Mueller v. Property and Casualty Insurance Company of Hartford

Filing 15

ORDER that 5 Motion to Dismiss is GRANTED. FURTHER ORDERED that Plaintiff's third cause of action alleging unjust enrichment is DISMISSED with prejudice pursuant to the stipulation in Plaintiff's Response to Defendant's Motion to Dismiss 9 . FURTHER ORDERED that Plaintiff's fourth cause of action alleging violations of the Nevada Unfair Claims Practices Act is DISMISSED with leave to amend. Plaintiff shall file the amended complaint by May 22, 2013. Failure to file an a mended complaint by that date will result in Plaintiff's fourth cause of action being DISMISSED with prejudice. FURTHER ORDERED that the Motion to Stay 13 filed by Defendant Property and Casualty Insurance Company of Hartford in DENIED as MOOT. Signed by Judge Gloria M. Navarro on 5/7/13. (Copies have been distributed pursuant to the NEF - MMM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 MICHELLE MUELLER, 4 5 6 7 8 9 10 ) ) Plaintiff, ) Case No.: 2:12-cv-01589-GMN-VCF vs. ) ) ORDER PROPERTY AND CASUALTY INSURANCE ) COMPANY OF HARTFORD, a Foreign Corporation; ) DOES 1 through 10; ROE ENTITIES 11 through 20, ) inclusive jointly and severally, ) ) Defendants. ) ) Pending before the Court is the Motion to Dismiss Claims 3-4 of Plaintiff’s Complaint 11 12 (ECF No. 5) filed by Defendant Property and Casualty Insurance Company of Hartford 13 (“Defendant”). Plaintiff Michelle Mueller (“Plaintiff”) filed a Response (ECF No. 9) and 14 Defendant filed a Reply (ECF No. 11). Also before the Court is Defendant’s Motion to Stay 15 Discovery While Defendant’s Motion to Dismiss Claims 3-4 of Plaintiff’s Complaint [ECF No. 16 5] is Pending. (ECF No. 13.) 17 I. 18 BACKGROUND This case arises from Defendant’s alleged refusal to pay benefits under an Uninsured 19 Motorist Insurance Policy (“UIM” Policy) held by Plaintiff. Specifically, Plaintiff’s Complaint 20 states that Plaintiff suffered extensive injuries as a result of two car accidents, one in 2009 and 21 another in 2010. (Compl. ¶¶ 5-9, 17, ECF No. 1-4.) At some point after these accidents, the 22 insurance carriers for the drivers at fault in the accidents paid the respective insurance policy 23 limits to Plaintiff. (Id. ¶¶ 15-16.) Thereafter, Plaintiff submitted a claim with Defendant for 24 payment of her remaining medical expenses related to each of the accidents, up to the policy 25 limit under her UIM Policy. (Id. ¶¶ 18-19.) However, Plaintiff alleges that “Defendant refused Page 1 of 5 1 to make adequate payment to Plaintiff” with regard to each of the accidents. (Id. ¶¶ 20-21.) In response to Defendant’s failure to pay the requested benefits, Plaintiff filed the instant 2 3 action in Nevada state court on July 31, 2012. (See Compl., ECF No. 1-4.) In her Complaint, 4 Plaintiff alleges four causes of action: (1) breach of contract; (2) breach of the implied covenant 5 of good faith and fair dealing; (3) unjust enrichment; and (4) violations of the Nevada Unfair 6 Claims Practices Act under section 686A.310 of the Nevada Revised Statutes. (Id. ¶¶ 32-61.) 7 Subsequently, on September 7, 2012, Defendant removed the action to this Court. (Pet. For 8 Removal, ECF No. 1.) Thereafter, Defendant filed the instant motion requesting that the Court 9 dismiss Plaintiff’s third cause of action for unjust enrichment and her fourth cause of action for 10 violations of the Nevada Unfair Claims Practices Act. (ECF No. 5.) 11 II. 12 LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 13 that fails to state a claim upon which relief can be granted. See North Star Int’l v. Ariz. Corp. 14 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 15 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not 16 give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. 17 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the 18 complaint is sufficient to state a claim, the Court will take all material allegations as true and 19 construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 20 F.2d 896, 898 (9th Cir. 1986). 21 The Court, however, is not required to accept as true allegations that are merely 22 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 23 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 24 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a 25 violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Page 2 of 5 1 Twombly, 550 U.S. at 555) (emphasis added). 