IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EDRICK FULLER, §

§

Plaintiff, §

§

VS. § Civil Action No. 3:22-CV-1289-D

§

CIG FINANCIAL, LLC, THE CAR §

SOURCE, LLC d/b/a HIDE AND SEEK §

RECOVERY, and JULIUS SIMS, §

§

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

This is an action by pro se plaintiff Edrick Fuller (“Fuller”) that arises from an attempt

to repossess his pickup truck. He alleges a federal-law claim under the federal Fair Debt

Collection Practices Act, 15 U.S.C. § 1692f(6)(A) (“FDCPA”), and state-law claims under

§ 9.609 of the Texas Uniform Commercial Code (“UCC”), Tex. Bus. & Com. Code Ann. 

§ 9.609, the Texas Debt Collection Practices Act (“TDCPA”), Tex. Fin. Code Ann. §

392.001-404 (West 2016), and for negligence, willful, wanton behavior, battery, and

intentional infliction of emotional distress (“IIED”). Defendant CIG Financial, LLC

(“CIG”), one of three defendants,1

 moves to dismiss under Fed. R. Civ. P. 12(b)(6) for failure

to state a claim on which relief can be granted, or, alternatively under Rule 12(e) for a more

definite statement of Fuller’s battery claim. For the reasons explained, the court grants in

1

Only CIG has filed such a motion. Fuller’s claims against the other two defendants

are unaffected by this memorandum opinion and order. See Inclusive Cmtys. Project, Inc.

v. Lincoln Prop. Co., 2017 WL 2984048, at *5 (N.D. Tex. July 13, 2017) (Kinkeade, J.). 

Case 3:22-cv-01289-D Document 31 Filed 01/10/23 Page 1 of 18 PageID 296
part and denies in part CIG’s motion to dismiss and denies CIG’s alternative motion for a

more definite statement. 

I

The relevant background facts are largely set out in the court’s recent memorandum

opinion and order and need not be repeated at length. See Fuller v. CIG Fin., LLC, 2022 WL

4071964, at *1 (N.D. Tex. Sept. 2, 2022) (Fitzwater, J.). The court assumes that the parties

are familiar with the background facts and procedural history of this case.

II

In deciding a motion to dismiss under Rule 12(b)(6), the court evaluates the

sufficiency of Fuller’s amended complaint “by accepting all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Bramlett v. Med. Protective Co.

of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (internal

quotation marks and alteration omitted) (quoting In re Katrina Canal Breaches Litig., 495

F.3d 191, 205 (5th Cir. 2007)). “To survive a motion to dismiss under Rule 12(b)(6), a

plaintiff must plead enough facts to state a claim to relief that is plausible on its face.” 

Glover v. Quality Air Tech., Ltd., 2014 WL 2883893, at *1 (N.D. Tex. June 25, 2014)

(Fitzwater, C.J.) (internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is something

between probability and possibility. Id. 

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A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Rule 8(a)(2). Thus “where the well-pleaded facts do not permit

the court to infer more than the mere possibility of misconduct, the complaint has

alleged—but it has not ‘shown’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at

679. “[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). In other words, a complaint that

offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555. 

III

The court turns first to CIG’s motion to dismiss Fuller’s FDCPA claim and his

interrelated state statutory claims.

A

A debt collector violates the FDCPA by “[t]aking or threatening to take any

nonjudicial action to effect dispossession or disablement of property if—(A) there is no

present right to possession of the property claimed as collateral through an enforceable

security interest.” 15 U.S.C. § 1692f(6)(A). “Courts look to state law to determine whether

the secured party had a present right to possession of the collateral.” Sinegal v. Big Horn

Auto Sales, Inc., 2022 WL 799908, at *3 (S.D. Tex. Mar. 16, 2022) (Rosenthal, C.J.)

