Spencer

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JACOB SPENCER,

Plaintiff,

v. Case No. 5:26-cv-34-HDM

STATE FARM FIRE AND

CASUALTY COMPANY,

Defendant.

MEMORANDUM OPINION AND ORDER

This action is before the court on a Partial Motion to Dismiss by Defendant

State Farm Fire and Casualty Company (“State Farm”). (Doc. 2). For the reasons

explained herein, the motion is due to be GRANTED.

BACKGROUND

The court accepts as true the following well-pleaded factual allegations from

Plaintiff Jacob Spencer’s Complaint. Spencer owns a single-family residence and

three barns, all of which are insured under a policy with State Farm (the “Policy”).

(Doc. 1-1, ¶ 3). The Policy, in part, obligates State Farm to repair or replace

Spencer’s roofs in the event of wind or hail damage and to repair any resulting

interior water damage. Id., ¶ 4. On May 2, 2025, Spencer noticed that the roof of the

residence was leaking, so he filed a claim with State Farm, reporting the leak and

the resulting interior water damage. Id., ¶¶ 6–7. State Farm sent an adjuster to

Spencer’s property, and the adjuster found hail damage to the residence and the three

barns. Id., ¶ 8. On that basis, State Farm agreed to provide roof coverage in the

amount of $22,152.60 for the residence and $21,000.86 for one of the three barns

located on the property. Id., ¶ 9.

State Farm’s estimate, however, used incorrect measurements for the relevant

structures, resulting in a disparity between its offered coverage and the damage

suffered by Spencer. Id. Spencer independently obtained an estimate for the roof

replacements for the residence and barns and for the interior damage in the combined

amount of $106,937.71, which he submitted to State Farm for approval. Id., ¶ 10.

State Farm has failed to pay Spencer that full amount. Id., ¶ 14.

Spencer subsequently filed suit in the Circuit Court of Marshall County, (doc.

1-1), which action State Farm removed to this court, (doc. 1). On January 9, 2026,

State Farm filed the pending Partial Motion to Dismiss. (Doc. 2). On January 12,

2026, the Court entered its Initial Order Governing All Further Proceedings. (Doc.

5). Pursuant to the Initial Order, Spencer was required to respond within fourteen

days of the Motion, id. at 8, but he never did.

LEGAL STANDARD

“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) (internal quotation marks omitted).

“Conclusory allegations, unwarranted deductions of facts or legal conclusions

masquerading as facts will not prevent dismissal.” Wiersum v. U.S. Bank, N.A., 785

F.3d 483, 485 (11th Cir. 2015) (internal quotation marks omitted). Similarly, a

formulaic recitation of the elements of a cause of action is inadequate. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). In considering the facts, courts view the

allegations in the complaint in the light most favorable to the non-moving party.

Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). To survive a Rule

12(b)(6) motion to dismiss, the plaintiff must merely allege enough facts to “raise a

reasonable expectation that discovery will reveal evidence” of the necessary

elements. Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir. 2013)

(quoting Twombly, 550 U.S. at 556). The pleading standard “requires only a

plausible short and plain statement of the plaintiff’s claim, not an exposition of his

legal argument.” Skinner v. Switzer, 562 U.S. 521, 530 (2011) (internal quotation

marks omitted). At this stage, the issue is “not whether [the plaintiff] will ultimately

prevail . . . but whether his complaint was sufficient to cross the federal court’s

threshold.” Id. (internal quotation marks and citations omitted).

