Saunders v. Allstate Indemnity Company

Filing 12

ORDERED that Defendant's partial motion to dismiss the second, third, and fourth causes of action (ECF No. 7 ) is GRANTED. It is further ordered that Defendant's alternative motion to stay (ECF No. 8 ) is DENIED as moot. Signed by Judge Howard D. McKibben on 6/11/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEPHEN SAUNDERS,

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Plaintiff,
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vs.
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ALLSTATE INDEMNITY,
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Defendant.
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_________________________________ )

3:18-cv-00198-HDM-WGC
ORDER

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Before the Court is the Defendant Allstate Indemnity’s
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(“Defendant”) partial motion to dismiss (ECF No. 7).

Plaintiff

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Stephen Saunders (“Plaintiff”) has not filed a response, and the
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time for doing so has since passed.
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Also before the Court is Defendant’s alternative motion to
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stay claims for bad faith (ECF No. 8).

Plaintiff has not filed a

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response, and the time for doing so has since passed.
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I.

BACKGROUND

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This is a removed case filed on April 4, 2018 in the Second
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Judicial District Court of Nevada for the County of Washoe County.
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(See ECF No. 1).

Plaintiff alleges that he was in an automobile

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accident and incurred medical expenses and other damages in excess

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of $250,000.

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entitled to Underinsured Motorist coverage of $250,000 under the

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policy Defendant issued to the owner of the vehicle Plaintiff was

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driving at the time of the accident.

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he has asked Defendant to pay $250,000 for his claim, but Defendant

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has denied the claim.

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action against Defendant: (1) breach of contract; (2) bad faith;

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(3) breach of Nevada Unfair Claims Settlement Practices Act; and

(ECF No. 1-1 at 3-4).

(Id.)

Plaintiff alleges that he is

(Id.)

Plaintiff alleges that

Plaintiff asserts four causes of

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(4) punitive damages (Id. at 4-6).

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II.

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LEGAL STANDARD
In considering a motion to dismiss for failure to state a

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claim under Fed.R.Civ.P. 12(b)(6), the court must accept as true

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all material allegations in the complaint as well as all reasonable

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inferences that may be drawn from such allegations.

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Stroh, 205 F.3d 1146, 1150 (9th Cir. 2000).

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complaint also must be construed in the light most favorable to the

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nonmoving party.

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Cir. 2000).

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is to test the legal sufficiency of the complaint.

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

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motion only if it is certain that the plaintiff will not be

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entitled to relief under any set of facts that could be proven

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under the allegations of the complaint.

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Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996).

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III. DISCUSSION

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LSO, Ltd. v.

The allegations of the

Shwarz v. United States, 234 F.3d 428, 435 (9th

The purpose of a motion to dismiss under Rule 12(b)(6)
Navarro v.

The court can grant the

Cahill v. Liberty Mut.

Defendant moves to dismiss Plaintiff’s second, third, and
fourth causes of action for failure to state a claim, or in the
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alternative, Defendant requests this Court sever the bad faith

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claims and stay them until the benefits claim is decided.

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Nos. 7, 8).

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(See ECF

Pursuant to Local Rule 7-2(d), “[t]he failure of an opposing

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party to file points and authorities in response to any motion,

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except a motion under Fed.R.Civ.P. 56 or a motion for attorney’s

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fees, constitutes a consent to the granting of the motion.”

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also, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to

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follow a district court’s local rules is a proper ground for

See

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dismissal.”).

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factors for dismissal set forth in Henderson v. Duncan, 779 F.2d

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1421, 1423 (9th Cir. 1986), because this order only dismisses three

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of the four claims.

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Defendant’s motion constitutes consent to granting of the motion.

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IV.

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It is unnecessary for the Court to consider the

Therefore, Plaintiff’s failure to respond to

CONCLUSION
For the reasons stated above, it is hereby ordered that

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Defendant’s partial motion to dismiss the second, third, and fourth

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causes of action (ECF No. 7) is GRANTED.

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It is further ordered that Defendant’s alternative motion to
stay (ECF No. 8) is DENIED as moot.

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IT IS SO ORDERED.

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DATED: This 11th day of June, 2018.

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____________________________
UNITED STATES DISTRICT JUDGE

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