Delbert v. Gorby et al
MEMORANDUM OPINION AND ORDER: Granting in part and denying in part 7 Motion to Dismiss; Denying 9 Motion to Remand to State Court; Set/Reset Deadlines as to Plaintiff directed to file a more definite statement as to all remaining claims by 10/12/2011. Signed by Senior Judge Frederick P. Stamp, Jr on 9/28/11. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:11CV83
IVAN F. GORBY, JOHN DOE employees,
representatives and/or agents of
ALLSTATE INSURANCE COMPANY and
ALLSTATE INSURANCE COMPANY,
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND,
GRANTING IN PART AND DENYING IN PART
DEFENDANT ALLSTATE’S MOTION TO DISMISS
AND DIRECTING PLAINTIFF TO FILE
A MORE DEFINITE STATEMENT
The plaintiff, Linda Delbert, filed this civil action in the
Circuit Court of Marshall County, West Virginia.
seeks compensatory and punitive damages from the defendants as a
defendants John Doe employees and representatives of Allstate
Insurance Company (hereinafter “John Doe”) and defendant Allstate
The complaint includes assertions that both the plaintiff and
defendant Ivan F. Gorby (hereinafter “Gorby”) are, and have at all
times relevant to this action been residents of Marshall County,
The complaint also suggests that the John Doe
defendants may be residents of West Virginia, as at least some of
them may be employed at Allstate’s Charleston, West Virginia branch
Defendant Allstate removed the action to this court,
alleging that defendant Gorby was fraudulently joined because a
release was secured from Ms. Delbert settling all possible claims
that she had against him stemming from the accident. The notice of
removal also stated that the citizenship of John Doe defendants
should not be considered for purposes of removal. At this time, no
John Doe defendants have been served, and accordingly, none have
made appearances in this case.
After removing the action, Allstate filed a motion to dismiss
the complaint. Plaintiff failed to respond to Allstate’s motion to
dismiss, but instead filed a motion to remand.
Allstate filed a
Plaintiff Delbert filed no reply to this response.
The motion to remand and the motion to dismiss are pending
before this Court and are ripe for disposition.
the parties’ pleadings and the relevant law, this Court finds that
the plaintiff’s motion to remand must be denied and defendant
Allstate’s motion to dismiss must be granted in part and denied in
On or about May 13, 2009, an automobile driven by defendant
For the purposes of this opinion, this Court adopts, for the
most part, the facts as set forth by the plaintiff in her
intersection of West Virginia Route 2, Lafayette Avenue, and
Twelfth Street in Moundsville, West Virginia.
At the time of the
accident, the plaintiff was the passenger in defendant Gorby’s
automobile and was injured in the collision. The plaintiff alleges
in Count One of her complaint that her injuries are a direct and
proximate result of defendant Gorby’s negligent operation of his
vehicle, and thus he is liable to her under a negligence theory.
provider at the time of the accident.
Following the accident, the
plaintiff filed a claim with Allstate for her injuries.
Allstate informed the plaintiff of her eligibility for medical
coverage under Mr. Gorby’s automobile policy and informed her of
the medical coverage policy limits to which she was entitled.
Allstate paid the plaintiff’s medical bills directly under the
first party medical coverage, up to the policy limit of $2,000.00.
plaintiff with a check for $1,800.00 dated May 19, 2009. Plaintiff
cashed this check on July 10, 2009.
The plaintiff alleges in Counts Three, Five and Six of her
adjusters, managers, and/or representatives of Allstate to handle
Count Two outlines plaintiff’s damages allegedly attributable
to the automobile collision of March 13, 2009.
It does not
introduce any causes of action, and thus is irrelevant for purposes
of this opinion. The complaint does not contain a Count Four.
the plaintiff’s claim regarding the accident.
She further alleges
that defendant Allstate and perhaps John Doe defendants encouraged
the plaintiff to not retain a lawyer and/or showed her empathy
throughout her claims process as part of a designed program
utilized by Allstate and encouraged by Allstate’s consulting firm,
McKinsey and Company.
