United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
Russ Walker Chief United States Magistrate Judge
matter is before the court on defendant's motion to
dismiss plaintiffs' claim for intentional infliction of
emotional distress, which is set out in count II of the
original complaint. (Doc. 19). Plaintiff filed a response to
the motion (Doc. 21) and defendant replied (Doc. 22). Upon
review of the motion and the record, the court concludes that
the motion is due to be granted.
TO DISMISS STANDARD
12(b)(6) motion to dismiss tests the sufficiency of the
complaint against the legal standard set forth in Rule 8,
which requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). In evaluating a motion to dismiss
pursuant to Rule 12(b)(6), the court must take “the
factual allegations in the complaint as true and construe
them in the light most favorable to the plaintiff.”
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). However, “the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). “[A]
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “Determining whether a complaint
states a plausible claim for relief [is] … a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 663 (alteration in original) (citation
omitted). “[F]acial plausibility” exists
“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.
(citing Twombly, 550 U.S. at 556). The standard also
“calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence” of the
claim. Twombly, 550 U.S. at 556. While the complaint
need not set out “detailed factual allegations, ”
it must provide sufficient factual amplification “to
raise a right to relief above the speculative level.”
Id. at 555.
when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief, ‘this basic
deficiency should … be exposed at the point of minimum
expenditure of time and money by the parties and the
court.'” Twombly, 550 U.S. at 558 (quoting
5 Wright & Miller § 1216, at 233-34) (quoting, in
turn, Daves v. Hawaiian Dredging Co., 114 F.Supp.
643, 645 (D. Haw. 1953))). “[O]nly a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556).
commenced this action based upon an insurance contract on
their residential property. (Doc. 1 at 2). The complaint
alleges claims against defendant, the insurer, for breach of
contract (count I); intentional infliction of emotional
distress or “outrage” (count II); bad faith
(count III); negligence (count IV); recklessness and
wantonness (count V); and gross negligence (count VI). (Doc.
1 at 4-6). Defendant filed a motion to dismiss the claims for
intentional infliction of emotional distress, negligence,
recklessness and wantonness, and gross negligence. (Doc. 6 at
2). In response, plaintiffs stipulated to the dismissal of
counts IV, V and VI and requested leave to amend their count
II claim for intentional infliction of emotional distress.
(Doc. 10). The court granted leave to amend (Doc. 13) and
plaintiffs filed an amended claim for intentional infliction
of emotional distress (Doc. 15). Defendant's motion to
dismiss count II followed. (Doc. 19).
their amendment to count II, plaintiffs allege that
“because their home was damaged to the point of being
uninhabitable … the claim under their insurance policy
with the Defendant is tied to matters of mental
concern.” (Doc. 15 at 1). They contend that “the
conduct and/or methods used by Defendant through its
employees[, ] agents and representatives were so barbaric and
beyond such decency, it was foreseeable by its actions to
cause mental anguish.” (Doc. 15 at 1). The conduct
complained of includes defendant's alleged refusal to
cooperate in settling plaintiffs' claim, “fraud by
representing the condition caused by the events to be
pre-existing thus causing further delays, ”
“[r]efusing to timely pay additional living expenses,
” and “[b]reaching the insurance contract between
the parties by … failing and refusing to pay benefits
thereunder as to reasonably result in mental anguish.”
(Doc. 15 at 2).
motion to dismiss contends that these facts are insufficient
to establish a claim for intentional infliction of emotional
distress. (Doc. 19 at 2). Plaintiffs' response maintains
that defendant breached the insurance contract and thereby
inflicted emotional distress, and that Alabama law recognizes
an intentional infliction of emotional distress theory of
liability under breach of contract claims. (Doc. 21 at 3).
The court finds that, based upon the bare assertions in the
amended complaint, plaintiffs have not alleged a factual
basis for a claim of intentional infliction of emotional
distress that is sufficient to survive a motion to dismiss.
The claim is due to be dismissed.
Supreme Court of Alabama recognizes the tort of outrage, but
has stated that “[t]he tort of outrage is an extremely
limited cause of action. It is so limited that this Court has
recognized it in regard to only three kinds of conduct: (1)
wrongful conduct in the family-burial context, (2) barbaric
methods employed to coerce an insurance settlement, and (3)
egregious sexual harassment.” Little v.
Robinson, 72 So.3d 1168, 1172 (Ala. 2011) (quoting
Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000)
(internal quotation marks and citations omitted)). The
Alabama Supreme Court has cautioned that recovery is not
meant to be limited only to these three circumstances, but
also emphasized that “[i]t is clear … that the
tort of outrage is viable only when the conduct is so
outrageous in character and so extreme in degree as to go
beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized
society.” Id. at 1173 (quoting Horne v.
TGM Assocs., L.P., 56 So.3d 615, 631 (Ala. 2010)
(internal quotation marks omitted)).
recover based on a claim of intentional infliction of
emotional distress, “a plaintiff must demonstrate that
the defendant's conduct ‘(1) was intentional or
reckless; (2) was extreme and outrageous; and (3) caused
emotional distress so severe that no reasonable person could
be expected to endure it.'” Id. at 1172
(internal citation omitted). The “minimum threshold
that a defendant must cross in order to commit outrageous
conduct” in the insurance context includes “a
concerted pattern of delays in order to cause distress to
[the plaintiff] and to pressure him into accepting a
settlement.” State Farm Auto Ins. Co. v.
Morris, 612 So.2d 440, 443 (Ala. 1993). Even when a
delay in payment causes a plaintiff concern about a financial
condition, absent a showing of improper motive or intent to
cause severe emotional distress, the conduct is not
sufficient to demonstrate outrageous conduct. Id.
sole claim of outrageous behavior by defendant is the
statement that defendant's conduct was “so barbaric
and beyond such decency, it was foreseeable by its actions to
cause mental anguish.” (Doc. 15 at 1). This statement
is little more than a formulaic recitation of the type of
conduct that must be shown in order to recover for outrage,
without supporting factual allegations. However, vague and
conclusory allegations are not sufficient to support a claim
of outrage. See Iqbal, 556 U.S. at 678 (“A
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'”) (citing Twombly,
550 U.S. at 555); Watters v. Harsco Metals, No.
2:14-CV-00483, 2014 WL 3401456, at *11 (N.D. Ala. Jul. 11,
2014) (denying a claim for outrage as too vague when it was
based upon assertions of “a ‘harsh and
unreasonable' performance standard, humiliation,
embarrassment, and harsher discipline practices …
[causing] ‘extreme emotional distress by conduct which
was unreasonable, unwarranted and outrageous'”);
Little, 72 So.3d at 1173 (“nothing in the
record indicates the nature, extent, context or egregiousness
of [the] alleged racial comments”). Similarly,
plaintiffs' allegation of emotional distress consists
only of a conclusory statement that defendant's conduct
“reasonably resulted in their mental anguish.”
(Doc. 15 at 2). This type of conclusory allegation is
insufficient to make the required showing of improper motive
or intent to cause severe emotional distress, or to allege
facts necessary to establish ...