Cooper v. Farmers New Century Insurance Company

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JANETTE COOPER, et al.,

Plaintiffs,
Civil Action No. 08-844 (CKK)
v.

FARMERS NEW CENTURY INSURANCE
COMPANY,

Defendant.

MEMORANDUM OPINION
(April 14, 2009)

Plaintiffs Janette Cooper, Jeramia Cooper, Jasmyne Cooper (hereinafter “Plaintiff

Coopers”) and John Lilliard (collectively “Plaintiffs”),1 filed the instant lawsuit against

Defendant Farmers Century Insurance Company (“Farmers”) on December 3, 2007, alleging that

Farmers violated the District of Columbia’s Consumer Protection Procedures Act (“CPPA”),

D.C. Code §§ 28-3901 et seq. Originally filed in the Superior Court of the District of Columbia,

Farmers removed the above-captioned matter to this Court on May 15, 2008 on the basis of

diversity jurisdiction pursuant to 28 U.S.C. § 1332. Presently before the Court is Farmers’

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Plaintiff John Lilliard, an attorney licensed in the District of Columbia, is serving as pro
se counsel for himself as well as counsel for Plaintiffs Janette Cooper, Jeramia Cooper and
Jasmyne Cooper in the instant lawsuit. Although Lilliard has recently “request[ed] for
withdrawal of appearance,” see Pls.’ Opp’n/Mot. for Sanctions at 1, Lilliard, however, has not
complied with Local Civil Rule 83.6, which governs withdrawals of appearance. As Lilliard has
not provided the Court with Plaintiff Coopers’ written consent to his withdrawal, he may
withdraw “only by order of the Court upon motion by the attorney . . . accompanied by a
certificate of service listing the part[ies’] last known address and stating that the attorney has
served upon the part[ies] a copy of the motion and a notice advising the part[ies] to obtain other
counsel, or, if the part[ies] intend[] to conduct the case pro se or to object to the withdrawal, to so
notify the Clerk in writing within five days of service of the motion.” LCvR 83.6(c). Lilliard has
not done so. Accordingly, he remains counsel of record for Plaintiff Coopers.
Motion to Dismiss, as supplemented, and Plaintiffs’ Motion for Sanctions. Upon searching

consideration of the parties’ briefs, the relevant statues and case law, and the entire record herein,

the Court shall GRANT Farmers’s Motion to Dismiss, as supplemented, and shall DENY

Plaintiffs’ Motion for Sanctions, for the reasons stated below.

I. BACKGROUND

The procedural history of this case is, to say the least, a tortured one. Originally filed in

the Superior Court of the District of Columbia, Farmers removed the above-captioned matter to

this Court on May 15, 2008. See Defendant’s Notice of Removal, Docket No. [1] (hereinafter

“Not. of Removal”); see also Defendant’s Amended Motion to Dismiss, Docket No. [5]

(hereinafter “Def.’s MTD”), Ex. A (Complaint (hereinafter “Compl.”)). As set forth in the

Complaint, Plaintiffs seek to bring this lawsuit pursuant to section 29-3904(r) and section 29-

3905(k)(1) of the CPPA “for enforcement of unconscionable interpretations denying coverage

under provisions of insurance policy contracts, and for bad faith violation of certain duties and of

the covenant of good faith and fair dealing . . . .”2 See Compl.

On May 21, 2008, Farmers filed a Motion to Dismiss, in which it argues that this case

should be dismissed for improper venue, pursuant to Federal Rule of Civil Procedure (“Rule”)

12(b)(3), or, in the alternative, be transferred to the United States District Court for the District of

Maryland, pursuant to 28 U.S.C. § 1404(a). Alternatively, Farmers argues that the instant matter

should be dismissed for failure to state a claim, pursuant to Rule 12(b)(6). In a Memorandum

2
Farmers, in its Motion to Dismiss, initially assumed that Plaintiffs’ Complaint sets forth
claims under the CPPA as well as common law tort claims. See Def.’s MTD at 6-7. Plaintiffs
later clarified, however, that they assert claims solely under the CPPA. See Cooper, 593 F. Supp.
2d at 22-23.

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Opinion and Order dated December 29, 2008, the Court denied in part and held abeyance in part

Farmers’ motion. See Cooper v. Farmers New Century Ins. Co., 593 F. Supp. 2d 14 (D.D.C.

2008). Specifically, the Court denied Farmers’ motion as to its request to dismiss for improper

venue, but held the motion in abeyance as to Farmers’ requests, in the alternative, for transfer of

venue pursuant to 28 U.S.C. § 1404(a) and for dismissal pursuant to Rule 12(b)(6) for failure to

state a claim, pending submission of supplemental briefing. by the parties Id. at 24.

