Djuve v. American Modern Home Insurance Company
ORDER granting 7 Motion to Dismiss for Failure to State a Claim; granting 7 Motion to Dismiss for Lack of Jurisdiction. Plaintiff is granted leave to amend her complaint within 14 days of the date of this order. Failure to do so will result in dismissal without prejudice. Signed by Judge Mary Ann Vial Lemmon. (cbn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AMERICAN MODERN HOME
SECTION: "S" (3)
ORDER AND REASONS
IT IS HEREBY ORDERED that American Modern Home Insurance Company's Motion
to Dismiss (Doc. #7) is GRANTED. Plaintiff is GRANTED LEAVE TO AMEND her complaint
within fourteen days of the date of this order. Plaintiff's failure to file an amended complaint curing
the pleading deficiency will result in dismissal without prejudice.
Plaintiff, Kirsten D'Juve, filed this action against defendant, American Modern Home
Insurance Company, alleging that she procured a homeowner's insurance policy from American
Modern covering her home in Ponchatoula, Louisiana, and that American Modern breached that
contract by failing to pay her claim when the home sustained damage as a result of Hurricane Isaac
in August 2012. American Modern filed a motion to dismiss arguing that plaintiff's complaint is
deficient because the insurance policy was actually procured by her mortgagee, and she failed to
allege that she was a third-party beneficiary of that policy.1 Plaintiff admits to the pleading
deficiency and asks for leave to file an amended complaint. Rule 8(a)(2) of the Federal Rules of
Civil Procedure states that pleadings must contain a short and plain statement of the claim showing
that the pleader is entitled to relief, and to comply with Rule 8(a)(2) a plaintiff must “‘give the
defendant fair notice of what the. . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
American Modern also makes arguments regarding plaintiff's standing to pursue a claim under the
lender-placed policy as a third-party beneficiary. These arguments are premature in light of plaintiff's
v. Twombly, 127 S.Ct. 1955 (2007) (quoting Conley v. Gibson, 78 S.Ct. 99, 103 (1957)). Further,
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party may amend its pleading
with leave of court, and that the court should freely give leave when justice so requires. Because
the complaint is admittedly deficient, American Modern's motion to dismiss is GRANTED, and
plaintiff is GRANTED LEAVE TO AMEND her complaint within fourteen days of the date of this
order. However, plaintiff's failure to file an amended complaint curing the pleading deficiency will
result in dismissal without prejudice.
New Orleans, Louisiana, this 11th day of December, 2014.
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE
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