The plaintiff claims that this designed
program was utilized by defendant Allstate as a regular business
practice in order to settle claims for amounts that are lower than
the highest amount that may be available to the claimant.
plaintiff claims that these practices, as applied to her, make
Allstate and the John Doe defendants liable to her under theories
of fraudulent misrepresentation, unauthorized practice of law,
statutory and common law bad faith, the tort of outrage, equitable
estoppel and unjust enrichment.
Motion to Remand
A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.
28 U.S.C. § 1441.
courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C. § 1331
and (2) those involving citizens of different states where the
amount in controversy exceeds $75,000.00, exclusive of interests
and costs pursuant to 28 U.S.C. § 1332(a).
The party seeking
removal bears the burden of establishing federal jurisdiction. See
Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151
(4th Cir. 1994). Removal jurisdiction is strictly construed due to
“significant federalism concerns,” implicated by abrogating a state
Thus, if federal jurisdiction is doubtful, the
federal court must remand.
However, when a defendant removes a case that, on its face,
does not present complete diversity, courts are permitted to
utilize the doctrine of fraudulent joinder to examine the record in
more depth to determine whether the non-diverse parties are real
parties in interest to the action.
457, 461 (4th Cir. 1999).
Mayes v. Rapoport, 198 F.3d
Under the doctrine of fraudulent
joinder, a defendant may remove a case on the basis of diversity
jurisdiction even if a non-diverse defendant is a party to the case
so long as the removing party can prove that the non-diverse
defendant was fraudulently joined to the action.
joinder “effectively permits a district court to disregard, for
jurisdictional purposes, the citizenship of certain nondiverse
defendants, assume jurisdiction over a case, dismiss the nondiverse
defendants, and thereby retain jurisdiction.”
Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to raise the defense of “failure to state a claim upon
plaintiff’s complaint before filing a responsive pleading.
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept the factual allegations
contained in the complaint as true.
Advanced Health-Care Servs.,
Inc. v. Radford Cmty. Hosp., 910 F.2d 139, 143 (4th Cir. 1990).
Dismissal is appropriate only if “‘it appears to be a certainty
that the plaintiff would be entitled to no relief under any state
of facts which could be proven in support of its claim.’”
143-44 (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
1969)); see also Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d
324, 325 (4th Cir. 1989).
A motion to dismiss for failure to state a claim under Rule
12(b)(6) should be granted only in very limited circumstances, as
the pleading requirements of Federal Rule of Civil Procedure
8(a)(2) only mandate “a short and plain statement of a claim
showing that the pleader is entitled to relief.” Conley v. Gibson,
355 U.S. 41, 47 (1957).
Still, to survive a motion to dismiss, the
complaint must demonstrate the grounds to entitlement to relief
with “more than labels and conclusions . . . factual allegations
must be enough to raise a right to relief above the speculative
Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).
Motion to Remand
In their notice of removal, the defendants argued that this
Court has jurisdiction because defendant Gorby was fraudulently
joined in the action.
To establish fraudulent joinder, “the
removing party must demonstrate either ‘outright fraud in the
plaintiff’s pleading of jurisdictional facts’ or that ‘there is no
possibility that the plaintiff would be able to establish a cause
of action against the in-state defendant in state court.’” Hartley
v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (quoting
Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993))
(emphasis in original).
A claim of fraudulent joinder places a
heavy burden on the defendants.
Marshall, 6 F.3d at 232.
defendant must show that the plaintiff cannot establish a claim
against the nondiverse defendant even after resolving all issues of
fact and law in the plaintiff’s favor. A claim need not ultimately
succeed to defeat removal; only a possibility of right to relief
need be asserted.”
Id. at 232-33 (internal citations omitted).
Further, the burden is on the defendants to establish fraudulent
joinder by clear and convincing evidence. Rinehart v. Consolidated
Coal Co., 660 F. Supp. 1140, 1141.
However, when fraudulent joinder is alleged, a court is
permitted to examine the entire record by any means available in
challenged party, including taking into consideration affidavits
Id., and Boss v. Nissan N. Am., 228 F.
submitted by the parties.
App’x 331, 336 (4th Cir. 2007)(unpublished).
