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finding plaintiffs were not forum shopping where they "filed their action in Minnesota — the very forum whose law Plaintiffs are trying to avoid"
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Civil No. 03-1006 (RHK/AJB)
August 8, 2003
Allen R. Desmond, Desmond Law Office, P.A., Minneapolis, Minnesota, for Plaintiffs.
James R. Crassweller and Rachna B. Sullivan, Rider Bennett, LLP, Minneapolis, Minnesota, for Defendants.
MEMORANDUM OPINION AND ORDER
Introduction
This matter comes before the Court on Defendants' motion for partial dismissal. Plaintiffs Karla Smith and her children, Amy and Andy Miller (collectively, "Plaintiffs"), have sued Defendants Stonebridge Life Insurance Company ("Stonebridge"), JC Penney Life Insurance Company, Melanie Killingsworth, and Doug Sudduth1 (collectively, "Defendants"), alleging three counts-breach of contract, bad faith failure to pay an insurance claim under Texas law, and violations of Texas statutes regulating insurance practices-arising out of Stonebridge's denial of coverage for the death of Thomas Earl Smith. Defendants now move to dismiss counts 2 and 3 of the Complaint on the ground that Texas law does not apply. For the reasons below, the Court will grant Defendants' Motion in part.
Because Defendants have agreed that Defendants Killingsworth and Sudduth, the claims processors who handled Smith's claim, were acting within the scope of their employment with Stonebridge, Plaintiffs have agreed to dismiss their claims against them. Accordingly, the Court will dismiss the claims against Killingsworth and Sudduth.
Background
On October 8, 2001, Thomas Earl Smith died in a highway accident on Interstate 94 at milepost 18 in Wisconsin while he was hauling a load of outboard motors in his 18-wheel semi-trailer. (Compl. ¶ 12.) According to the St. Croix County Sheriff's Department, Mr. Smith's semi-trailer was traveling on I-94 eastbound at a high rate of speed. (Compl. ¶ 24(a).) During the dark and cloudy evening hours, the semi-trailer went over a guardrail on the median side of the road, rolled over, and slid on the driver's side into a deep ravine. (Id.) Photos of the accident scene show severe damage to the cab of the vehicle, especially the portion occupied by Mr. Smith. (Id. ¶ 24(c).) Rescue workers pronounced Mr. Smith dead at the scene. (Id. ¶ 24(a).)
The autopsy report showed that Mr. Smith suffered a fracture and separation of the spine at level T-11, in the mid-chest region, and fractures of ribs 6 and 7 laterally on the left, also in the mid chest region immediately adjacent to the heart. (Id. ¶ 24(b).) The Certified Death Certificate lists the cause of death as probable arrhythmia due to atherosclerotic heart disease. (Crassweller Aff. Ex. C (Stonebridge Denial of Benefits Letter).) The medical examiner stated that "it is not known which happened first, his medical event or the leaving of the roadway." (Compl. ¶ 24(d).)
The Denial of Benefits letter and the policies themselves are documents relied upon in the Complaint. See Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 n. 9 (8th Cir. 1997); In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 368 n. 9 (3d Cir. 1993) ("[A] court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." (quotations and citation omitted)).
Mr. Smith was covered by two separate, but identical, accidental death life insurance policies through Stonebridge. (Id. ¶ 11.) Stonebridge is a Vermont corporation with its administrative office in Plano, Texas. (Id. ¶ 5.) Together, the policies provided for $100,000 of coverage in the event of accidental, but not natural, death. (Id. ¶ 11.) Plaintiff Karla Smith is the named beneficiary of the policies. (Id.) Within a week of her husband's death, Mrs. Smith notified Stonebridge and made a request for benefits. (Id. ¶ 13.)
The policies were purchased through JC Penney Life Insurance Company, which was subsequently acquired by Stonebridge. The parties do not make any distinction between these entities, and therefore, for ease of reference, the Court will refer to them together as "Stonebridge."
On December 5, 2001, Stonebridge denied Mrs. Smith's claim. (Crassweller Aff. Ex. C.) The letter reads, in pertinent part:
We have given consideration to your request for benefits. Please let us explain our handling. . . .
We kindly ask you to refer to page four of the Certificates under the exclusions sections where it states, "No benefit shall be paid [for] Loss or Injury that . . . (6) is due to disease; bodily or mental infirmity; or medical or surgical treatment of these."
From the information in our file, it does not appear that your husband's death was attributed to an injury as defined by the Certificates. The Certified Death Certificate relates your husband's death to Probable Arrhythmia due to Atherosclerotic Heart Disease and the manner of death was ruled as being natural causes. . . . The St. Croix County Medical Examiner advised that your husband suffered a cardiac event, which caused him to leave the road. He further stated that the injuries which he sustained were not life threatening. While we understand that your husband did suffer from [thoracic vertebral column fracture and left lateral rib fracture], it does not appear that his death resulted from the fractures. . . . Therefore, as it does not appear that your husband's death resulted from an injury caused by an accident, in accordance with the terms and provisions of either Certificate, and that his death would be excluded from coverage as stated in the Certificate Exclusions above, we are unable to provide benefits.
(Id.) This suit followed.
Standard of Decision
"Dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and destined to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001). A cause of action "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir. 2002) (internal citations omitted) (citing Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir. 1993)). In analyzing the adequacy of a complaint's allegations under Rule 12(b)(6), the Court must construe the complaint liberally and afford the plaintiff all reasonable inferences to be drawn from those allegations. See Turner v. Holbrook, 278 F.3d 754, 757 (8th Cir. 2002).
Analysis
Along with the breach of contract claim, which Defendants do not challenge, Plaintiffs allege, in counts 2 and 3 of the Complaint, (1) bad faith denial of benefits under Texas law, and (2) violation of various Texas statutes regulating insurance practices. Defendants argue as to count 2 that Minnesota law, which does not recognize bad faith denial of benefits, should control an action regarding an insurance policy issued in Minnesota, to Minnesota residents, at premium rates calculated for Minnesota. Defendants also argue, without substantive analysis, that the Court's choice of law decision regarding count 2 should be controlling as to count 3. Plaintiffs respond that Texas law should be applied to both counts because Stonebridge processed Mrs. Smith's claim at its administrative offices in Plano, Texas.
I. Bad Faith Denial of Benefits
Before a choice-of-law analysis can be applied, the Court must determine whether a conflict exists between the law of the two forums. Nodak Mut. Ins. Co. v. American Family Mut. Ins. Co., 604 N.W.2d 91, 93-94 (Minn. 2000). A conflict exists if the choice of one forum's law over the other is outcome determinative. See Meyers v. Government Employees Ins. Co., 225 N.W.2d 238, 241 (Minn. 1974). Here, Texas recognizes the tort of bad faith denial of benefits and Minnesota does not. Compare Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex. 1987), with Haagenson v. National Farmers Union Prop. and Cas. Co., 277 N.W.2d 648 (Minn. 1979). Therefore, the conflict of laws is clear.
A. Due Process
Upon determining that a conflict exists, the Court must ensure that each state has significant contacts with the case so that its laws can be constitutionally applied. Jepson v. General Cas. Co. of Wis., 513 N.W.2d 467, 469 (Minn. 1994). As the Supreme Court has stated:
[F]or a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.
Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981). Here, both states have significant contacts with this litigation. Texas is where Smith's claim was processed and is the site of Stonebridge's administrative headquarters; Minnesota is where the policy was issued to Minnesota residents at Minnesota premium rates. Accordingly, the Court could apply either state's law in a manner that would not be arbitrary or fundamentally unfair.
