Gibson v. Allstate Insurance , 64 F. App'x 378 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RONALD L. GIBSON, d/b/a Gibson 
Insurance Agency, Incorporated,
Plaintiff-Appellant,
v.  No. 02-1969
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CA-02-50)
Submitted: April 21, 2003
Decided: May 15, 2003
Before LUTTIG, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ronald L. Gibson, MURPHY & CHAPMAN, P.A., Charlotte, North
Carolina, for Appellant. Brian D. Edwards, ALSTON & BIRD,
L.L.P., Charlotte, North Carolina; Robert G. Lian, Jr., AKIN, GUMP,
STRAUSS, HAUER & FELD, L.L.P., Washington, D.C., for Appel-
lee.
2 GIBSON v. ALLSTATE INSURANCE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ronald L. Gibson, an independent contractor insurance agent for
Allstate Insurance Company (Allstate), filed this civil complaint
against Allstate in which he alleges common law fraud and unfair and
deceptive trade practices violating North Carolina law.* The district
court granted Allstate’s Motion to Dismiss Complaint Pursuant to
Federal Rules of Civil Procedure 9(b), 12(b)(1), 12(b)(6), and dis-
missed the suit without prejudice. The district court specifically dis-
missed the case pursuant to Rule 12(b)(1) because the complaint was
not ripe for lack of actual injury and the court lacked subject matter
jurisdiction for lack of a justiciable case or controversy, and pursuant
to Rule 12(b)(6) because the complaint was legally insufficient. By
separate order also appealed, the district court denied Gibson’s Fed.
R. Civ. P. 59(e) motion because it did not raise any issue not already
considered by the court in rendering its decision on the underlying
action.
Gibson’s complaint alleges he purchased a "book of business" rep-
resenting the economic interest in the insurance policies previously
sold by the former agent, and began operating the agency as his own.
He asserts that prior to his purchase of this economic interest, Allstate
set a series of sales and other agency growth and loss ratio objectives
as part of a scheme to terminate agency contracts, including his, in an
effort to avoid payment of commissions on previously sold insurance
contracts. Gibson received a letter from Allstate indicating Allstate
might terminate his agency contract if the agency was not on track to
achieve Allstate’s expectations by May 2002. In anticipation of the
termination of his contract with Allstate, Gibson filed this lawsuit.
May 2002 came and went and Allstate did not terminate Gibson’s
contract.
*The case, originally filed in North Carolina state court, was removed
to federal court by Allstate.
GIBSON v. ALLSTATE INSURANCE 3
We review de novo the district court’s dismissals pursuant to Fed.
R. Civ. P. 12(b)(1), 12(b)(6). Evans v. B.F. Perkins Co., 166 F.3d
642, 648 (4th Cir. 1999); Baird ex rel. Baird v. Rose, 192 F.3d 462,
467 (4th Cir. 1999). Our review of the record and the parties’ briefs
reveals that Gibson has not suffered either termination of his contract
with Allstate resulting in economic loss, or the sale of his agency
resulting in actual economic loss which may be legally attributable to
the actions of Allstate. Hence, we find the district court correctly dis-
missed Gibson’s action without prejudice under Rules 12(b)(1),
12(b)(6). Accordingly, we affirm the district court’s dismissal of the
underlying action.
We further affirm the district court’s denial of Gibson’s Rule 59(e)
motion. Collison v. International Chem. Workers Union, 34 F.3d 233,
236 (4th Cir. 1994). Rule 59(e) may not be used to resurrect facts and
legal theories already considered and rejected by the court. Pac. Ins.
Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998);
Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 (5th Cir.
1989). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED