HAIGHT, Senior District Judge:
Plaintiff Teri Tucker ("Plaintiff" or "Tucker") has brought this action to recover damages from her former employer's insurers, American International Group, Inc. ("AIG") and National Union Fire Insurance Company of Pittsburgh, PA ("National Union") (collectively "Defendants"), arising from her unlawful discharge in 2003, pursuant to an employment practices liability insurance policy (herein "EPL Policy"). In this action, she seeks to collect
The factual background of the case has been recounted in detail in a series of prior opinions by the Court, at 728 F.Supp.2d 114 (D.Conn.2010), 745 F.Supp.2d 53 (D.Conn.2010), 2011 WL 6020851 (D.Conn. Dec. 2, 2011), 2012 WL 314866 (D.Conn. Jan. 31, 2012), 2012 WL 685461 (D.Conn. Mar. 2, 2012), and 281 F.R.D. 85 (D.Conn. 2012). Familiarity is assumed with those opinions and the facts recounted in them.
In her Amended Complaint (Doc. #126), Tucker has included the following claims: breach of contract; breach of the implied covenant of good faith and fair dealing; a claim to recover as a subrogee of JRE under Connecticut's direct action statute, Conn. Gen. Stat. § 38a-321; violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110a, et seq.; procedural bad faith (in handling Tucker's claim) in violation of Connecticut common law; and equitable estoppel (to prevent Defendants "from denying coverage of [her] claim after waiting 4.3 years after [that] claim was first submitted to deny coverage, and only after a substantial adverse verdict," Doc. #126, ¶ 113).
For purposes of the motions considered herein, the Court notes that when Plaintiff amended her Complaint, in compliance with the Court's Order (Doc. # 123), she supplemented the facts to accurately reflect the current state of events following her entry into a stipulated settlement of the underlying action, Tucker I.
Pending before the Court are the following motions: (1) Defendants' Motion to Dismiss Count Three (Doc. #128); (2) Defendants' Motion to Strike Certain Portions of Plaintiff's Amended Complaint (Doc. #129), and (3) Plaintiff's Motion for Sanctions under Fed.R.Civ.P. 37(b) and (c) (Doc. #144).
"[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) `is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits.'" Halebian v. Berv, 644 F.3d 122, 130 (2d Cir.2011) (quoting Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir.2006) (emphasis omitted)).
"To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
In deciding whether to grant a Rule 12(b)(6) dismissal, the court construes the complaint liberally, "accepting all well-pleaded factual allegations in the complaint as true and drawing all inferences in favor of the plaintiff." See Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir.2011) (citing Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955). See also Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011); MLSMK Inv. Co. v. JP Morgan Chase & Co., 651 F.3d 268, 273 (2d Cir.2011); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). "[W]hether a complaint states a plausible claim for relief will [ultimately]... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-64, 129 S.Ct. 1937. When "well-pleaded factual allegations" are present, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." 556 U.S. at 664, 679, 129 S.Ct. 1937. Accord Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 58-59 (2d Cir.2010). Factual disputes do not factor into a plausibility analysis under Iqbal and its progeny.
"Although all allegations contained in the complaint are assumed to be true, this tenet is `inapplicable to legal conclusions.'" LaMagna v. Brown, 474 Fed.Appx. 788, 789 (2d Cir.2012) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). See also Amaker v. New York State Dept. of Corr. Servs., 435 Fed.Appx. 52, 54 (2d Cir.2011) (same). The Court is not "bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir.2008) (Sotomayor, J.) (internal quotation marks omitted)). In sum, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Rule 8 of the Federal Rules of Civil Procedure simply "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937.
"In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir.1999) (citation omitted). The court's review is thus "limited to the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference."
In sum, 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." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955); accord Gibbons, 703 F.3d at 599. "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." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Moreover, "[w]here 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. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (brackets omitted). See also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (to survive Rule 12(b)(6) motion, claim's factual allegations must raise "a right to relief above the speculative level on the assumption that all allegations in the complaint are true").
Defendants request that the Court dismiss Count Three of Plaintiff's Amended Complaint on the ground that Plaintiff is unable to state a viable claim under Connecticut's direct action statute, Conn. Gen. Stat. § 38a-321 (the "direct action statute") in that the claim for which Plaintiff seeks judgment has been settled.
Plaintiff counters by arguing that she possesses a "final judgment" that "was not released as part of the settlement of her unsecured claim in Journal Register's bankruptcy proceeding." Doc. #131, p. 1. She contends, citing the Court's language in a previous ruling, that in addition to the final judgment she has obtained in Tucker I, "she has also received an express assignment from [the Journal Register] of all claims and rights under the EPL policy, including any and all claims against National Union, AIG and/or an[y] o[f] their or [the insured's] brokers or agents."
Under Conn. Gen. Stat. § 38a-321, the Connecticut legislature created a direct cause of action for injured parties to sue the responsible party's insurer under delineated circumstances. The Connecticut Supreme Court set forth three requisites of a cause of action under this statute: "(1) that the plaintiff has recovered a final judgment; (2) that the judgment is
Moreover, the Connecticut direct action statute has been interpreted as not only enumerating the elements of a cause of action, but also providing "the basis upon which standing is conferred." Gates v. Government Employees Ins. Co., No. CV65004852, 2008 WL 1971337, at *4 (Conn.Super.Ct. April 18, 2008); accord Bepko v. St. Paul Fire and Marine Ins. Co., No. 3:04CV1996 (PCD), 2005 WL 3619253, at *1 (D.Conn. Nov. 10, 2005).
