Charbel Elkhoueiry v. Larry N Schroeder

Filing 17

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND by Judge Virginia A. Phillips: For the reasons stated above, the Court GRANTS FARA's Motion WITH leave to amend. (am)

1 2 3 4 5 6 7 8 9 10 11 CHARBEL ELKHOUEIRY, 12 13 14 15 16 17 18 19 20 21 22 The Motion to Dismiss ("Motion") filed by Defendants 23 F.A. Richard & Associates, Inc., and Mandeville Claims 24 (collectively referred to here as "FARA" or "Defendant"1) 25 came before the Court for hearing on October 27, 2008. 26 After reviewing and considering all papers filed in 27 28 F. A. Richard & Associates claims that it was improperly sued as "Mandeville Claims" and refers to both entities collectively as "FARA." (Mot. 1.)
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

) ) Plaintiff, ) ) v. ) ) LARRY N. SCHROEDER; ) SUSAN L. SCHROEDER; ) GAINEY CORPORATION; ) GAINEY TRANSPORTATION ) SERVICE, INC.; NATIONAL ) AMERICAN INSURANCE ) COMPANY; F.A. RICHARD & ) ASSOCIATES; MANDEVILLE ) CLAIMS; DOES 1 TO 10, ) inclusive, ) ) Defendants. ) ________________________ )

Case No. EDCV 08-1067-VAP (OPx) [Motion filed on September 15, 2008] ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND

1 support of the Motion, as well as the arguments advanced 2 by counsel at the hearing,2 the Court GRANTS Defendant's 3 Motion to Dismiss with leave to amend; Plaintiff may file 4 an amended complaint no later than 4:00 p.m. on Friday, 5 October 31, 2008. 6 7 8 A. 9 Facts I. BACKGROUND

Accepting all the facts in the Complaint ("Compl.")

10 of plaintiff Charbel Elkhoueiry ("Plaintiff") as true, 11 Plaintiff was injured in a collision in Ohio by 12 defendants Larry and Susan Schroeder ("the Schroeders") 13 who were driving a "2005 Freight Columbia," a "tractor/ 14 trailer vehicle." (Compl. ¶¶ 1, 5, 8.) Defendants 15 Gainey Corporation and Gainey Transportation Services, 16 Inc. ("the Gainey entities") "were the agents, services 17 [sic], and employees" of the Schroeders. 19 National American Insurance Company. 20 21 Plaintiff also brings a claim against movant F.A. 22 Richard & Associates, Inc., and Mandeville Claims 23 (collectively referred to here as "FARA" or 24 "Defendant"3). 25
2 26 MotioPlaintiff's counsel did not file opposition to the n nor appear at the hearing on the Motion. 27 3 F. A. Richard & Associates claims that it was (continued...) 28

(Compl. ¶ 2.)

18 Plaintiff does not allege the role played by defendant

(Compl. ¶¶ 1, 3.)

Plaintiff sues FARA as

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1 "insurers and/or adjusting companies and indemnitees" 2 although Plaintiff fails to name the insured individuals 3 or entities. 4 5 Plaintiff is a citizen of California; the Schroeders 6 are citizens of Missouri; the Gainey entities are 7 citizens of Michigan; FARA is a citizen of Louisiana; the 8 citizenship of National American Insurance Company is not 9 alleged; the collision occurred in Ohio. 10 5, 8.) 11 12 B. 13 Procedural History Plaintiff filed suit with this Court on August 7, Defendant FARA filed a Motion to Dismiss ("Mot.") Plaintiff filed no opposition to the Motion and (Compl. ¶¶ 1, (Compl. ¶ 3.)

14 2008. 16 2008. 18 19 20

15 pursuant to Fed. R. Civ. P. 12(b)(6) on September 15, 17 did not appear at the October 27, 2008 hearing.4 II. LEGAL STANDARD Under Rule 12(b)(6), a party may bring a motion to As a general matter, the Federal Rules

21 dismiss for failure to state a claim upon which relief 22 can be granted. 23 24 (...continued) improperly sued as "Mandeville Claims" and refers to both 25 entities collectively as "FARA." (Mot. 1.) 26 4 At the hearing, counsel for FARA stated that he spoke with Plaintiff's counsel twice regarding the Motion 27 and that Plaintiff's counsel did not indicate interest in 28 amending her complaint.
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1 require only that a plaintiff provide "'a short and plain 2 statement of the claim' that will give the defendant fair 3 notice of what the plaintiff's claim is and the grounds 4 upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 5 (1957) (quoting Fed. R. Civ. P. 8(a)(2)); Bell Atlantic 6 Corp. v. Twombly, 550 U.S. __, 127 S. Ct. 1955, 1964 7 (2007). In addition, the Court must accept all material See Doe v. 8 allegations in the complaint -- as well as any reasonable 9 inferences to be drawn from them -- as true. 10 United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC 11 Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096 12 (9th Cir. 2005). 13 14 "While a complaint attacked by a Rule 12(b)(6) 15 motion to dismiss does not need detailed factual 16 allegations, a plaintiff's obligation to provide the 17 'grounds' of his 'entitlement to relief' requires more 18 than labels and conclusions, and a formulaic recitation 19 of the elements of a cause of action will not do." 20 Atlantic, 127 S. Ct. at 1964-65 (citations omitted). 21 Rather, the allegations in the complaint "must be enough 22 to raise a right to relief above the speculative level." 23 Id. at 1965. 24 25 This Motion is unopposed. Under Local Rule 7-9, a 26 party must file opposition papers no later than 14 days 27 before the date designated for the hearing of the motion. 28
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Bell

