Selective Insurance Company of South Carolina v. Sela et al
Filing
32
ORDER granting 13 Motion to Dismiss and denying 22 Motion for Sanctions. See Order for details. (Written Opinion) Signed by Judge Patrick J. Schiltz on March 3, 2017. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SELECTIVE INSURANCE COMPANY
OF SOUTH CAROLINA,
Case No. 16‐CV‐4077 (PJS/SER)
Plaintiff,
v.
ORDER
AMIT SELA, NICOLE SELA, and
NICOLE R. SELA REVOCABLE TRUST,
Defendants.
Kristi K. Brownson and Olivia M. Cooper, BROWNSON & LINNIHAN, PLLP,
for plaintiff.
Christopher H. Yetka, Christopher L. Lynch, and Patricia E. Volpe, BARNES &
THORNBURG LLP, for defendants.
This matter is before the Court on two motions filed by defendants Amit Sela,
Nicole Sela, and Nicole R. Sela Revocable Trust: (1) a motion to dismiss the amended
complaint of plaintiff Selective Insurance Company of South Carolina, and (2) a motion
for sanctions under Fed. R. Civ. P. 11. The Court conducted a hearing on the motions
on March 3, 2017. Based on all of the files, records, and proceedings herein, and for the
reasons explained on the record at the March 3 hearing, IT IS HEREBY ORDERED
THAT:
1.
Defendants’ motion to dismiss [ECF No. 13] is GRANTED.
2.
Count I of the amended complaint is DISMISSED WITHOUT PREJUDICE
because it fails to plausibly plead that plaintiff is entitled to damages for
breach of contract.
3.
Count II of the amended complaint is DISMISSED WITHOUT
PREJUDICE because it fails to plausibly plead that plaintiff is entitled to
damages for fraud.
4.
Count III of the amended complaint is DISMISSED WITHOUT
PREJUDICE as to defendants Nicole Sela and Nicole R. Sela Revocable
Trust because “the facts alleged, under all the circumstances, [do not]
show that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.” Md. Cas. Co. v. Pac. Coal & Oil Co.,
312 U.S. 270, 273 (1941).
5.
Count III of the amended complaint is DISMISSED WITHOUT
PREJUDICE as to defendant Amit Sela because it fails to “state with
particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b).
6.
Plaintiff is GIVEN LEAVE to file a second amended complaint by April 3,
2017. Plaintiff may re‐plead the claim for a declaratory judgment, but not
the claims for breach of contract and fraud.
7.
If plaintiff files a second amended complaint, plaintiff must clearly and
specifically identify each instance in which it alleges that Amit Sela,
willfully and with intent to defraud, concealed or misrepresented a
material fact or circumstance. Plaintiff must identify exactly what Amit
Sela concealed or misrepresented, and plaintiff must identify the exact
written or oral communication in which Amit Sela committed the
concealment or misrepresentation. Each instance of alleged concealment
or misrepresentation must appear in a separately numbered paragraph.1
1
To illustrate:
43. Selective further alleges as follows:
a.
Mr. Sela sought $3,480.00 to replace three patio heaters on page
C0107 of the interim proof of loss dated December 21, 2015. Mr.
Sela did not say (as he said with respect to other items for which he
sought coverage) that these items had been damaged by the 2010
storm but not repaired; therefore, Mr. Sela implicitly asserted that
these items were damaged by (and only by) the 2015 storm.
b.
Mr. Sela’s assertion was false or misleading because the three patio
heaters had been damaged in the 2010 storm and not repaired or
replaced. An inspection of the patio heaters by Collins Forensics
discovered that the bottoms of many of the dents on the heaters
were corroded, indicating that those dents were caused by the 2010
storm and not by the 2015 storm.
44. Selective further alleges as follows:
a.
In a June 10, 2016, conversation with Collins O.Y. Ofori‐Amanfo,
Mr. Sela asserted that the single‐pitched copper roofs below the
(continued...)
8.
Defendants’ motion for sanctions [ECF No. 22] is DENIED.
Dated: March 3, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
1
(...continued)
balcony railings had been replaced after the 2010 storm, and that all
damage to those panels was caused solely by the 2015 storm.
b.
Mr. Sela’s assertion was false because the single‐pitched copper
roofs below the balcony railings had not been replaced after the
2010 storm, and thus much of the damage to those panels had not
been caused by the 2015 storm. An inspection of those panels by
Collins Forensics discovered that the pattern and distribution of
dents on the panels below the balcony railings were identical to the
pattern and distribution of dents on the panels below the stucco
walls, which Mr. Sela admitted had been damaged in the 2010
storm and not repaired or replaced. Moreover, a comparison of the
dents on the panels below the balcony railings with photographs of
the same panels taken after the 2010 storm reveals that the dents
caused by the 2010 storm remain on the panels in the same
locations.
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