Here, the defendants do not allege outright fraud in the
Instead, the defendants argue that the
plaintiff simply does not assert a claim against Mr. Gorby.
defendants must establish by clear and convincing evidence that,
even resolving all issues of fact and law in the plaintiff’s favor,
the plaintiff has not alleged any possible claim against defendant
The defendants have met this burden.
In support of her motion to remand, the plaintiff argues that
defendant Gorby is not fraudulently joined to this action because
Allstate never secured a release of defendant Gorby’s liability for
the accident due to the fact that no full and final release was
every signed by plaintiff Delbert, and because the $1,800.00 check
that Ms. Delbert cashed was actually to “assist her in paying for
her ongoing medical treatment,” and was not a settlement check.
Additionally, the plaintiff argues that, if a release was secured,
Allstate committed fraud in the fact or exercised undue influence
on the plaintiff in securing such release, and thus the release
should be unenforceable.
In response, the defendants Allstate and Gorby assert that
Allstate has met its burden of proving that defendant Gorby was
fraudulently joined in this action.
The defendants state that all
negligence claims that plaintiff may have had against Mr. Gorby
were fully settled and released under the doctrine of accord and
satisfaction when Ms. Delbert cashed the $1,800.00 check tendered
They also maintain that no fraud or undue influence was
committed that would nullify the release.
The defendants also
procured, the plaintiff must return the settlement funds in order
to properly challenge the settlement. This Court addresses each of
these issues in turn.
Under the common law doctrine of accord and satisfaction, a
debt is satisfied and the debtor released from liability when a
creditor accepts partial or substituted performance of a disputed
claim in the place of the original debt.
See Owen v. Wade, 185 Va.
118 (1946), Charleston Urban Renewal Auth. v. Stanley, 176 W. Va.
591, 593-95 (1985), Painter v. Peavy, 192 W. Va. 189 (1994), and
Richards v. Kees, 212 W. Va. 375 (2002).
After the debtor has
fully performed the substituted performance (the “accord”), a new
contract is formed between the parties, in which the creditor
wholly releases the debtor from the original debt in exchange for
the performed accord.
This new contract in which the debtor is
released is called the satisfaction.
The Supreme Court of Appeals of West Virginia applies a threepronged test for establishing the existence of a valid accord and
The party asserting the defense of accord and
satisfaction must prove that (1) “‘consideration to support an
accord and satisfaction’” was given to the plaintiff by the
defendant, (2) “‘an offer of partial payment in full satisfaction
of a disputed claim’” was made, and (3) that the creditor made
“‘acceptance of the partial payment . . . with knowledge that the
debtor offered it only upon the condition that the creditor accept
the payment in full satisfaction of the disputed claim or not at
Haynes v. DaimlerChrysler Corp., 2011 W. Va. LEXIS 45, 16
(quoting Charleston Urban Renewal Authority, 176 W. Va. 591).
As a threshold matter, it is important to note that, in order
to establish a valid accord and satisfaction, it is not necessary
for the parties to have signed any written or formal full and final
release, as plaintiff contends.
It is sufficient to release a
debtor from liability if the elements of the three-pronged test for
accord and satisfaction can be established by the party invoking
See Haynes, 2011 W. Va. LEXIS 45; Painter, 192 W. Va.
189; and Slack v. United Fire & Casualty Co., 2009 U.S. Dist. LEXIS
74116, 6-11 (E.D. La. 2009).
In the case at hand, the first element of this test requiring
consideration is easily satisfied by the $1,800.00 check tendered
to the plaintiff.
However, the second and third elements require
Element two requires that the party seeking to prove accord
and satisfaction show that it offered partial satisfaction to act
as a substitution for full performance.
The defendants have met
their burden on this element as well.
First, the actual check states, directly under the plaintiff’s
Next, the cover letter that accompanied the check
conspicuously terms the check as, “In payment for Bodily Injury
Liability for Date of Loss 5/12/2009.”
Allstate also submitted an affidavit by Daniel J. Bailey, the
staff claims service adjuster assigned to the plaintiff’s bodily
injury liability claim resulting from the accident.
states that Mr. Bailey explained the offer that he was giving to
the plaintiff was in settlement of her bodily injury claim, and
that the offer was not for medical expenses.
