United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is defendant CSAA General Insurance Company's ("AAA") motion to dismiss. (Doc. #5). Plaintiff Orhan Redzepagic filed a response (doc. #16), to which AAA replied (doc. #18).
This action arises from an automobile accident that occurred on January 9, 2014, which resulted in a total loss of plaintiff's 1999 Lexis LS 400 within the meaning of NRS 487.790. (Doc. #1-1 at 11). Plaintiff was insured under AAA's automobile policy ("the policy"). (Doc. #1-1 at 11). The company that conducted the valuation analysis of plaintiff's vehicle, Mitchell International, calculated a market value of $6, 033.89. (Doc. #1-1 at 31). AAA added $488.75 for tax and $33.00 for title fees, subtracted $500.00 for the deductible, and sent plaintiff an offer of $6, 055.64 to settle his total loss claim, which plaintiff accepted and received. (Doc. #1-1 at 13-14).
Plaintiff alleges that the policy obligated AAA to pay the "actual cash value" of his vehicle. (Doc. #16 at 5). Plaintiff alleges that he was not adequately compensated because AAA made several adjustments to the actual cash value of his vehicle in computing the settlement value. (Doc. #16 at 5). On May 6, 2014, plaintiff filed the instant action in Nevada state court, alleging six claims: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) violation of Nevada's deceptive trade practices act; (4) unfair claims practices; (5) unjust enrichment and constructive trust; and (6) fraudulent concealment. (Doc. #1-1).
On June 11, 2014, AAA advised plaintiff that it had invoked its right to appraisal under the policy. (Doc. #5 at 7). AAA then removed the action to this court on June 12, 2014. (Doc. #1). In the instant motion, AAA seeks dismissal, arguing that plaintiff's claim is contractually barred under the policy's appraisal and "legal action against us" provisions. (Doc. #5 at 8-9).
II. Legal Standard
A court may dismiss a 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, 556 U.S. 662, 678 (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, 556 U.S. 662, 678 (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 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.
Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. 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 678.
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.
The Ninth Circuit addressed post- Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to ...