Shortly thereafter, the Court became aware that the parties to this case may have reached

a settlement of this dispute several months prior to the Court’s December 29, 2008 Order. See

1/16/09 Order, Docket No. [12], at 2. The Court therefore issued an Order, dated January 16,

2009, which provided that

in light of this recent notification of a potential settlement between the parties, the
Court requires that, by no later than January 30, 2009, the parties file either: (a) the
supplemental briefing as required by the Court’s December 29, 2008 Order, so that
the Court may proceed with the instant litigation and rule on Defendant’s pending
Motion to Dismiss; or (b) a pleading with the Court indicating whether the parties
have, in fact, reached a settlement in this case (and if so, indicate to which claims and
parties the settlement applies and whether the case may therefore be dismissed in part
or in its entirety), or whether further action by either the Court and/or the parties is
required before the instant matter may be settled and dismissed.

Id. at 3-4.

Significantly, Plaintiffs failed to file any response to the Court by January 30, 2009, in

direct violation of the Court’s December 29, 2008 and January 16, 2009 Orders requiring the

parties simultaneously file supplemental briefing on or before January 30, 2009. See 12/29/08

Order; 1/16/09 Order. Farmers, however, timely filed a supplemental pleading, as required,

advising the Court that it had previously reached a settlement with Plaintiff Lilliard, in which

Lilliard agreed to release all claims against Farmers, but that it had not reached a settlement with

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Plaintiff Coopers. See Docket No. [14], (hereinafter “Def.’s Supp. MTD”). With respect to

Plaintiff Coopers’ claim, Farmers therefore decided the best course of action was to file the

supplemental briefing requested by the Court in its December 29, 2008 Order holding Farmers’

motion to dismiss in abeyance in part. Id. at 3-5. With respect to Plaintiff Lilliard’s claim,

however, Farmers filed a “motion to enforce settlement.” Id. at 1-3. Despite stylizing the

pleading as a “motion to enforce settlement, ” it is apparent upon review of the filing that

Farmers actually seeks dismissal of Plaintiff Lilliard’s claim on the basis that the claim is barred

by the parties’ release, and does not in fact seek to enforce a settlement agreement. See id. MTD

at 2-3. Accordingly, to the extent Farmers moves for dismissal of Plaintiff Lilliard’s claim on the

basis that it is barred by the parties’ release, Farmers’ supplemental briefing is best understood as

a supplemental Motion to Dismiss. Notably, Farmers raises this argument for the first time in its

supplemental motion. Nonetheless, because the supplemental briefing was specifically requested

by the Court and does not cause undue delay, the Court shall, in its discretion, consider Farmers’

supplemental Motion to Dismiss.3 See Lindsey v. United States, 448 F. Supp. 2d 37, 55-56

(D.D.C. 2006) (consideration of supplemental motion to dismiss in court’s discretion where

motion to dismiss still pending and no undue delay would result); see also Campbell-El v.

District of Columbia, 881 F. Supp. 42, 43 (D.D.C. 1995) (same); Butler v. Fairbanks Capital,

No. Civ. A. 04-367, 2005 WL 5108537, *2 (D.D.C. Jan. 3, 2005) (same). The Court notes that

Plaintiffs themselves have not raised any objections to the Court’s doing so. See generally Pls.’

Opp’n/Mot. for Sanctions, Docket No. [17].

3
For purposes of this Memorandum Opinion, the Court shall collectively refer to
Farmers’ Motion to Dismiss, together with Farmers’ supplemental Motion to Dismiss, as
Farmers’ “Motion to Dismiss, as supplemented.”

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 Plaintiffs thereafter filed an Opposition to Farmers’ supplemental Motion to Dismiss,4

and a Motion for Sanctions on March 11, 2009. See Pls.’ Opp’n and Mot. for Sanctions, Docket

Nos. [17] & [18]. Significantly, Plaintiffs’ Opposition fails to directly address any of Farmers’

arguments presented in its supplemental briefing. See generally Pls.’ Opp’n. Indeed, Plaintiffs’

Opposition provides only that “Plaintiffs submit to the court’s discretion on the motion to

dismiss.” Id. at 1-2. Farmers thereafter filed an Opposition to Plaintiffs’ Motion for Sanctions.

See Def.’s Opp’n to Mot. for Sanctions, Docket No. [19]. Plaintiffs subsequently filed a Reply,

see Pls.’ Reply in Support of Mot. for Sanctions, Docket No. [20], and briefing is now complete

as to both Farmers’ Motion to Dismiss, as supplemented, and Plaintiffs’ Motion for Sanctions.

