Allegations In A Lawsuit

Weatherford insurance lawyers need to understand how to properly make allegations when filing a lawsuit. The Fort Worth Division, Northern District of Texas issued an opinion wherein it is pointed out allegations were not properly made. The opinion is styled, Mark Buettner, et al., v. USA Gymnastics, et al.
Bailey was a competitor at an event run by Gymnastics when she landed wrong upon a dismount from uneven parallel bars and suffered a torn ACL, which required surgical repair. Bailey was insured under a policy of insurance issued by Mutual to Gymnastics as policyholder. Specialty administered claims made under the policy and corresponded with plaintiff regarding Bailey’s injury and his claim for payment under the policy.
Bailey sued Mutual and Gymnastics for breach of contract, Insurance Code violations, and DTPA violations. Suit was filed in State Court and removed to Federal Court by Mutual and Gymnastics.
Under 28 U.S.C. Section 1441(a), a defendant may remove to federal court any state court action of which the federal district court would have original jurisdiction.
To determine whether a party was fraudulently or improperly joined to prevent removal, the court must analyze whether (1) there is actual fraud in pleading jurisdictional facts or (2) the plaintiff is unable to establish a cause of action against the nondiverse defendant. Because defendants have not alleged actual fraud in the pleadings, the applicable test for improper joinder is:
whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict plaintiff might be able to recover against an in-state defendant.
A complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Although a complaint need not contain detailed factual allegations, the “showing” contemplated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action. Thus, while a court must accept all of the factual allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported by any factual underpinnings.
Moreover, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the facts pleaded must allow the court to infer that the plaintiff’s right to relief is plausible. To allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely consistent with unlawful conduct are insufficient. In other words, where the facts pleaded do no more than permit the court to infer the possibility of misconduct, the complaint has not shown that the pleader is entitled to relief. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.
As stated, plaintiff has pleaded that his daughter, Bailey, was a competitor at a Gymnastics’ event when she was injured. Bailey was a beneficiary under an insurance policy issued by Mutual and administered by Specialty. Although plaintiff asserts a claim for breach of contract, he does not allege any facts to establish a contract with Gymnastics. He also asserts claims for bad faith under the Texas Insurance Code and DTPA, but again alleges no facts that would subject Gymnastics to liability under those provisions. Rather, the insurance policy upon which plaintiff bases his claims, specifically referenced in his petition and a copy of which is attached to the motion to remand, reflects that the contractual obligation to pay lies with Mutual, the insurer. And, clearly, all of plaintiff’s contacts were with Specialty, which administered the claim. There is no allegation that Gymnastics is an insurance company or is otherwise in thebusiness of insurance so as to be subject to liability under the Insurance Code.
The court has concluded that none of the claims asserted against Gymnastics would survive a motion to dismiss for failure to state a claim upon which relief may be granted, with the consequence that its citizenship should be disregarded in determining whether diversity jurisdiction exists. And, the court has concluded, for the same reason, that the claims against Gymnastics should be dismissed.