Opinion
Civil Action 4:21-CV-02935
09-28-2022
SCHST, INC., Plaintiff, v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, et al., Defendants.
ORDER
The Honorable Alfred H. Bennett United States District Judge
Before the Court are United States Magistrate Judge Yvonne Y. Ho's Memorandum and Recommendation filed on August 23, 2022 (Doc. #60), Plaintiffs Objections (Doc. #61), and Defendant Arthur J. Gallagher & Co.'s Response to Plaintiffs Objections (“Gallagher”) (Doc. #64). Defendants Gallagher, CRC Insurance Services, Inc. (“CRC”), and Miller Insurance Services, LLP (“Miller”) each filed Motions to Dismiss (Doc. #33; Doc. #34; Doc. #37), but CRC and Miller did not file responses to Plaintiffs Objections. The Magistrate Judge's findings and conclusions are reviewed de novo. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). Having reviewed the parties' arguments and applicable legal authority, the Court adopts the Memorandum and Recommendation as this Court's Order.
Notably, this Court finds that Plaintiffs breach of contract claim against Defendant Gallagher fails to survive a 12(b)(6) Motion to Dismiss because the claim is based on conclusory statements without supporting facts. See Doc. #32 ¶ 34; Chhim v. Univ, of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (prohibiting conclusory allegations to overcome a motion to dismiss). Plaintiff refers to “an agreement” with Gallagher without providing any of the details of that agreement, therefore the breach of contract claim was insufficiently pled. See Doc. #32 ¶ 34; Specialties of Mex., Inc. v. Masterfoods USA, No. L-09-88, 2010 WL 2488031, at *7 (S.D. Tex. June 14, 2010) (finding that plaintiffs' failure to “give any specifics of the agreement itself' were insufficient facts to satisfy the requirements of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
Similarly, this Court finds that Plaintiffs fraud, negligent misrepresentation, DTP A, and conspiracy claims against CRC, and Plaintiffs breach of contract, DTP A, and civil conspiracy claims against Miller also lack the requisite factual basis to meet the pleading requirements to overcome Defendants CRC and Millers' 12(b)(6) Motions to Dismiss. See Doc. #32 at 16-21; Twombly, 550 U.S. at 555 (requiring “enough facts” to support a claim). Lastly, the Court finds that Plaintiffs claims against Gallagher and CRC for negligence, negligent misrepresentation, unjust enrichment, negligent inducement, conspiracy, and violations of the DTPA and Texas Insurance Code are all subject to a two-year limitations period. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a); Tex. Bus. & Com. Code Ann. § 17.565; Tex. Ins. Code Ann. §§541.060-061, 541.162.
Accordingly, Defendant Gallagher's Motion to Dismiss is GRANTED IN PART and DENIED IN PART; Defendant Miller's Motion to Dismiss is GRANTED; and Defendant CRC's Motion to Dismiss is GRANTED. Plaintiffs fraudulent misrepresentation claim against Defendant Gallagher remains before the Court.
It is so ORDERED.