II. LEGAL STANDARDS

A. Motion to Dismiss for Failure to State a Claim Pursuant to Rule 12(b)(6).

The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a

Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff

must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a

cause of action.” Id. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead,

4
The Court notes that, pursuant to the D.C. Circuit’s decision in Fox v. Strickland, 837
F.2d 507 (D.C. Cir. 1988), the Court issued an Order on February 4, 2009, advising “Plaintiffs
that they must respond to Farmers’ Motion to Dismiss by no later than March 13, 2009,” or the
“Court shall treat the motion as conceded and dismiss Plaintiffs’ Complaint.” 2/4/09 Order,
Docket No. [16].

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the complaint’s “[f]actual allegations must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Bell Atl. Corp., 127 S. Ct. at 1965 (citations omitted). In evaluating a Rule

12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in a

light most favorable to the plaintiff and must accept as true all reasonable factual inferences

drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee

Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617

F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally construed in favor of the

plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts

alleged.”).

Where, as here, an action is brought by a pro se plaintiff, albeit an attorney representing

himself, the Court must take particular care to construe the plaintiff’s filings liberally for such

complaints are held “to less stringent standards than formal pleadings drafted by lawyers.”

Haines v. Kerner, 404 U.S. 519, 520-21 (D.C. Cir. 1999); see also Richardson v. United States,

193 F.3d 545, 548 (D.C. Cir. 1999). The District of Columbia Circuit has instructed that lower

courts may use supplemental materials to clarify a pro se plaintiff’s claims without converting a

motion to dismiss into one for summary judgment. See Greenhill v. Spellings, 482 F.3d 569, 572

(D.C. Cir. 2007) (explaining that lower courts may “consider supplemental material filed by a

pro se litigant in order to clarify the precise claims being urged”) (citing Anyanwutaku v. Moore,

151 F.3d 1053, 1054 (D.C. Cir. 1998)). The Court is nevertheless mindful that “a pro se

complaint, like any other, must present a claim upon which relief can be granted by the court.”

Henthorn v. Dep’t of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994) (quoting Crisafi v. Holland, 655

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F.2d 1305, 1308 (D.C. Cir. 1981)).

III. DISCUSSION

A. Farmers’ Motion to Dismiss, as Supplemented

Farmers seeks dismissal of Plaintiffs’ Complaint for failure to state a claim pursuant to

Rule 12(b)(6). Specifically, Farmers argues that: (1) Plaintiff Lilliard’s claim should be

dismissed because his claim is barred by the parties’ release agreement; and (2) Plaintiff

Coopers’ claim should be dismissed for failure to state a claim under the CPPA. Def.’s Supp.

MTD at 1-5. Plaintiffs fail to respond to either argument in their Opposition to Farmers’

Supplemental Motion to Dismiss. See generally Pls.’ Opp’n. As discussed above, Plaintiffs’

Opposition does not directly address any of Farmers’ arguments presented in its supplemental

briefing, stating only that “Plaintiffs submit to the court’s discretion on the motion to dismiss.”

Id. at 1-2. Plaintiffs have therefore conceded Farmers’ motion. Hopkins v. Women’s Div.,

General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood

in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only

certain arguments raised by the defendant, a court may treat those arguments that the plaintiff

failed to address as conceded.”), aff’d 98 Fed. Appx. 8 (D.C. Cir. 2004). Accordingly, the Court

shall GRANT as conceded Farmers’ Motion to Dismiss, as supplemented, and shall DISMISS

the case in its entirety.5

B. Plaintiffs’ Motion for Sanctions

The Court turns next to Plaintiffs’ Motion for Sanctions. Plaintiffs request the Court

5
Given the Court’s disposition of Farmers’ Motion to Dismiss, the Court need not
address Farmers’ argument in the alternative that the case should be transferred to the District of
Maryland.

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award attorneys’ fees and punitive damages against Farmers as a sanction “to punish Farmers for

its abuse.” Pls.’ Mot. for Sanctions at 2. The Court easily dispenses with Plaintiffs’ motion for

sanctions, as it is entirely without merit. Farmers has consistently acted in a professional manner,

timely responding to the Court’s orders and taking all steps necessary to resolve the instant

litigation. Plaintiffs’ claims to the contrary are wholly unfounded. The Court therefore DENIES

Plaintiffs’ Motion for Sanctions.

IV. CONCLUSION

Accordingly, for the reasons stated above, the Court GRANTS as conceded Defendant’s

[5] & [14] Motion to Dismiss, as supplemented, pursuant to Federal Rule 12(b)(6). In addition,

the Court DENIES Plaintiffs’ [18] Motion for Sanctions. This case is therefore DISMISSED in

its entirety. An appropriate order accompanies this memorandum opinion.

Date: April 14, 2009

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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