Loyd v. Salazar et al

Filing 13

ORDER granting 12 Defendants Underwriters at Lloyd's London and Lloyd's Illinois, Inc.'s Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 12/1/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GREGORY LOYD,
Plaintiff,
v.
PAUL SALAZAR d/b/a RAS TRUCKING,
et al.,
Defendants.

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Case No. CIV-17-977-D

ORDER
Before the Court is Defendants Underwriters at Lloyd’s London and Lloyd’s
Illinois, Inc.’s Motion to Dismiss [Doc. No. 12], filed pursuant to Fed. R. Civ. P. 12(b)(6)
and, alternatively, Fed. R. Civ. P. 56.1 The movants assert they are not proper parties to
this action because Defendant RAS Trucking was not insured by Lloyd’s Illinois, Inc. and
because no direct action against Underwriters of Lloyd’s, London as liability insurance
carrier for RAS Trucking is authorized by the relevant Oklahoma Statutes. Defendants
point out that Plaintiff does not allege RAS Trucking was licensed by the State of
Oklahoma, as required for application of Okla. Stat. tit. 47, § 169 or § 230.30.

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The Motion also cites Fed. R. Civ. P. 12(b)(2) and (4), but this citation is unexplained
except for conclusory statements in the supporting brief that “Lloyd’s, London was misnamed in
the Complaint and in the summons. As a result, service on it should be quashed.” See Defs.’ Mot.
Dismiss [Doc. No. 12] at 14 (citing Fed. R. Civ. P. 1(b)(4) and (5)). This bare assertion,
unsupported by any legal argument or authority, is insufficient to warrant dismissal for insufficient
process or insufficient service of process. No assertion is made under Rule 12(b)(2) that personal
jurisdiction is lacking. Thus, the Court considers only the Rule 12(b)(6) motion.

Plaintiff has filed no timely response to the Motion. Thus, the Court in the exercise
of discretion under LCvR7.1(g) deems the Motion confessed. Further, for the reasons
stated in the Motion, the Court finds that the Complaint fails to state a claim upon which
relief can be granted against Defendants Underwriters of Lloyd’s London and Lloyd’s
Illinois, Inc. The Motion need not be treated as for summary judgment under Rule 56
because the only extra-pleading material on which the movants rely is a copy of the
insurance policy issued to RAS Trucking, which is central to the Complaint against these
defendants. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010); Jacobsen v.

Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); GFF Corp. v. Associated
Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997)
IT IS THEREFORE ORDERED that Defendants Underwriters at Lloyd’s London
and Lloyd’s Illinois, Inc.’s Motion to Dismiss [Doc. No. 12] is GRANTED. The action
against these defendants is dismissed, and the case shall proceed only against Defendants
Raul Salazar d/b/a RAS Trucking and Robiet Leon Carrazana.
IT IS SO ORDERED this 1st day of December, 2017.

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