United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION
TU M. PHAM, Magistrate Judge.
Before the court is the motion to dismiss filed by defendant Adriana Harrison ("Ms. Harrison") on July 23, 2014. (ECF No. 90.) Defendant Harrison's Funeral Home joined in Ms. Harrison's motion on September 23, 2014. (ECF No. 101.) Defendant Mal Hooker filed a motion to join the motion to dismiss on September 25, 2014. (ECF No. 102.) Plaintiff Michael Hooker filed a response in opposition on September 29, 2014. (ECF No. 103.) For the reasons below, it is recommended that Ms. Harrison and Harrison's Funeral Home's motion be granted in part and denied in part, and that Mal Hooker's motion be denied.
I. PROPOSED FINDINGS OF FACT
Plaintiff's complaint alleges that on June 28, 2007, and July 9, 2007, Plaintiff purchased two pre-need funeral contracts in the amount of $36, 083 and $16, 000 from FDLIC to pay for the funeral of Plaintiff's mother, Ella Mae Hooker. The contracts identified E.H. Ford Mortuary as the designated provider of funeral services and merchandise. (Compl. ¶¶ 12-15.) FDLIC allegedly failed to disclose that it would charge an "insurance handling fee" upon payment of the funds. (Compl. ¶ 16.) Plaintiff's mother died on October 11, 2009. At the time, Plaintiff was incarcerated in Texas and his wife, Reva Hooker, was his duly authorized attorney-in-fact pursuant to a durable power of attorney. (Compl. ¶ 17.) On October 12, 2009, Mal Hooker, Plaintiff's brother, had Ella Mae Hooker's body transferred to his place of employment, Harrison's Funeral Home. (Compl. ¶ 18.) That day, Mal Hooker telephoned Reva Hooker to inquire about insurance policies on the decedent. Reva Hooker disclosed the two policies issued by FDLIC. (Compl. ¶ 19.)
On October 13, 2009, Reva Hooker met with defendants Mal Hooker and Ms. Harrison at Harrison's Funeral Home. Ms. Harrison asked Reva Hooker to agree to assign a $6, 800 bill for funeral services to Harrison's Funeral Home. Reva Hooker refused because the policies designated E.H. Ford Mortuary as the provider of funeral services. (Compl. ¶ 20.) Later that day, Mal Hooker telephoned Reva Hooker and, based upon his representation that he was simply checking the validity of the policies, she provided Mal Hooker with Plaintiff's social security number, date of birth, and all information pertaining to the policies. (Compl. ¶ 21.) Mal Hooker allegedly telephoned FDLIC and, posing as Plaintiff, obtained information about the insurance contracts, which he subsequently provided to Ms. Harrison. (Compl. ¶ 22.)
Plaintiff avers that Ms. Harrison, Mal Hooker, and Harrison's Funeral Home employees Michael Perie and Claudette Eldridge prepared an inflated and fraudulent death claim quote and forged Plaintiff's signature on an irrevocable assignment of the FDLIC policies to Mal Hooker and Ms. Harrison. (Compl. ¶ 23-26.) FDLIC contacted Reva Hooker to confirm the validity of the irrevocable assignment and, upon learning that Plaintiff had not made an assignment, refused to honor the assignment. (Compl. ¶ 27-28.) Over Plaintiff's objection, Harrison's Funeral Home provided funeral services and merchandise for the burial of Plaintiff's mother. (Compl. ¶ 30.) After his mother was buried, Plaintiff contacted FDLIC and requested that E.H. Ford Mortuary conduct a memorial and late funeral service, and that funding for those services be provided through the pre-need policies. (Compl. ¶ 31.) FDLIC refused to honor Plaintiff's request on the ground that Harrison's Funeral Home had to be paid for the services rendered. (Compl. ¶ 32.)
At some unspecified time, Mal Hooker visited the E.H. Ford Mortuary, where he allegedly made unspecified threats in an attempt to obtain payment for his mother's funeral. (Compl. ¶ 34.) Mal Hooker and Ms. Harrison also made unspecified threats to ruin Plaintiff's credit and to deprive Plaintiff of any permanent control over the outstanding balance of the policies. They also "threatened libel and slander." (Compl. ¶ 35.)
On December 23, 2009, FDLIC advised Plaintiff that it had made a payment of $12, 872.76 to Harrison's Funeral Home and that it had issued a check in the amount of $25, 618.88, representing excess funds, to Plaintiff. (Compl. ¶ 36-38.) On December 11, 2009, Plaintiff filed a complaint with the Tennessee Department of Commerce and Insurance. (Compl. ¶ 39.) In his response, defendant Perie used the phrases "preneed disaster, " "feud between the family, " and "constant harassment by family members, " in describing the situation to the Tennessee Department of Commerce and Insurance. (Compl. ¶ 40.)
On September 15, 2010, Reva Hooker (on behalf of herself and Plaintiff) swore out a civil warrant in Shelby County General Sessions Court, naming Adrianna Harrison, Harrison's Funeral Home, Michael Perie, and Claudette Eldridge as defendants. (ECF No. 91-1, Shelby County General Sessions Civil Warrant 1448503.) The stated cause of action on the civil warrant was for "life insurance policy." (Id.) The civil warrant was subsequently dismissed by voluntary nonsuit on October 19, 2010. (Id.)
Plaintiff filed suit against FDLIC, Harrison's Funeral Home, Ms. Harrison, Harrison's Funeral Home employees Claudette Eldridge and Michael Perie, and Mal Hooker on April 1, 2011. (ECF No. 1.) The court has since dismissed all claims against FDLIC and all claims against Mal Hooker except a common law fraud claim. (ECF Nos. 81, 106.) Ms. Harrison and Harrison's Funeral Home now move to dismiss all claims against them. Mal Hooker, by joining the motion to dismiss, seeks dismissal of the remaining fraud claim against him.
II. PROPOSED CONCLUSIONS OF LAW
A. Standard of Review
Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must contain a short and plain statement showing that the pleader is entitled to relief. Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for failure to state a claim upon which relief may be granted. "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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Merely pleading facts that are consistent with a defendant's liability or that permit the ...