B. Minnesota Choice of Law Analysis
Federal courts sitting in diversity apply the forum state's conflict of laws rules. Nesladek v. Ford Motor Co., 46 F.3d 734, 736 (8th Cir. 1995); see also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (holding that "the accident of diversity of citizenship" should not disturb the equal administration of justice in coordinate state and federal courts). Under Minnesota law, the first question for the Court to resolve is whether the law at issue is substantive or procedural. Nesladek, 46 F.3d at 736. If the law is procedural, the Court applies Minnesota law; if, however, it is substantive, the analysis continues to the next step. Id. (citing Gate City Fed. Sav. Loan Ass'n v. O'Connor, 410 N.W.2d 448, 450 (Minn.Ct.App. 1987). Here, neither party disputes that the tort of bad faith denial of benefits "creates, defines, and regulates rights," Zaretsky v. Molecular Biosystems, Inc., 464 N.W.2d 546, 548 (Minn.Ct.App. 1990), and is therefore substantive. The Court agrees.
Because the law at issue is substantive and Minnesota law does not automatically apply, the next step is to apply Minnesota's choice of law rules. Minnesota has adopted Professor Robert A. Leflar's choice-influencing considerations for choice of law analysis. See Milkovich v. Saari, 203 N.W.2d 408 (Minn. 1973). These are: (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum's governmental interest; and (5) application of the better rule of law. Id. at 412; see also Jepson, 513 N.W.2d at 470. While Plaintiffs correctly argue that the first three factors are of little moment in tort actions, see, e.g., Hague v. Allstate Ins. Co., 289 N.W.2d 43, 48 (Minn. 1979), "the peculiar hybrid [part contract/ part tort] nature of the problems involved in automobile liability" in general, Hime v. State Farm Fire Cas. Co., 284 N.W.2d 829, 833 (Minn. 1979), and the tort of bad faith denial of claims in particular (where the duty arises from the insurance contract itself), compel a broader analysis. Accordingly, the Court will consider all five factors.
1. Predictability of Results
"The first factor, predictability of results, represents the ideal that litigation on the same facts, regardless of where the litigation occurs, should be decided the same to avoid forum shopping." Nodak, 604 N.W.2d at 95 (citing Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. Rev. 267, 282-83 (1966)). While this factor is designed to preserve the parties' contractual expectations, see Jepson, 513 N.W.2d at 470, it applies primarily to "consensual transactions where the parties desire advance notice of which state law will govern in future disputes," Meyers, 225 N.W.2d at 241(emphasis added). Consequently, "the fact that one cannot predict automobile accidents because they are unplanned makes predictability of results less important in automobile liability insurance cases". Hague, 289 N.W.2d at 48.
Here, Defendants argue that it is "ridiculous" to suggest that they could have predicted the application of Texas law to the present dispute. (See Defs.' Mem. Supp. Mot. to Dismiss at 7.) From the face of the policy, however, it is clear that Stonebridge was to carry out its contractual obligations almost exclusively from its offices in Texas. (See Crassweller Aff. Ex. A (providing Texas address as the sole means for the policyholder to communicate with insurer).) Rather than proceeding under the laws of a state brought into the litigation by post-contractual events, such as the site of the accident, Plaintiffs' invocation of Texas law is fully foreseeable from the face of the contract.
Because "[t]his factor goes to whether the choice of law was predictable before the . . . event giving rise to the cause of action," Nesladek, 46 F.3d at 738 (emphasis added), and because the Court concludes it was, this factor does not compel the Court to apply either Minnesota or Texas law.
2. Maintenance of Interstate Order
"In discussing the second factor, the maintenance of interstate order, we are primarily concerned with whether the application of [the forum state's] law would manifest disrespect for [the non-forum state's] sovereignty or impede the interstate movement of people and goods." Jepson, 513 N.W.2d at 471. This concern is motivated, in part, by a desire to maintain a coherent legal system in which the courts of different states strive to sustain each other's interests. Id. (citing Leflar, supra, at 285-87). The Court may consider whether or not application of Minnesota law will encourage forum shopping. Hague, 289 N.W.2d at 49. "Maintenance of interstate order is generally satisfied as long as the state whose laws are purportedly in conflict has sufficient contacts with and interest in the facts and issues being litigated." Meyers, 225 N.W.2d at 242. Here, the Court finds nothing in the present litigation that threatens interstate order. While Defendants accuse Plaintiffs of forum shopping, the Court notes that Plaintiffs filed their action in Minnesota-the very forum whose law Plaintiffs are trying to avoid. Moreover, both Minnesota and Texas are factually connected to this matter and have an interest in regulating insurance activity in their states. Accordingly, the Court finds that the application of either state's law is consistent with principles of interstate comity and would not encourage forum shopping.
