Smith v. GeoVera Advantage Insurance Services, Inc.

Filing 7

ORDER AND REASONS granting 4 Motion to Dismiss for Failure to State a Claim. Signed by Judge Lance M Africk on 5/10/2022. (blg)

Case 2:22-cv-00556-LMA-DMD Document 7 Filed 05/10/22 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES SMITH

CIVIL ACTION

VERSUS

No. 22-556

GEOVERA ADVANTAGE INSURANCE
SERVICES, INC.

SECTION I

ORDER & REASONS
Before the Court is defendant GeoVera Advantage Insurance Services, Inc.’s
(“GeoVera Advantage”) motion1 to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure. The motion was submitted on May 4, 2022, and
plaintiff James Smith (“Smith”) has filed no opposition. Accordingly, the Court deems
the motion to be unopposed. For the reasons that follow, the Court will grant the
motion.
I.
Smith commenced this action on February 1, 2022 in the Orleans Parish Civil
District Court. 2 In his state court petition, Smith alleges that his property sustained
substantial damage during Hurricane Ida. 3 Smith alleges that GeoVera Advantage
provided insurance policy coverage for the property, which covered wind, rain, and
hurricane damage. 4 He alleges, among other things, that GeoVera Advantage has

R. Doc. No. 4.
2 R. Doc. No. 1-2.
3 Id. at 2 ¶ 5.
4 Id. at 2 ¶ 6.
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failed to timely tender the amount due on Smith’s claim, despite having received
satisfactory proof of loss and having had sufficient time to investigate Smith’s loss. 5
In the instant motion, GeoVera Advantage asserts that it was not served with
Smith’s petition while this action was pending in state court, but that it became
aware of the action and removed the action to federal court on March 4, 2022. 6
GeoVera Advantage asserts that it is improperly named as defendant in this action,
because GeoVera Advantage is not an insurance company and did not issue an
insurance policy to Smith. 7
II.
Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of
a complaint when a plaintiff fails to set forth well-pleaded factual allegations that
“raise a right to relief above the speculative level.” Bell Atlantic Corp v. Twombly, 550
U.S. 544, 555 (2007); see Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570).
“In ruling on a Rule 12(b)(6) motion, the court is required to consider facts
alleged in the operative complaint and ‘written instruments’ attached to it.” Allen v.
Hays, 812 F. App’x 185, 189 (5th Cir. 2020) (citing Fed. R. Civ. P. 10(c); Scanlan v.
Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003)). “The court may further consider
Id. at 3 ¶ 13.
6 R. Doc. No. 4-1, at 1.
7 Id. at 1–2.
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documents attached to the Rule 12(b)(6) motion ‘that are referred to in the plaintiff's
complaint and are central to the plaintiff’s claim.’” Id. (quoting Sullivan v. Leor
Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010)) (emphasis in original).
III.
GeoVera Advantage asserts that it is improperly named as defendant in this
action because it did not issue an insurance policy to plaintiff. 8 In support of this
contention, GeoVera Advantage submitted a document entitled “Amended Policy
Declarations” (“the Policy”), which reflects that GeoVera Specialty Insurance
Company (“GeoVera Specialty”) provided the insurance coverage at issue to Smith. 9
GeoVera Advantage asserts that it is an insurance claims processor that merely
processes claims on behalf of GeoVera Specialty, and that GeoVera Advantage and
GeoVera Specialty are separate and distinct entities. 10 Accordingly, GeoVera
Advantage submits that Smith has not asserted a claim against GeoVera Advantage
upon which relief can be granted. 11
Although the Policy was not attached to Smith’s state court petition, the Court
concludes that it is proper to consider the Policy because it is referred to in the
petition and it is central to plaintiff’s claim. Allen, 812 F. App’x at 189. Because the
Policy reflects that GeoVera Advantage did not provide the relevant insurance
coverage, and because plaintiff has not disputed this fact, nor provided any opposition

Id. at 1–2.
9 R. Doc. No. 4-3.
10 R. Doc. No. 4-1, at 2.
11 Id.
8

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to the instant motion, the Court concludes that plaintiff has not stated a claim upon
which relief can be granted. Accordingly,
IT IS ORDERED that the motion to dismiss is GRANTED and that
plaintiff’s claims are DISMISSED..
New Orleans, Louisiana, May 10, 2022.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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