In their motion to dismiss, Defendants assert that Plaintiff obtained a final judgment when she entered into the Stipulation with JRE on January 5, 2011. Doc. #128, p. 18. However, they argue that by providing JRE with a full release, making "a complete settlement of the original judgment against Journal Register," Plaintiff has "fully compromised her original judgment and has waived any right to pursue it against Journal Register beyond her pro rata claim in Journal Register's bankruptcy based on compensatory damages." Id., p. 15-16. In sum, "[t]here is no unsatisfied judgment remaining on which a claim under the Direct Action Statute may be based." Id., p. 16. In support, Defendants cite Gates v. Government Employees Ins. Co., No. CV065004852, 2008 WL 1971337 (Conn.Super.Ct. April 18, 2008), as an example of a Connecticut case in which the court found that the plaintiff was not statutorily grieved under Conn. Gen. Stat. § 38a-321 because plaintiff's judgment against the insured in the underlying action had been fully paid and thus fully satisfied.
In Gates, the plaintiffs, the widow and estate of deceased motorist William Gates, brought a wrongful death action against motorist Jason Fillion for negligently causing the death of Gates in a motor vehicle accident. Gates v. Fillion, Superior Court, Judicial District of New Haven, Docket No. CV 05400788. Defendant Fillion accepted an Offer of Compromise filed by the plaintiffs and a judgment was entered. Fillion, through his insurer, Government Employees Insurance Company ("Geico"), paid the full money judgment entered in Gates I, covering the entire amount owed to plaintiffs by Fillion for his liability in the death of William Gates. Gates, 2008 WL 1971337, at *3.
Prior to the clerk's filing of satisfaction of judgment in Gates I, plaintiffs filed a second action, Gates II, this time including Fillion, his parents, and insurer Geico as named defendants. The Amended Complaint in Gates II ultimately included claims against Geico for, inter alia, violation of its implied covenant of good faith and fair dealing and unfair claim settlement practices in violation of CUIPA and CUTPA. Geico filed a motion to strike these claims on the ground that plaintiffs had no contractual relationship with Geico and hence no standing to pursue the claims. The court concluded that "the plaintiffs [were] unable to avail themselves of classical aggrievement in connection with their common-law contractual claim,"
2008 WL 1971337, at *5. Accordingly, the court had "no jurisdiction to hear these claims." Id.
Gates, however, is plainly distinguishable from the case at hand. In Gates, plaintiffs received full payment from the insurer of the entire judgment owed due to the negligence of the insured. The judgment was thus entirely satisfied.
In Black v. Goodwin, Loomis and Britton, Inc., 239 Conn. 144, 681 A.2d 293 (1996), the Connecticut Supreme Court addressed the issue of "whether, in connection with a stipulated settlement between an injured party and an insured, the insured may assign to the injured party all rights that it may have against its insurer in exchange for the injured party's agreement to seek satisfaction of the judgment solely under the assignment." 239 Conn. at 154, 681 A.2d 293. Although the court's analysis discussed this issue in terms of public policy, Black also cited Connecticut's direct action statute in a footnote, suggesting that the statute was a viable path to pursue such claims against the insurers. This footnote effectively suggested, by implication, that when an injured party settles its claims against the insured by releasing the insured in return for the rights to pursue its claims against its insurers, a direct action against the insurer is not precluded. Although not spelled out by the court, by implication, such a settlement agreement would not create a "satisfied" judgment.
In Black, the plaintiff administrator of the estate of the deceased DeWitt C. Black brought a wrongful death action against White, Wheeler and Company ("White"). White's insurer, Maryland Casualty Company ("Maryland Casualty"), denied coverage and refused to defend White in the action. The plaintiff and White subsequently stipulated to a judgment whereby White assigned to the plaintiff any rights it
The Supreme Court transferred the case from the Appellate Court. In affirming the trial court's ruling, the Supreme Court (Palmer, J.) held that the stipulated judgment between plaintiff and the injured party was enforceable following the insurer's breach of contractual duty to defend. Justice Palmer addressed Maryland Casualty's argument "that White's assignment of rights in favor of the plaintiff was not effective because the plaintiff had released White from liability and, accordingly, White had incurred no payment obligation requiring indemnification." 239 Conn. at 155, 681 A.2d 293. "In other words, Maryland Casualty claim[ed] that if `there [was] no obligation of White ... under the judgment, there [was] no obligation to indemnify White ... from it.'" Id. The court concluded that "[t]his claim is without merit." Id.
The policy Maryland Casualty had issued to White provided that the insurer "will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' or `property damage' to which this insurance applies." Id. at 156, 681 A.2d 293. "Thus, the insurance policy [was] plainly one of liability rather than indemnity." Id. The court further noted in a corresponding footnote "that the plaintiff's claim under § 38a-321 does not depend on the assignment of rights under the stipulation because, under that statutory provision, the insurer is liable whether its contract is one of liability or indemnity." Id. at 156 n. 13, 681 A.2d 293. In that footnote, the court also explicitly cited Conn. Gen. Stat. § 38a-321 for the proposition that the "insurer is absolutely liable whenever there is a loss under the policy, and payment of such loss shall not `depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty.'" Id. at 156, 681 A.2d 293. Moreover, "[t]he [insurer], after breaking the contract by its unqualified refusal to defend, should not thereafter be permitted to seek the protection of that contract in avoidance of its indemnity provisions." Id. (quoting Missionaries of Co. of Mary, Inc. v. Aetna Cas. & Sur. Co., 155 Conn. 104, 114, 230 A.2d 21 (1967)).
Thereafter, in Steinhoff v. Travelers Indem. Co. of Illinois, No. 558937, 2002 WL 1573353 (Conn.Super.Ct. June 18, 2002), the Connecticut Superior court applied Black to hold that the right to bring a direct action against the insurer under § 38a-321 survives a stipulation between the injured party and insured in settlement of all claims, suggesting once again by implication that such a stipulation does not satisfy a judgment and/or bar recovery under the direct action statute. In Steinhoff, plaintiffs purchased a home from the Woodwards, who were represented in that sale by the realtor Buffum & Rossin Realty, Inc. ("Buffum") and Walter Geswell, Jr. ("Geswell"), an agent in Buffum's employ. Plaintiffs sued the Woodwards, Buffum and Geswell, claiming among other things, that negligent misrepresentations had been made to them concerning lead paint contamination with respect to the house. 2002 WL 1573353, at *1.
