United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on motions to dismiss filed by
defendants Helmsman Management Services, LLC
(“Helmsman”), Liberty Mutual Insurance Company
(“Liberty”), and Joy Howard (collectively,
“the Helmsman defendants”). (Docs. 59, 88). The
plaintiff has filed responses, (Docs. 80, 91), and the
movants replies, (Docs. 84, 92), and the motions are ripe for
resolution. After careful consideration, the Court concludes
the motions are due to be granted.
plaintiff filed his pro se complaint, (Doc. 1-1 at
6-25), in state court. Helmsman and co-defendant Comcast
Corporation (“Comcast”) removed the action on the
basis of diversity of citizenship. (Doc. 1). The notice of
removal and its accompanying evidentiary materials reflected
that complete diversity existed but, because the complaint
preemptively argued that removal would be improper because
multiple (unidentified) Alabama citizens had been sued, (Doc.
1-1 at 12), the Court ordered the plaintiff to present
whatever material he deemed appropriate to support his
position. (Doc. 8). After full briefing, the Court confirmed
that diversity jurisdiction exists. (Doc. 15). Specifically,
the Court ruled that, based on the evidence presented, six of
the eight named defendants are citizens of states other than
Alabama and the other two do not exist. The citizenship of
the two fictitious defendants was disregarded in compliance
with 28 U.S.C. § 1441(b). (Doc. 15 at 3-5).
full briefing, the Court then ruled on the motions to dismiss
filed by Helmsman and Howard. The Court granted the motions
due to the plaintiff's failure to satisfy Rule 8(a)(2) as
construed by the Supreme Court in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). (Doc. 34 at 12-14). The
Court detailed at length not only the problems with the
complaint's pleading as to Helmsman and Howard but also
its myriad additional pleading deficiencies. (Id. at
12-16). The Court, after providing clear instructions and
warnings as to the crafting of an amended complaint,
dismissed the complaint under Rules 12(b)(6) and 12(e) with
leave to amend. (Id. at 16-17).
plaintiff thereafter filed an amended complaint. (Doc. 40).
The Helmsman defendants seek dismissal of all claims against
them for failure to state a claim upon which relief can be
the many problems with the original complaint was its failure
to identify clearly what cause or causes of action were being
asserted. (Doc. 34 at 15). To remedy this defect, the amended
complaint sets forth eight counts. (Doc. 40 at 4-7). Despite
the Court's direction to do so, (Doc. 34 at 15), the
plaintiff provides no headings identifying the cause of
action asserted under any count, so the movants (and the
Court) must tease out the claim from the text of the count.
Court, echoing the movants, concludes that the amended
complaint asserts the following causes of action:
• Count I Intentional infliction of emotional
• Count II Fraudulent removal
• Count III Fraudulent concealment
• Count IV Fraud/misrepresentation
• Count V Willfully negligent hiring, training and
• Count VI Fraudulent billing
• Count VII Intentional infliction of emotional distress
• Count VIII Fraudulent falsification of records The
plaintiff offers no disagreement with this
Court instructed the plaintiff that any amended complaint
should, in addition to presenting each legal claim as a
count, “clearly identify the factual numbered
paragraphs that apply to that count, and clearly explain how
the legal right implicated by that count was violated.”
(Doc. 34 at 16). The amended complaint does not do so. While
it does break some of its predecessor's mammoth
paragraphs into shorter, numbered paragraphs, no count
identifies any paragraph of factual allegations that apply to
the count. Further, most of the counts fail to explain how
the plaintiff's legal right was violated.
amended complaint could justifiably be stricken as a shotgun
pleading on this ground alone. The movants, however, argue
that the eight counts fail to state claims against them even
if all the factual allegations found within the amended
complaint are considered. (Doc. 59 at 6).
Intentional Infliction of Emotional Distress.
One alleges that the defendants “set out to cause me
such anguish, stress so to impair my abilities to seek
redress, ” specifically by “send[ing] two men
[the fictitious defendants] to my home to physically
intimidate me.” (Doc. 40 at 4).
movants argue that Count I fails to identify any conduct by
any of them that could support an outrage claim. (Doc. 59 at
8). The Court agrees. Count I by its terms is limited to the
conduct of the two fictitious defendants and of any defendant
responsible for sending them. The amended complaint, however,
identifies no connection of the Helmsman defendants to this
challenged conduct; on the contrary, it negates such a
to the amended complaint's statement of facts, the seeds
of this lawsuit were sown when a
“Comcast” technician connected the wrong size cable
to the Ethernet port on the plaintiff's laptop at his
home, permanently disabling the port. The plaintiff contacted
“Comcast” for tech support, was assigned an
escalation number, and received a visit from a second
technician, who confirmed the damage. Unknown to the
plaintiff, his escalation number was then canceled out.
Eventually, the plaintiff contacted tech support again,
resulting in a third technician visiting his home and again
confirming the damage. The plaintiff then called tech support
again and was told an area supervisor would come out and make
it right. The two fictitious defendants (both of them area
supervisors) arrived and engaged in the conduct on which
Count I is based. (Doc. 40 at 12-14).
amended complaint divides the defendants into two groups: the
“Comcast defendants” and the “Helmsman
defendants.” (Doc. 40 at 2-3). The fictitious
defendants are among the former group, while all three
movants are in the latter group. (Id.). The amended
complaint alleges that it was the “Comcast defendants,
” not the Helmsman defendants, that dispatched the area
supervisors to the plaintiff's home. (Id. at 23;
accord id. at 18-20).
I's only reference to the Helmsman defendants is the
allegation that they are “surrogates” for the
Comcast defendants. (Doc. 40 at 4). A surrogate is “one
appointed to act in the place of another” or “one
that serves as a substitute.” Merriam Webster's
Collegiate Dictionary 1187 (10th ed. 1994).
While Count I thus may allege that the Helmsman defendants
act for the Comcast defendants, it does not allege that the
Comcast defendants act for the Helmsman defendants so as to
even possibly implicate any concept of indirect
event, as explained in the Court's order granting
Comcast's motion to dismiss, (Doc. at), the amended
complaint fails to state a claim of outrage based on the
fictitious defendants' conduct.
reasons set forth above, the Helmsman defendants' motion
to dismiss Count ...