................................10, 11 Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 3 of 14 PageID 978 4 Esty v. Beal Bank S.S.B., 298 S.W.3d 280 (Tex. App.—Dallas 2009, no pet.). ...............................................................12 Fed. Ins. Co. v. Infoglide Corp., No. A-05-CA-189-AWA, 2006 WL 2050694 (W.D. Tex. July 18, 2006). .............................10 Haase v. Glazner, 62 S.W.3d 795 (Tex. 2001) ........................................................................................................6 Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004). ....................................................................................................5 Met. Life Ins. Co. v. Haden & Co., 158 F.3d 584 (5th Cir. 1998). ..................................................................................................10 Owens v. Bank of America, NA, No. H-11-2552, 2012 WL 912721 (S.D. Tex. Mar. 16, 2012). ...............................................11 River Capital Advisors of N.C., Inc. v. FCS Advisors, Inc., No. 4:10-CV-471, 2011 WL 831282 (E.D. Tex. Feb. 7, 2011). ................................................6 SPRAJ Props. LLC v. Regions Bank, No. 3:13-CV-3472-N, 2015 WL 11120528 (N.D. Tex. May 12, 2015). ...................................8 Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002). .....................................................................................................10 In re Superior Air Parts, Inc., 486 B.R. 728 (N.D. Tex. 2012)..................................................................................................7 Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257 (5th Cir. 2008). ....................................................................................................5 Wayne Duddleston, Inc. v. Highland Ins. Co., 110 S.W.3d 85 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). ........................................9 William Marsh Rice Univ. v. Arrowhead Research Corp., No. 14-03496, 2015 WL 10987080 (S.D. Tex. July 23, 2015). ..............................................12 William Marsh Rice Univ. v. Arrowhead Research Corp., No. 14-03496, 2016 WL 3223313 (S.D. Tex. Mar. 8, 2016). ...................................................6 Statute TEX. BUS. & COM. CODE § 17.49(g) ................................................................................................8 Rules Local Rule 7.1 ..................................................................................................................................1 Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 4 of 14 PageID 979 5 Federal Rule of Civil Procedure 12(b)(6) .............................................................................. passim IV. STANDARD FOR RULE 12(B)(6) MOTION TO DISMISS To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain plausible grounds to show entitlement to relief, not just ‘labels and conclusions.’”1 Factual allegations “must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”2 In analyzing a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “the Court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”3 The Court’s review “is limited to the allegations in the complaint and to those documents attached to a defendant’s motion to dismiss to the extent that those documents are referred to in the complaint and are central to the claims.”4 A Rule 12(b)(6) motion should be granted only if the complaint does not include enough facts to state a claim to relief that is plausible on its face.”5 V. ARGUMENT AND AUTHORITIES A. The Court should dismiss Total RX’s fraudulent inducement claim because there are no allegations that it was fraudulently induced into a contract with Great Northern. Total RX has asserted a claim for “fraudulent inducement.” Under Texas law, fraudulent inducement is a “particular species of fraud that arises only in the context of a contract and requires 1 Berry v. Indianapolis Life Ins. Co., 608 F. Supp. 2d 785, 790 (N.D. Tex. 2009) (Boyle, J.) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570, 127 S. Ct. 1955, 1974 (2007)). 2 Id. (citing Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008) (quoting Twombly, 127 S. Ct. at 1965)). 3 Id. (citing Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). 4 Id. (citing Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004)). 5 Id. (citing Twombly, 127 S. Ct. at 1974). Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 5 of 14 PageID 980 6 the existence of a contract as part of its proof.”6 In other words, “with a fraudulent inducement claim, the elements of fraud must be established as they relate to an agreement between the parties.”7 Thus, the assertion of such a claim “against a third party to the contract is inconsistent with Texas case law.”8 Here, Total RX does not claim that Great Northern fraudulently induced it to enter into the policy, the only contract between them identified in Total RX’s petition. Instead, Total RX claims that Great Northern fraudulently induced it to enter into a contract with Belfor Property Restoration,9 and there are no allegations that Great Northern is a party to this contract. Accordingly, Total RX has failed to plead a cognizable fraudulent inducement claim against Great Northern, and this Court should dismiss it under Rule 12(b)(6).10 B. The Court should dismiss Total RX’s pattern and practice claim because it is entirely devoid of any factual support. Total RX has also asserted a claim for what it calls “pattern and practice” claiming that its “experience is not an isolated case”; that Great Northern’s “acts and omissions . . . in this case . . . occur with such frequency that they constitute a general business practice and pattern . . . with 6 Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001). 7 Id. at 798–99 (emphasis added). 8 William Marsh Rice Univ. v. Arrowhead Research Corp., No. 14-03496, 2016 WL 3223313, *8 (S.D. Tex. Mar. 8, 2016) (“[A]sserting a fraudulent inducement claim against a third party to the contract is inconsistent with Texas case law.”) (citing Haase, 62 S.W.3d at 798–99). 9 See Total RX’s First Amended Complaint at ¶ 47. 10 See William Marsh Rice Univ., 2016 WL 3223313, at *8 (dismissing fraudulent inducement claim because the assertion of such a claim “against a third party to the contract is inconsistent with Texas case law”); River Capital Advisors of N.C., Inc. v. FCS Advisors, Inc., No. 4:10-CV-471, 2011 WL 831282, *6 (E.D. Tex. Feb. 7, 2011) (“Since there is no agreement between Plaintiff and Defendants, Plaintiff’s fraudulent inducement claim is not plausible and should be dismissed.”). Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 6 of 14 PageID 981 7 regard to handling these types of claims”; and that Great Northern’s “entire process is unfairly designed to reach favorable outcomes for [Great Northern] at the expense of the policyholders.”11 These formulaic recitations are entirely devoid of any factual support. This is insufficient, even where, like here, the allegations are based on “information and belief.” Allegations pled on “information and belief” are “reviewed in the same way as all factual allegations in a complaint—that is, the court should review them under Twombly’s 12(b)(6) formulation requiring sufficient facts pled to make a claim plausible.”12 “Conclusory allegations made upon information and belief are not entitled to a presumption of truth, and allegations stated upon information and belief that do not contain any factual support fail to meet the Twombly standard.”13 Accordingly, this Court should dismiss Total RX’s pattern and practice claim under Rule 12(b)(6).14 C. This Court should dismiss Total RX’s DTPA claim. 1. The DTPA does not apply to the alleged transaction because it involves consideration exceeding $500,000. The DTPA does not apply to the alleged transaction between Total RX and Belfor. The DTPA includes the following exemption: 11 See Total RX’s First Amended Complaint at ¶ 50. 12 In re Superior Air Parts, Inc., 486 B.R. 728, 741 (N.D. Tex. 2012); accord U.S. ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 329 (5th Cir. 2003) (“[W]hile allegations may be based upon information and belief, ‘the complaint must set forth a factual basis for such belief.’”). 13 In re Superior, 486 B.R. at 741 (internal citations omitted). 14 See id.; see also Berry, 608 F. Supp. 2d at 794 (dismissing conspiracy claim pled on “information and belief” where the complaint was “devoid of any factual allegations supporting the[] formulaic recitation of at least one of the legal elements of conspiracy”). Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 7 of 14 PageID 982 8 Nothing in this subchapter shall apply to a cause of action arising from a transaction, a project, or a set of transactions relating to the same project, involving total consideration by the consumer of more than $500,000, other than a cause of action involving a consumer’s residence.15 The purpose of this exemption is to “maintain the DTPA as a viable source of relief for consumers in small transactions and to remove litigation between businesses over large transactions from the scope of the DTPA.”16 Here, Total RX asserts that Great Northern committed a false, misleading, or deceptive act or practice under the DTPA “by falsely assuring Total Rx that [it] would pay the Belfor invoice beyond the sum of $400,000.”17 Total RX further alleges that the invoice “exceeded this amount by the sum of $905,233.”18 Clearly, then, the alleged transaction supporting Total RX’s DTPA claim involves consideration exceeding $500,000 and does not involve a consumer residence. Accordingly, Total RX has failed to plead a cognizable DTPA claim against Great Northern, and this Court should dismiss it under Rule 12(b)(6).19 15 TEX. BUS. & COM. CODE § 17.49(g). 16 East Hill Marine, Inc. v. Rinker Boat Co., Inc., 229 S.W.3d 813, 820 (Tex. App.—Fort Worth 2007, pet. denied) (citing Citizens Nat’l Bank v. Allen Rae Inves., Inc., 142 S.W.3d 459, 473–74 (Tex. App.— Fort Worth 2004, no pet.)). 17 Total RX’s First Amended Complaint at ¶ 41. 