United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is defendant Chris Maxwell's ("Maxwell") motion to dismiss. (Doc. # 38). Plaintiff Roper Dollarhide has responded (doc. # 45), and defendant Maxwell has replied. (Doc. # 48)
Also before the court is plaintiff's motion to remand to state court. (Doc. # 7). Defendants Hartford Financial Services Group, Inc. ("Hartford"), Sentinel Insurance Group, Ltd. ("Sentinel"), and Maxwell filed a response in opposition. (Doc. # 22). Plaintiff filed a reply. (Doc. # 28).
The instant dispute arises out of a personal automobile insurance policy. (Doc. # 1 at 2). On June 21, 2010, plaintiff was involved in an automobile accident. (Doc. # 1 at 2). Plaintiff asserts that at the time of the accident, he was insured by defendant Hartford. (Doc. # 1 at 2). A disagreement arose between plaintiff and defendants Hartford and Maxwell, an insurance agent employed by Hartford, over plaintiff's entitlement to underinsured motorist benefits. (Doc. # 1 at 2). As a result, plaintiff filed the instant action against Hartford and Maxwell in Nevada state court on September 13, 2013. The case was removed to the United States District Court for the District of Nevada on October 29, 2013.
Plaintiff's complaint asserts claims of: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) violation of Nevada's Unfair Claims Practices Act; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; (6) vicarious liability; (7) breach of fiduciary duty; and (8) negligent hiring, training, and supervision. Plaintiff does not specify which causes of action are brought against which defendants.
II. Legal Standard for Motion to Dismiss
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted). "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citation omitted).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949. Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.
Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged - but not shown - that the pleader is entitled to relief." Id. (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.
A. Motion to Dismiss
Plaintiff's complaint does not specify which causes of action plaintiff is bringing against which defendant. The only causes of action where plaintiff specifically names defendant Maxwell are the fourth and fifth claims for negligent infliction of emotional distress and intentional infliction of emotional distress. However, even if the court were to construe all of plaintiff's claims against defendant Maxwell, defendant's motion to dismiss prevails.
Defendant Maxwell is not a signatory to the insurance contract and thus no action exists against him for breach of the insurance contract. Vargas v. Cal. State Auto. Assn. Inter-Ins. Bureau, 788 F.Supp. 462, 464 (D. Nev. 1992). As this court specified in Vargas, "[i]f [the agent] did something within the scope of his agency that violated the terms of the contract, plaintiff's only ...