Fill and Sign the Knight V State of Ala 824 F Supp 1022 Nd Justia Law Form

IN THE CIRCUIT COURT OF ________ COUNTY, ALABAMA ______________, * * Plaintiff,* * VS. *CIVIL ACTION NO.: * ______________________ * CV-____________________________, et al., * * 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 March 22, 1999, 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. .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 February 2, 1999. (See Plaintiff’s Complaint, attached hereto as Exhibit 1.) Defendant _____________ filed an answer to Plaintiff’s Complaint on March 1, 1999. (See _______________ Answer to Plaintiff’s Complaint, attached hereto as Exhibit 2.) 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 March 22, 1999. 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. In Trotter v. Sumner, 319 So.2d 284, 56 Ala. App. 87 (1975), the Court of Civil Appeals found that the trial court correctly overruled the defendant’s Motion to Dismiss for Failure to State a Claim Upon Which Relief Could Be Granted, which was filed after the defendant’s responsive pleading. The Court noted, “While this defense, as enumerated in Rule 12(b)(6), is preserved by Rule 12(h)(2), it cannot be raised by a motion to dismiss filed subsequent to a responsive pleading.” Trotter v. Sumner, at 285. The Alabama Supreme Court, citing Trotter v. Sumner, affirmed that Rule in Sims v. Lewis, 374 So.2d 298 (Ala. 1979). In Sims v. Lewis, the Supreme Court observed, “Acceptance by the Court of a 12(b)(6) motion after the close of the pleadings [Ala.R.Civ.P. 7(a)] is technically and procedurally erroneous. Rule 12(b) provides that a motion asserting the defense of failure to state a claim ‘shall be made before pleading if a further pleading is permitted.’” Sims v. Lewis, at 301. The Court went on to state, “The 12(b)(6) motion should not be used to test the sufficiency of a complaint after a responsive pleading has been filed.” Sims v. Lewis, at 301. 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. Shaddix v. United Insurance Company of America, 678 So.2d 1097 (Ala. Civ. App. 1995). See also Cove Properties, Inc. v. Walter Trent Marina, Inc., 702 So.2d 472 (Ala. Civ. App. 1997); and Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). 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. The Courts have interpreted these “circumstances” to include the time, place, and contents or substance of the misrepresentations, the facts misrepresented, and an identification of what has been obtained. The plaintiff must use more than generalized or conclusory statements to set out her fraud. Applin v. Consumers Life Insurance, 623 So.2d 1094 (Ala. 1993, overruled on other grounds, Boswell v. Liberty National Life Insurance Company, 643 So.2d 580 (Ala. 1994). See also Lyde v. United Insurance Company, 628 So.2d 665 (Ala. Civ. App. 1993). ______________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, 693 So.2d 409 (Ala. 1997) for this proposition. However, the Foremost Court was not addressing the sufficiency of a Complaint on a motion to dismiss, and did not state that reasonable reliance must be plead with specificity in a Complaint under Rule 9. Additionally, _____________ 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. _____________ cites Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303 (Ala. 1997), for the proposition that a suppression claim does not arise where the facts are disclosed in a contract or other documents that were in Plaintiff’s possession, even where a plaintiff alleges failure to read the documents. However, Rule 9, does not require Plaintiff to plead in her Complaint whether facts were allegedly 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. As set out above, Plaintiff did allege with sufficient specificity the manner in which the material facts were suppressed and/or misrepresented. Defendant cites no authority for its proposition that Plaintiff is required to attach a copy of the contract, and Rule 9 does not make any such requirement of the Plaintiff. In fact, Defendant did not even attach a copy of the contract to its Motion to Dismiss, even though it contends that facts are disclosed in the contract which would have put the Plaintiff on notice of fraud. Rule 9 does not require any of the above items in its requirement that the circumstances constituting fraud be stated with particularity. However, even though the information that the Defendant contends is necessary is, in fact, not required under Rule 9, out of an abundance of caution, Plaintiff has amended her Complaint by adding paragraphs 18 and 25 and adding language to paragraph 21. (See Plaintiff’s Amended Complaint, attached hereto as Exhibit 3.) 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. McGruder v. B&L Construction Company, 293 Ala. 354, 303 So.2d 103 (1974); Sims v. Lewis, 374 So.2d at 302; and Cove Properties, Inc. v. Walter Trent Marina, Inc., 702 So.2d at 474. In the present action, Plaintiff’s Complaint does not affirmatively show that her claims are barred. (See Plaintiff’s Complaint attached hereto as Exhibit 1.) 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. In McGruder, supra, the court noted that a plaintiff is generally permitted to amend his pleadings if a defect can be cured._____________ 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. See §6-2-34, Ala. Code (1975). Accordingly, these claims are not time barred on the face of Plaintiff’s Complaint. 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. _____________ states no authority for this proposition. 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 (attached hereto as Exhibit 1), 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 in her Complaint 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). The Alabama Supreme Court specifically held in Life Insurance Company of Georgia v. Parker, 706 So.2d 1108 (Ala. 1997), that an insurance agent and company has a duty, when selling a product to a prospective insured/customer, to tell that person “the kind of policy she is purchasing.” Id., 706 So.2d at 1112. The Supreme Court stated in Parker that a duty to communicate a material fact may arise from the relationship between the parties, the knowledge of the parties, the value of the particular fact of which a party has knowledge, and other circumstances. The Court went on to observe, “Where one person has superior knowledge of a fact and suppression of that fact will induce another person to take action that she otherwise would not take, the obligation to disclose is particularly compelling.” Id. Clearly Plaintiff’s Complaint alleges sufficient facts from which would arise a duty by _____________ to disclose to the Plaintiff the matters set forth in her Complaint. E. Plaintiff’s Complaint states a valid claim for conspiracy against _______________________________ under Alabama law. ____________l 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. _____________ cites no authority for this proposition. 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. _____________ contends that Alabama law does not allow a conversion action for “mere payment for an allegedly wrongfully issued insurance policy.” 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. Grey v. Liberty National Life Insurance Company, 623 So.2d 1156, 1160 (Ala. 1993). A number of different actions may constitute conversion: (1) a wrongful taking; (2) a wrongful detention; (3) an illegal assumption of ownership; or (4) an illegally use or misuse. National Surety Company v. Applied Systems, Inc., 418 So.2d 847 (Ala. 1982). Plaintiff has clearly alleged an action that would constitute conversion. IIIConclusion. 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. JOHN DOE & ASSOCIATES, P.C. Attorneys for PlaintiffPost Office Drawer ____Mobile, Alabama _____(334) ________BY:____________________________________ Plaintiff’s attorneyAttorney’s number CERTIFICATE OF SERVICEI 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 __________________________________________ Plaintiff’s attorney