Aguirre v. Tristar Risk Mgmt.
| Decision Date | 24 January 2011 |
| Docket Number | CIVIL ACTION NO. C-10-394 |
| Parties | PEDRO AGUIRRE, Plaintiff, v. TRISTAR RISK MANAGEMENT, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
On this day came on to be considered Defendant's First Amended Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and in the Alternative Motion for a More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e) (the "Motion"). (D.E. 11.) For the reasons stated herein, Defendant's Motion is GRANTED IN PART and DENIED IN PART.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332, as the parties are citizens of different states and the amount in controversy exceeds $ 75, 000.
Plaintiff Pedro Aguirre filed this action pro se in County Court at Law No. 1 of Nueces County, Texas on September 16, 2010. Defendant Tristar Risk Management ("Tristar") filed an answer in state court on or about November 5, 2010. Thereafter, on November 10, 2010, Plaintiff filed Amendments to his Original Petition. (D.E. 1.) Defendant, claiming that the Amended Petition for the first time gave it notice that the amount in controversy exceeded $75,000, removed this action to this Court on December 10, 2010. (D.E. 1.)
Promptly after removal, Defendant filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and in the Alternative Motion for a More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e). (D.E. 2.) Plaintiff responded to this motion (D.E. 5), and thereafter filed a document titled "Plaintiffs Cause of Auction [sic]." (D.E. 8). The Court interpreted this document to be an amended complaint and therefore denied Defendant's Motion to Dismiss as moot. (D.E. 9.) Defendant has now filed the Motion presently before the Court. (D.E. 11.)
Plaintiff asserts three causes of action, "Common Law Duty of Good Faith and Fair Dealing, " "Intentional Infliction of Emotional Distress" and the Unlicensed Practice of Medicine. With respect to the breach of duty of good faith and fair dealing cause of action, Plaintiff alleges that, on September 11, 2008, he sustained "a calcaneal fracture that was diagnosed by an MRI of the left foot, " and on December 10, 2008, his physician determined that he needed a motorized scooter, a walker, and a platform cane. The physician sent an evaluation to Defendant Tristar for approval. According to the amended complaint, Tristar's agent first stated that it was looking for the correct model number, but after follow-up calls in January and March 2009, Tristar never responded. (D.E. 8 at 1.)
With respect to the intentional infliction of emotional distress cause action, Plaintiff claims that on October 30, 2008, he tripped at work and sustained injuries to his head, neck, left shoulder, left foot, and right thumb. On December 30, 2008, he received from Tristar a "Notice of Disputed Issue(s) and Refusal to Pay Benefits, " wherein Tristar stated that Plaintiffs compensable injury was limited to (D.E. 8 at 2.)
Plaintiff next refers to treatment for his injured thumb in January 2009. He states that Tristar did not initially approve payment for an appointment with a hand specialist, and when it finally did, the specialist refused to accept him as a patient because his injuries were over six months old. On September 15, 2009, Plaintiff returned to his primary doctor, who prescribed additional pain medication for Plaintiff's thumb. (D.E. 8 at 2.)
Plaintiff then returns to the treatment of his injured shoulder and neck. Plaintiff states that he visited his orthopedic doctor on December 4, 2008, who recommended surgery for his rotator cuff injury. Surgery was performed on March 6, 2009, and Plaintiff thereafter was prescribed physical therapy. Plaintiff alleges that Tristar authorized the surgery, but only after "an unreasonable length of time." Then, on June 30, 2009, Plaintiff's physician recommended additional physical therapy, which Tristar allegedly denied. (D.E. 8 at 2-3.) A request for a "external Ultrasound bone growth stimulator" was also initially denied by Tristar, but later approved after Plaintiff appealed. (D.E. 8 at 3.)
Plaintiff also states a claim for the unlicensed practice of medicine. He states that Tristar would not approve certain medication that his doctor prescribed, and instead the Tristar agent informed him that Tristar would approve only the medication that the agent authorized (which was at a different dosage and was a different brand). (D.E. 8 at 3.) Plaintiff concludes, "[t]he exercise of decision-making authority over the need for the appropriateness of a medical evaluation or care so as to effect diagnosis is the practice of medicine." (D.E. 8 at 4.)
Plaintiff seeks to have "a judgment entered against the defendant for all wrong doing and Relief to which the Plaintiff may be justly entitle[d]." (D.E. 8 at 4.)
In its Motion, Defendant again seeks dismissal pursuant to Rule 12(b)(6) or a more definite statement pursuant to Rule 12(e). Defendant contends that "the amended complaint...fails to show any right to relief to recovery against Defendant that is plausible or above mere speculation, " and does not satisfy the Twombly standard. (D.E. 11 at 2-3; see also D.E. 12.) Plaintiff filed a Response on January 18, 2011. (D.E. 15.)
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility test Ashcroft v. Iqbal, __ U.S. _, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). While a complaint need not contain detailed factual allegations, it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). The "[f]actual allegations of [a complaint] 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)." Id. (quotation marks, citations, and footnote omitted).
"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks omitted). Under Rule 8(a)(2), "[s]pecific facts are not necessary; the statement need only givethe defendant fair notice of what the... claim is and the grounds upon which it rests." Id (citing Twombley, 550 U.S. at 555); see also Adams v. Patel, 2009 WL 3170918, at *2 (S.D. Tex. Sept. 28, 2009) ().
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). In ruling on such a motion, the court cannot look beyond the pleadings. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a complaint are to be accepted as true, legal conclusions are not "entitled to the assumption of truth." Iqbal, 129 S.Ct. at 1950 (citation omitted). Further, a court is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff's likelihood of success; instead, it only determines whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Motions to dismiss under Rule 12(b)(6) are disfavored and rarely granted. Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981).
In contrast to a Rule 12(b)(6) Motion, a Rule 12(e) Motion is appropriate where "a pleading fails to specify the allegations in a manner that provides sufficient notice." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Rule 12(e) provides, Fed. R. Civ. P. 12(e). "[A] motion for more definite statement is generally disfavored and is used to provide a remedy only for an unintelligible pleading rather than a correction for lack of detail." Davenport v. Rodriguez, 147 F. Supp. 2d 630, 639 (S.D. Tex. 2001).
In this case, Defendant argues that Plaintiffs causes of action are insufficient. First, with respect to the cause of action for breach of the duty of good faith...
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