Canopius US Insurance, Inc. v. Nguyen et al

Filing 120

ORDER granting Third Party Defendant Johns Eastern Company, Inc.'s 107 Motion to Dismiss Nghien and Tri's claims; and granting Third Party Defendant Johns Eastern Company, Inc.'s 109 Motion to Dismiss Ly's claims. Said claims are dismissed with prejudice and Third Party Defendant Johns Eastern Company, Inc. is no longer a party to this action. Signed by District Judge Keith Starrett on January 26, 2016 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CANOPIUS US INSURANCE, INC.
v.

PLAINTIFF
CIVIL ACTION NO. 1:15-CV-87-KS-MTP

LY NGUYEN; NGHIEN THI DANG;
TRI DUC NGUYEN, INDIVIDUALLY
and D/B/A CANA GROCERY & SEAFOOD
LY NGUYEN

DEFENDANTS
THIRD-PARTY PLAINTIFF

v.
DOANG DANG; UYEN T. NGUYEN,
INDIVIDUALLY, and D/B/A CANAL
GROCERY & SEAFOOD, ET AL.
NGHIEN THI DANG AND TRI DUC
NGUYEN, INDIVIDUALLY and D/B/A
CANAL GROCERY & SEAFOOD

THIRD-PARTY DEFENDANTS

THIRD-PARTY PLAINTIFFS

v.
JOHNS EASTERN COMPANY, INC.

THIRD-PARTY DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Third-Party Defendant Johns Eastern Company, Inc’s
(“JEC”) Motion to Dismiss Third-Party Complaint of Nghien Thi Dang and Tri Duc Nguyen for
Failure to State a Claim Pursuant to Rule 12(b)(6) (“Motion to Dismiss Nghien and Tri’s
Claims”) [107] and Motion to Dismiss Ly Nguyen’s Third-Party Claims Pursuant to Rule
12(b)(6) (“Motion to Dismiss Ly’s Claims”) [109]. After considering the submissions of the
parties, the record, and the applicable law, the Court finds that both motions are well taken and
should be granted.
I. BACKGROUND

This action stems from a shooting that occurred on April 19, 2014, at Canal Grocery &
Seafood (“Canal”). During this incident, Defendant/Third-Party Plaintiff Ly Nyugen (“Ly”) was
struck in the arm by a stray bullet.
Canal is owned by Doanh Dang and Uyen T. Nguyen, both of whom are third-party
defendants in this case, and is leased and operated by Nghien Thi Dang (“Nghien”) and Tri Duc
Nguyen (“Tri”). At the time of the shooting, Canal was insured under a commercial general
liability policy issued by Canopius US Insurance, Inc. (“Canopius”). Ly sought coverage for her
alleged injuries and damages under this policy. JEC was Canopius’ third-party administrator.
The current action was commenced by Canopius on March 18, 2015, seeking a
declaratory judgment that Canal’s policy does not cover Ly’s claimed damages and that
Canopius owes no duty to defend or indemnify Nghien and Tri. Subsequently, Nghien and Tri,
jointly, and Ly filed claims against Canopius and its insureds, Doanh Dang and Uyen T. Nguyen.
They later both filed third-party claims against JEC as well.
On December 21, 2015, JEC filed the motions to dismiss [107][108] currently pending
before the Court, pursuant to Federal Rule of Civil Procedure 12(b)(6).
II. DISCUSSION
A.

Standard of Review

To withstand a motion to dismiss under Rule 12(b)(6), “a 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.; see also In re Great Lakes
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Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) (“To be plausible, the complaint’s ‘[f]actual
allegations must be enough to raise a right to relief above the speculative level.’”) (quoting
Twombly, 550 U.S. at 555). A complaint containing mere “labels and conclusions, or a formulaic
recitation of the elements” is insufficient. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th
Cir. 2012) (citation and internal quotation marks omitted). However, “detailed factual allegations”
are not required. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127
S. Ct. 1955). Although courts are to accept all well-pleaded facts as true and view those facts in the
light most favorable to the nonmoving party, courts are not required “to accept as true a legal
conclusion couched as factual allegation.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757,
763 (5th Cir. 2011) (citations omitted).
B.

