United States District Court, E.D. Michigan, Southern Division
ANTHONY JOHNSON d/b/a FIRST NATIONAL HOME MANAGEMENT/CONSULTANT, Plaintiff,
WESTFIELD INSURANCE COMPANY, a foreign Corporation, Defendant.
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS AND MOTION TO STRIKE
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Westfield Insurance Company filed a motion to dismiss
Plaintiff's claims on May 3, 2019. Westfield Insurance
Company argues that Plaintiff is barred from bringing a
breach of contract action because Plaintiff is not the named
insured on the policy at issue. Plaintiff contends that
Westfield included the wrong name on the policy. Whether this
is the case cannot be properly discerned without further
examination; for the reasons explained below, Defendant's
motion is denied.
Anthony Johnson, who does business under the assumed name
First National Home Management/Consultant, asserts that he
owns the insured property at 3838 Hurlbut, Detroit, Michigan.
Plaintiff alleges that Defendant unlawfully denied his
insurance claim after the 3838 Hurlbut property suffered
extensive water damage. Plaintiff asserts that he has
satisfied all conditions of his policy and that he timely
reported the claim. Defendant has moved to dismiss the
complaint for failure to state a claim on which relief can be
granted. Defendant's primary assertion is that Plaintiff
is not the policy holder and that the named insured is a
corporation, National Home Consulting Property Management.
Defendant states that Plaintiff cannot bring a breach of
contract action because Plaintiff lacks privity, a
prerequisite for a breach of contract action. In response,
Plaintiff argues that the insurance policy contains a
misnomer and he is the insured. In support of his argument,
Plaintiff has submitted several documents including a quit
claim deed, an assumed name certificate, a screenshot of a
corporate search from Michigan's Department of Licensing
and Regulatory Affairs, a bank statement, a screenshot of a
bank account, and a letter from defendant Westfield.
Defendant has moved to strike these exhibits and
seeks dismissal of Plaintiff's breach of contract claim
pursuant to Fed.R.Civ.P. 12(b)(6). A motion under Rule
12(b)(6) of the Federal Rules of Civil Procedure seeks
dismissal based upon the plaintiff's failure to state a
claim upon which relief can be granted. To survive a motion
to dismiss, the plaintiff must allege facts that, if accepted
as true, are sufficient “to raise a right to relief
above the speculative level” and to “state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007); See also Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949-50 (2009). The complaint “must contain either
direct or inferential allegations respecting all the material
elements to sustain a recovery under some viable legal
theory.” Advocacy Org. for Patients &
Providers v. Auto Club Ins. Ass'n, 176 F.3d 315,
319 (6th Cir.1999) (internal quotation marks omitted).
reviewing a motion to dismiss, courts may consider not only
the complaint but also “documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd, 551 U.S. 308, 323 (2007). The
Sixth Circuit clarified that “in general a court may
only take judicial notice of a public record whose existence
or contents prove facts whose accuracy cannot reasonably be
questioned.” Passa v. City of Columbus, 123
Fed.Appx. 694, 697 (6th Cir. 2005). Furthermore, the court
may consider exhibits attached to Defendant's motion to
dismiss that are referenced in the complaint and are central
to Plaintiff's claim. Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
this understanding, the court has the authority to take
judicial notice of the quit claim deed, the assumed name
certificate from the County of Wayne, and the screenshot of
the corporate search from the Michigan Department of
Licensing and Regulatory Affairs website. All three documents
are public records. The court will not consider the bank
statements, the screenshot of a bank record, or the letter
from Westfield. Plaintiff's complaint makes no mention of
these documents, they were not attached to the complaint, and
they are personal documents of the Plaintiff. The insurance
policy, included by the Defendant in his motion to dismiss,
and referenced in the complaint, will be considered.
Bassett, 528 F.3d at 430.
order to state a claim for breach of contract, a plaintiff
must prove three elements, (1) there was a contract, (2) the
other party breached the contract, and (3) this breach
resulted in damages to the party claiming breach.
Miller-Davis Co. v. Ahrens Const., Inc., 495 Mich.
161, 178 (2014). Defendant argues that there is no
enforceable contract with the Plaintiff and that the insured
is another entity who is not a party to this case. See
Nat'l Sand, Inc. v. Nagel Const., Inc., 182
Mich.App. 327, 331 (1990).
support of his breach of contract allegation, Plaintiff
asserts that he has an enforceable contract, complied with
all conditions required of him, timely notified Defendant,
and that he suffered economic damages due to Defendant's
denial of his insurance claim. (Doc. 1, PgID 7). These
claims, sufficiently stated, allow the court to assume their
veracity. Iqbal, 129 S.Ct. at 1941. The insurance
policy, however, names “National Home Consulting
Property Management” as the insured, not Anthony
Johnson or his assumed name, First National Home
Management/Consultant. Plaintiff contends that this is a
misnomer, a mistake on the part of the insurance company.
“It is an old rule, and a sensible one, that the
misnomer of a person or corporation in a written instrument
will not defeat a recovery thereon, if the identity
sufficiently appears from the name employed in the writing or
is satisfactorily established by proof.” St.
Matthew's Evangelical Lutheran Church v. U.S. Fidelity.
& Guaranty. Co., 222 Mich. 256, 262 (1923); see
also PIM, Inc. v. Steinbicher Optical Technologies USA,
Inc., 468 Mich. 896 (2003); Duncan v. Tricho Salon
& Spa, LLC, No. 300446, 2011 WL 6061341, at *4
(Mich. Ct. App. Dec. 6, 2011).
assessing the plausibility of the allegations, the important
question to consider is whether Plaintiff's claim of an
insurance contract, with Defendant's attached exhibit
showing Plaintiff is not the named insured, along with the
remaining factual allegations have “nudged [the] claims
. . . across the line from conceivable to plausible.”
Iqbal, 129 S.Ct. at 1951. The court, as elucidated
in Iqbal, is required to draw on its “judicial
experience and common sense” when evaluating the
plausibility of a claim. Id. at 1950.
three exhibits attached to Plaintiff's response to
Defendant's motion to dismiss, those that the court is
allowed to take judicial notice of, demonstrate support for
Plaintiff's allegations that there was indeed an
enforceable contract. The assumed name certificate shows the
name of Anthony Johnson's company and that the company
was created in 2016, two years prior to the incident at 3838
Hurlbut. The quit claim deed allows the picture to develop
further as it shows that one month subsequent, Anthony
Johnson was given the deed to the Hurlbut property under his
assumed name. According to the LARA corporate search, the
named insured, National Home Consulting Property Management,
does not exist as a corporation in Michigan. Plaintiff has
plausibly argued the policy contains a misnomer. Although
Defendant argues the complaint does not plead misnomer,
Defendant produces no authority that Plaintiff is required to
do so in order to state a breach of contract claim.
whether a complaint states a plausible claim for relief is a
context-specific task. Iqbal at 1950. The public
records together with Plaintiff's well-pled factual
allegations do not prove Plaintiff's case categorically,
but show a plausible claim for relief above the ...