Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Montes v. Bank of America Na

United States District Court, D. Nevada

April 15, 2014

JOSE MONTES, individually; And All Others Similarly Situated, Plaintiffs,
v.
BANK OF AMERICA NA; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA; DOES I through XX, inclusive; ROE CORPORATIONS I through XX, inclusive, Defendants.

ORDER

ROBERT C. JONES, District Judge.

This putative class action arises out of an alleged fraud in the sale of insurance. Defendants have separately moved to dismiss the second amended complaint (ECF Nos. 33 and 34), and Plaintiff has filed a motion to reconsider (ECF No. 43) the Court's order dismissing claims in the first amended complaint (ECF No. 18). For the reasons stated herein the motion to reconsider is denied, and the motions to dismiss are granted. Specifically, the Court dismisses all claims asserted against Bank of America and all of the challenged claims asserted against National Union. Claims two through six are dismissed with prejudice, and claims seven and eight are dismissed with limited leave to amend. Specifically, Plaintiff is granted leave to amend, within fourteen (14) days of the entry of this Order into the electronic docket, to properly state claims, if possible, under 15 U.S.C. § 1693m and NRS 41.600 and a corresponding civil conspiracy claim. Claims under other statutes will not be permitted. The breach of contract claim asserted against National Union remains operative.

I. BACKGROUND

In April 2013, Defendants National Union Fire Insurance Company of Pittsburgh, PA ("National Union") and Bank of America, NA ("Bank of America") filed a petition for removal based on diversity jurisdiction and attached Plaintiff Jose Montes's first amended complaint ("FAC") from the Eighth Judicial District in Clark County, Nevada. (Pet. for Removal, ECF No. 1, at 1-2; FAC, ECF No. 1, at 17-24).

The FAC alleged the following: Bank of America was a bank operating in Nevada, and National Union was an insurer selling insurance products in Nevada. (FAC, ECF No. 1, at 17-18). Each and every Defendant was acting as an "agent" for each and every other Defendant. ( Id. ). Plaintiff was a Bank of America customer. ( Id. ). "Defendants solicited Plaintiff to purchase accident insurance coverage." ( Id. ). "Defendants, using written materials, engaged in a common scheme of uniform sales [, ] advertised and offered accident coverage that would allegedly pay benefits to Plaintiff up to a total of $1, 071, 000.00." ( Id. ). "Plaintiff contracted with Defendants to purchase insurance for coverage benefits up to a total of $1, 071, 000.00, paying monthly premiums for more than four years." ( Id. ). "Defendants, using written materials, engaged in a common scheme of uniform sales, advertised and offered accident coverage that would pay Plaintiff up to $365, 000 for Recovery at Home." ( Id. ). "Plaintiff contracted with Defendants to purchase insurance for accident coverage that would pay Plaintiff up to $365, 000 for Recovery at Home." ( Id. ).

The FAC further alleged that on February 6, 2012, Plaintiff was injured by a motor vehicle and hospitalized for six weeks. ( Id. ). He then recovered at home for forty-six weeks. ( Id. ). During this time, Plaintiff made a claim for benefits under the policy but Defendants "wrongfully denied payment of benefits for the claim." ( Id. at 19).

Plaintiff then initiated this action, originally asserting eight causes of action: In the first cause of action, Plaintiff alleged breach of contract against both Defendants for failing to provide the coverage that he agreed to purchase and failing to pay benefits under the policy as written. ( Id. at 19). In the second cause of action, Plaintiff alleged breach of the implied covenant of good faith and fair dealing against both Defendants for failing to disclose that the policy did not provide the coverage Defendants advertised and contracted to provide and for refusing to provide coverage under the policy for hospitalization for "each day after 1 Day(s) of Medically Necessary Confinement" as written in the policy. ( Id. at 19-20). In the third cause of action, Plaintiff alleged unjust enrichment against Defendants because they accepted, used, and enjoyed the benefit of premiums paid by Plaintiff but did not deliver a policy containing the coverages promised. ( Id. at 20).

In the fourth cause of action, Plaintiff alleged negligence against both Defendants. Specifically, he alleged that Defendants owed him a duty to fully disclose the terms of the insurance policy coverage but failed to do so. ( Id. at 21). In the fifth cause of action, Plaintiff alleged negligent training and support, arguing that Defendants had "trained [their] agents uniformly, using the same written materials, and required the sales agents to use uniform sales material it provided." ( Id. ). Plaintiff further alleged that Defendants negligently trained and supported their sales agents because the agents failed to fully disclose the terms of the insurance policy provisions advertised and promised to Plaintiff. ( Id. ). In the sixth cause of action, Plaintiff alleged concealment, fraud, and misrepresentation. ( Id. at 22). Specifically, Plaintiff alleged that Defendants intentionally and fraudulently concealed that the policy he purchased did not cover him for the amount advertised and that the policy he purchased for the Recovery at Home Benefit did not cover him for that circumstance. ( Id. ). Plaintiff further alleged that Defendants knew that the policies did not cover him. ( Id. ).

In the seventh cause of action, Plaintiff alleged civil conspiracy, arguing that Defendants conspired among themselves to intentionally conceal the fact that Plaintiff was not getting the insurance policy that he paid for. ( Id. at 23). Plaintiff further alleged that Defendants conspired to "prepare uniform written sales materials and required [their] agents to use those uniform written sales materials to sell Plaintiff an insurance policy Defendants knew concealed from Plaintiff that he was not getting the insurance coverage he had contracted and was paying for." ( Id. ). In the eighth cause of action, Plaintiff alleged "unfair business practices, statutory violations" but did not identify any statutes. ( Id. ). Instead, Plaintiff alleged that Defendants acted in violation of "both state and federal unfair business practices statutes" and in violation of "both state and federal insurance, banking and other regulatory statutes." ( Id. ).