2 A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) 3 for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino 4 Police Dept., 530 F.3d 1124, 1129 (9th Cir.2008). Rule 8(a)(2) requires that a plaintiff's 5 complaint contain only “a short and plain statement of the claim showing that the pleader is 6 entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Prolix, confusing complaints” should be dismissed 7 because “they impose unfair burdens on litigants and judges.” McHenry v. Renne, 84 F.3d 8 1172, 1179 (9th Cir.1996). 9 III. DISCUSSION 10 In Plaintiff’s opposition to Defendant’s motion, she expressly stipulates to the dismissal 11 of her third cause of action for unjust enrichment. (ECF No. 9.) Accordingly, in this Order, the 12 Court addresses only Defendant’s request that the Court dismiss Plaintiff’s fourth cause of 13 action. Defendant’s Motion to Dismiss Plaintiff’s Fourth Cause of Action 14 A. 15 Defendant argues that Plaintiff has failed to provide adequate factual allegations to 16 support her cause of action under the Nevada Unfair Claims Practices Act. The Nevada Unfair 17 Claims Practices Act, section 686A.310 of the Nevada Revises Statute, lists sixteen activities 18 which constitute unfair practice in the insurance context. See Nev. Rev. Stat. § 686A.310(1)(a)- 19 (p). Although Plaintiff has stated the specific prohibited activities in which Defendant 20 allegedly engaged, (see Compl. ¶¶50-61), Defendant is correct that Plaintiff’s Complaint fails 21 to state sufficient facts to demonstrate that this claim is plausible, as required by Twombly and 22 Iqbal. See, e.g., GCI Nutrients (USA), Inc. v. Hartford Cas. Ins. Co., 2:11-cv-00639-JCM- 23 GWF, 2011 WL 2532401, at *2 (D. Nev. June 24, 2011) (concluding that the complaint 24 survived a motion to dismiss because it provided specific allegations of the plaintiff’s 25 interactions with the defendant insurance provider that gave rise to the specific violations of Page 3 of 5 1 section 686A.310); Sandoval v. Hartford Underwriters Ins. Co., 2:10-cv-01799-JCM-PAL, at 2 *2, 2011 WL 586414 (D. Nev. Feb. 9, 2011) (same). Accordingly, Plaintiff’s bare, formulaic 3 recitations of the various subsections of section 686A.310 fail to persuade the Court that the 4 Complaint states a plausible violation of the Nevada Unfair Claims Practices Act. See Ashcroft 5 v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Rather, the Complaint 6 demonstrates only a mere possibility that Defendant violated the Nevada Unfair Claims 7 Practices Act. For these reasons, the Court dismisses Plaintiff’s Fourth Cause of Action 8 alleging violations of the Nevada Unfair Claims Practices Act. 9 B. Leave to Amend Whenever the court grants a motion to dismiss, it must then decide whether to grant 10 11 leave to amend. The court should “freely give” leave to amend when there is no “undue delay, 12 bad faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party 13 by virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); 14 Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is 15 clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. 16 Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 17 Here, the Court finds no evidence of undue delay, bad faith, or dilatory motive by 18 Plaintiff. Furthermore, the additional factual support that Plaintiff provided in her opposition to 19 Defendant’s Motion to Dismiss demonstrates that Plaintiff may be able to cure the deficiencies 20 discussed above by amendment. For these reasons, the Court grants Plaintiff leave to amend her Complaint. Plaintiff 21 22 shall file the amended complaint by May 22, 2013. Failure to file an amended complaint by 23 that date will result in dismissal of Plaintiff’s fourth cause of action with prejudice. 24 IV. 25 CONCLUSION IT IS HEREBY ORDERED the Motion to Dismiss (ECF No. 5) filed by Defendant Page 4 of 5 1 2 Property and Casualty Insurance Company of Hartford is GRANTED. IT IS FURTHER ORDERED that Plaintiff’s third cause of action alleging unjust 3 enrichment is DISMISSED with prejudice pursuant to the stipulation in Plaintiff’s Response 4 to Defendant’s Motion to Dismiss (ECF No. 9). 5 IT IS FURTHER ORDERED that Plaintiff’s fourth cause of action alleging violations 6 of the Nevada Unfair Claims Practices Act is DISMISSED with leave to amend. Plaintiff 7 shall file the amended complaint by May 22, 2013. Failure to file an amended complaint by 8 that date will result in Plaintiff’s fourth cause of action being DISMISSED with prejudice. 9 10 11 IT IS FURTHER ORDERED that the Motion to Stay (ECF No. 13) filed by Defendant Property and Casualty Insurance Company of Hartford in DENIED as MOOT. DATED this 7th day of May, 2013. 12 13 14 _______________________________ Gloria M. Navarro United States District Judge 15 16 17 18 19 20 21 22 23 24 25 Page 5 of 5

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