3. Simplification of the Judicial Task
The third factor for the Court to consider, simplification of the judicial task, is not relevant because "the law of either state could be applied without difficulty." Jepson, 513 N.W.2d at 472. As the Eighth Circuit has noted,
The District Court is capable of determining, interpreting, and applying [either state's law], since both are straightforward and there is no indication that the plain language of the statutes and the courts' interpretations of them are inadequate to provide the guidance a trial court might wish to have.
Nesladek, 46 F.3d at 739. Such is the case here. The Court finds, and neither party suggests otherwise, that it is fully capable of applying the law of either Minnesota or Texas. Accordingly, this is not a pertinent factor.
4. Advancement of the Forum's Governmental Interest
The fourth factor, advancement of the forum's governmental interest, reflects a concern that Minnesota courts should "not be called upon to determine issues under rules which, however accepted they may be in other states, are inconsistent with [Minnesota's] own concepts of fairness and equity." Milkovich, 203 N.W.2d at 417. This factor has come to require that the Court "not only analyze the interests of Minnesota as the forum state, but also consider the public policy of the [non-forum state]." Meyers, 225 N.W.2d at 366; see also Gate City, 410 N.W.2d at 451(public policy of non-forum state must be considered). Therefore, the Court will compare the "relative policy interests of the two states." Lommen v. City of East Grand Forks, 522 N.W.2d 148, 152 (Minn.Ct.App. 1994).
Defendants suggest, and the Court agrees, that Minnesota's interest is in ensuring that parties to a contract are limited to the benefit of their bargain. While Minnesota places "great value in compensating tort victims," it also has other important values, such as ensuring that "people should get the benefit of the contracts they enter into, nothing less and nothing more." Jepson, 513 N.W.2d at 472. As expressed in the famous case of Hadley v. Baxendale:
The damages . . . should be such as may be fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach.
156 Eng. Rep. 145 (Ex. 1854). Following this common law principle, a bad faith breach of a contract under Minnesota law "is not an independent tort of the kind that will permit a tort recovery." Wild v. Rarig, 234 N.W.2d 775, 790 (Minn. 1975). Accordingly, Minnesota's interest is in preventing extracontractual remedies that undermine the predictability of results under its contract law system. The Court concludes it is a strong interest.
Plaintiffs suggest that Texas has an equally strong governmental interest in ensuring that insurance companies operating within its borders abide by its laws. Indeed, Texas does have "a significant interest in matters related to violations of its insurance laws." SnyderGeneral Corp. v. Great American Ins. Co., 928 F. Supp. 674, 678 (N.D. Tex. 1996); see also Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 891 (5th Cir. 1996). While this interest is particularly strong where the insured is a resident of Texas, see Tex. Ins. Code Ann. art. 21.42 (extending Texas law to all insurance contracts payable to a citizen or inhabitant of the state), it takes on substantially less force when the insured resides outside of the state, see TV-3, Inc. v. Royal Ins. Co., 28 F. Supp.2d 407, 420 (E.D.Tex. 1998) (holding under Texas choice of law analysis that Mississippi, rather than Texas, law applies to bad faith insurance claim where contract negotiations, premium payments, and economic injury all occurred in Mississippi); SnyderGeneral, 928 F. Supp. at 678 (holding under Texas choice of law analysis that relationship between insurance company and insured was "centered" in state where policy was purchased and insured resided).