(internal quotation marks omitted). “Under Texas law, ‘[a]fter default, a secured party . . .

may take possession of the collateral . . . without judicial process, if it proceeds without

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breach of the peace.’” Id. (quoting Tex. Bus. & Com. Code Ann. § 9.609).

“[O]ne factor for courts to consider when determining if a breach of the peace

occurred is whether there was a confrontation between the repossession agent and the debtor. 

If there was a confrontation, the court must decide whether the agent avoided additional

confrontation.” Davis v. Toyota Motor Credit, 2013 WL 4786328, at *8 (S.D. Tex. Sept. 6,

2013). And if a debt collector “[has] not already peaceably removed the vehicle when the

owner [objects], [its] continuation with the attempt at repossession [is] no longer peaceable

and without a breach of the peace.” Chapa v. Traciers & Assocs., 267 S.W.3d 386, 394

(Tex. App. 2008, no pet.) (internal quotation marks omitted) (quoting Nixon v. Halpin, 620

So.2d 796, 798 (Fla. Dist. Ct. App. 1993)).

Additionally, the TDCPA prohibits certain threatening or coercive debt collection

practices. Relevant here, the TDCPA provides:

(a) [i]n debt collection, a debt collector may not use threats,

coercion, or attempts to coerce that employ any of the following

practices: (1) using or threatening to use violence or other

criminal means to cause harm to a person or property of a

person; . . . or (8) threatening to take an action prohibited by

law. 

Tex. Fin. Code Ann. § 392.301(a) (West 2016).

Thus where a debt collector breaches the peace while effecting a repossession of

property—thereby violating Texas law regarding nonjudicial repossessions—the debt

collector does not have a right to repossession under 15 U.S.C. § 1692f. See Sinegal, 2022

WL 799908, at *3. And the debt collector will also have violated the TDCPA because he

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attempted to repossess property in a manner prohibited by law. See id.

B

Fuller has plausibly pleaded claims under the FDCPA and Texas law so as to avoid

dismissal under Rule 12(b)(6). Accepting the factual allegations of the amended complaint

as true, Fuller objected to the repossession of his pickup truck several times, he physically

attempted to stop the repossession, and his objections to the attempt to repossess his pickup

truck persisted for several hours. Fuller also alleges that defendant Julius Sims (“Sims”), the

repossession agent, continued the repossession process after Fuller objected. These facts,

coupled with Fuller’s reference to state law regarding nonjudicial repossession, plausibly

plead a breach of the peace in Sims’s attempts to take possession of the pickup truck. 

Therefore, Fuller has plausibly pleaded that CIG, through its agent Sims,2

 violated Texas law

by attempting to effect a nonjudicial repossession in a manner that breached the peace, and

by using debt collection practices in a manner prohibited by law. Consequently, he has also

2

Throughout the amended complaint, Fuller alleges that Sims was an “agent” of

defendants The Car Source, LLC d/b/a Hide and Seek Recovery and CIG, and that CIG hired

the other two defendants to repossess Fuller’s vehicle. See, e.g., Am. Compl. ¶¶ 28, 35

[first], 31 [third]. “The court must liberally construe the allegations of a pro se complaint.” 

Obinyan v. Prime Therapeutics LLC, 2020 WL 5351607, at *1 (N.D. Tex. Mar. 5, 2020)

(Fitzwater, J.). Liberally construing the amended complaint, and viewing the facts alleged

in the light most favorable to Fuller, see Bramlett, 855 F.Supp.2d at 618, the court construes

the references to an “agency” relationship as including Sims either as an employee or as an

independent contractor. The existence of either could support Fuller’s claims for relief. 

Therefore, the court concludes that Fuller has adequately pleaded a relevant agency

relationship for purposes of all of his claims. At the very least, given the complicated nature

of the analysis involved in ascertaining the existence of an employee or independent

contractor relationship, Fuller “should be afforded an opportunity to conduct discovery . . .

before he must risk dismissal of his suit.” Obinyan, 2020 WL 5351607, at *1. 