Buffum and Geswell presented a claim for plaintiff's damages to Travelers Insurance Company of Illinois ("Travelers"),
Plaintiffs then brought an action directly against Travelers and its affiliate and/or parent Gulf Insurance Co. ("Gulf"), pursuant to Conn. Gen. Stat. § 38a-321, alleging that "[b]y refusing to defend said claim and pay said damages the Travelers breached the contract of insurance with the insureds and the plaintiffs are subrogated to all the rights of the Insureds pursuant to said contract in accordance with C.G.S. § 38a-321." Id. at *1 (quoting Amended Complaint at ¶ 9).
Travelers and Gulf filed a motion to strike (i.e., dismiss) the complaint in the direct action, arguing that the "direct action statute (§ 38a-321) does not permit this action because of the nature and effect of the particular stipulation in this case." Id. at *1. In particular, the insurers argued:
Id. at *3. The Court quoted the Connecticut Supreme Court's ruling in Black to reject that argument, as follows:
Id., at *3 (quoting Black, 239 Conn. at 155, 681 A.2d 293) (emphasis added). The Steinhoff court also quoted Black's observation that "the plaintiff's claim under § 38-321 does not depend on the assignment of rights under the stipulation because, under that statutory provision, the insurer is liable whether its contract is one of liability or indemnity." 2002 WL 1573353 at *3 (quoting Black, 239 Conn. at 156 n. 13, 681 A.2d 293). "Companies can use whatever language they want in their policies but: `In accord with general principles governing the incorporation of statutory terms into the contract of insurance, a provision of the statute authorizing a direct action must be read into, and form part of every contract to which it is applicable whether the contract is oral or written and whether the policy be considered as an indemnity policy or a liability policy.'" 2002 WL 1573353, at *3 (quoting Couch on Insurance 3d, Vol. 7, § 104:24, p. 104-43) (emphasis added). Put simply, the court chose to follow the Black decision, "where the court adopted the `majority view' that stipulated judgments can form the basis of a so-called direct action against the insurer." Id. at *4.
The Steinhoff court summarized as follows:
2002 WL 1573353, at *4. The court in Steinhoff thus ultimately held that "for the foregoing reasons," the insurers' motion to strike plaintiff's amended complaint under the direct action statute, § 38a-321, "is denied." Id., at *7.
In accordance with the Black and Steinhoff decisions, this Court holds that a stipulated judgment may form the basis of an action under Connecticut's direct action statute, Conn. Gen. Stat. § 38a-321. An injured party, such as Tucker, may settle her claims against the insured (as in Tucker I) and thereafter seek recovery for the settled judgment (in Tucker II) via Connecticut's direct action statute. Nothing in the Black and Steinhoff opinions leads this Court to find that a settlement releasing the insured in return for an assignment of its rights against the insurer creates a "satisfied" judgment that would bar recovery under the direct action statute, Conn. Gen. Stat. § 38a-321. Rather, logic suggests the opposite — namely, that the plaintiff's agreement to pursue the insurers by separate action evidences that the unpaid damages owed under the judgment remain unsatisfied, as in Tucker's case.
This holding does not in any way suggest that an injured party is entitled to duplicate recovery under § 38a-321. For example, Plaintiff would not be able to seek to recover the $4 million in damages, as described in the Stipulation in Tucker I, in a direct action claim against the insurers if she had already received payment of the same from JRE.
Nor does this holding confer upon Plaintiff any greater or lesser rights than the insured JRE would have to recover under EPL Policy. Under the direct action statute, the injured party "steps into the shoes" of the insured and thus has the same rights as that party. See Brown v. Employer's Reinsurance Corp., 206 Conn. 668, 673, 539 A.2d 138 (1988) (under Connecticut's direct action statute, the injured party "obtains no different or greater rights against the insurer than the insured possesses and is equally subject to any defense the insurer may have against the assured under the policy.").
It thus follows that the insurer is entitled to assert all appropriate defenses in such a direct action claim. "[T]he mere fact that a statute authorizes the injured person to bring a direct action does not permit recovery where the accident or injury is not within the coverage of the policy." Steinhoff, 2002 WL 1573353, at *4 (quoting Couch on Insurance 3d, Vol. 7, § 106.10, p. 106-21). "This is a universally
As the court in Steinhoff explained, "the coverage question is a separate question both analytically and as a policy issue from the separate consideration of whether abstractly speaking § 38a-321 actions should be allowed where there has been a stipulation by an insured assigning the claim against it to the plaintiff claimants who can then proceed under the statute against the insurer." 2002 WL 1573353, at *4. "In other words, it is a truism guaranteed by the insurer's right to due process that: The claimant, in a direct action (against the insurer) has no superior right to compensation such that recovery should be allowed for a loss which is not caused by a risk which the insurer and insured agreed to have covered by the policy." Id. (quoting Couch on Insurance 3d, Vol. 7, § 106. 10, p. 106-21).
In the case in suit, per the Stipulation, Plaintiff recovered a small percentage of the original judgment from JRE's bankruptcy estate and preserved her right to pursue the original Tucker I "Judgment" ($4 million) against the defendant insurers, obtaining an explicit assignment to pursue JRE's rights under the EPL Policy. Doc. #128-2, p. 6-7 (¶ 7); Doc. #126, ¶¶ 71, 73. Under Connecticut's common law, interpreting the application of Conn. Gen. Stat. § 38a-321, this kind of settlement neither fully "satisfied" the judgment in Tucker I nor barred Plaintiff's direct action against Defendants in Tucker II.
