Companion Property and Casualty Group v. Consolidated Agent Partners et al

Filing 42

ORDER Amended Complaint deadline: 3/27/2013. Should plaintiff fail to file amended complaint, pending motions to dismiss shall stand submitted. Please see attached for further details. Signed by Judge Howard D. McKibben on 3/13/13. (Copies have been distributed pursuant to the NEF - JC)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 12 13 14 15 16 17 18 19 20 COMPANION PROPERTY AND CASUALTY GROUP, ) ) ) Plaintiffs, ) ) vs. ) ) CONSOLIDATED AGENCY PARTNERS, dba ) MENICUCCI INSURANCE ASSOCIATES, ) KAREN FAUST, HIGHPOINT RISK ) SERVICES LLC, PINNACLE ) UNDERWRITERS, INC., RISK ) PLACEMENT SERVICES, INC. dba RISK ) PLACEMENT SERVICES, INSURANCE ) BROKERS, JOAN VASCONES, SKY HIGH ) SPORTS, LLC, SKY HIGH SPORTS ) ORANGE COUNTY OPERATIONS, LLC, ) ROLLAND WEDDELL, et al., ) ) Defendants. ) _________________________________ ) 3:12-cv-00595-HDM-VPC ORDER 21 Defendants Risk Placement Services, Gloria Lam, and Joan 22 Vascones (collectively “the RPS defendants”) have filed a motion to 23 dismiss plaintiff’s claims asserted against them in this action. 24 Plaintiff has responded (#17), and the RPS defendants have replied 25 (#26). Defendants Karen Faust and Consolidated Agency Partners 26 (collectively “the CAP defendants”) have filed a motion to dismiss 27 (#15) four of the claims plaintiff has asserted against them: (1) 28 intentional misrepresentation; (2) aiding and abetting; (3) civil 1 1 conspiracy; and (4) concert of action. 2 (#21), and the CAP defendants have replied (#29). 3 plaintiff opposes both motions, it seeks in the alternative leave 4 to amend its complaint to cure any deficiencies. 5 Plaintiff has responded Although In considering a motion to dismiss under Rule 12(b)(6), the 6 court must accept as true all material allegations in the complaint 7 as well as all reasonable inferences that may be drawn from such 8 allegations. 9 2000). LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. The allegations of the complaint also must be construed in 10 the light most favorable to the nonmoving party. 11 States, 234 F.3d 428, 435 (9th Cir. 2000). Shwarz v. United 12 “Under the notice pleading standard of the Federal Rules, 13 plaintiffs are only required to give a ‘short and plain statement’ 14 of their claims in the complaint.” 15 1061, 1071 (9th Cir. 2009) (quoting Diaz v. Int’l Longshore & 16 Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)). 17 While this rule “does not require ‘detailed factual allegations,’ . 18 . . it demands more than an unadorned, the-defendant-unlawfully- 19 harmed-me accusation.” 20 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 21 A pleading is insufficient if it offers only labels and 22 conclusions, a formulaic recitation of the elements of a cause of 23 action, or “naked assertions devoid of further factual 24 enhancement.” 25 complaint “must contain sufficient factual matter . . . to state a 26 claim to relief that is plausible on its face.” 27 facial plausibility when the plaintiff pleads factual content that 28 allows the court to draw the reasonable inference that the Paulsen v. CNF, Inc., 559 F.3d Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) Id. (internal punctuation omitted). 2 Thus, a Id. “A claim has 1 defendant is liable for the misconduct alleged.” 2 plausibility standard demands “more than a sheer possibility that a 3 defendant has acted unlawfully.” Id. The Id. 4 If a plaintiff makes an allegation of fraud or mistake, he 5 “must state with particularity the circumstances constituting fraud 6 or mistake.” 7 ‘time, place, and specific content of the false representations as 8 well as the identities of the parties to the misrepresentations.” 9 Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). A claim of fraud must include “an account of the Rule 9(b) 10 is satisfied if the complaint provides allegations of fraud . . . 11 specific enough to give defendants notice of the particular 12 misconduct which is alleged to constitute the fraud charged so that 13 they can defend against the charge and not just deny that they have 14 done anything wrong.” 15 relaxed “with respect to matters within the opposing party’s 16 knowledge. In such situations, plaintiffs can not be expected to 17 have personal knowledge of the relevant facts.” 18 Milken, 6 F.3d 666, 672 (9th Cir. 1993). 19 knowledge, and other conditions of a person’s mind may be alleged 20 generally.” 21 Id. The pleading requirement is, however, Neubronner v. Thus, “[m]alice, intent, Fed. R. Civ. P. 9(b). With respect to plaintiff’s various claims based in whole or 22 in part on fraudulent acts, the complaint does not contain 23 sufficient factual data to state claims that are plausible on their 24 face as to each of the individual RPS and CAP defendants. 25 Specifically, it does not contain factual allegations as to how any 26 of those individual defendants knew that the allegedly false 27 statements contained in the applications were not truthful or that 28 any of the individual defendants made a fraudulent representation 3 1 that she had an insufficient basis for making.1 2 complaint does not allow a reasonable inference to be drawn that 3 the RPS defendants were involved in the preparation of the 4 applications in any way such that any misrepresentations contained 5 therein could be attributed to them. 6 contains only general and conclusory allegations that all 7 defendants knew the representations were false. 8 defendants together as to their knowledge that the statements were 9 false does not satisfy the heightened pleading standard required by Further, the Rather, the complaint Grouping the 10 Rule 9, nor does it, in this case, satisfy the Twombly and Iqbal 11 plausibility standard. 12 Accordingly, plaintiff shall have up to and including March 13 27, 2013, in which to file an amended complaint to set forth “the 14 who, what, when, where, and how of the misconduct charged” in its 15 claims based on fraud. 16 F.3d 993, 998 (9th Cir. 2010). 17 an amended complaint by March 27, 2013, the defendants’ pending 18 motions to dismiss shall stand submitted. See Ebeid ex rel. U.S. v. Lungwitz, 616 Should the plaintiff fail to file 19 IT IS SO ORDERED. 20 DATED: This 13th day of March, 2013. 21 22 ____________________________ UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 1 The elements of a fraud claim are: (1) a false representation made by the defendant; (2) the defendant’s knowledge or belief that the representation was false (or an insufficient basis for making the representation); (3) the defendant’s intention to induce the plaintiff to act or to refrain from acting in reliance upon the misrepresentation; (4) the plaintiff’s justifiable reliance upon the misrepresentation; and (5) damage to the plaintiff resulting from such reliance. Bulbman, Inc. v. Nev. Bell, 825 P.2d 588, 592 (Nev. 1992). 4

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