Conservflag Company, LLC v. Twin City Fire Insurance Company et al

Filing 23

MEMORANDUM AND ORDER that defendant Allcat Claims Service, LLC's Motion to Dismiss (Filing No. 19 ) is granted. Allcat is dismissed from this case with prejudice. Ordered by Chief Judge Robert F. Rossiter, Jr. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CONSERV FLAG COMPANY, LLC,
7:24CV5004

Plaintiff,
v.
TWIN CITY FIRE INSURANCE
COMPANY, HARTFORD FINANCIAL
SERVICES GROUP, INC., and ALLCAT
CLAIMS SERVICE, LLC,

MEMORANDUM
AND ORDER

Defendants.
In this diversity case, see 28 U.S.C. § 1332(a)(1), plaintiff Conserv Flag Company,
LLC (“Conserv Flag”), seeks to recover for storm damage to two buildings in Sydney,
Nebraska, under an insurance policy issued by defendants Twin City Fire Insurance
Company and Hartford Financial Services Group, Inc. (collectively, the “insurers”) (Filing
No. 1-1). According to Conserv Flag, the insurers breached their “contractual obligation
to pay the full amount of the losses, including the cost to repair, restore, or replace the
damages, less the applicable deductible.” Conserv Flag alleges defendant Allcat Claims
Service, LLC (“Allcat”), inspected and reinspected the buildings after the storm but says
little more than that about any involvement it has in this case.
Before the Court is Allcat’s Motion to Dismiss (Filing No. 19) for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6). Allcat contends it should be dismissed from this case
with prejudice because Conserv Flag “does not allege any cause of action against” it.
Conserv Flag has not filed any response to Allcat’s motion, and the time do so has expired.
See NECivR 7.1(b)(1)(B)-(C) (giving fourteen days to respond to a motion and explaining
that failing “to file an opposing brief is not considered a confession of a motion but
precludes the opposing party form contesting the moving party’s statement of facts”).

To survive a Rule 12(b)(6) motion, “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). That standard is met “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. A plaintiff need not provide “‘detailed factual allegations’” but must give
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
Conserv Flag’s complaint falls far short of meeting this standard with respect to
Allcat. As Allcat points out, Conserv Flag makes just three brief references to Allcat in its
relatively short complaint. All told, it alleges Allcat is a Texas limited liability company
that does business in Sydney and inspected and reinspected the buildings after the storm.
Conserv Flag neither alleges any contract or other legal relationship with Allcat nor
specifically asserts any claim against it. The Court also notes that Conserv Flag did not
object to the insurers statement in their Notice of Removal (Filing No. 1) that Allcat should
be disregarded for purposes of removal because Allcat “was improperly and fraudulently
joined as a Defendant, and the Petition states no claim against Allcat.”
Having heard no reason to ignore Conserv Flag’s failure to assert a facially plausible
claim for relief against Allcat,
IT IS ORDERED:
1.

Defendant Allcat Claims Service, LLC’s Motion to Dismiss (Filing No. 19)
is granted.

2.

Allcat is dismissed from this case with prejudice.

Dated this 8th day of May 2024.
BY THE COURT:
Robert F. Rossiter, Jr.
Chief United States District Judge
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