As set forth, supra, under Connecticut law, this Court follows Connecticut's "majority view" that a stipulated judgment "can form the basis of a so-called direct action against the insurer" under Conn. Gen. Stat. § 38a-321. Steinhoff, 2002 WL 1573353, at *4 (citing Black, 239 Conn. at 154, 681 A.2d 293 and collecting cases). Plaintiff's direct action claim may proceed as unsatisfied to the extent that the total amount of damages comprising the Judgment have not been paid. "[A]ccepting all well-pleaded factual allegations in the [amended] complaint as true and drawing all inferences in favor of the plaintiff," the Court finds that Plaintiff's claim under the Conn. Gen. Stat. § 38a-321 suffices to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The Court will deny Defendants' motion to dismiss Count Three of
Pursuant to Federal Rule 12(f) of Civil Procedure, "[t]he court may strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). The court may act sua sponte or "upon a motion by a party either before responding to the pleading, or, if a response is not allowed, within 21 days after being served with the pleading."
In general, "these motions [to strike] are viewed unfavorably and rarely granted." Lord v. Int'l Marine Ins. Services, No. 3:08-CV-1299 (JCH), 2012 WL 45440, at *2 (D.Conn. Jan. 9, 2012) (citing Rodriguez v. Bear Stearns Cos., Inc., No. 07-cv-1816(JCH), 2009 WL 995865, at *10 (D.Conn. Apr. 14, 2009)). See also Salcer v. Envicon Equities Corp., 744 F.2d 935, 938 (2d Cir.1984) (motion to strike "for legal insufficiency is not favored"), vacated on other grounds, 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed.2d 731 (1986); Schramm v. Krischell, 84 F.R.D. 294, 299 (D.Conn. 1979) ("[i]f there is any doubt as to the possibility of relevance, a judge should err on the side of denying a Rule 12(f) motion"); Hathaway Motors, Inc. v. Gen. Motors Corp., 19 F.R.D. 359, 360 (D.Conn. 1955) ("Motions to strike ... are in disfavor"); O'Brien v. Wisniewski, No. 13:10-CV-120 (CSH), 2012 WL 1118076, at *2 (D.Conn. April 03, 2012) (motions to strike under Fed.R.Civ.P. 12(f) are "generally disfavored"). Accord RSM Production Corp. v. Fridman, 643 F.Supp.2d 382, 394 (S.D.N.Y.2009) ("[M]otions to strike are viewed with disfavor and infrequently granted."), aff'd, 387 Fed.Appx. 72 (2d Cir. 2010).
"In deciding whether to [grant] a Rule 12(f) motion on the ground that the matter is impertinent and immaterial, it is settled that the motion will be denied, unless it can be shown that no evidence in support of the allegation would be admissible." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (1976). "Usually the questions of relevancy and admissibility in general require the context of an ongoing and unfolding trial in which to be properly decided." Id. "And ordinarily neither a district court nor an appellate court should decide to strike a portion of the complaint — on the grounds that the material could not possibly be relevant — on the sterile field of the pleadings alone." Id. "[I]f the motion is granted at all, the complaint should be pruned with care."
"The party moving to strike bears a heavy burden" to establish the basis for the motion," Impulsive Music, 2008 WL 4998474, at *2 — i.e., that no evidence in support of the allegation would be admissible, Lipsky, 551 F.2d at 893. Thus, "[t]o prevail in such a motion, defendants must demonstrate that (1) no evidence in support of the allegations would be admissible; (2) that the allegations have no bearing on the issues in the case; and (3) that to permit the allegations to stand would result in prejudice to the movant." Impulsive Music, 2008 WL 4998474, at *2 (citing Roe v. City of New York, 151 F.Supp.2d 495, 510 (S.D.N.Y.2001) (internal quotation omitted)). "Inappropriately hyperbolic allegations, ill-conceived attempts at levity, and other similar manifestations of bad judgment in drafting pleadings, by themselves, fall short of the threshold that Rule 12(f) contemplates." Saylavee LLC v. Hockler, 228 F.R.D. 425, 426 (D.Conn. 2005).
With respect to a motion to strike "scandalous" material, "a scandalous allegation" has been described as "one that reflects unnecessarily on the defendant's moral character, or uses repulsive language that detracts from the dignity of the court." Cabble v. Rollieson, No. 04-CV-9413, 2006 WL 464078, at *11 (S.D.N.Y. Feb. 27, 2006) (citing Khalid Bin Talal v. E.F. Hutton & Co., Inc., 720 F.Supp. 671, 686 (N.D.Ill.1989)). "Even where matter in a pleading is relevant to the controversy, it nonetheless may be stricken if it is scandalous or set out in `needless detail.'" Cabble, 2006 WL 464078, at *11 (citing Gleason v. Chain Service Rest., 300 F.Supp. 1241, 1257 (S.D.N.Y.1969)). See, e.g., Urashka v. Griffin Hosp., 841 F.Supp. 468, 476-77 (D.Conn.1994) (giving notice to parties that if litigation proceeded, court would strike as scandalous and immaterial allegations regarding assistant director's derogatory sexual references (comments regarding penis of male employee and "little tush" of female volunteer) where action was based on age discrimination against plaintiff).
Defendants move pursuant to Fed. R.Civ.P. 12(f) "for an order striking certain portions of Plaintiff Teri Tucker's ... Amended Complaint as immaterial and scandalous." Doc. #129, p. 1. Specifically, Defendants accuse Plaintiff of "deviat[ing] from a recitation of allegations germane to her claims" so as to "include a variety of scandalous and immaterial accusations about the general nature of Defendants' business." Id. Such allegations include "references to unidentified ranking systems for insurance carriers," "supposed testimony of anonymous former personnel of Defendants," "scandalous general accusations that do not even include the pretext of a foundation," and "references to allegations against Defendants, or related companies, in other lawsuits in other courts that have not been reduced to a judgment." Id. Defendants assert that because "[n]one of these allegations are material to any of Plaintiff's claims, ... their only purpose is to prejudice Defendants." Id.