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adequately alleged that CIG violated the FDCPA by threatening to take nonjudicial action

to effect a repossession when it did not have a present right to possess the vehicle. 15 U.S.C.

§ 1692f(6)(A). 

Fuller has alleged facts that are sufficient to state plausible claims for relief under the

FDCPA, § 9.609 of the Texas UCC, and the TDCPA. Accordingly, the court denies CIG’s

motion to dismiss these claims. 

IV

The court now considers CIG’s motion to dismiss Fuller’s negligent hiring, retention,

and supervision claims and his claim against CIG for “willful, wanton behavior.” Am.

Compl. ¶ 34 [fourth].

A

“To prevail on a claim for negligent hiring or supervision, the plaintiff is required to

establish not only that the employer was negligent in hiring or supervising the employee, but

also that the employee committed an actionable tort against the plaintiff.” Brown v. Swett

& Crawford of Tex., Inc., 178 S.W.3d 373, 384 (Tex. App. 2005, no pet.). “[T]here is a

broad consensus among Texas courts that such a claim requires that the plaintiff suffer some

damages from the foreseeable misconduct of an employee hired pursuant to the defendant’s

negligent practices.” Wansey v. Hole, 379 S.W.3d 246, 247 (Tex. 2012) (collecting cases). 

Texas courts apparently contemplate that the actionable tort committed by the agent can

include torts other than simple negligence, such as assault or battery. See Gonzales v. Willis,

995 S.W.2d 729, 740 (Tex. App. 1999, no pet.). And “[a] negligence finding requires a duty,

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breach, and damages proximately caused by the breach.” Wansey, 379 S.W.3d at 248.

Generally, an employer is not liable for the negligent acts of an independent

contractor, including those committed while the independent contractor is completing the job

for which he was hired. Sanchez v. Mbank of El Paso, 792 S.W.2d 530, 531 (Tex. App.

1990), aff’d, 836 S.W.2d 151 (Tex. 1992). But there are exceptions to this principle, id., and

“Texas recognizes a cause of action for the negligent hiring of an independent contractor,”

King v. Associates Commercial Corp., 744 S.W.2d 209, 213 (Tex. App. 1987, writ denied). 

Thus an employer “may be held responsible for the contractor’s negligent acts if the

employer knew or should have known that the contractor was incompetent and a third person

was injured because of the contractor’s incompetency.” Id. A factor that is relevant in

determining whether an employer was negligent in hiring an independent contractor is

whether, and the extent to which, the employer investigated the applicant’s qualifications

before making a hiring decision. Id. “[T]he mere fact that an independent contractor

negligently caused an injury to another affords no presumption that the employer was

negligent in his selection of the contractor.” Id. at 214.

This “knew or should have known” standard could also be characterized as one

measuring foreseeability, and thus as an issue of proximate causation. See, e.g., Tex. Am.

Bank v. Boggess, 673 S.W.2d 398, 400 (Tex. App. 1984, pet. dism’d by agr.). Boggess

involved a similar factual situation to the instant one: the plaintiff financed the purchase of

a vehicle through a bank, and, when he defaulted, the bank hired a repossession agent, who

contracted with a different individual to repossess the vehicle. Id. at 399. The plaintiff was

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injured during the attempted repossession and sued the bank, the repossession agent, and the

contractor. Id. The Boggess court concluded that there was no causation for several reasons. 

First, “[no] employee of the Bank was present at the time of the incident,” nor was the

individual whom the bank had hired—here, the repossession agent. Id. at 402. Further, “the

Bank, up to the time of this occurrence, had never heard of [the contractor] and knew nothing

of his employment by [the repossession agent].” Id. Finally, “even though the Bank did not

inquire as to whether [the repossession agent] had a criminal record and did not look into his

driving record, knowledge of these histories had nothing whatever to do with the accident

and would not have prevented it.” Id. 

