Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tibbets v. Athene Annuity & Life Assurance Company of New York

United States District Court, D. Oregon

January 10, 2020

KATHLEEN TIBBETS, Plaintiff,
v.
ATHENE ANNUITY & LIFE ASSURANCE COMPANY OF NEW YORK, Defendant.

          CLINTON L. TAPPER Taylor & Tapper Attorneys for Plaintiff

          BRETT E. APPLEGATE Larkins Vacura Kayser LLP, JESSE LINEBAUGH KWESI D. ATTA-KRAH Faegre Baker Daniels LLP Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWM UNITED STATES SENIOR DISTRICT JUDGE

         This matter comes before the Court on Defendant Athene Annuity & Life Assurance Company of New York's Motion (#8) to Dismiss. The Court concludes the record on this Motion is sufficiently developed such that oral argument would not be helpful. For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's Motion.

         BACKGROUND

         The following facts are taken from Plaintiff Kathleen Tibbets's First Amended Complaint and the parties' filings related to Defendant's Motion to Dismiss and are taken as true unless otherwise noted.

         At some point in 2008 Plaintiff purchased a $25, 000 life-insurance policy from Defendant. Plaintiff paid $650 per quarter on the policy at all relevant times.

         In April 2018 Defendant contacted Plaintiff by telephone and "represented to her a build up of cash value in her policy and solicited her taking a loan against the policy." First Am. Compl. at ¶ 12. On April 26, 2018, Defendant advised Plaintiff by letter that the "current cash value" of her policy was "$8, 546.24." Decl. of Clinton Tapper, Ex. 5 at 1.

         In June 2018 Plaintiff took a loan against the policy in the amount of $8, 000.

         On September 14, 2018, Defendant advised Plaintiff by letter:

Recently, we were made aware that there was a system issue that caused your policy to reflect the incorrect loan value. Due to this problem, we inadvertantly [sic] allowed you to take an additional $8, 000.00 policy loan that was not actually available. Now that the system has been corrected, your policy does not have enough cash value to cover the coverage costs and remain active.
Unfortunately, we require a repayment of this policy loan to bring the policy back to a positive cash value standing. In order to bring your policy current, we need a minimum payment of $7, 000.00 in the enclosed self-addressed envelope in the next 20 days. If you are unable to make this payment, please contact our office to make arrangements for a repayment plan.

         Tapper Decl., Ex. 2 at 1.

         From September 2018 through March 2019 Plaintiff "attempted to negotiate affordable repayment terms with [Defendant], but [Defendant] refused." First Am. Compl. at ¶ 16.

         On March 21, 2019, Defendant cancelled Plaintiff's policy.

         On May 22, 2019, Plaintiff filed a Complaint against Defendant in this Court alleging claims for breach of contract, financial elder abuse, fraud, negligent misrepresentation, and money had and received.

         On July 29, 2019, before Defendant filed a responsive pleading, Plaintiff filed a First Amended Complaint in which she asserts claims against Defendant for breach of contract, financial elder abuse, fraud, negligent misrepresentation, money had and received, and breach of the duty of good faith and fair dealing.

         On September 9, 2019, Defendant filed a Motion to Dismiss [Plaintiff's First Amended] Complaint on the grounds that Plaintiff failed to state a claim and that Plaintiff has not suffered any damages. The Court took Defendant's Motion under advisement on October 21, 2019.

         STANDARDS

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." [Bell Atlantic v. Twombly, 550 U.S. 554');">550 U.S. 554, ] 570, 127 S.Ct. 1955 [(2007)]. A claim has facial plausibility 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. at 556. . . . The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557, 127 S.Ct. 1955');">127 S.Ct. 1955 (brackets omitted).

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). See also Bell Atlantic, 550 U.S. at 555-56. The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).

         "In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)(citation omitted). A court, however, "may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (citation omitted).

         DISCUSSION

         As noted, Defendant moves to dismiss Plaintiff s First Amended Complaint on the grounds that Plaintiff fails to state a claim and that Plaintiff has not suffered any damages.

         I. Plaintiff's First Claim for Breach of Contract

         Defendant moves to dismiss Plaintiff's First Claim for breach of contract on the grounds that Plaintiff does not allege sufficient facts to state a claim and that Plaintiff has not suffered any damages.

         A. Failure to State a Claim

         "To state a claim for breach of contract, plaintiff must allege the existence of a contract, 'its relevant terms, plaintiff's full performance and lack of breach and defendant's breach resulting in damage to plaintiff.'" Slover v. Or. Bd. of Clinical Soc. Workers, 144 Or.App. 565, 570 (1996)(quoting Fleming v. Kids and Kin Head Start, 71 Or.App. 718, 721 (1985)).

         In her First Amended Complaint Plaintiff alleges the following as to all claims: She purchased a life-insurance policy from Defendant in 2008; she made payments from 2008 until Defendant cancelled the policy in March 2019; Defendant advised her in April 2018 that her policy had a cash value of approximately $8, 000 and that she could take a loan against the policy up to that amount; she took a loan against the policy in June 2018 in the amount of $8, 000; Defendant advised her in September 2018 that her policy did not actually have a value of $8, 000, and, therefore, she had to repay $7, 000 to Defendant; and Defendant cancelled her policy on March 21, 2019. Plaintiff also alleges the following facts specifically as to her First Claim for breach of contract:

Plaintiff has done everything required on her part under the terms of the Policy.
The policy promised Plaintiff could take out loans against the policy value.
Defendant breached the contract by providing [P]laintiff loans above the policy value.
The policy promised payment upon Plaintiff's death in the amount of $25, 000.
Defendant anticipatorily breached the contract by terminating the policy, and refusing to pay the $25, 000 death benefit.
Defendant has breached the policy by wrongfully terminating the Policy.
As a result of the Breach, Plaintiff has been denied present value in the policy, has overpaid premiums and will be wrongfully denied $25, 000.

         First Am. Compl. at ¶¶ 19-25.

         Defendant asserts in its Motion to Dismiss that in her First Amended Complaint Plaintiff fails to allege any specific terms of the Policy that Defendant breached. See, e.g., Blitz v. Google, Inc., No. 18- 00059 DKW-KJM, 2018 WL 988052, *3 (D. Haw. Feb. 20, 2018) ("In breach of contract actions . . . the complaint must, at minimum, cite the contractual provision allegedly violated."). Courts, however, have made clear that although "[t]o claim a breach of contract in federal court the complaint must identify the specific provision of the contract allegedly breached by the defendant," that does not mean a plaintiff is required "Ato attach the contract or recite the contract's terms verbatim. Rather, the plaintiff must identify with specificity the contractual obligations allegedly breached by the defendant.'" Kaar v. Wells Fargo Bank, N.A., No. C 16-01290 WHA, 2016 WL 3068396, at *1 (N.D. Cal. June 1, 2016)(quoting Misha Consulting Grp., Inc. v. Core Educ. and Consulting Solutions, Inc., No. C-13-04262-RMW, 2013 WL 6073362, at *1 (N.D. Cal. Nov. 15, 2013). As the Misha court explained:

The parties dispute the legal standard for sufficiently pleading the existence of a contract. CORE cites Otworth v. Southern Pac. Transp. Co., 166 Cal.App.3d452 (1985), which holds that "the terms [of the contract] must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference." Id. at 459. Misha, on the other hand, cites Boland, Inc. v. Rolf C. Hagen (USA) Corp., 685 F.Supp.2d 1094, 1102 n.7 (E.D. Cal. 2010), which collects district court cases in this circuit, concluding that most district courts in this circuit decline to follow Otworth. . . . For example, James River Ins. Co. v. DCMI, Inc., No. 11-06345, 2012 WL 2873763 (N.D. Cal. July 12, 2012) holds that 'the majority rule in district courts in this circuit rejects application of Otworth in federal actions; rather, the sufficiency of the complaint is governed according to the Federal Rules of Civil Procedure and federal law interpreting those rules.'" Id. at *3. Under the federal rules, a "plaintiff may set forth the contract verbatim in the complaint or plead it, as indicated, by exhibit, or plead it according to its legal effect." Fed.R.Civ.P. Official Form 3, 12; see also Fed. R. Civ. P. 84 (declaring these forms to be sufficient).
Identifying the specific provision of the contract allegedly breached by the defendant does not reguire the plaintiff to attach the contract or recite the contract's terms verbatim. Rather, the plaintiff must identify with specificity the contractual obligations allegedly breached by the defendant. This is "enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

2013 WL 6073362, at *1.

         In Misha the plaintiff alleged in the complaint the date that the defendant hired the plaintiff "to provide software management and maintenance services," the consideration that the defendant was to pay the plaintiff for those services, that the defendant failed to "make payments when due," and that the plaintiff "rendered the agreed-upon services." Id., at *2. The court noted "[a]lthough the complaint could have been more specific," the "allegations put the defendants on notice and give rise to a plausible claim for relief." Id.

         Here, like the plaintiff's allegations in Misha, Plaintiff s allegations in her First Amended Complaint could be more specific. Federal Rules of Civil Procedure 8(a) provides: A pleading that sets forth a claim must contain "a short and plain statement of the claim showing the pleader is entitled to relief." "Rule 8's liberal notice pleading standard . . . requires that the allegations provide the opposing party with fair notice of what the . . . claim is and the grounds upon which it rests." Tribble v. Raytheon Co., No. 09-56669, 2011 WL 490992, at *1 (9th Cir. Feb. 14, 2011).

         Based on Rule 8, Tibbie, and Misha the Court concludes on this record that Plaintiff s allegations are sufficient to put Defendant on notice and to give rise to a plausible claim for breach of contract.

         B.Dama ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.