He also states that
he informed Ms. Delbert that the settlement would “close her claim
for bodily injury coverage.”
The plaintiff makes the assertion that the check was for
ongoing medical bills rather than liability.
In support of this
insurance industry to pay undisputed policy proceeds and it is not
unusual for an insurer to authorize payment of medical bills
However, she offers no evidence that this is an accurate statement.
The only citation given to support it, West Virginia Insurance
Regulation § 114-4-6.2, is actually not at all related to the
argument that the plaintiff is attempting to make.
Insurance Regulation § 114-4-6.2 does not discuss third party
coverage payments by insurance companies for “helping with ongoing
medical bills” without releasing liability of an insured. In fact,
the section focuses solely on settlement offers.3
Beyond the lack of support for the plaintiff’s assertion that
checks like this one are often given to claimants without a
release, the actual communication that Allstate had with the
In fact, the language quoted by the plaintiff in her brief in
support of her motion to remand is actually that of West Virginia
Insurance Rule § 114-14-6.4, not § 114-14-6.2, as cited in the
The section that is actually quoted, as opposed to the
section cited, is entitled “Offers of settlement” and discusses the
requirement that insurers settle claims for reasonable amounts,
rather than insisting upon litigating and drawing out claims which
they know to be undisputed as to liability. This is precisely what
Allstate did in this case. The plaintiff has made no accusation
that Allstate made a settlement offer that was “unreasonably low”
or that it refused to make an offer on a case that was undisputed
as to liability. W. Va. Ins. R. § 114-14-6.4(a)-(b).
plaintiff in this case during the course of distributing the
medical benefits coverage to which she was entitled further refutes
Ms. Delbert’s argument that this particular check was not a
It is clear for all of the above described reasons that
Allstate’s tender of the check for $1,800.00 was intended to be an
offer of partial payment to serve as a satisfaction of the full
liability which it may have owed to the plaintiff on Mr. Gorby’s
The defendants have also met their burden of proving the third
and final prong of the test; that the plaintiff accepted the
partial payment with “‘knowledge that [Allstate] offered it only
upon the condition that the creditor accept the payment in full
satisfaction of the disputed claim or not at all.’”
W. Va. LEXIS 45 at 16.
The plaintiff argues against accord and
satisfaction, stating that she believed the $1,800.00 payment to be
for medical bills.
However, based upon the totality of the
evidence presented in the record, this Court finds the plaintiff’s
It is true that the language on the check itself is not clear
enough on its own to support a finding that the plaintiff was aware
that she was accepting a full and final settlement of her claims.
The communications between Ms. Delbert and Allstate regarding
the medical coverage benefits that Ms. Delbert received are fully
examined and outlined in the discussion of whether Ms. Delbert was
aware that the check that she cashed released Mr. Gorby from
further liability for the accident.
See Painter, 192 W. Va. at 194.
However, the language on the cover
letter sent to Ms. Delbert in conjunction with the check does
constituted a release, and this court finds that the entirety of
the correspondence between Ms. Delbert and Allstate makes it clear
that the check constituted a release.
It is clear from the evidence presented by both parties that
defendant Allstate explained to the plaintiff that her medical
bills would be paid up to defendant Gorby’s $2,000.00 medical
policy limit, and would be paid directly as she forwarded the bills
Further, throughout the time that Ms. Delbert was
being treated and until the time that policy limits were exhausted,
she was furnished with payment updates along with the remaining
benefits under the policy until they were exhausted, of which she
was informed at a time before she cashed the $1,800.00 check in
The West Virginia Supreme Court of Appeals considers
evidence of medical bill submission and payment to be quite
significant in an inquiry into an insurance claimant’s awareness of
the character of a settlement check.
In Richards v. Kees, 212 W.
Va. 375, 377 (2002), the Court found that an insurance claimant had
not executed a valid accord and satisfaction because the claimant
was unaware that the check that he cashed was a release.
focused on the factual differences between that case and Peavy,
where it had decided that an accord and satisfaction did exist, and
highlighted that in Kees, unlike in Peavy, there had been no
medical bills submitted and paid for, nor had there been any
discussion about a medical claim relating to the accident.
discussed affidavit of Daniel Bailey, the claims adjuster who
negotiated Ms. Delbert’s liability claim.