18 Id. 19 See Celtic Bank Corp. v. Jacobs, No. A-13-CA-040-SS, 2013 WL 5918156, *2–3 (W.D. Tex. Oct. 31, 2013) (Sparks, J.) (granting Rule 12(b)(6) motion and dismissing DTPA claim based on $800,000 requested sale price because it “plainly” fell within the exemption); cf. Disalvatore v. Foretravel, Inc., No. 9:14-CV-150, 2016 WL 3951426, *7 (E.D. Tex. June 30, 2016) (Gilbin, J.) (granting summary judgment based on exemption where sales transaction exceeding $500,000 fell “squarely” within the exemption); SPRAJ Props. LLC v. Regions Bank, No. 3:13-CV-3472-N, 2015 WL 11120528, *7 (N.D. Tex. May 12, 2015) (Godbey, J.) (granting summary judgment based on exemption where sales transaction exceeded $500,000). Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 8 of 14 PageID 983 9 2. The alleged “misrepresentation” is really a claim that Great Northern breached a contractual obligation, which is not actionable under the DTPA. As discussed above, Total RX claims that Great Northern committed a false, misleading, or deceptive act or practice under the DTPA by “falsely assuring Total Rx that [it] would pay the Belfor invoice beyond the sum of $400,000.”20 Total RX admits, however, that this lawsuit is a “first-party insurance coverage case” and that there is an insurance policy under which it is seeking coverage.21 Thus, any “promise” that Total RX claims Great Northern reneged on is really a claim that Great Northern breached a contractual obligation to pay under the policy. A promise to fulfill a contractual obligation is not actionable under the DTPA. In Crawford v. Ace Sign, Inc., the plaintiff asserted a claim under the DTPA based on several alleged misrepresentations, the essence of which was that “(1) the defendants represented that they would perform under the contract, and (2) nonperformance means that they misrepresented that they would perform under the contract.”22 These allegations, the Texas Supreme Court explained, “were nothing more than representations that the defendants would fulfill their contractual duty . . ., and the breach of that duty sounds only in contract” and, therefore, were not actionable under the DTPA.23 This rule also applies in the insurance context. In Wayne Duddleston, Inc. v. Highlands Ins. Co., the court relied upon Crawford to hold that an alleged misrepresentation stemming solely from an insurer’s breach of a policy will not support a claim for violation of the DTPA.24 The 20 Total RX’s First Amended Petition at ¶ 41. 21 See id. at ¶¶ 20 and 33. 22 Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14 (Tex. 1996) (per curiam). 23 Id. at 14–15. 24 Wayne Duddleston, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 92 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 9 of 14 PageID 984 10 District Court for the Western District of Texas has relied on this decision to come to a similar conclusion.25 Accordingly, for this reason too, Total RX has failed to plead a cognizable DTPA claim against Great Northern, and this Court should dismiss it under Rule 12(b)(6).26 D. The Court should dismiss Total RX’s promissory estoppel claim because the alleged “promise” is covered by the terms of the policy and therefore not actionable under a theory of promissory estoppel. Total RX has asserted a claim for promissory estoppel based on Great Northern’s alleged promise to pay the Belfor invoice beyond the sum of $400,000.27 As discussed above, this is really a claim that Great Northern breached a contractual obligation to pay under the policy28 and, therefore, is not actionable under a promissory estoppel theory. Under Texas law, when a valid contract between the parties covers the alleged promise, promissory estoppel is “not applicable to that promise” and “the wronged party must seek damages under the contract.”29 In other words, “the doctrine of promissory estoppel may be invoked only where no contract on the subject matter exists.”30 25 See Fed. Ins. Co. v. Infoglide Corp., No. A-05-CA-189-AWA, 2006 WL 2050694, *16 (W.D. Tex. July 18, 2006). 26 See Met. Life Ins. Co. v. Haden & Co., 158 F.3d 584 (5th Cir. 1998) (affirming dismissal of DTPA claim under Rule 12(b)(6) where it was “essentially a breach of contract claim”). 27 See Total RX’s First Amended Complaint at ¶ 47. 28 See supra Part III.C. 29 El Paso Healthcare Sys., Ltd. v. Piping Rock Corp., 939 S.W.2d 695, 699 (Tex. App.—El Paso 1997, writ denied); accord Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002) (“[T]he promissory-estoppel doctrine presumes no contract exists.”); BP America Prod. Co. v. Zaffirini, 419 S.W.3d 485, 507 (Tex. App.—San Antonio 2013, pet. denied) (“If an alleged promise is part of a valid contract, the promise cannot disregard the contract and sue for reliance damages under the doctrine of promissory estoppel.”) (internal quotations omitted). 30 Elite Ctr. for Minimally Invasive Surgery, LLC v. Health Care Servs. Corp., —F. Supp. 3d—, 2016 WL 6236328 (S.D. Tex. Oct. 24, 2016) (Hughes, J.). Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 10 of 14 PageID 985 11 For example, in a recent case, the court granted a Rule 12(b)(6) motion to dismiss on the plaintiff’s promissory estoppel claim based on alleged representations regarding insurance coverage for medical procedures because it was based on the same promise supporting the plaintiff’s breach of contract claim: Elite’s promissory estoppel clam is founded upon precisely the same promise as that which undergirds its breach of contract claim—that [the defendant] would pay the “allowable amount” as defined in the underlying health plan. Because Elite has identified no other promise different than the one allegedly contained in the written plan, the doctrine of promissory estoppel is superfluous, and hence inapplicable.31 In the same way, any “promise” to pay the Belfor invoice is really a claim that Great Northern breached a contractual obligation to pay under the policy. Accordingly, Total RX has failed to plead a cognizable promissory estoppel claim against Great Northern, and this Court should dismiss it under Rule 12(b)(6).32 E. This Court should dismiss Total RX’s fraud claim because it is barred by the independent injury doctrine. Like its promissory estoppel claim, Total RX’s fraud claim is based on Great Northern’s alleged promise to pay the Belfor invoice beyond the sum of $400,000,33 which, as discussed above, is really a claim that Great Northern breached a contractual obligation to pay under the policy.34 Under Texas law, however, “nonfeasance under a contract creates liability only for 31 Id. 32 See id.; see also Owens v. Bank of America, NA, No. H-11-2552, 2012 WL 912721, *4 (S.D. Tex. Mar. 16, 2012) (Hoyt, J.) (granting Rule 12(b)(6) motion and dismissing promissory estoppel claim where the parties’ relationship was “solely contractual”); City of Clinton, Ark. v. Pilgrim’s Pride Corp., 654 F. Supp.2d 536, 544 (N.D. Tex. 2009) (Means, J.) (granting Rule 12(b)(6) motion and dismissing promissory estoppel claims where the subject of alleged promises were covered by agreements between the parties). 33 See Total RX’s First Amended Complaint at ¶ 47. 34 See supra Part III.C. Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 11 of 14 PageID 986 12 breach of contract” and “tort damages are generally not recoverable unless the plaintiff suffered an injury that is independent and separate from the economic losses recoverable under a breach of contract claim.”35 This is commonly known as the “independent injury doctrine” or the “economic loss rule.”36 For example, in William Marsh Rice University v. Arrowhead Research Corp., the plaintiff asserted a claim for common law fraud for alleged misrepresentations related to the modification of a license agreement.37 The Court ruled that it was barred by the independent injury doctrine, however, because the alleged harm suffered was “merely the economic loss of a contractual benefit” and granted the defendant’s Rule 12(b)(6) motion to dismiss.38 Total RX’s fraud claim is similarly barred by the independent injury doctrine because the alleged harm—sums owed under the terms of the policy on the Belfor contract—is merely the economic loss of a contractual benefit. Accordingly, like the Court in William Marsh Rice University, this Court should dismiss Total RX’s fraud claim under Rule 12(b)(6).39 VI. PRAYER For these reasons, Great Northern Insurance Company respectfully requests the Court to dismiss Total RX Care, LLC’s fraudulent inducement, pattern and practice, promissory estoppel, fraud, and DTPA claims against Great Northern. 35 William Marsh Rice Univ. v. Arrowhead Research Corp., No. 14-03496, 2015 WL 10987080, *9 (S.D. Tex. July 23, 2015) (Gilmore, J.) (citing Crawford, 917 S.W.2d at 13 (Tex. 1996); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 301 (Tex. App.—Dallas 2009, no pet.)). 36 Id. 37 Id. at *1. 38 Id. at *9–10. 39 See id. Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 12 of 14 PageID 987 13 Respectfully submitted: /s/ Joseph A. Ziemianski Joseph A. Ziemianski Attorney-in-Charge Texas State Bar No. 00797732 E-mail: jziemianski@cozen.com Of Counsel: Nicole S. Bakare Texas State Bar No. 24056017 E-mail: nbakare@cozen.com COZEN O’CONNOR 1221 McKinney St., Suite 2900 Houston, Texas 77010 Telephone: (832) 214-3900 Facsimile: (832) 214-3905 Local Counsel: William H. Craven Texas State Bar No. 24082870 COZEN O’CONNOR 1717 Main Street, Suite 3400 Dallas, Texas 75201 Telephone: (214) 462-3000 Facsimile: (214) 462-3299 E-mail: wcraven@cozen.com Counsel for Defendant Great Northern Insurance Company Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 13 of 14 PageID 988 14 CERTIFICATE OF SERVICE I certify that a true and correct copy of this document was served on all counsel of record, listed below, via the Court’s electronic filing system, on November 17, 2016. Robert M. Hoffmann ANDREWS KURTH, LLP 1717 Main Street, Suite 3700 Dallas, Texas 75201 Mary Kaylan Dunn ANDREWS KURTH, LLP 600 Travis Street, Suite 4200 Houston, Texas 77002 Counsel for Plaintiff Total RX Care, LLC /s/ Joseph A. Ziemianski Joseph A. Ziemianski Case 3:16-cv-02965-B Document 13 Filed 11/17/16 Page 14 of 14 PageID 989