Furthermore, when a plaintiff alleges a fraud-based claim, his Complaint is

subject to a heightened pleading standard. Federal Rule of Civil Procedure 9(b)

requires that “[i]n alleging fraud . . . , a party must state with particularity the

circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The purpose of Rule 9(b)’s

particularity requirement is to “alert[] defendants to the precise misconduct with

which they are charged and protect[] defendants against spurious charges of immoral

and fraudulent behavior.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th

Cir. 2001) (internal quotation marks omitted). Thus, to comply with Rule 9(b), a

“plaintiff must plead facts as to time, place, and substance of the defendant’s alleged

fraud, specifically the details of the defendants’ allegedly fraudulent acts, when they

occurred, and who engaged in them.” U.S. ex rel. Clausen v. Lab’y Corp. of Am.,

290 F.3d 1301, 1310 (11th Cir. 2002).

DISCUSSION

Spencer brings four counts against State Farm: (I) negligence, (II) breach of

contract, (III) wantonness, and (IV) misrepresentation. (Doc. 1-1). State Farm moves

to dismiss the first, third, and fourth counts. (Doc. 2).

State Farm’s motion must be granted as to each of these three Counts.

Spencer’s negligence and wantonness claims must be dismissed because Alabama

law does not recognize a cause of action for negligent or wanton claim handling.

Spencer’s misrepresentation claim likewise fails and must be dismissed because it is

impermissibly intertwined with his breach of contract claim and is not pleaded with

the particularity required by Rule 9(b).1

I. Negligence and Wantonness

In Counts One and Three, Spencer attempts to assert claims for negligence

and wantonness based on State Farm’s handling of his claim for insurance benefits

under the Policy.2 (Doc. 1-1, ¶¶ 18–20, 28–31). Spencer alleges in Count One that

State Farm “negligently allow[ed] or cause[d] unreasonable and/or

1 State Farm also argues that the court may grant its Partial Motion to Dismiss because, by not

filing a response, Spencer has abandoned his claims as to Counts I, III, and IV. (See Doc. 10). The

Eleventh Circuit has explicitly addressed the abandonment of claims in response to a motion to

dismiss:

[A]t the motion to dismiss stage, the scope of a court’s review must be limited to

the four corners of the complaint. Accordingly, in considering the defendants’

motion for judgment on the pleadings, the district court erred by going beyond the

face of the complaint. [The plaintiff] did not abandon his due process and malicious

prosecution claims by failing to adequately address them in his response brief.

Boyd v. Peet, 249 Fed. App’x 155, 157 (11th Cir. 2007) (per curiam) (internal citations omitted).

Accordingly—although some district courts have relied on summary-judgment precedent to find

abandonment of claims at the motion to dismiss stage, see, e.g., Prickett v. BAC Home Loans, 946

F. Supp. 2d 1236, 1242 (N.D. Ala. 2013) (citing Coal. for the Abolition of Marijuana Prohibition

v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000), and McMaster v. United States, 177 F.3d

936, 940–41 (11th Cir. 1999))—“[a]t the motion to dismiss stage, a plaintiff does not abandon his

claims by not responding to the defendants’ arguments.” Logan v. Hughes, No. 2:24-cv-1348, 2025

WL 2432204, at *9 n.9 (N.D. Ala. Aug. 22, 2025) (citing Boyd, 249 Fed. App’x at 157). The

“appropriate inquiry at this stage of the litigation [is] whether the allegations of the complaint

plausibly indicate that [the plaintiff] has a claim for relief,” not whether the plaintiff responded to

the defendant’s arguments for dismissal. Boyd, 249 Fed. App’x at 157. The court, therefore,

addresses Spencer’s claims against State Farm, despite his failure to file a response brief.

2 The court will analyze these claims under Alabama law because “[a] federal court sitting in

diversity jurisdiction applies the substantive law of the forum state, which, in this case, is

Alabama.” J & M Assocs., Inc. v. Romero, 488 F. App’x 373, 376 (11th Cir. 2012) (citing Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).

misrepresentative assessments and/or estimates to be conducted on [his] residence.”

Id., ¶ 19. Similarly, in Count Three, he alleges that the “basis for the assertion of

wantonness is that State Farm blatantly ignored clear and convincing evidence of

extensive damage to [his] property, while keeping all insurance premium monies

obtained from [him].” Id., ¶ 29.