Comparing the relative policy interests of the two states, the Court concludes that Minnesota's interest is the stronger of the two. While Texas might have an interest in protecting out-of-state insureds conducting business with Texas insurance companies, see Chickasha Cotton Oil Co. v. Houston Gen. Ins. Co., 2002 WL 1792467 (Tex.App. — Ct. 2002) (unpublished opinion), Minnesota's "concepts of fairness and equity," Milkovich, 203 N.W.2d at 417, simply do not permit "[a] malicious or bad-faith motive" to "convert a contract action into a tort action," Rarig, 234 N.W.2d at 790; accord Haagenson, 277 N.W.2d at 652. While Minnesota values ensuring that its tort victims are fully compensated, that interest is cabined by the requirement that parties to a contract are limited to the benefit of their bargain. Minnesota's interest, in short, is in keeping its contract and tort regimes separate, and the Court concludes that it is a more powerful and compelling interest than Texas's interest in protecting out-of-state insureds. Accordingly, this factor weighs strongly in favor of the application of Minnesota law.
5. The Better Rule of Law
The final factor for the Court to consider is whether, in an objective sense, Minnesota or Texas has the better rule of law. Jepson, 513 N.W.2d at 472. "Concern for the `better law' is part of a comprehensive test and is to be exercised only when other choice-influencing considerations leave the choice of law uncertain." Meyers, 225 N.W.2d at 368. "As Professor Leflar has said, `[t]he inclination of any reasonable court will be to prefer rules of law which make good socio-economic sense for the time when the court speaks, whether they be for its own or another state's rules.'" Bigelow v. Halloran, 313 N.W.2d 10, 13 (Minn. 1981) (quoting Robert A. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Cal. L. Rev. 1584, 1588 (1966)).
Here, the Court finds that Minnesota's law makes "good socio-economic sense." Id. The policy of limiting extracontractual damages is defended on many grounds, but most principally because it allows contracting parties to predict their potential liability on any given contract. As stated by one commentator, "Predictability [is] the watchword; one should be able to count on the courts to adhere closely to the terms of the bargain in defining the damages to be recovered for any breach." Roger C. Henderson, The Tort of Bad Faith in First-Party Insurance Transactions, 26 U. Mich. J.L. Reform 1, 2 (1992). The benefits of such a rule include greater certainty, which permits parties to shape their conduct to the rule, and lower transaction costs, which generate lower costs for consumers and greater overall access to insurance.
The downside of Minnesota's rule, of course, is that insurance companies have less incentive to avoid denying claims unreasonably. While the cost of litigation provides a small check on the bad faith denial of claims, it is a far less powerful disincentive than a rule, such as Texas's, specifically designed to discourage "unscrupulous insurers [from taking] advantage of their insureds misfortunes in bargaining for settlement of resolution of claims." Arnold, 725 S.W.2d at 167.
Texas's law, however, has substantial drawbacks. The tort of bad faith denial of claim is a "wholly new tort in the legal universe." Henderson, supra at 1. Consequently,
[t]he overwhelming consensus of scholarly commentary . . . is that bad faith remains a vague, changing concept, that the tort has not `matured' into a cause of action with known, predictable parameters, and that to be viable it must be made more definite. These things are true in Texas and in all jurisdictions that recognize a bad-faith tort.
Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 59 (Tex. 1997) (Hecht, J., concurring).
Indeed, commentators have called the tort of bad faith "the judicial equivalent of the Wheel of Fortune," Douglas R. Richmond, The Two-Way Street of Insurance Good Faith, 28 Loy. U. Chi. L.J. 95 (1996), and a "lottery," Douglas G. Houser, Good Faith as a Matter of Law, 27 Tort Ins. L.J. 665, 666 (1992), because of its inherent uncertainty:
[W]here the central element of bad faith has no clearly defined structure, then virtually anything becomes relevant and specific conduct can be judged only in retrospect. Thus, an insurer has little ability to evaluate the potential consequences of its claims-handling decisions, other than those which acknowledge full coverage irrespective of the terms of its policy.
James C. Nielsen, Advice of Counsel in Insurance Bad Faith Litigation, 25 Tort Ins. J. 533, 536 (1990). Such a regime, where "insurers cannot know what constitutes bad faith until a verdict is returned," Universe Life, 950 S.W.2d at 66 (Hecht, J., concurring), imposes substantial costs on consumers, discourages settlements by prolonging insurance disputes until trial, and lessens the overall general availability of insurance.
