The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is before the court for consideration of the "Motion to Dismiss" filed by defendant, Allianz Life Insurance Company of North America ("Allianz"), [doc. 31]. Plaintiff has responded [doc. 34], and Allianz has submitted a reply [doc. 35].*fn1 In addition, because plaintiff has been allowed to file his third amended complaint, Allianz has moved to amend its motion to dismiss [doc. 77] stating that the pending motion to dismiss is equally applicable to the third amended and restated complaint [doc. 72]. Plaintiff has filed a response in opposition to the motion to amend [doc. 83].
In March 2003, plaintiff had a telephone conference call with Allianz and defendant Ira Stitz regarding purchase of an annuity contract. Plaintiff initially rejected the contract because a significant provision, the "high water mark," i.e. the highest value of the annuity on any of the annuity's annual anniversary dates, was not payable in a lump sum at the end of the contract's initial ten year period but over the following ten years at an interest rate of 2%. Plaintiff offered that if the contract would allow him to invest the "high water mark" in mutual funds earning mutual fund rates he would be interested in purchasing the contract. According to plaintiff, Allianz told him he could do just that.
Relying on Allianz's representation, plaintiff purchased the annuity contract effective approximately April 2, 2003. Paragraph two of the third amended complaint states:
A few months after Plaintiff purchased the contract, Plaintiff discovered that Defendant's critical representation was false -i.e., Plaintiff's only contractual option regarding the "high water mark" was to take the 10 year annuity yielding only 2%.
Plaintiff filed this lawsuit on March 31, 2006, in which he sought multiple claims including a claim for treble damages under the Tennessee Consumer Protection Act ("TCPA"), Tenn. Code Ann. § 47-18-109(a)(3).
Allianz's motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(6). "Motions to dismiss under Rule 12(b)(6) are designed to test 'whether a cognizable claim has been pleaded in the complaint.'" Fed. Express Corp. v. U.S. Postal Serv., 40 F. Supp. 2d 943, 947 (W.D.Tenn. 1999) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). When reviewing a motion for failure to state a claim upon which relief can be granted under Rule 12(b)(6), the court must construe the complaint in the light most favorable to the plaintiff and accept the factual allegations in the complaint as true. Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) (citing Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990)).
The court intends to grant Allianz's motion to amend its motion to dismiss.
Therefore, the court's opinion will be developed and based on whether the claim for treble damages under the TCPA contained in the third amended and restated complaint should be dismissed.
Allianz has moved to dismiss plaintiff's claim for treble damages brought under the TCPA, Tenn. Code Ann. § 47-18-109(a)(3). Allianz contends that the claim is barred by the one year statute of limitations applicable to such claims. Tenn. Code Ann. § 47-18-110. The TCPA provides in pertinent part:
Any person who suffers an ascertainable loss of money or property, real, personal, or mixed . . . as a result of the use or employment by another person of an unfair or deceptive act or practice declared to be unlawful by this part, may ...