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Allegrino v. Conway E & S

May 5, 2010


The opinion of the court was delivered by: Judge Nora Barry Fischer


I. Introduction

As set forth more fully in the Court's Memorandum Opinion addressing Defendant Champion Claim Service, Inc.'s Motion to Dismiss (Docket No. 155), this action involves eleven (11) claims*fn1 brought by pro se Plaintiff, Anthony J. Allegrino against various Defendants related to allegations of damage to real property and personal business property and causes of action seeking to collect insurance proceeds under two insurance policies Plaintiff's assignor, Liberty Immobiliare, Inc. ("Liberty"), had secured to provide coverage for said property. (Docket No. 3; Docket No. 155 at 1-4). This matter is presently before the Court on a motion to dismiss and/or for summary judgment and to strike portions of Plaintiff's Amended Complaint by Defendants Conway E & S, Inc. ("Conway")*fn2 and Associates of Risk Transfer, Inc., doing business as RTI Insurance Services*fn3 ("RTI," collectively "Defendants").*fn4 (Docket Nos. 103, 148). Defendants' motion to dismiss and/or for summary judgment will be addressed as a motion for summary judgment under Rule 56 as to claims numbered 1-6, and 10-11, and as a motion to dismiss as to claim number 8. For the reasons outlined below, Defendants' motions are granted, in part, and denied, in part.

II. Factual and Procedural Background

As to the present motion, the following pertains. On January 27, 2010, Defendants filed their Motion to Dismiss and to Strike (Docket No. 103), to which Plaintiff filed a Response on February 15, 2010. (Docket No. 138). Defendants filed a Reply on February 25, 2010. (Docket No. 131). On April 22, 2010, Defendants moved to have the two subject insurance policies (Docket No. 144) deemed exhibits to Plaintiff's Amended Complaint or to have their motion (Docket No. 103) be considered as one for summary judgment. (Docket No. 148). They also sought leave of Court to file a supplemental brief. (Docket No. 147). That same day, the Court granted said requests, thereby making the policies identified as CONW-5153407 and CONW-51536-08 exhibits 1 and 2 to Plaintiff's Amended Complaint. (Docket No. 149, 150, 151). Defendants' Supplemental Brief was filed shortly thereafter. (Docket No. 152).

On April 30, 2010, Plaintiff filed a motion to have his Amended Complaint (Docket No. 3) deemed amended to delete his claim number 9 under Pennsylvania's Unfair Trade Practice and Consumer Protection Law ("UTPCPL"), 73 P.S. §§ 201-1, et seq., in paragraphs 153 and 154, his demands for specific amounts of consequential and punitive damages in paragraphs 9 and 10 on page 27, and his request for damages under the UTPCPL in paragraph 11 on page 27. (Docket No. 161). Given the remaining Defendants' lack of objection, on May 4, 2010, the Court granted said motion and Plaintiff's Amended Complaint (Docket No. 3) was thereby deemed amended. Accordingly, Plaintiff's claim number 9 under the UTPCPL and request for damages under the same were dismissed, with prejudice as to all remaining Defendants; and his demands for specific amounts of consequential and punitive damages were deleted and replaced with terms permitting the award of such damages in amounts to be determined at trial, if the evidence at trial presents sufficient bases for such awards. (Docket No. 162). In light of the same, Defendants' motion to dismiss and/or for summary judgment as to Plaintiff's claim number 9 is denied, as moot. Additionally, Defendants' motion to strike Plaintiff's requests for specific amounts of consequential and punitive damages is denied, as moot. The Court now turns to the remainder of Defendants' motions.

III. Standards for Reviewing Rule 12(b)(6) and Rule 56 Motions

A. Rule 12(b)(6) Standard

To 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.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2008)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); and FED. R. CIV. P. 8(a)(2)(a valid complaint requires only "a short and plain statement of the claim" showing entitlement to relief."). The Supreme Court in Iqbal clarified that the decision in Twombly "expounded the pleading standard for 'all civil actions.'" Iqbal, 129 S.Ct. at 1953; Fowler, 578 F.3d at 210-11. The Court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Iqbal, 129 S.Ct. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555); see also Fowler, 578 F.3d at 210; and Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The determination of whether a complainant has sufficiently pled a claim "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 556); see also Fowler, 578 F.3d at 210-11 (holding that in light of Iqbal, a district court should first separate the factual and legal elements of a claim and then, accepting the "well-pleaded facts as true," "determine whether the facts" pled are sufficient to show a "'plausible claim for relief.'"). Ultimately, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).