Doc. #129, p. 5-6 (quoting Doc. #126 (Amended Complaint), at ¶¶ 54-55, 57, 59, 61).
Defendants characterize the "foregoing paragraphs" as "involv[ing], in the main, allegations about Defendants that have not resulted in judgment (¶¶ 54, 55, 57, and 59), allegations of conduct completely unrelated to any in Plaintiff's six claims against Defendants (¶¶ 54, 57, and 61), and anonymous, prejudicial allegations of scandalous business practices with no foundation or explanation as to their source (¶¶ 55, 57 and 59)." Doc. #129, p. 7.
Defendants emphasize that the offending paragraphs "have no bearing on Plaintiff's claims regarding National Union's handling of a single employment practices claim." Id., p. 8. In particular, paragraph 54 lists a string of cases that "do not involve final judgments, do not involve Connecticut insureds, do not involve employment practices liability insurance and in many cases do not involve Defendants." Id. In fact, they contend, only four of the ten cases listed involve either of the Defendants, and those four are either distinguishable from the present case on the facts or resulted in a favorable outcome for the insurer.
As to paragraph 55, Defendants argue that the allegations contained therein come "from an unidentified report regarding AIG's "ranking." Id., p. 9. Moreover, "[t]here are no allegations that the undisclosed report was related to any judicial finding of wrongdoing by Defendants." Id. Similarly, Defendants characterize paragraph 57 as stating "allegations of unidentified claims handlers in unidentified `other litigation' that AIG, as well as other companies that are not AIG, engaged in various practices." Id. at p. 9. Defendants once again state that "[t]here is no allegation that such litigation resulted in any
Defendants characterize paragraph 59 as "potentially libelous" in that it "implies that AIG frequently refuses to pay claims in excess of $1 million regardless of merit." Id. Defendants argue that this allegation "does not identify a single instance of judicial fact-finding that Defendants refused to pay a meritorious claim and that such refusal was triggered by the size of the claim." Id.
Finally, with respect to paragraph 61, Defendants maintain that it "is wholly unrelated to Plaintiff's claims" because "it alleges that AIG settled charges concerning artificial inflation of loss reserves, bid-rigging, and commission-related kickbacks." Id. Defendant contends that Plaintiff has "couche[d]" these allegations "as involving `bad faith,' but there is absolutely no relationship between those alleged activities and Plaintiff's cause of action for Breach of the Implied Covenant of Good Faith and Fair Dealing." Id. In support, Defendants cite Lipsky v. Commonwealth United Corp., 551 F.2d 887 (2d Cir.1976), in which the Second Circuit "held that references to a complaint in a separate action against the defendant by the Securities and Exchange Commission ("SEC") were properly stricken from the complaint in the action pending before it." Id. Defendants point out that because the "SEC's complaint was resolved via a consent judgment rather than a full adjudication on the merits ... it could not be used as evidence in any subsequent action." Id. (quoting and citing Lipsky, 551 F.2d at 894 ("Since it is clear that the SEC [] consent judgment, itself, can have no possible bearing on the [plaintiff's] action, the SEC complaint which preceded the consent judgment is also immaterial, for the purposes of Rule 12(f)")).
Defendants cite cases in which courts struck references to claims "that were never resolved on the merits" so "did not result in any findings of law or fact," RSM Prod. Corp. v. Fridman, 643 F.Supp.2d 382, 403 (S.D.N.Y.2009), aff'd, 387 Fed. Appx. 72 (2d Cir.2010). See also Impulsive Music v. Pomodoro Grill, Inc., No. 08-CV-6293, 2008 WL 4998474, at *2-3 (W.D.N.Y. Nov. 19, 2008) (striking a reference to a case "virtually identical" to the case that was before the court that had not been resolved on its merits").
Lastly, Defendants assert that "[c]ourts of this Circuit have also stricken allegations where the complaints alleged conduct of the defendants that was not precisely related to the conduct complained of." Doc. #129, p. 10. As an example, Defendants cited Smith v. AVSC Int'l, Inc., 148 F.Supp.2d 302 (S.D.N.Y.2001), in which the plaintiff employee alleged that his employer discriminated against him based on age and gender and retaliated against him for reporting alleged misconduct to company managers and an independent auditor. The court ruled that "specific allegations about [the employer's] behavior toward other employees who were not also [the same age and gender as plaintiff] are not relevant to any of [plaintiff's] claims" and thus struck the allegations from the complaint. 148 F.Supp.2d at 317. See also Kounitz v. Slaatten, 901 F.Supp. 650, 658 (S.D.N.Y.1995) (defendant's "alleged use of profanity and professional demands on her staff ha[d] no bearing on whether [plaintiff] Kounitz was discriminated against on the basis of her gender" and accordingly, because the allegations were "immaterial and impertinent as well as inflammatory and scandalous, the Defendants' motion to strike them from the complaint [was] granted.").
Plaintiff objects to Defendants' Motion to Strike (Doc. #129) on three grounds.
Second, Plaintiff declares that "the particular allegations of which the [D]efendants complain are in fact necessary to plead Tucker's claim properly under the Connecticut Unfair Insurance Practices Act (CUIPA)." Id., p. 1. According to Plaintiff, to plead such a claim, she must "set forth other instances of alleged unfair conduct in detail" and show that the "instances occur with such frequency to constitute a regular business practice." Id., p. 1-2. In the absence of such allegations, her CUIPA claim would be subject to dismissal for failure to state a claim under Federal Rule 12(b)(6) of Civil Procedure.