In the affidavit, Mr.
Bailey avers that he explained the difference between medical
coverage and bodily injury liability coverage and that Ms. Delbert
informed him that she would not be seeking any further medical
Further, he asserts that he offered her $1,800.00 to
settle her claim, explained that the payment would be in exchange
for full and final settlement of Ms. Delbert’s bodily injury
liability claim, and received an acknowledgment and acceptance from
Finally, he states that he informed the plaintiff
that the acceptance of the check “close[d] her claim against Mr.
This affidavit was submitted in the defendants’ response
to the plaintiff’s motion to remand and has gone unchallenged by
See Boss, 228 F. App’x at 336 (quoting Legg v.
Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005) (“When the Defendants’
affidavits are undisputed by the Plaintiffs, the court cannot
resolve the facts in the Plaintiff’s favor based solely upon
Therefore, all of this evidence, taken as a whole, leads to the
conclusion that an accord and satisfaction existed and that Ms.
Delbert released Mr. Gorby from any liability for the accident.
contract exists between the parties, the Court now turns to the
plaintiff’s argument for rescission on the grounds that the release
constructive fraud in fact.
The defendants argue that the plaintiff cannot maintain such
arguments because she continues to retain the settlement funds that
were tendered to her in exchange for the release of Mr. Gorby.
July 10, 2009, the plaintiff cashed the settlement check tendered
to her by Allstate.
Based upon the evidence before the Court, the
plaintiff continues to retain those funds and has not offered to
It is fairly well established law in West Virginia that, “in
the absence of fraud . . . in the procurement,” an action for
rescission of a settlement cannot succeed unless the party seeking
consideration paid him.’”
Crawford v. Ridgely, 143 W. Va. 210,
217-18 (1957) (quoting 45 Am. Jur., Release § 53).
McCary v. Monongahela Valley Traction Co., 97 W. Va. 306, 308-09
(1924), Janney v. The Virginian Railway Co., 119 W. Va. 249 (1937),
and Adams v. Moore Bus. Forms, Inc., 224 F.3d 324, 331 (4th Cir.
Courts have uniformly found that the requirement of tender in
order to effect a rescission exists when rescission is based upon
allegations of duress and mental incompetency. In Carroll, parents
sought to rescind a settlement that was procured by an insurance
adjuster after the parents learned that the undertaker would not
release their six-year-old daughter’s body for burial until he had
been paid. The court held that, despite the fact that the adjuster
knew of the parents’ inability to claim the body of their daughter
without the insurance proceeds, his behavior could not be attacked
to rescind the settlement unless the parents returned the funds
received through the settlement.
121 W. Va. at 219-22.
factual situation of possible undue influence in this case is not
anywhere near that which existed in Carroll, and thus it seems
clear that this court must find that the plaintiff is unable to
attack the release based upon undue influence because she has
retained the settlement funds.
That being said, tender is arguably not a condition precedent
to allegations of fraud in fact, under the theory that these
discretion of the aggrieved party.
See McCary, 97 W. Va. at 309.
However, the plaintiff has failed to establish any evidence to
support her allegations that Allstate adjusters told her that she
was not settling her case where Allstate has offered unchallenged
testimony of the adjuster who negotiated the settlement averring
that the plaintiff was informed of the exact opposite.
228 F. App’x at 336 (quoting Legg, 428 F.3d at 1323).
This Court concludes that a valid accord and satisfaction
exists releasing defendant Gorby from liability.
Gorby, the only nondiverse party in this action, was fraudulently
joined and the plaintiff’s motion to remand is denied.
Motion to Dismiss
In her complaint, the plaintiff raises a myriad of claims
against Allstate, including fraudulent misrepresentation, breach of
fiduciary duty, unauthorized practice of law, the tort of outrage
and statutory and common law bad faith.
In its motion to dismiss,
demonstrate her right to recovery under any of the claims.
As to the bad faith claims, Allstate maintains that it owed no
duty of good faith to Ms. Delbert because she was not a party to
Additionally, Allstate asserts that statutory third-party bad faith
actions were abolished in West Virginia.
