Knight v. State of Alabama, 824 F. Supp. 1022

Plaintiff’s Memorandum Brief in Opposition to Defendant’s Motion to Dismiss

IN THE CIRCUIT COURT OF COUNTY, ALABAMA

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Plaintiff, *

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VS. * CIVIL ACTION NO.:

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, et al., *

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Defendants. *

PLAINTIFF’S MEMORANDUM BRIEF

IN OPPOSITION TO DEFENDANT, MOTION TO DISMISS

COMES NOW the Plaintiff, by and through counsel, and opposes Defendant, , Motion to Dismiss. In opposition to said Motion, Plaintiff states as follows:

The Defendant, filed a Motion to Dismiss on , alleging that Plaintiff has failed to state a claim upon which relief can be granted. Specifically, alleges: (1) Plaintiff has failed to allege her fraud claims with sufficient specificity; (2) Plaintiff’s claims are barred by the statute of limitations; (3) Plaintiff’s claims are barred by the statute of frauds; (4) Plaintiff’s Complaint fails to allege facts from which would arise a duty to disclose information to the Plaintiff; (5) Plaintiff’s Complaint fails to state a valid claim for conspiracy; and (6) Plaintiff’s Complaint fails to state a valid claim for conversion.

Motion to Dismiss is due to be denied for the reasons set forth below.

I. Defendant Motion to Dismiss is due to be denied because it was untimely filed.

did not meet the requirements of Rule 12, Ala.R.Civ.P., in filing its Motion to Dismiss. Plaintiff filed her original Complaint in this action on . Defendant filed an answer to Plaintiff’s Complaint on . Subsequent to filing its Answer, filed a Motion to Dismiss alleging that Plaintiff’s Complaint fails to state a claim for which relief can be granted, which was filed on .

It is established law in Alabama that a motion under Rule 12(b)(6), Ala.R.Civ.P., alleging failure to state a claim upon which relief can be granted, must be made before an Answer is filed. Rule 12(b), Ala.R.Civ.P., specifically states, “A motion making any of these defenses [set out in Rule 12(b)] shall be made before pleading if a further pleading is permitted.” Alabama courts have consistently held that a Motion to Dismiss filed after a responsive pleading is improper.

Because Rule 12(b)(6) Motion to Dismiss was filed after it had filed an Answer to Plaintiff’s Complaint, it’s Motion to Dismiss is untimely and should be denied.

II. Defendant Motion to Dismiss is due to be denied because Plaintiff has stated claims upon which relief can be granted.

Assuming arguendo this Court were to find that Defendant had timely filed its Motion to Dismiss, said Motion is due to be denied because Plaintiff has stated a claim upon which relief can be granted against this Defendant.

A dismissal under Rule 12, Ala.R.Civ.P., is only to be granted sparingly. It is properly granted only when it appears beyond a reasonable doubt that the plaintiff cannot prove any set of facts that would entitle her to relief.

A. Plaintiff has plead her allegations of fraud with sufficient particularity.

first contends that Plaintiff has failed to allege her claims of fraud with sufficient specificity to comply with Rule 9, Ala.R.Civ.P. Rule 9(b) provides, “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” In Plaintiff’s Complaint, attached hereto as Exhibit 1, Plaintiff set out in detail in paragraphs 9 through 20 the circumstances constituting fraud.

contends that the Plaintiff failed to comply with Rule 9 in failing to allege reasonable reliance with specificity. However, reasonable reliance is not one of the “circumstances” required to be alleged with specificity under Rule 9.

cites the Alabama Supreme Court’s opinion in Foremost Insurance Company v. Parham for this proposition.

contends that Plaintiff has not complied with Rule 9 because she did not address in her Complaint whether facts allegedly suppressed were disclosed in a contract or other documents that were in Plaintiff’s possession.

argument is more appropriate for a summary judgment motion, and not for a motion to dismiss. Further, contends that Plaintiff’s Complaint fails to state a claim upon which relief can be granted because Plaintiff failed to attach a copy of the contract of insurance and to allege with specificity the manner in which the facts were fraudulently suppressed and/or misrepresented.