Tucker concludes that her "allegations of similar bad faith or unfair trade or business practices in her Complaint (and Amended Complaint) are therefore wholly
Third, Plaintiff argues that Defendants should be estopped from moving to strike at this time because all of the language they wish stricken appeared more than 2 years ago in Plaintiff's original Complaint. Doc. #133, p. 2. "The defendants did not move to strike these allegations at that time, and should be estopped from doing so now." Id. Plaintiff thus urges the Court to construe the Rules of Civil Procedure "to secure the just, speedy, and inexpensive determination" of this action. Id. (quoting Fed.R.Civ.P. 1). Moreover, Tucker suggests that estopping Defendants from "engaging in pre-Answer motion practice more than two years into the case" is within the Court's "inherent power to control its docket and prevent undue delays" in the disposition of this case. Id., p. 5 (quoting Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 400 (5th Cir.1985)). In sum, Plaintiff requests that Defendants' motion to strike be denied in its entirety.
At the outset, the Court has decided, in the interests of fairness, not to estop the Defendants from making this motion to strike. Although the Court would normally look with disfavor on a pre-Answer motion more than two years into the proceedings, the circumstance of this fiercely contested case distinguish it from the norm. Counsel have been admonished repeatedly for their constant skirmishing and ad hominems, all of which have resulted in an endless barrage of lengthy motions, with both sides accusing the other of delaying tactics.
More importantly, once an amended complaint has been filed, it supersedes the original complaint; and Defendants filed their motion to strike within the requisite 21 days after being served with Plaintiff's Amended Complaint. Fed. R.Civ.P. 12(f)(2). Because the motion is timely within the Federal Rules, the Court will allow it to proceed.
In deciding whether to grant Defendant's motion to strike, the Court will examine the paragraphs at issue to determine whether, with respect to any of the allegations contained therein, "it can be shown that no evidence in support of the allegation would be admissible." Lipsky, 551 F.2d at 893. The Court will also examine the particular language contained in the paragraphs to determine whether it is "scandalous," unnecessarily impugning the Defendants' character or "repulsive." Absent either finding the motion will be denied.
The Court finds as to each paragraph as follows:
With respect to paragraph 54, the Court notes at the outset that Count Four in Plaintiff's Amended Complaint sets forth a CUTPA claim which is explicitly based on Defendants' alleged violation of CUIPA. Doc. #126, ¶¶ 102-106. Under Connecticut law, one may violate the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110a, et seq., by violating the Connecticut Unfair Insurance Practices Act ("CUIPA"), Conn. Gen. Stat. § 38a-815, et seq. Consequently, a plaintiff may, as Tucker asserts with respect to Count Four of her Amended Complaint, base a CUTPA claim upon a
"In order to sustain a CUIPA cause of action under CUTPA, a plaintiff must allege conduct that is proscribed by CUIPA." Western World Ins. Co., 520 F.Supp.2d at 411 (citing Nazami v. Patrons Mut. Ins. Co., 280 Conn. 619, 625, 910 A.2d 209 (2006)).
Because Plaintiff must allege unfair settlement practices committed or performed by the Defendants with such frequency as to indicate a general business practice, the general allegations she describes in her list of "other cases" in paragraph 54 are relevant in substance. The Court must, therefore, examine Defendants' other arguments to strike theses cases.
First, the Court recognizes that references to claims "that were never resolved on the merits" do "not result in any findings of law or fact," RSM Prod. Corp., 643 F.Supp.2d at 403. In other words, an action that has not been decided on its merits does not result in any finding of wrongdoing on the part of the parties and is thus not admissible evidence of the facts alleged therein. According to Defendants, Paragraph 54 lists a string of cases that "in general, do not involve final judgments," but Defendants fail to specify to which, be it any or all, cases they refer. Doc. #129, p. 8. Moreover, in her allegations Plaintiff does not indicate which cases have been fully resolved, but rather lists the cases according to the kinds of allegations made against the insurer(s). To the extent that the basis for the motion
With regard to the parties involved in the cases listed, there is a factual dispute on the face of the briefs between Plaintiff and Defendants as to whether all of the cases involve the Defendants or wholly-owned subsidiaries of defendant AIG. Plaintiff contends they do, Doc. #133, p. 3 n. 1. Defendants assert they do not, Doc. #129, p. 8. Plaintiff has suggested that Defendants have not cooperated in clarifying this issue. Doc. #133, p. 3 n. 1. Defendants now seek to clarify the matter upon counsel's representation to the Court, specifying that "only four of the ten cases" listed "appear to involve either of the Defendants" — i.e., Acacia, Penford, Handy, and Matter of America Home Assurance Company). Doc. #129, p. 8. This representation, however, is made by counsel in the briefs, as opposed to by sworn affidavit. Absent proof that the remaining 6 cases do not involve Defendants and therefore may not be admissible as to their general business practices, the Court will refrain from striking those six cases to which Defendants object.
With respect to the four cases listed which indisputably relate to Defendants, the Court has reviewed them and will strike two based on lack of relevance to the action at hand. The first case, Matter of American Home Assurance Company, involved allegations dissimilar to those being litigated with respect to the present EPL Policy: alleged violations of Oregon's administrative rules related to the processing of workers' compensation claims.
Of the remaining cases, Acacia, although focused on a Directors and Officers' insurance policy issued to a California corporation, includes allegations of unfair settlement practices, such as those at issue: improper and unreasonable withholding of the benefits owed under the policy. In that case, the court ultimately found in favor of the plaintiffs, awarding $31,070,981.62 plus $310,492.99, including the costs of settlement in the underlying action, plaintiffs' defense costs, and prejudgment interest. Acadia Research Corp. v. National Union Fire Ins. Co. of Pittsburgh, No. CV 05-501 PSG, 2008 WL 4179206, at *6, 2008 U.S. Dist. LEXIS 96955, at *16 (C.D.Cal. Feb. 8, 2008) (Doc. #129-5). Although not squarely on point, the Court finds that there may be some potentially admissible evidence regarding the insurer's general business practices.
In Handy, the last of the four cases, the court granted the insurer's motion to dismiss the bad faith claim but denied the motion with respect to plaintiff's breach of contract claim. If this claim has been
As to the remaining six cases in the list, the Court will not reach the issue of factual relevance until receiving confirmation from Defendants as to whether the cases even involve them. If the cases do not involve Defendants, they are irrelevant, regardless of the allegations contained therein. If they do involve Defendants, the Court will address factual relevancy.