The allegations of negligence and wantonness in Counts One and Three, being

based on State Farm’s handling of Spencer’s claim, fail as a matter of law because

the Alabama Supreme Court “has consistently refused to recognize a cause of action

for the negligent . . . [or] wanton handling of insurance claims.” Kervin v. S. Guar.

Ins. Co., 667 So. 2d 704, 706 (Ala. 1995). See also U.S. Liab. Ins. Grp. v. Miller,

No. 5:08-cv-79, 2008 WL 11382029, at *2 (N.D. Ala. May 5, 2008) (holding that,

in Alabama, “no claim for negligent or wanton handling of insurance company may

lie against an insurance company.”); Pate v. Rollison Logging Equip., Inc., 628 So.

2d 337 (Ala. 1993). Accordingly, Spencer’s negligence and wantonness claims are

due to be dismissed.

II. Misrepresentation

In Count IV, Spencer alleges that State Farm “intentionally and/or recklessly”

misrepresented to him that it “would comply with the terms of the parties’ contract,

and act in good faith regarding any insurance claims submitted to State Farm by

[Spencer], including conducting claim investigations in a thorough and reasonable

manner.” (Doc. 1-1, ¶¶ 32–39). This claim is due to be dismissed both because it

fails to allege fraud with the particularity required under Rule 9(b) of the Federal

Rules of Civil Procedure and because it is unacceptably intertwined with and

indistinct from his breach of contract claim.

A. Failure to Plead with Particularity

Although Spencer does not use the word “fraud” in his Complaint,

“[m]isrepresentation and suppression are . . . types of fraud which must be pled with

particularity.” Fed. Home Loan Corp. v. Brooks, No. 2:14-cv-262, 2014 WL

5410236, at *4 (N.D. Ala. Oct. 23, 2014). See also Ala. Code § 6-5-101

(“Misrepresentations of a material fact made willfully to deceive, or recklessly

without knowledge, and acted on by the opposite party, or if made by mistake and

innocently and acted on by the opposite party, constitute legal fraud.”); Jenkins v.

State Farm Fire & Cas. Co., No. 2:11-cv-350, 2011 WL 3359996, at *2 (M.D. Ala.

Aug. 4, 2011) (citing U.S. Diagnostic, Inc. v. Shelby Radiology, P.C., 793 So. 2d

714, 720–21 (Ala. 2000), overruled on other grounds by Bruce v. Cole, 854 So. 2d

47, 58 (Ala. 2003)) (“A claim of ordinary fraud is in fact a claim of fraudulent

misrepresentation.”).

Rule 9(b) requires that the circumstances of alleged fraud be stated “with

particularity.” Fed. R. Civ. P. 9(b). The Eleventh Circuit has interpreted

“particularity” as requiring a plaintiff to “plead facts as to time, place, and substance

of the defendant’s alleged fraud, specifically the details of the defendants’ allegedly

fraudulent acts, when they occurred, and who engaged in them.” Clausen, 290 F.3d

at 1310 (internal quotation marks omitted). More specifically, a plaintiff making a

fraud claim must allege:

(1) precisely what statements were made in what documents or oral

representations or what omissions were made, and (2) the time and

place of each such statement and the person responsible for making (or,

in the case of omissions, not making) same, and (3) the content of such

statements and the manner in which they misled the plaintiff, and (4)

what the defendants obtained as a consequence of the fraud.

Ziemba, 256 F.3d at 1202; Berger v. Home Depot U.S.A., Inc., No. 1:24-cv-1435,

2026 WL 923619, at *5 (N.D. Ga. Mar. 31, 2026).

Here, Spencer’s Complaint contains little information regarding State Farm’s

alleged fraudulent activity. His only factual allegation in support of his

misrepresentation claim is that State Farm “represented to [him], at the signing of

the contract, that State Farm would comply with the terms of the parties’ contract,

and act in good faith regarding any insurance claims submitted to State Farm by

[him], including conducting claim investigations in a thorough and reasonable

manner,” and then failed to do so. (Doc. 1-1, ¶¶ 36, 38). There are no allegations

stating with particularity where the representation was made, the identity of the

individual who made the representation, the context in which it was made, or the

manner in which it was made (i.e., in writing or orally). Spencer’s Complaint is

therefore insufficient as it does not contain the required particularity for claims

involving fraud. Clausen, 290 F.3d at 1310.

