Here is yet another example of how deciding that claims are not "plausible" is actually a substitute for deciding the entire case at the pleading stage, when a lone judge replaces six to twelve jurors.
In this example, once again a judge was not convinced for whatever reason that there actually is a case. The State of Illinois's complaint was dismissed against a supposed reinsurance company that, the complaint alleged, effectively paid kickbacks through a captive reinsurance agreement the defendant had with a primary or ceding insurance company that issued Private Mortgage Insurance ("PMI").
The fault, dear Illinois, was that a lone federal judge, acting with the authority of the federal government and the Roberts Court, dismissed the People of Illinois' claim because they had not alleged kickback damages to the satisfaction of the particular judge.
Here is how the complaint offended the judge's perception of "plausibility," right or wrong, in part, as in so many cases:
As Defendant points out, Plaintiff's only allegation relating to damages is that “[a]s a result of the breach of [the Reinsurance Agreement], Plaintiff has suffered, and will suffer damages of a pecuniary nature.” (Id. (quoting R. 37, First Am. Compl. ¶ 46).) Defendant argues that this allegation is inadequate because it is too conclusory, and that in any event it is not plausible that Triad was injured in any way by Defendant's alleged failure to disclose the reinsurance arrangement to borrowers. (Id.) Plaintiff responds that her one-sentence allegation is sufficient and that “[w]hether [she] can prove the damages is not for the court [to] consider at this time.” (R. 50, Resp. at 6-7 (emphasis added).)
This was not enough for the judge in this case. Not at all. "The Court concludes that Plaintiff has not adequately alleged damages. To state a claim, Plaintiff must plausibly allege damages resulting from Defendant's alleged breach." People of Illinois ex rel. Hammer, Acting Director of Insurance v. Twin Rivers Ins. Co., No. 16 C 7371, 2017 WL 2880899, at *5 (N.D. Ill. July 5, 2017).
We are now living out the jurisprudence of a movie called Cool Hand Luke. What we have here is failure to communicate.
Please Read The Disclaimer. ©2017 by Dennis J. Wall. All Rights Reserved.
Comments