Fidelity National Property and Casualty Insurance Company v. Nickerson

Filing 35

ORDER ADOPTING 33 REPORT AND RECOMMENDATION as the opinion of this Court, granting 25 MOTION to Dismiss, and dismissing action without prejudice. Signed by Judge Callie V. S. Granade on 12/6/2012. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
FIDELITY NATIONAL PROPERTY
AND CASUALTY INSURANCE
COMPANY, et al.,
Plaintiffs,
vs.
TONYA NICKERSON,
Defendant.

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CIVIL ACTION NO. 12-0172-CG-N

ORDER
After due and proper consideration of all portions of this file deemed relevant
to the issues raised, and a de novo determination of those portions of the
recommendation to which objection is made1, the Report and Recommendation of
the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated November 19,
2012, is ADOPTED as the opinion of this Court and it is ORDERED that
defendant’s motion to dismiss this declaratory judgment action (doc. 25) be and is
hereby GRANTED and that this action be and is hereby DISMISSED without
prejudice.
DONE and ORDERED this 6th day of December, 2012.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
1

Although the plaintiff’s only objection is to the recommendation to stay rather
than dismiss the case, the only reason given is that “[i]t is possible that the state
court could find that Fidelity was not liable to Nickerson for any of the . . .statecourt claims, without reaching a determination that Fidelity owes no coverage for
damages caused to Nickerson’s home.” (Doc. 34-1 at 3). Plaintiff proffers no
explanation of how such a result could occur. Because one of the state court claims
is a breach of contract claim for non-payment under the policy, this Court finds
that, even if possible, such a result would be highly unlikely.