Finally, as to the other
claims against it, Allstate asserts that the plaintiff has failed
to allege facts sufficient to survive a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). While, for the following
reasons, the Court agrees with Allstate with regard to the bad
faith claims in the plaintiff’s complaint, it grants the plaintiff
remaining claims that she has alleged against defendant Allstate.
A duty to act in good faith arises when a special relationship
has been formed between two parties, and is derived in insurance
claims from the contractual relationship that an insurer has with
As such, in West Virginia, a common law duty to act in
good faith is recognized between insurers and insureds.
State Farm Mutual Automobile Ins. Co., 202 W. Va. 430, 434 (1998).
Through this same logic, such a duty does not run under West
Virginia law to third party claimants.
In Elmore, the West
Virginia Supreme Court of Appeals based is rationalization of a
duty of good faith running between insurers and insureds on
previous case law finding that “‘when an insured purchases a
contract of insurance, he buys insurance, not . . . litigation.’”
Id. at 433 (quoting Hayseeds, Inc. v. State Farm Fire & Cas., 177
W. Va. 323 (1986)).
As such, the Court found that “[i]n the
absence of such a relationship, there is simply nothing to support
a common law duty of good faith.”
The facts of Elmore which did not sway the West Virginia
Supreme Court to find a duty of good faith to third parties are
In that case, a third party claimant, whose
pregnant wife and unborn child had been killed in a car accident
caused by State Farm’s insured, was told not to retain a lawyer in
the settlement process and was also told that the liability policy
limits had been exhausted through the settlement when nearly
$50,000.00 actually remained.
As this case alleges similar, if
situation much less tragic than that surrounding Elmore, this Court
is not convinced that the West Virginia Supreme Court of Appeals
would find differently based upon the facts presented here.
such, Allstate cannot be liable to Ms. Delbert under common law bad
faith, and this claim is dismissed under Federal Rule of Civil
A similar finding must result with regard to the plaintiff’s
Practices Act (“UTPA”), the statutory insurance bad faith statute
in West Virginia, had in the past provided a cause of action for
third parties to bring bad faith suits against insurers.
on July 8, 2005, West Virginia Code § 33-11-4A became effective.
This section of the UTPA was adopted to eliminate a private cause
of action by third parties for bad faith or unfair settlement of a
The clear and plain language of the section leaves no room
for interpretation as to whether the plaintiff may recover on her
statutory bad faith claim:
(a) A third-party claimant may not bring a private cause
of action or any other action against any person for an
unfair claims settlement practice.
claimant’s sole remedy against a person for an unfair
claims settlement practice or the bad faith settlement of
a claim is the filing of an administrative complaint with
the Commissioner . . .
W. Va. Code § 33-11-4A (emphasis added).
Accordingly, no statutory bad faith claim exists as to this
plaintiff under West Virginia law, and this claim must be dismissed
under Federal Rule of Civil Procedure 12(b)(6).
As to all claims other than the plaintiff’s bad faith claims,
the Court denies the defendants’ motion to dismiss as the Court
cannot say with confidence that, under the facts alleged, the
plaintiff is not entitled to relief under any of the claims.
However, as the plaintiff’s complaint is exceedingly vague and
fails to state facts that on their face, entitle her to relief with
sufficient specificity as to allow defendant Allstate to reasonably
answer the complaint, the plaintiff is directed to file a more
statement should clearly delineate each legal claim that Ms.
Delbert intended to bring against defendant Allstate and it should
describe the claims practices that the defendant utilized in
handling Ms. Delbert’s claim specifically that create her causes of
action, as well as how and when they were used in her claim.
Allstate and Ms. Delbert that create liability for the claims
raised in the complaint.
For the reasons stated above, the plaintiff’s motion to remand
Defendant Ivan F. Gorby is DISMISSED from this action
Defendant Allstate Insurance Company’s motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is
GRANTED as to the plaintiff’s common law and statutory bad faith
claims and DENIED as to all remaining claims.
The plaintiff is
further DIRECTED to file a more definite statement as to all
remaining claims on or before October 12, 2011.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
September 28, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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