B. Intertwinement with Breach of Contract

Spencer’s allegations of misrepresentation are also insufficiently distinct from

his underlying breach of contract claim. Under Alabama law, “[a] mere breach of a

contractual provision is not sufficient to support a charge of fraud.” Brown-Marx

Assocs., Ltd. v. Emigrant Sav. Bank, 703 F.2d 1361, 1370–71 (11th Cir. 1983) (citing

McAdory v. Jones, 71 So. 2d 526, 528 (Ala. 1954)). Indeed, more broadly, the

“failure to perform a contract obligation is not a tort.” C & C Prods., Inc. v. Premier

Indus. Corp., 275 So. 2d 124, 130 (Ala. 1972). Thus, “to assert a fraud claim that

stems from the same general facts as one’s breach-of-contract claim, the fraud claim

must be based on representations independent from the promises in the contract and

must independently satisfy the elements of fraud.” Hunt Petroleum Corp. v. State,

901 So. 2d 1, 10–11 (Ala. 2004) (Houston, J., concurring) (emphasis omitted); see

also Muncher v. NCR Corp., No. 2:16-cv-782, 2017 WL 2774805, at *16–17 (N.D.

Ala. June 27, 2017) (noting that although Justice Houston’s concurrence in Hunt is

non-binding, it is “in line with long-settled Alabama law”). In short, although the

breach of contract may be considered, “other circumstances” must support the

allegation of fraud. 21st Mortg. Corp. v. Robinson, 429 So. 3d 381, 389 (Ala. 2024),

reh’g denied (Apr. 11, 2025).

Here, Spencer’s fraud claims, as pleaded, are fully intertwined with and

indistinct from State Farm’s alleged breach of contract. Spencer has not alleged any

conduct “independent from the promises in the contract” to support claims grounded

in both fraud and breach of contract. Hunt Petroleum Corp., 901 So. 2d at 10–11.

Specifically, he has not alleged sufficient conduct, independent from State Farm’s

alleged failure to perform its contractual obligations, to establish that State Farm

intended to deceive him at the time the parties entered into the contract. See P & S

Bus., Inc. v. S. Cent. Bell Tel. Co., 466 So. 2d 928, 930 (Ala. 1985) (a failure to

perform a promise “is not in itself evidence of intent to deceive at the time the

promise was made.”); see also Killough v. Monkress, No. 5:17-cv-247, 2018 WL

3641859, at *5–6 (N.D. Ala. Aug. 1, 2018) (dismissing fraud claim when plaintiff

“failed to allege specific conduct, independent from [defendant’s] purported . . .

failure to perform its contractual obligations, to establish that [defendant] intended

to deceive [plaintiff] at the time the agreement was made, or to show the existence

of representations, other than [defendant’s] contractual promises, capable of

supporting an independent fraud claim”). Instead, Spencer’s allegations are simply

that State Farm failed to provide him with the claim damages to which he is entitled.

(See Doc. 1-1, ¶¶ 32–39). Accordingly, Spencer’s misrepresentation claim (Count

Four), as pleaded, is due to be dismissed.

CONCLUSION

For the reasons explained herein, State Farm’s Partial Motion to Dismiss,

(doc. 2), is GRANTED. Spencer’s negligence (Count I) and wantonness (Count III)

claims are DISMISSED WITH PREJUDICE. Spencer’s misrepresentation claim

(Count IV) is DISMISSED WITHOUT PREJUDICE.

DONE and ORDERED on June 17, 2026.

HAROLD D. Ze III

UNITED STATES DISTRICT JUDGE

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