When reviewing a pro se complaint, a court must use a less stringent standard than if the complaint had been drafted by counsel and must construe a pro se complaint liberally. Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)(quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)); see also Wishnefsky v. Salameh, Civ. A. No. 08-128J, 2009 U.S. Dist. LEXIS 124600, at *9 (W.D. Pa. Dec. 22, 2009). Pro se attorneys -- or in Plaintiff's case, a pro se disbarred attorney -- "typically 'cannot claim the special consideration which the courts customarily grant to pro se parties.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d.Cir. 2001)(quoting Harbulak v. Cnty. of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981)), accord, e.g., Glatzer v. Barone, 614 F.Supp.2d 450, 451 n.1 (S.D.N.Y. 2009); see also Taylor v. Alvarez, Civ. A. No. 07-23003, 2008 U.S. Dist. LEXIS 108847, at *1 n.2 (S.D. Fla. Apr. 21, 2008).

B. Consideration of Matters Outside the Record

At the motion to dismiss stage, a court may generally only consider documents attached to a complaint, without converting the motion into a motion for summary judgment. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). But, in evaluating a Rule 12(b)(6) motion, a court "may look beyond the complaint to matters of public record, including court files and records ... and documents referenced in the complaint or essential to a plaintiff's claim which are attached to either the [c]omplaint or the defendant's motion." Spence v. Brownsville Area Sch. Dist., Civ. A. No. 08-0626, 2008 U.S. Dist. LEXIS 55026, at *7 (W.D. Pa. July 15, 2008)(citing Pension Benefit, 998 F.2d at 1196)).

With his Response to the motion (Docket No. 128), Plaintiff submitted his own affidavit and the declaration page from the first issued insurance policy, number CONW-51534-07. (Docket No. 128-1). As noted, both insurance policies (Docket No. 144) have since been made exhibits 1 and 2 to Plaintiff's Amended Complaint. (Docket No. 150). Furthermore, because the insurance policies are integral to and explicitly relied on by Plaintiff in asserting his eleven claims (see Docket No. 3), the Court may consider the same in analyzing the instant motion without requiring the conversion of the motion into one for summary judgment. See In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). The Court also takes into consideration the Lloyd's Defendants' Answer. (Docket No. 83). Because the Court will also look to Plaintiff's affidavit (Docket No. 128-1 at 1-3) in analyzing claims numbered 1-6, and 10-11, the Court converts Defendants' motion to one for summary judgment pursuant to Federal Rule of Civil Procedure 12(d) with regard to these claims.*fn5 Greer v. Smith, 59 Fed. Appx. 491, 492 (3d Cir. 2003)(not precedential)(citing Camp v. Brennan, 219 F.3d 279, 280 (3d Cir. 2000)(affidavits filed in opposition to a motion to dismiss "clearly comprise [] a matter outside the pleadings."). The Court will then address Defendants' challenge to claim number 8 and Plaintiff's request for punitive relief based on claim number 7 pursuant to Rule 12(b)(6).

C. Rule 56 Standard

Summary judgment may only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). Pursuant to Rule 56, the Court must enter summary judgment against the party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment will only be denied when there is a genuine issue of material fact, i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). The mere existence of some disputed facts is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). As to materiality, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

In determining whether the dispute is genuine, the court's function is not to weigh the evidence, to determine the truth of the matter, or to evaluate credibility. The court is only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. McGreevy, 413 F.3d at 363; Simpson v. Kay Jewelers, 142 F.3d 639, 643 n.3 (3d Cir.1998) (quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir.1994)). In evaluating the evidence, the court must interpret the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in its favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir.2007).

Defendants' filing of their motion to dismiss in the alternative as a motion for summary judgment is sufficient to place the parties on notice that summary judgment might be entered. Latham v. United States, 306 Fed. Appx. 716, 718 (3d Cir. 2009)(not-precedential)(citing Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir. 1996). In addition, given Defendants' alternative filing, the parties had the opportunity to present further evidence in support of their respective positions, but declined to do so. Notwithstanding the same, upon consideration of the issues presented by Defendants' motion, the current record, ...

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