On April 26, 2013, Defendants separately moved to dismiss (ECF Nos. 6 and 7). Specifically, Bank of America moved to dismiss all claims asserted against it, (ECF No. 6), and National Union moved to dismiss claims two through eight, to the extent they were asserted against it, (ECF No. 7). On October 30, 2013, this Court granted the motions in their entirety. (Order, ECF No. 18). Specifically, the Court dismissed with prejudice the first two causes of action (breach of contract and breach of the implied covenant of good faith and fair dealing, respectively) to the extent they were asserted against Bank of America, with prejudice. The Court also dismissed the third cause of action (unjust enrichment), as asserted against both Defendants, with prejudice. The Court dismissed each of the remaining causes of action, expect for the unchallenged breach of contract claim asserted against National Union, with leave to amend. ( Id. ). On January 6, 2014, Plaintiff filed his second amended complaint ("SAC"). (ECF No. 24). The pending motions now follow.

II. MOTION TO RECONSIDER (ECF No. 43)

Plaintiff's motion to reconsider fails to satisfy the demanding standard for reconsideration, and it is therefore denied.

A. Legal Standard

A court should be loathe to revisit its own decisions unless extraordinary circumstances show that its prior decision was clearly erroneous or would work a manifest injustice. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). This principle is embodied in the law of the case doctrine, under which "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). Nonetheless, in certain limited circumstances, a court has discretion to reconsider its prior decisions.

While Rule 59(e) and Rule 60(b) permit a district court to reconsider and amend previous orders, this is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12 James Wm. Moore et al., Moore's Federal Practice § 59.30(4) (3d ed. 2000)) (internal quotation marks omitted).

Indeed, a district court should not grant a motion for reconsideration "absent highly unusual circumstances, unless the court (1) is presented with newly discovered evidence, (2) committed clear error, or (3) if there is an intervening change in the controlling law." 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citing Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). A motion for reconsideration "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enter., 229 F.3d at 890. Mere dissatisfaction with the court's order, or belief that the court is wrong in its decision, is not grounds for reconsideration. Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). A motion to reconsider must set forth "some valid reason why the court should reconsider its prior decision" and set "forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision." Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Furthermore, "[a] motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled." Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005).

B. Analysis

Plaintiff seeks relief from the Court's prior order, which, among other things, dismissed the following claims with prejudice: (1) breach of contract (as asserted against Bank of America); (2) breach of the implied covenant of good faith and fair dealing (as asserted against Bank of America); and (3) unjust enrichment. (Order, ECF No. 18). Plaintiff contends that reconsideration is warranted for two reasons, neither of which is persuasive: (1) that "newly discovered" evidence supports the claims dismissed with prejudice; and (2) that "a more careful examination of the law will show that [ sic ] claims dismissed with prejudice are legally sufficient and should be allowed." (Mot. Recons., ECF No. 43, at 8).

As an initial matter, relief from judgment on the basis of newly discovered evidence is warranted only when the moving party shows that the evidence "(1) is truly-newly discovered; (2) could not have been discovered through due diligence; and (3) is of such a material and controlling nature that it demands a probable change in the outcome." Wells Enterprises v. Wells Bloomfield, LLC, No. 3:11-CV-00246-RCJ, 2013 WL 5663182, at *4 (D. Nev. Oct. 15, 2013) (quoting United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1130 n.45 (E.D. Cal. 2001) (internal quotation marks omitted); see also Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir.1987).

Here, although Plaintiff generally alleges that he has provided a more detailed set of facts in support of the dismissed claims, he makes no meaningful attempt to argue that the allegedly newly discovered facts satisfy the demanding standard for reconsideration. Moreover, it appears that Plaintiff has not alleged any new, previously undiscoverable, material facts, but has instead attempted to add detail to the conclusory allegations asserted in the FAC. This is not an adequate basis for reconsideration.

Plaintiff's second basis for reconsideration is also unpersuasive. Indeed, Plaintiff is simply attempting to raise "new" arguments based on old case law that was reasonably available when he opposed Defendants' previous motions to dismiss. This is impermissible. Kona Enter., 229 F.3d at 890. Furthermore, the Court already considered the bulk of Plaintiff's "new" legal theories in its prior order, and it is well settled that a motion for reconsideration that merely rehashes arguments previously raised is appropriately denied. Taylor v. Knapp, 871 F.2d 803, 804 (9th Cir. 1989). The motion for reconsideration is therefore denied.

III. MOTIONS TO DISMISS (ECF Nos. 33 and 34)

A. Legal Standard

When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept as true all factual allegations in the complaint as well as all reasonable inferences that may be drawn from such allegations. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. 2000). Such allegations must be construed in the light most favorable to the nonmoving party. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). In general, the court should look only to the contents of the complaint during its review of a Rule 12(b)(6) motion to dismiss. However, the court may consider documents attached to the complaint or referred to in the complaint whose authenticity no party questions. Id .; see Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).

The analysis and purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (quotations omitted). To avoid a Rule 12(b)(6) dismissal, a complaint does not need detailed factual allegations; rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Clemens v. Daimler Chrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (stating that a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). Even though a complaint does not need "detailed factual allegations" to pass Rule 12(b)(6) muster, the factual allegations "must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.