1 Failure to do so, under Local Rule 7-12, may result in a 2 finding that the party has consented to granting the 3 motion. 5 Dismiss. 6 7 8 A. 9 10 Can Be Granted Plaintiff seeks recovery against FARA based on FARA's of unnamed individuals or Plaintiff also alleges that (Compl. ¶ 3.) III. DISCUSSION Plaintiff Fails to State a Claim on Which Relief Despite Plaintiff's failure to file Opposition, 4 the Court considers the merits of Defendant's Motion to

11 status as the "insurer[]" 13 for the same. 15 16

12 entities "and/or adjusting compan[y] and indemnitee[]" (Compl. ¶ 3.) 14 FARA is a "necessary part[y]."

Defendant FARA asserts that Plaintiff's claim should

17 be dismissed (1) because Plaintiff "does not allege any 18 relationship, event, or transaction that would give rise 19 to a claim;" (2) because "[n]othing in the complaint 20 explains why FARA is a necessary party to the lawsuit"; 21 and (3) because direct suit by an injured person against 22 an insurer is improper. 23 24 25 26 28
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(Mot. 3.)

1.

Failure to Allege a Connection Between FARA and the Collision

Defendant's first argument is convincing.

27 Plaintiff's Complaint fails to comply with Fed. R. Civ.

1 P. 8(a)(2) because it fails to allege any connection 2 between FARA and Plaintiff's injury. 3 5, 8); see Fed. R. Civ. P. 8(a)(2). (See Compl. ¶¶ 2-3, The Complaint as

4 written does not clearly state whether Defendant is an 5 insurer, a claims adjustor, or both; the Complaint does 6 not state who or what was insured or which claims were 7 adjusted and how those actions are connected with 8 Plaintiff's injuries. 10 11 12 13 2. Failure to Allege Facts under which FARA would be a Necessary Party Defendant's second argument is also persuasive. As The Complaint as written fails to 9 state a claim on which relief can be granted.

14 the Complaint fails to allege a connection between FARA 15 and the accident, the Complaint also does not explain why 16 FARA has the kind of connection to the collision 17 sufficient to make FARA a necessary party. 18 Civ. P. 19. 19 20 21 22 3. Direct Suit by Injured Person Against Insurer May be Permissible Defendant's third argument, that Plaintiff's suit See Fed. R.

23 against FARA is improper because no judgment has been 24 obtained against an insured, is unpersuasive because it 25 assumes that FARA is the insurer for some entity named in 26 the Complaint or otherwise connected to the collision on 27 28
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1 which Plaintiff brings suit. 3 4

This is not established by

2 the Complaint, as discussed above. As the Complaint in its current form alleges no

5 connection between FARA and the collision, however, the 6 Court GRANTS defendant FARA's Motion. 7 8 B. 9 10 The Court Grants Plaintiff Leave to Amend the Complaint no later than 4:00 Friday, October 31, 2008 "Dismissal without leave to amend is improper

11 unless it is clear that the complaint could not be saved 12 by any amendment." Polich v. Burlington Northern, Inc., Plaintiff has 13 942 F.2d 1467, 1472 (9th Cir. 1991).

14 failed to oppose this Motion, let alone set forth any 15 facts which she could add to state a claim against the 16 moving Defendant. See In re Silicon Graphics Inc. Sec. 17 Litig., 183 F.3d 970, 991 (9th Cir. 1999) (citing In re 18 VeriFone Sec. Litig., 11 F.3d 865, 872 (9th Cir. 1993)) 19 (dismissing without leave to amend when plaintiffs failed 20 to allege additional facts which might cure defects in 21 complaint). Nevertheless, as the Ninth Circuit strongly 22 favors allowing amendment, see Royal Ins. Co. of America 23 v. Southwest Marine, 194 F.3d 1009, 1016 (9th Cir. 1999) 24 (quoting Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 25 1994)), in the interests of justice, the Court will 26 permit Plaintiff a short period of time in which to amend 27 28
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1 her claims against the moving Defendant. 5 3 be dismissed from this action. 4 5 6 7 9 10 Dated: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 October 28, 2008 IV. CONCLUSION

If an Amended

2 Complaint is not timely filed, the moving Defendant will

For the reasons stated above, the Court GRANTS FARA's

8 Motion WITH leave to amend.

VIRGINIA A. PHILLIPS United States District Judge

Providing a short window in which to file an amended Complaint is appropriate because Plaintiff did not: (1) request leave to amend; (2) file any opposition to the Motion; (3) appear at the hearing on the Motion. At the hearing on October 27, 2008, Defendant's counsel represented to the Court that he met and conferred with Plaintiff's counsel twice in an attempt to avoid this Motion. On both occasions, Plaintiff's counsel was uninterested in filing a First Amended Complaint.
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