Boggess is distinguishable from the instant case, and Fuller alleges enough in his

amended complaint to avoid the issues present in Boggess. For example, Fuller alleges that

defendant The Car Source, LLC d/b/a Hide and Seek Recovery (“Car Source”) had a history

of using aggressive tactics when repossessing property. Fuller also alleges that consumers

in other states made several public complaints about Car Source’s methods. Fuller has

therefore plausibly pleaded that CIG should have known that Car Source had used

objectionable repossession practices in the past and that a reasonable inquiry into Car

Source’s qualifications likely would have revealed these practices. It can reasonably be

inferred that when CIG hired Car Source, a repossession company, it understood that it

would be necessary for Car Source to send a person—whether an employee or an

independent contractor—to complete the repossession. The bank in Boggess had no

knowledge that its repossession agent had delegated his obligations to another individual. 

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But it can reasonably be inferred in this case that CIG likely did know that a person such as

Sims would be the one repossessing the vehicle on Car Source’s behalf. And according to

the amended complaint, a representative of CIG was on the phone with either Fuller or Sims

for most of the time during which Sims was attempting to repossess the pickup truck. Each

of these facts bolsters the conclusion that Fuller has pleaded a plausible cause of action

against CIG for negligent hiring, supervision, or retention, or all three. Accordingly, the

court denies CIG’s motion to dismiss Fuller’s negligent hiring, retention, and supervision

claims against CIG, as alleged in count III.

B

The court next considers Fuller’s independent claim against CIG for “willful, wanton

behavior,” alleged in count IV. CIG moves to dismiss this claim, contending that Fuller has

not pleaded a stand-alone tort that states a separate claim. 

In several contexts, courts have concluded that wanton and willful misconduct is akin

to gross negligence. See, e.g., Turner v. Franklin, 325 S.W.3d 771, 780-81 (Tex. App. 2010,

pet. denied) (“the legislature intended ‘wilful and wanton negligence,’ as used in section

74.153 of the civil practice and remedies code [governing emergency medical care

malpractice], to mean ‘gross negligence.’”); Warren v. Medley, 521 S.W.2d 137, 139 (Tex.

Civ. App. 1975, no writ) (owner of property owes licensee duty not to injure him by “willful,

wanton, or gross negligence”); Moncada v. Brown, 202 S.W.3d 794, 799-800 (Tex. App.

2006, no pet.). But the two standards are not identical. In re Tex. Pig Stands, Inc., 2009 WL

10703070, at *2 (W.D. Tex. May 21, 2009) (“In Texas, gross negligence is not the equivalent

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of a willful act.”). Rather, the Supreme Court of Texas has endorsed a “culpability

continuum,” id., so as not to “equate the terms gross negligence, ‘knowingly,’ ‘willful’ and

intentional.” Luna v. N. Star Dodge Sales, Inc., 667 S.W.2d 115, 118 (Tex. 1984). On this

continuum, “gross negligence [is] the lowest mental state and intentional [is] the highest.” 

Id. 

Since the Texas legislature engaged in extensive efforts to reform Texas tort law, the

term that has emerged as a synonym for these higher standards of culpability—“willful” and

“intentional,” for instance, id.—is “malice.” See, e.g., Tex. Civ. Prac. & Rem. Code Ann.

§ 41.001 (West 2015) (defining “malice” as “a specific intent by the defendant to cause

substantial injury or harm to the claimant”). This is important because state law dictates that

“exemplary damages,” defined by statute to include punitive damages, id., “may be awarded

only if the claimant proves by clear and convincing evidence that the harm with respect to

which the claimant seeks recovery of exemplary damages results from: (1) fraud; (2) malice;

or (3) gross negligence.” Id. § 41.003(a). 

The terms “malice” and “wanton and willful” have been conflated or likened to one

another by Texas courts. See, e.g., Musselwhite v. Howard, 2007 WL 1412854, at *8 (Tex.

