United States District Court, S.D. Mississippi, Eastern Division
STARRETT UNITED STATES DISTRICT JUDGE
cause came before the Court on the Motion to Dismiss
Plaintiffs' Claim of Intentional Infliction of Emotional
Distress Pursuant to Rule 12(b)(6) Fed.R.Civ.P.  filed by
Ryan R. Robison & Co., Inc. (“Robison”) and
James D. Brooks (“Brooks”), and joined by Shelter
Mutual Insurance Company (“Shelter”) .
Plaintiff Adam Doherty responded,  [58, 59] and Defendants
Robison and Brooks replied . Having reviewed the
parties' submissions and the relevant legal authority,
and otherwise being duly advised in the premises, the Court
finds that the motion is not well taken and will be denied
without prejudice to bringing a dispositive motion at the
case arises from a house fire that occurred on September 26,
2017. Plaintiff Doherty owned the home, which was located in
Laurel, Mississippi. Doherty notified Shelter, who had issued
a homeowners' policy on the home, about the fire.
Plaintiff alleges that, throughout the course of the
investigation of the fire, Defendants' actions gave rise
to numerous causes of action for which he now sues. Regarding
such acts/conduct, Plaintiff alleges that on December 17,
2017, Brooks, a/k/a “Michael” took a recorded
statement from Plaintiff Doherty and his then girlfriend and
former Plaintiff Reann Boyles.  at ¶ 6. After he
inspected the home, Brooks, a/k/a “Michael”
claimed that some of the items listed on the original list of
contents for the home were no longer in the home and
“Michael” threatened Doherty and Boyles that if
items were not deleted from the claim, Boyles “would
have her babies [twins] in jail.” Id.
claim that this threat is the action which constitutes the
intentional infliction of emotional distress claim and
because such action occurred more than one year before the
filing of the lawsuit, the claim for intentional infliction
of emotional distress is barred by the statute of
limitations. Plaintiff responds that he has pled
ongoing conduct by Defendants and further investigation has
revealed other facts that fall within the one year.
to the Timing Order on the instant motion , the Court
will construe this Motion to Dismiss as a Motion for Judgment
on the Pleadings under Federal Rule of Civil Procedure 12(c).
“The standard for dismissal under Rule 12(c) is the
same as that for dismissal for failure to state a claim under
Rule 12(b)(6). Edionwe v. Bailey, 860 F.3d 287, 291
(5th Cir. 2017) (quoting Johnson v. Johnson, 385
F.3d 503, 529 (5th Cir. 2004)). This Court cannot look beyond
the factual allegations in the pleadings to determine whether
relief should be granted. See Spivey v.
Robertson 197 F.3d 772, 774 (5th Cir.1999); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir.1996). In assessing
the complaint, a court must accept all well-pleaded facts as
true and liberally construe all factual allegations in the
light most favorable to the plaintiff. Spivey, 197
F.3d at 774; Lowrey v. Tex. A & M Univ. Sys.,
117 F.3d 242, 247 (5th Cir.1997). “Dismissal is
appropriate when the complaint ‘on its face show[s] a
bar to relief.'” Cutrer v. McMillan, 308
Fed.Appx. 819, 820 (5th Cir.2009) (per curiam) (unpublished)
(alteration in original) (quoting Clark v. Amoco Prod.
Co., 794 F.2d 967, 970 (5th Cir.1986)). “A
statute-of-limitations defense may be raised in a motion to
dismiss under Fed.R.Civ.P. 12(b)(6), but the defense is
subject to the traditional rule that the motion cannot be
granted unless ‘it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'” Cross v.
Lucius, 713 F.2d 153, 156 (5th Cir. 1983) (quoting
Abdul-Alim Amin v. Universal Life Insurance Co., 706
F.2d 638, 640 (5th Cir.1983)).
Court finds that it does not appear beyond doubt that the
Plaintiff can prove no set of facts in support of his claim
that would entitle him to relief. The Court is not certain
from the wording of the Amended Complaint when certain
actions took place. While Brooks and Robison contend that all
of the conduct, or the latest of the conduct, occurred on
December 17, 2017, and while Plaintiff does not specifically
argue to the contrary, the Amended Complaint reads only that
a recorded statement took place on that day. The allegations
claim that “threat” occurred after
“Michael” inspected the home, and from
the face of the Amended Complaint, it is not clear on what
day that inspection occurred.  at ¶ 6.
addition, Plaintiff alleges that “Michael” led
Plaintiffs to believe that he determined the presence of an
accelerator in the home and that he informed the state fire
marshal that accelerant had been used to start the fire, and
that even after Plaintiff demanded that the results of the
investigation be shared with law enforcement, Defendants did
nothing. It is unclear from the face of the Complaint when
that demand was made or when Brooks led Plaintiff to believe
that accelerant was used. Plaintiff asserts that all of the
Defendants' conduct together gives rise to the claim.
Indeed, in Count 9 of the Amended Complaint after mentioning
the threat that Ms. Boyles “would have her babies in
jail, ” Plaintiff alleges, “This conduct by
Shelter, through Brooks and/or GIS and Robison in
addition to all other facts alleged in this Complaint,
falls into the category for which they are entitled to
recover . . . .”  at ¶ 25 (emphasis added).
contends in his response that the parties are in the middle
of discovery and that there is other evidence of actions
after the December 2017 date.  at ¶ 1. The Court
will not assess the substantive nature of the supposed
evidence because this is not a motion for summary judgment,
nor will the Court consider the motion as such. The Court
finds that the contours this claim in the Amended Complaint
are not well defined enough to allow the Court to determine
solely from the face of the pleadings that the statute of
limitations applies to the intentional infliction of
emotional distress claim. The better course is to solidify
through discovery precisely what Plaintiff's claim is.
on the foregoing, it is hereby ORDERED that the Motion to
Dismiss Plaintiffs' Claim of Intentional Infliction of
Emotional Distress Pursuant to Rule 12(b)(6) Fed.R.Civ.P.
 is DENIED without prejudice to raising the statute of
limitations defense in an ...