Motion to Dismiss Nghien and Tri’s Claims [107]

Under Mississippi law, “an insurance adjuster, agent or other similar entity . . . may be held
independently liable for its work on a claim if and only if its acts amount to any one of the following
types of conduct: gross negligence, malice, or reckless disregard for the rights of the insured.”
Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So.2d 777, 784 (Miss. 2004). Parties agree that, at
all relevant times, JEC was acting as an agent of Canopius. As such, JEC can only be liable to
Nghien and Tri if its handling of their claim amounted to “gross negligence, malice, or reckless
disregard” for their rights. See Jeffcoat, 887 So.2d at 784.
Though Nghien and Tri’s Third Party Complaint [76] repeatedly states that JEC acted in
“bad faith” and with “gross negligence” in handling their claim, they plead no factual allegations
to support these conclusions. See Bowlby., 681 F.3d at 219 (holding “labels and conclusions” are
not sufficient to state a claim).

The only factual allegations that are asserted, such as a

recommendation to file suit for a declaratory judgment or a failure to defend Nghien and Tri against
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cross-claims, are actions connected to Canopius’ ultimate denial of the claim, for which JEC cannot
be held liable. See Rogers v. Nationwide Prop. & Cas. Ins. Co., 433 F.Supp.2d 772, 776 (S.D. Miss.
2006) (“Mississippi law is clear: an agent of a disclosed principal is not a party to his principal’s
contract and cannot be liable for its breach.”) (citations omitted). Even if JEC could be liable for
these actions, there is nothing to support that it was negligent in its conduct, let alone that it was
grossly negligent. In fact, there are no specific acts of gross negligence, malice, or reckless
disregard alleged in the Third Party Complaint [76]. It is not enough for Nghien and Tri to state that
JEC acted with gross negligence, but they must also allege facts that would support this claim. They
have failed to do so. Therefore, because Nghien and Tri have failed to plead any factual allegations
in their Third Party Complaint [76] to support their claims against JEC, the Court must find that they
have failed to state a claim upon which relief can be granted.
Nghien and Tri have asked the Court to grant leave to amend under Federal Rule of Civil
Procedure 15(a) in the event the Court finds deficiencies in their pleadings. “Rule 15(a) requires
a trial court to grant leave to amend freely, and the language of this rule evinces a bias in favor of
granting leave to amend.” Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005)
(citation and internal quotations omitted). However, “[i]t is within the district court’s discretion to
deny a motion to amend if it is futile.” Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73
(5th Cir. 2000) (citations omitted). Nghien and Tri have not detailed any specific factual allegations
that they might add to their Third Party Complaint [76] in order to cure its deficiencies, nor do any
of their arguments against dismissal allude to any possible factual allegations which they could add.
The Court therefore finds that allowing them to amend their complaint would be futile and will deny
their request for leave.

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Therefore, for the foregoing reasons, the Court finds that JEC’s Motion to Dismiss Nghien
and Tri’s Claims [107] should be granted.
C.

Motion to Dismiss Ly’s Claims [109]

Ly’s claims against JEC are similar to those of Nghien and Tri’s and fail for similar reasons.
In her complaint, Ly asserts that “JEC had a duty . . . to fully, fairly, adequately, and correctly
investigate and adjust” her claims and contends that JEC “breached these duties” through gross
negligence and bad faith. (Second Amended Third Party Complaint [102] at p. 11.) Ly’s assertions
are legal conclusions with no factual allegations pleaded to support them. Under Twombly and
Iqbal, a plaintiff must plead some “factual content that allows the court to draw the reasonable
inference that the defendant is liable.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly,
550 U.S. at 570, 127 S. Ct. 1955). Ly has failed to do so, and the Court must find that she has failed
to state a claim against JEC upon which relief can be granted.
The Court will also deny leave for Ly to amend her complaint against JEC in order to cure
the deficiencies in her pleadings, as such leave would be futile. See Stripling, 234 F.3d at 872-73.
The only factual assertion Ly makes that could potentially be added to her complaint is JEC’s delay
in forwarding a check for medical payment coverage. This fact, if true, is not sufficient to establish
gross negligence under Mississippi law. See Jeffcoat, 887 So.2d at 784-85 (holding that delaying
the payment of benefits for ten months did not amount to the gross negligence, malice, or reckless
disregard necessary to hold the insurance adjuster liable). Without some indication that there are
factual assertions she could add to her complaint to support her legal conclusions, the Court will
deny Ly’s request for leave to amend.
Therefore, JEC’s Motion to Dismiss Ly’s Claims [109] will be granted.
III. CONCLUSION
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IT IS THEREFORE ORDERED AND ADJUDGED that JEC’s Motion to Dismiss
Nghien and Tri’s Claims [107] is granted. All claims of Nghien and Tri pending against JEC
are dismissed with prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that JEC’s Motion to Dismiss Ly’s
Claims [109] is granted. All claims of Ly pending against JEC are dismissed with prejudice.
SO ORDERED AND ADJUDGED this the 26th day of January, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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