App. May 10, 2007, no pet.) (mem. op.) (“Malice is defined as ‘ill will or evil motive, or

such gross indifference for the rights of others as to amount to a knowing, unreasonable,

wanton, and willful act.”); Marin Real Est. Partners, L.P. v. Vogt, 373 S.W.3d 57, 91 (Tex.

App. 2011, no pet.) (“A person acts with malice in a malicious prosecution case when he acts

. . . in reckless disregard of the rights of another and with indifference as to whether the other

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person is injured so as to amount to wanton and willful action knowingly and unreasonably

done.”).

Thus Texas courts generally regard “wanton, willful behavior” as simply a level of

culpability that exceeds ordinary negligence, and, if proved, can entitle the plaintiff to an

award of exemplary damages. In this way, it is meaningfully similar to other types of

heightened culpability, such as gross negligence and malice. And while Fuller alleges

“willful, wanton behavior” in two counts (counts IV and VI3

) of his amended complaint,

“[p]laintiffs need not expressly plead a separate cause of action sounding in gross negligence

to pursue exemplary damages.” Adams v. Medtronic, Inc., 2022 WL 1024803, at *9 (E.D.

Tex. Mar. 3, 2022). Indeed, “[i]n Texas, gross negligence is not a separate cause of action

apart from negligence.” Rodgers v. City of Lancaster Police, 2017 WL 457084, at *17 (N.D.

Tex. Jan. 6, 2017) (Ramirez, J.) (internal quotation marks omitted). “Rather, the degree of

negligence characterized as gross negligence is relevant only to a recovery of exemplary

damages.” RLI Ins. Co. v. Union Pac. R.R. Co., 463 F.Supp.2d 646, 649-50 (S.D. Tex.

2006).

Here, Fuller pleads two counts alleging negligence (counts III and V4

) and two

alleging wanton, willful behavior (counts IV and VI). It is unnecessary, however, to plead

3

Count IV is asserted against CIG, and count VI is pleaded against Car Source and

Sims.

4

Count III is asserted against CIG, and count V is asserted against Car Source and

Sims.

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wanton, willful behavior as a separate claim because such behavior does not constitute an

independent tort; instead, the allegations made in counts IV and VI are “relevant only to a

recovery of exemplary damages.” Id. Accordingly, the court grants CIG’s motion to dismiss

count IV of Fuller’s amended complaint.

V

The court next considers CIG’s motion to dismiss Fuller’s battery claim alleged in

count VIII.

A

“[A] battery is committed when an individual actually sustains a harmful or offensive

contact to his or her person.” City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014)

(discussing the distinction between assault and battery, which are “related, but conceptually

different” torts). Thus in Texas “[t]he elements of battery under common law are (1) a

harmful or offensive contact (2) with a plaintiff’s person.” Jackson v. Tex. S. Univ., 997

F.Supp.2d 613, 632 (S.D. Tex. 2014). But in Texas, “it has long been settled that there can

be a battery without an assault,” meaning “that actual physical contact is not necessary to

constitute a battery.” Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.

1967). 

Although “[r]eliance on the criminal-assault statute has led several Texas Civil courts

to meld common-law concepts of assault and battery under the rubric of assault,” the

Supreme Court of Texas has expressly recognized the two forms of civil battery identified

in the Second Restatement of Torts. City of Watauga, 434 S.W.3d at 589-90. They are akin

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to the first and third definitions of battery provided in Texas’ criminal assault statute, id.,

which states:

[a] person commits an offense if the person: (1) intentionally,

knowingly, or recklessly causes bodily injury to another,

including the person’s spouse; . . . or (3) intentionally or

knowingly causes physical contact with another when the person

knows or should reasonably believe that the other will regard the

contact as offensive or provocative.

 

Tex. Pen. Code Ann. § 2201(a) (West 2021).

Battery is therefore an intentional tort, but “specific intent to injure is not an essential

element of a battery.” City of Watauga, 434 S.W.3d at 592. “That the defendant intends

bodily contact that is offensive is enough.” Id. at 593 (internal quotation marks omitted). 

Thus accidental injuries can be the ultimate result of a battery. Id. “Although . . . intent may

be pleaded generally, legal conclusions, elements of a cause of action and bare assertions

devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b)(6)

purposes.” Zytax, Inc. v. Green Plains Renewable Energy, Inc., 2010 WL 2219179, at *6

(S.D. Tex. May 28, 2010) (Rosenthal, J.) (internal quotation marks omitted). 

Additionally, “an employer may be vicariously liable for an intentional tort when the

act, although not specifically authorized by the employer, is closely connected with the

employee’s authorized duties, that is, if the intentional tort is committed in the

accomplishment of a duty entrusted to the employee.” G.T. Mgmt., Inc. v. Gonzalez, 106

S.W.3d 880, 884 (Tex. App. 2003, no pet.). But an employer is liable for the actions of an

independent contractor only “if the employer controls the details or methods of the

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independent contractor’s work to such an extent that the contractor cannot perform the work

as it chooses.” Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 792 (Tex. 2006). 

B

Fuller’s amended complaint alleges a plausible battery claim. He asserts that Sims,

while acting on behalf of his principal, caused Fuller’s pickup truck to move suddenly and

violently, and that this movement caused abrasive contact between Fuller and parts of the

truck, which Fuller occupied at the time. Fuller alleges that Sims intended to move the truck

in this manner. It is irrelevant that Sims did not intend to injure Fuller. See City of Watauga,

434 S.W.3d at 592. And because Fuller has adequately pleaded an agency relationship

among the three defendants, he has plausibly pleaded a battery claim against CIG. CIG’s

motion to dismiss Fuller’s battery claim is therefore denied. 

VI

Finally, the court considers CIG’s motion to dismiss Fuller’s IIED claim. 

A

Texas courts have “adopted the Restatement’s formulation of intentional infliction of

emotional distress.” Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (citing Twyman

v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993)). “[T]o recover damages for intentional

infliction of emotional distress, a plaintiff must establish that (1) the defendant acted

intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the

defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress

suffered by the plaintiff was severe.” Id. (internal quotation marks omitted) (quoting

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Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)). Conduct is

extreme and outrageous if it goes “beyond all possible bounds of decency” and is “regarded

as atrocious, and utterly intolerable in a civilized community.” Twyman, 855 S.W.2d at 621

(quoting Restatement (Second) of Torts § 46 cmt. d (Am. Law Inst. 1965)). “Whether a

defendant’s conduct is extreme and outrageous is a question of law.” Williams v. Northrop

Grumman Vought, 68 S.W.3d 102, 113 (Tex. App. 2001, no pet.). 

IIED is “first and foremost, a ‘gap-filler’ tort, judicially created for the limited purpose

of allowing recovery in those rare instances in which a defendant intentionally inflicts severe

emotional distress in a manner so unusual that the victim has no other recognized theory of

redress.” Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004) (quoting

Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)). Thus “[w]here

the gravamen of the plaintiff’s complaint is really another tort, intentional infliction of

emotional distress should not be available.” Id. (collecting cases, including those involving

claims of negligence, gross negligence, and assault and battery). Ultimately, “[p]roperly

cabined, the tort [of IIED] simply has no application when the actor intends to invade some

other legally protected interest,” whether it be one protected by the law of torts or by statute. 

Id. (internal quotation marks omitted). “Even if other remedies do not explicitly preempt the

tort, their availability leaves no gap to fill.” Creditwatch, Inc. v. Jackson, 157 S.W.3d 814,

816 (Tex. 2005). 

