Sanders v. Domingo

Decision Date18 January 2022
Docket NumberCivil Action 3:21-cv-02415-JMC
PartiesRandall Sanders, Plaintiff, v. Victor Domingo, Jason Wise, Wise Choice Lawn Services, and Liberty Mutual Insurance, Defendants.
CourtU.S. District Court — District of South Carolina

Randall Sanders, Plaintiff,

Victor Domingo, Jason Wise, Wise Choice Lawn Services, and Liberty Mutual Insurance, Defendants.

Civil Action No. 3:21-cv-02415-JMC

United States District Court, D. South Carolina, Columbia Division

January 18, 2022


The matter before the court is Defendant Liberty Mutual Insurance's (“Liberty Mutual”) Motion to Dismiss, and in the Alternative, to Sever/Bifurcate the claims against Liberty Mutual. (ECF No. 11.) Plaintiff Randall Sanders first filed this action in the Court of Common Pleas for the Eleventh Judicial Circuit of South Carolina, alleging personal injury and property damage after a vehicle owned by Defendant Wise or Wise Choice Lawn Services (“Wise Choice”), and operated by Defendant Victor Domingo in the course of his employment with Wise Choice, collided with Plaintiff's car. (ECF No. 1-2 at 2-3.) As to Liberty Mutual, Plaintiff alleges breach of insurance contract, fraud/misrepresentation, and bad faith after Liberty Mutual failed to cover damages to his property arising from the accident pursuant to two separate insurance policies held by Plaintiff and Wise Choice. (Id. at 12-14.)

Liberty Mutual removed the case to this court pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1332 for diversity of citizenship between Plaintiff and Liberty Mutual. (ECF No. 1.) In its prior order, the court severed Defendants Domingo, Wise, and Wise Choice (collectively, “Co-


Defendants”), from this suit and remanded all claims against them to state court, while retaining jurisdiction over Plaintiff's claims against Liberty Mutual. (ECF No. 12.) Now, the court considers only Liberty Mutual's Motion to Dismiss (ECF No. 11 at 1-3.) Plaintiff has not responded to Liberty Mutual's Motion.

For the reasons stated below, the court GRANTS IN PART Liberty Mutual's Motion to Dismiss (ECF No. 11) and DISMISSES Plaintiff's claim for fraud/misrepresentation against Liberty Mutual without prejudice. Plaintiff's claims for breach of contract and bad faith are not affected by this ruling.


This case arises from a car accident in which Plaintiff sustained personal injuries and property damage. Plaintiff asserts he is insured by a Liberty Mutual policy (“Plaintiff Policy”), and that Defendants Wise and Wise Choice carry a Liberty Mutual commercial liability insurance policy (“Commercial Policy”). (ECF No. 1-2 at 4 ¶ 14-15.) Plaintiff's claims for fraud/misrepresentation, breach of contract, and bad faith against Liberty Mutual stem from its denial of his personal property claims in the wake of the accident. (Id. at 5-4 ¶¶ 16-20.)

Liberty Mutual filed a Notice of Removal to federal court on August 3, 2021. (ECF No. 1.) Prior to removal, Liberty Mutual filed a Motion to Dismiss under South Carolina Rule of Civil Procedure 12(b)(6), arguing that Plaintiff's claims for fraud/misrepresentation and bad faith should be dismissed due to Plaintiff's “failure to state facts sufficient to constitute a cause of action.”[1](ECF No. 11 at 2.)



A. Motion to Dismiss under Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). “In considering a 12(b)(6) challenge to the sufficiency of a complaint, this Rule must be applied in conjunction with the liberal pleading standard set forth in Federal Rule of Civil Procedure 8(a).” Jenkins v. Fed. Bureau of Prisons, C/A No. 3:10-1968-CMC-JRM, 2011 WL 4482074, at *2 (D.S.C. Sept. 26, 2011). Rule 8(a) provides that to be legally sufficient, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

When considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in the light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). “In so doing, a court may consider documents attached to the complaint or the motion to dismiss ‘so long as they are integral to the complaint and authentic.'” Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cty., Md., 684 F.3d 462, 467 (4th Cir. 2012) (quoting Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads


factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

B. Pleading Requirements under Rule 9(b)

Rule 9(b) imposes a heightened pleading standard on fraud claims, requiring a plaintiff to “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). “To meet this standard, a plaintiff must, at a minimum, describe ‘the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.'” U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999)). See also U.S. ex. rel. Kasowitz Benson Torres LLP v. BASF Corp., 285 F.Supp.3d 44, 47 (D.D.C. 2017) (“To allege fraud, a plaintiff must state the time, place, and content of the false misrepresentations, the fact misrepresented, and what was obtained or given up as a consequence of the fraud.” (citing U.S. ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C. Cir. 1981))). These facts are often “referred to as the ‘who, what, when, where, and how' of the alleged fraud.” U.S. ex rel. Wilson, 525 F.3d at 379 (citation omitted). Failure to comply “with Rule 9(b)'s particularity requirement for allegations of fraud is treated as a failure to state a claim under Rule 12(b)(6).” Harrison, 176 F.3d at 783 n.5 (citing U.S. ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 901 (5th Cir. 1997)).


A. Fraud/Misrepresentation

Plaintiff's Complaint states that Liberty Mutual, through its agents and employees, “knowingly made false and deceptive statements to Plaintiff, by stating that: (a) there was no proof [or] evidence to support Plaintiff's claim for [p]ersonal [p]roperty; (b) there was no evidence that


Plaintiff's [p]ersonal [p]roperty was in Plaintiff's vehicle or in his trailer at the time of the [c]ollision; [and] (c) there was no evidence that Plaintiff's [p]ersonal [p]roperty was damaged or lost in the [c]ollision.” (ECF No. 1-2 at 12-13 ¶ 78.) Plaintiff claims he “relied upon” these “material” representations, which were “intended to mislead and deceive” him, did, in fact, mislead and deceive him, and caused him to incur an unspecified amount in damages. (Id. at 13 ¶¶ 79-81.)

Liberty Mutual's Motion to Dismiss, filed prior to removal, is grounded in South Carolina law. This court, however, must apply the Federal Rules to matters of procedure, including dismissal due to Plaintiff's failure to state an adequate claim for relief. See Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil action after it is removed from a state court”); see also Patterson v. Whitlock, 392 Fed.Appx. 185, 187 n.4 (4th Cir. 2010). Therefore, Liberty Mutual's claims must be evaluated under the standards expressed within Fed.R.Civ.P. 12(b)(6), which governs the dismissal of actions for failure to state a claim for relief. In addition, the court must look to Fed.R.Civ.P. 9(b), which imposes a heightened pleading standard on claims alleging fraudulent conduct. See, e.g., N. Am. Cath. Educ. Programming...

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