A Plaintiff may include allegations in her complaint, using the "upon information and belief" standard of Rule 11.
The allegations in paragraph 55, regarding "a report released in July 2008," appear to contain inadmissible "hearsay" in that the contents of the report are offered for the truth of the matters stated. See Fed.R.Evid. 801, 802 (an out of court statement offered "to prove the truth of the matter asserted" is inadmissible). Plaintiff contends that the report indicates, for example, that "AIG was ranked third among the ten worst insurance companies in the United States for claims handling abuses and other financial improprieties." Doc. #126, ¶ 55. Depending on whether the conclusions in the report are based on facts contained therein, which include the Defendants' general practices of claims settlement, the report may contain relevant facts.
Nonetheless, the report constitutes inadmissible hearsay unless an exception to the hearsay rule applies. Bonenfant v. Kewer, 3:05cv01508 (PCD), 2007 WL 2492030, at *2 (D.Conn. Aug. 30, 2007) (citing Merry Charters, LLC v. Town of Stonington, 342 F.Supp.2d 69, 75 (D.Conn.2004)). See Fed. R.Evid. 803 (listing exceptions to the hearsay rule). For example, if the report is a "record or statement of a public office," containing "factual findings from a legally authorized investigation," the report would be admissible. Id. 803(8). Similarly, if the report is a "market report," id. 803(17), or "a treatise, periodical, or pamphlet" and the statements contained therein are relied on by an expert witness on direct examination, id. 803(18), the report may fall within an exception to the hearsay rule.
Because the Court can conceive of possible circumstances in which the report
In Paragraph 57, Plaintiff alleges that "[f]ormer AIG claims supervisors have alleged in other litigation that AIG and its wholly-owned subsidiaries have used a variety of stratagems to deny or delay claims." Doc. #126, ¶ 57. It is unclear whether Plaintiff's allegations are based on hearsay or sworn testimony or affidavits by the claims supervisors regarding conduct by AIG. On the grounds that Plaintiff may conceivably present admissible evidence of these allegations at trial, the Court will allow them to stand as potentially relevant to Plaintiff's CUTPA claim (as it is based on an alleged general practice of unfair settlement of claims under CUIPA).
Similarly, paragraph 59 suggests that a practice exists in which "losses in excess of $1 million frequently trigger a refusal by AIG or National Union to pay and litigation, regardless of how legitimate the claim is." Doc. #126, ¶ 59. Such a generalization is not evidence or admissible as a statement in and of itself. Defendants may rest assured, and Plaintiff is admonished, that even if allowed to make such broad allegations regarding Defendants' practices "on information and belief" at the pleading stage, Plaintiff must be prepared to prove any facts necessary to substantiate her claims. Otherwise, such allegations will be rendered meritless, albeit not likely "libelous," as Defendants suggest.
The Court will grant the Defendants' request to strike paragraph 61. That paragraph contains allegations regarding "artificially inflating loss reserves to improve the appearance of [AIG's] financial health" and "bid-rigging and commission-related kickbacks to brokers," neither of which are relevant to this action. Doc. #126, ¶ 61. To allow such irrelevant allegations to remain would unduly prejudice Defendants.
Pursuant to Federal Rule 37(b) of Civil Procedure, a district court has discretion to impose sanctions, as follows:
Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii).
Moreover, under Rule 37(b)(2)(C), "[i]nstead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Id. 37(c).
"The predicate for imposition of sanctions pursuant to Rule 37(b) is failure to obey a lawful order from this court." Call Center Technologies v. Grand Adventures Tour & Travel Publishing Corp., No. 3:03 CV1036(DJS), 2007 WL 2439401, at *4 (D.Conn. Aug. 24, 2007). "Provided that there is a clearly articulated order of the court requiring specified discovery, the district court has the authority to impose Rule 37(b) sanctions for noncompliance with that order." Daval Steel Products, a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir.1991).
"Sanctions pursuant to Rule 37 are intended: (1) to prevent a given party from benefiting from its failure to comply with discovery orders, (2) to specifically deter that party from continued violation of current and future discovery orders, and (3) to generally deter similar misbehavior by parties in other cases." In re SageCrest II, LLC, 444 B.R. 20, 23 (D.Conn.2011) (citing Update Art v. Modiin
"[A]lthough the decision to impose sanctions... is uniquely within the province of a district court, ... any such decision [must be] made with restraint and discretion." Mantell v. Chassman, Nos. 11-4799(L), 12-1101(con), 2013 WL 616379, at *1 (2d Cir. Feb. 20, 2013) (citing Salovaara v. Eckert, 222 F.3d 19, 27 (2d Cir.2000) (internal quotation marks omitted)).
Plaintiff moves for "appropriate relief arising from the defendants['] ... failure to comply with this Court's discovery order ("Order") dated January 31, 2012." Doc. #144, p. 1 (referring to Order at Doc. #134). Specifically, Plaintiff asserts that Defendants have failed to "withdraw objections and provide amended and complete discovery responses pursuant to this Court's finding that [AIG] was a proper party and could not continue to refuse to respond to outstanding discovery." Id. As relief, Plaintiff seeks an order from the Court "deeming AIG a proper party in this case through trial, informing the jury of its failure to comply, and other sanctions as the Court may deem appropriate." Id. Tucker seeks "similar relief against National Union," including "informing the jury of the failure to comply" with the Court's discovery order." Id. Lastly, Tucker seeks an award of fees and costs incurred in bringing the motion. Id.
Defendants oppose imposition of sanctions upon them, arguing that they read "no part of the Court's Order ... as requir[ing] that Defendants re-submit their prior written discovery responses to Plaintiff with the general objections removed." Doc. #146, p. 1. Rather, Defendants interpreted the Court's Order to deem Defendants' "general objections to be withdrawn." Id. (Citing Doc. #134, p. 11). Moreover, Defendants regarded their discovery responses (identified as "issue number one," Doc. #134, p. 6) as "accurate following the withdrawal of general objections because the responses specify AIG's lack of knowledge and documents with regard to each request." Doc. #146, p. 1.
Defendants represent that, during depositions subsequent to issuance of the Order, their counsel did ultimately agree to "draft and serve the revised responses in order to clean up the record prior to trial." Id., p. 1-2. On April 2, 2012, Defendants served the requested revised discovery responses on Tucker with the general objections removed. Id., p. 2.
In sum, Defendants argue that they were never in violation of the Court's Order, as they perceived their obligations as fulfilled by the Court's pronouncement that the general objections were withdrawn. To accommodate Tucker's counsel, they subsequently agreed to serve revised responses and have done so. Accordingly, they conclude that no sanctions are warranted.
With respect to the facts as presented by counsel, Defendants' counsel, Dennis O. Brown, represents that he did not believe that he was obligated to serve revised discovery responses pursuant to the Court's Order (Doc. #134). The pertinent section of that Order states:
Tucker v. AIG, No. 3:09-CV-1499 (CSH), 2012 WL 314866, at *4 (D.Conn. Jan. 31, 2012). In so ordering, the Court acknowledged AIG's agreement with regard to the "general objections" at issue that AIG would waive, withdraw, or do "whatever needs to be done to clean up the record." Id.
The Court contemplated, and Plaintiff's counsel, Jeffrey S. Bagnell, understandably expected that thereafter Brown would do what was necessary "to clean up the record" — namely, file revised discovery responses reflecting the parties' agreement at the hearing. When Brown failed to do so, even after requests from Bagnell, Plaintiff filed the present motion for sanctions. See Doc. #144-3 (email from Bagnell to Brown, 2/23/2012, asking Brown, "[C]an you update me on National Union and AIG's responses to the written discovery previously served as we agreed at the conference[?]").
For the Court's purposes, as the overseer of discovery, the Court already deemed the general objections to be "withdrawn." After all, discovery materials do not become part of the court record until filed onto the docket (e.g., through summary judgment or at trial). The Court expected that, pursuant to its Order, Brown would fulfill his representations and revise or "clean up" the prior discovery requests.
After Plaintiff filed her motion for sanctions, Brown quickly agreed to revise Defendants' discovery responses as "an accommodation" to Bagnell, all the while professing that he need not do so subject to the Court's Order. Doc. #146, p. 2. He subsequently prepared those revised responses and turned them over to Plaintiff one day before filing Defendants' objection to this motion.
One would think that, in the words of "the Bard," "All is well that ends well." Plaintiff has received the requested revised responses. Nonetheless, Plaintiff did not withdraw her motion for sanctions against the Defendants, which leaves the Court to surmise that she believes herself entitled to some relief, at least for bringing the motion itself.
Were the Court less inclined to a positive view of human nature, the Court might agree. Brown may have become more accommodating in revising the discovery responses as a result of Plaintiff's request for sanctions. On the other hand, Plaintiff could have withdrawn her motion or at least confirmed for the Court her receipt of the requested discovery responses, thereby rendering proper assistance to the Court with respect to the status of relevant facts regarding her motion.
Sanctions are not required where "the failure was substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(c). Under the present circumstances, the Court
With respect to Plaintiff's request for a court order deeming AIG a proper party in this case, the Court has previously held "Plaintiff has set forth sufficient facts to make a plausible claim that AIG's corporate veil should be pierced under the instrumentality test." Tucker v. AIG, 745 F.Supp.2d 53, 70 (D.Conn.2010). "If proven, Plaintiff's allegations create adequate grounds for AIG's inclusion in this action as co-defendant." Id. at 72. Having ruled on this matter, any additional order would be superfluous and redundant.
Not for the first time, or indeed the second, the Court finds itself admonishing the attorneys for all parties for constant skirmishing, sharp litigation practices, ad hominems, and the like. Counsel are once again advised that, in the interests of their clients, they should focus their efforts to cooperate fully and expeditiously to complete these proceedings. Attorneys' engaging in peevish, antagonistic tactics neither has nor will accomplish anything of value for a client.
Plaintiff's Motion for Sanctions (Doc. #144) will be denied.
Defendants' Motion to Dismiss Count Three of Plaintiff's Amended Complaint (Doc. #128) under Fed.R.Civ.P. 12(b)(6) is DENIED. Connecticut law follows the "majority view" that a stipulated judgment "can form the basis of a so-called direct action against the insurer" under Conn. Gen. Stat. § 38a-321. Steinhoff, 2002 WL 1573353, at *4 (citing Black, 239 Conn. at 154, 681 A.2d 293 and collecting cases). By implication, such a stipulated judgment does not constitute a "satisfied" judgment and thus Plaintiff's direct action claim in Count Three may proceed.
Defendants' Motion to Strike certain portions of Plaintiff's Amended Complaint (Doc. #129) under Fed.R.Civ.P. 12(f) is GRANTED IN PART AND DENIED IN PART. With respect to paragraph 54, the motion is GRANTED as to the sub-paragraphs relating to the Penford and In the Matter of American Home Assurance Company cases, DENIED with respect to the Acacia and Handy cases, and DENIED WITHOUT PREJUDICE as to the remaining six cases listed. The motion to strike is also DENIED as to paragraphs 55, 57, 59 and GRANTED as to paragraph 61.
The foregoing is SO ORDERED.
Conn. Gen. Stat. § 38a-321 (emphasis added).
551 F.2d at 893.
476 F.Supp.2d at 175-76.
Royal Indem. Co., 532 F.Supp.2d at 411 (emphasis added).
Fed.R.Civ.P. 11(b)(3).
Tucker v. AIG, 2012 WL 314866, at *2.