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B

Fuller has asserted several causes of action in addition to his IIED claim. The conduct

that Fuller alleges constitutes IIED is identical to that which purportedly constitutes negligent

hiring, retention and supervision, battery, and violations of various statutes. The “gravamen”

of Fuller’s complaint is another cause of action (or several). Id. Fuller does not allege any

additional or separate acts on the part of any defendant that would give rise to a claim of

IIED independent and apart from his other causes of action. See Tillison v. Trinity Valley

Elec. Co-op., Inc., 2005 WL 292423, at *2 (N.D. Tex. Feb. 7, 2005) (Fitzwater, J.). 

Therefore, the court grants CIG’s motion to dismiss Fuller’s IIED claim. 

VII

CIG moves in the alternative under Rule 12(e) for a more definite statement of

Fuller’s battery claim. CIG maintains that Fuller’s amended complaint “allege[s] facts that

are so vague and ambiguous that CIG cannot assess which specific, recognized civil assault

claim is being asserted against it.” D. Mot. Dis. at 14. CIG posits that it is impossible to

“prepare or file a response to Plaintiff’s ‘Battery’ claim.” Id. 

A

“A motion for a more definite statement under Rule 12(e) is available where the

pleading ‘is so vague or ambiguous that the party cannot reasonably prepare a response.’” 

Conceal City, L.L.C. v. Looper L. Enf’t, LLC, 917 F.Supp.2d 611, 621 (N.D. Tex. 2013)

(Fitzwater, C.J.) (quoting Rule 12(e)). “When a party moves for a more definite statement

under Rule 12(e), the court is granted discretion to determine whether the complaint is so

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vague that the moving party cannot reasonably be required to frame a responsive pleading.” 

Chapman v. Dall. Cnty. Cmty. Coll. Dist., 2006 WL 3442057, at *4 (N.D. Tex. Nov. 29,

2006) (Fish, C.J.) (citing Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 130 (5th Cir.

1959)). “When a defendant is complaining of matters that can be clarified and developed

during discovery, not matters that impede [its] ability to form a responsive pleading, an order

directing the plaintiff to provide a more definite statement is not warranted.” Johnson v. BAE

Sys. Land & Armaments, L.P., 2012 WL 5903780, at *4 (N.D. Tex. Nov. 26, 2012)

(Fitzwater, C.J.) (internal quotation marks omitted). “Motions for a more definite statement

are generally disfavored.” Id. 

B

The court concludes that Fuller’s battery claim is not so vague that CIG cannot

reasonably be required to frame a responsive pleading. Fuller has pleaded a plausible battery

claim against CIG. And he has included sufficient detail in his amended complaint to enable

CIG to respond to that claim, despite the fact that the amended complaint does not expressly

identify the type of battery alleged. For purposes of this claim, there are only two types of

battery that Texas courts recognize: that committed with intent to injure, and that committed

with intent to cause bodily contact that is offensive. See City of Watauga, 434 S.W.3d at

590. Fuller does not plead intent to injure. But he does allege that Sims purposely connected

Fuller’s vehicle to Sims’s tow truck, lifted the vehicle, and “punched the gas” in a way that

caused bodily contact with Fuller. Am. Compl. ¶ 32 [eighth]. Fuller also alleges that this

bodily contact was offensive, although he employs different adjectives to characterize it. To

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the extent that CIG seeks a more definite statement based on Fuller’s failure to identify

specific details of his injuries, evidence of Sims’s intent, and similar issues, that information

can be “clarified and developed during discovery.” Johnson, 2012 WL 5903780, at *4. 

Fuller’s allegations are adequate to permit CIG to respond to the battery claim. Accordingly,

CIG’s alternative motion for a more definite statement is denied. 

* * *

For the reasons stated, CIG’s motion to dismiss is granted in part and denied in part,

and CIG’s alternative motion for a more definite statement is denied. 

SO ORDERED.

January 10, 2023.

_________________________________

SIDNEY A. FITZWATER

SENIOR JUDGE

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