Rule 9 does not require any of the above items in its requirement that the circumstances constituting fraud be stated with particularity.

B. Plaintiff’s Complaint does not affirmatively show that her claim is barred by the statute of limitations.

next contends that the Plaintiff’s claims are barred by the statute of limitations. A defense of limitations may be raised by a motion to dismiss, but only granted where the complaint affirmatively shows that the claim is barred.

In the present action, Plaintiff’s Complaint does not affirmatively show that her claims are barred. However, out of an abundance of caution, Plaintiff has amended her Complaint to add paragraphs 18 and 25 and language to paragraph 21, which affirmatively demonstrate the time and circumstances of her discovery of the fraud, as well as what prevented a discovery of that fraud earlier.

further contends that Plaintiff’s non-fraud claims, specifically her claims for conspiracy and conversion, are “clearly barred by the applicable two years statutes of limitations” because Alabama does not provide a tolling provision for such claims.

However, Plaintiff’s claims for conspiracy and conversion are ongoing and occurred past the time that Plaintiff initially purchased the policy in question from . Additionally, there is a six (6) year statute of limitations for conversion in Alabama.

C. Statute of frauds is not applicable.

next contends that the oral misrepresentations alleged in Plaintiff’s Complaint are barred by the statute of frauds because they could not be performed within one year.

Plaintiff does not make a claim for breach of contract based on those misrepresentations, but instead alleges that the Defendants misrepresented what the Plaintiff actually purchased. Accordingly, Plaintiff fails to see how the statute of frauds is applicable.

D. Plaintiff’s Complaint alleged facts from which would arise a duty to disclose information to the Plaintiff as set forth in her Complaint.

next contends that Plaintiff failed to state a claim upon which relief can be granted in that her Complaint fails to allege any facts from which would arise a duty by to disclose to the Plaintiff the matters set forth in her Complaint.

In fact, Plaintiff’s Complaint did allege facts which demonstrate a duty on the part of to disclose to the Plaintiff the matters set forth in her Complaint.

Plaintiff specifically alleged in her Complaint, that she is unsophisticated in insurance matters and at all material times relied on the Defendants to properly advise her as to her insurance and financial matters. Plaintiff further alleged that she purchased the policy in question from the Defendant, through its representatives, on the premises of her employer. Plaintiff further alleged that she relied on what was told to her about the policy by the representative(s).

E. Plaintiff’s Complaint states a valid claim for conspiracy against under Alabama law.

contends that Plaintiff’s Complaint fails to state a claim upon which relief can be granted in that individuals, not corporations, are capable of conspiring under Alabama law.

Plaintiff is aware of no such law in Alabama that states that a corporation can not be at least one member of a conspiracy.

F. Plaintiff has stated a valid claim for conversion.

Finally, contends that Plaintiff’s Complaint fails to state a claim upon which relief can be granted in that Plaintiff has failed to identify specific funds which were allegedly converted.

In fact, Plaintiff has identified specific funds which were converted. Our Supreme Court has held that money received by an insurer to cover premiums for a specific insurance policy is “identifiable” for purposes of maintaining a claim for conversion.

III. Conclusion.

Defendant’s Motion to Dismiss is due to be denied as it was untimely filed. Defendant filed its Motion to Dismiss under Rule 12, on the ground that Plaintiff failed to state a cause of action upon which relief can be granted, after said Defendants filed an Answer in this action. However, even if this Court were to find that Defendant’s Motion to Dismiss was timely filed, Plaintiff has stated a claim upon which relief can be granted against this Defendant. Accordingly, Defendant’s Motion to Dismiss is due to be denied because said Motion has no merit.

WHEREFORE, Plaintiff respectfully requests that this Court enter an Order denying Defendant’s Motion to Dismiss.

CERTIFICATE OF SERVICE

I hereby certify that I have on this day of April, 1999, forwarded a copy of the foregoing by United States Mail, first class postage prepaid, and properly addressed to the following:

Defense counsel here