Plaintiffs are correct that the majority of states now recognize some form of bad faith denial of claim. However, "majority status is not by itself sufficient to make a rule `better'". Hague, 289 N.W.2d at 59. While in the future, a mature denial of bad faith tort with clearly defined parameters could provide an appropriate incentive for insurance companies, the Court's obligation is to examine the social and economic sensibility of the rule "for the time when the court speaks," Bigelow, 313 N.W.2d at 13. That time is now, and Texas's law, as presently constituted, is not predictable enough to offer the better rule. Accordingly, the Court concludes that this factor tips decidedly in favor of Minnesota law.
6. Conclusion
Weighing the balance of factors, the Court finds that the first three do not tip in favor of either state's law. The last two factors, however, hang heavily on the side of the forum state. The Court therefore concludes that Minnesota law applies with regard to bad faith denial of claim. Because count 2 of the Complaint alleges a cause of action not cognizable under Minnesota law, it fails to state a claim upon which relief can be granted and must be dismissed.
II. Violation of Texas Insurance Statutes
Defendants assert, ipse dixit, that the dismissal of count 2 requires the dismissal of count 3 as a matter of course. Count 3 of the Complaint alleges the violation of various Texas statutes relating to insurance:
(a) Texas Insurance Code, Article 21.21, § 4(10)(a)(i) (misrepresenting to a claimant a material fact or policy provision relating to coverage at issue);
(b) Texas Insurance Code, Article 21.21, § 4(10)(a)(ii) (failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect to which the insurer's liability has become reasonably clear);
(c) Texas Insurance Code, Article 21.21, § 4(10)(a)(iv) (failing to provide promptly to a policy holder a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for the insurer's denial of a claim or for the offer of a compromised settlement of a claim);
(d) Texas Insurance Code, Article 21.21, § 4(10)(a)(viii) (refusing to pay a claim without conducting a reasonable investigation with respect to the claim);
(e) Texas Insurance Code, Article 21.21, § 4(11)(c) (making a statement in such a manner as to mislead a reasonably prudent person to a false conclusion of a material fact);
(f) Texas Insurance Code, Article 21.21, § 4(11)(d) (making a material misstatement of law);
(g) Texas Insurance Code, Article 17.46(b)(9) (representing that goods or services have . . . characteristics . . . uses, benefits . . . which they do not have . . .);
(h) Texas Insurance Code, Article 27.46(b)(9) (advertising goods or services with intent not to sell them as advertised).
(Compl. ¶ 33.)
In response to this extensive list of allegations, Defendants offer nary a single case, statute, or legal argument. Instead, they simply assert that "Texas has no legitimate connection to this lawsuit" and that "[s]ince Minnesota law is applicable, violation of various Texas statutes is completely inapplicable." (Def. Mem. Supp. Mot. to Dismiss at 11.) This Court, however, has not held-nor could it, save for a due process ruling-that Texas law is inapplicable to the case in total. Rather, after first finding a conflict, then engaging in a careful choice of law analysis, the Court has held that Minnesota's rule regarding bad faith denial of claim, instead of Texas's, should govern. As to count 3, Defendants have not even started the process by which the Court could provide this analysis. See Northwestern Nat'l Ins. Co. v. Baltes, 15 F.3d 660, 662-63 (7th Cir. 1994) (Easterbrook, J.) (noting that judges "are not archaeologists. They need not excavate masses of papers in search of revealing tidbits — not only because the rules of procedure place the burden on the litigants, but also because their time is scarce."). Without a case or argument relevant to the Texas statutes and their Minnesota counterparts, Defendants have not carried their burden; the Court therefore concludes that Defendants' Motion must be denied as to count 3 of the Complaint.
Conclusion
Based on the foregoing and all of the files, records, and proceedings herein, IT IS ORDERED that Defendants' Motion to Dismiss (Doc. No. 4) is GRANTED IN PART:
(1) The Complaint (Doc. No. 1) against Defendants Killingsworth and Sudduth is DISMISSED WITH PREJUDICE;
(2) Count 2 of the Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE.