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Boardwalk Apartments, L.C. v. State Auto Property

United States District Court, Tenth Circuit

November 25, 2013

BOARDWALK APARTMENTS, L.C., Plaintiff,
v.
STATE AUTO PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

Before the Court are the following motions filed by Defendant State Auto Property and Casualty Insurance Company: (1) Motion for Relief from the Court’s August 23, 2013 Order Pursuant to Rule 60 or, Alternatively, to Have the Court Direct Entry of Final Judgment Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure (Doc. 189); (2) Motion for Oral Argument on the motion for relief (Doc. 204); and (3) Motion to Take Judicial Notice of Second Affidavit filed by Ernest M. Fleischer and Boardwalk’s Memorandum in Opposition for Purposes of State Auto’s Pending Motion for Reconsideration (Doc. 234). These motions are fully briefed and the Court is prepared to rule. As described more fully below, the Court grants the motion to take judicial notice, and denies the motion for relief and the motion for oral argument. The Court further denies Defendant’s alternative motion to direct entry of final judgment under Fed.R.Civ.P. 54(b).

I. Background

This case has a tortured procedural history, particularly given the length of time that it has been on file. On December 30, 2011, Plaintiff Boardwalk Apartments, L.C. (“Boardwalk”), filed a breach of contract claim against Defendant State Auto Property and Casualty Insurance Co. (“State Auto”), alleging that Defendant failed to pay Plaintiff’s business income loss resulting from a fire that destroyed one of Plaintiff’s apartment buildings (“business income claim”), as required by Plaintiff’s insurance policy with Defendant.

Several amendments to the pleadings followed by both parties. Plaintiff filed an Amended Complaint adding a replacement cost claim and a claim for business personal property lost in the October 2005 fire. After Plaintiff filed its Amended Complaint, Defendant filed a new Answer and Counterclaim, [1] to which Plaintiff filed a motion to dismiss Counts III and IV of the Counterclaim and to strike State Auto’s fifth affirmative defense.[2] Counts III and IV of Defendant’s Counterclaim, and Defendant’s fifth affirmative defense alleged fraud, and Plaintiff argued that State Auto failed to state fraud with particularity, as required by Fed.R.Civ.P. 9(b). Plaintiff also argued that Defendant’s fifth affirmative defense was insufficient, under Fed.R.Civ.P. 12(f), and that Counts III and IV of Defendant’s counterclaim failed to state a plausible claim of fraud as required by Fed.R.Civ.P. 8(a), and so should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). The Court granted that motion, finding that the alleged fraud claims were one in the same as the insurance dispute. Because Plaintiff submitted a claim based on facts known to both parties, there was no allegation that would support the element of misrepresentation or concealment. The Court found that the parties’ disagreement about the interpretation of certain facts in the insurance claim context does not make the claim submission itself fraudulent.

Defendant filed its Second Amended Answer to Complaint and Counterclaims on May 15, 2013, [3] after the Court granted its unopposed motion for leave to amend. Plaintiff moved for partial dismissal of the Counterclaim and moved to strike certain defenses.[4] Plaintiff argued that Defendant’s second and sixteenth through twenty-first affirmative defenses were insufficient, under Fed.R.Civ.P. 12(f), and that Counts VI through XI of Defendant’s Counterclaim failed to state a plausible claim and should be dismissed under Fed.R.Civ.P. 12(b)(6). The Court agreed and granted Plaintiff’s motion in a Memorandum and Order filed on August 23, 2013.[5]

Defendant’s sixteenth through twenty-first affirmative defenses are based on allegations that Plaintiff breached the insurance policy provision addressing concealment, misrepresentation, or fraud, by misrepresenting a material fact, concealing a material fact, or committing fraud when submitting its business income claim.[6] Specifically, Defendant alleges that in July 2010, it requested Plaintiff’s complete federal income tax returns for 2004–2007, in order to process Plaintiff’s business income claim. Plaintiff’s counsel sent copies of Boardwalk’s 2004–2009 federal income tax returns both in support of Boardwalk’s business income claim and in response to Defendant’s request for information. In August 2011, Defendant again asked for Plaintiff’s complete federal income tax returns for 2004–2007, and Plaintiff again sent copies of Boardwalk’s 2004–2009 federal income tax returns.

Defendant alleges that the federal income tax returns did not truly, correctly, and completely reflect, include, disclose or account for all of the interest income Boardwalk derived from its investments, including the $2, 128, 794.17 it received from Defendant as indemnity for the 2005 fire. Defendant also alleges that Plaintiff’s 2006, 2007, and 2008 federal income tax returns do not truly, correctly, and completely reflect, disclose or state that the apartment building was no longer tenantable, in that Boardwalk continued to take the full amount of depreciation for it even after it was rendered untenantable by the October 7, 2005 fire.

Counterclaim Counts VI through XI rely on the same factual allegations. Count VI is for breach of the insurance contract based on the policy provision barring misrepresentation of a material fact relating to the claim. Count IX is for breach of contract based on concealment of a material fact relating to the claim. Counts VII and X are alternative claims for breach of contract based on negligent misrepresentation and concealment of material facts relating to the claim. Counts VIII and XI are alternative counts for breach of contract based on fraudulent misrepresentation or concealment of material facts relating to the claim. The Court examined the affirmative defenses and the counterclaims together because all Defendant’s claims and defenses rely on the same alleged facts; facts that the Court found are legally insufficient to support an allegation of fraud, or some lesser form of concealment and misrepresentation.

In granting the motion to strike and dismiss, the Court found that the allegations in the Answer, assumed to be true and viewed in the light most favorable to Defendant, do not support a claim for misrepresentation or concealment of a material fact. First, the Court found that Defendant is unable to support a claim for any misrepresentation or concealment because information about the investments from the indemnity payment were known to both parties. The Court further found that the information alleged to have been misrepresented or concealed was not material.

Defendant moves for relief from the Court’s August 23, 2013 Order, arguing that the Court erred in granting the motion to strike and dismiss as to the counterclaims and defenses.

II. Motion for Judicial Notice

Defendant asks the Court to take judicial notice of Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment, [7] and Ernest M. Fleischer’s affidavit, [8]which was offered in support of that brief, in considering the motion for relief from judgment. Under Fed.R.Evid. 201, the Court may take judicial notice at any time of the proceeding of a fact “that is not subject to reasonable dispute because it[] an be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”[9] Judicially noticed documents “may only be considered to show their contents, not to prove the truth of matters asserted therein.”[10] Judicial notice is mandatory when requested by a party and the Court is provided the necessary information.[11]

Plaintiff argues that its summary judgment brief and the Fleischer affidavit should not be judicially noticed because they are pleadings filed in this case, whereas judicial notice is only appropriate for court documents filed in other cases. The Court disagrees and finds that documents filed within this case are appropriate for judicial notice; their accuracy cannot reasonably be questioned. However, as described below, the Court’s consideration of these documents is limited. It does not consider these documents as proof of the matters asserted ...


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