United States District Court, D. Nevada
BOARD OF TRUSTEES OF THE SOUTHERN NEVADA JOINT MANAGEMENT AND CULINARY AND BARTENDERS TRAINING FUND, Plaintiff(s),
CHRISTOPHER FAVA, et al., Defendant(s).
before the court is defendant Federal Insurance Company's
(“Federal”) motion to dismiss. (ECF No. 29).
Plaintiff Culinary Academy of Las Vegas (“CALV”)
filed a response (ECF No. 42), to which Federal replied (ECF
case involves an insurance coverage dispute related to a
claim involving two former CALV employees' alleged
breaches of their fiduciary duty.
January of 2012, CALV hired Christopher Fava as vice
president of food and beverage and chief operating officer,
and later as its chief executive officer. (ECF No. 1). CALV
is a Nevada nonprofit employee benefit trust fund and is a
provider of training for entry-level and incumbent workers in
the Las Vegas hospitality industry. Id. Fava's
position involved overseeing and managing CALV's assets
and expenditures. Id.
April of 2015, Jaime Monardes joined CALV as vice president
of finance and accounting. Id. Monardes was
responsible for oversight of program operations, including
the expenditure and use of CALV's assets. Id.
January 19, 2016, Fava and Monardes entered into an allegedly
impermissible transaction with the Eclipse Theater LLC
(“Eclipse Theater”). Id.
maintained a policy of fiduciary liability insurance
(“the policy”) with Federal. Id. Fava
and Monardes were insureds under the policy because of their
employment at CALV and their actions as functional
fiduciaries of CALV. Id.
December 19, 2016, CALV notified Federal of potential
prohibited transactions incurred by Fava and Monardes and
requested a coverage determination. Id. On December
21, 2016, Federal told CALV it would conduct an investigation
and evaluation for possible coverage. Id. During
phone calls between CALV and Federal, Federal indicated it
did not believe CALV could make a claim against Fava and
Monardes because all parties were insured under the policy.
22, 2017, CALV filed a formal claim on the Federal policy,
including details of its claims against Fava and Monardes.
Id. On July 12, 2017, Federal responded to CALV and
stated that no claim had been made because no third party
asserted liability. Id.
August 4, 2017, Federal wrote to CALV and stated that it had
not received CALV's claim against Fava and Monardes.
Id. On August 14, 2017, CALV sent Federal a copy of
its latest claims against Fava and Monardes. Id.
August 16, 2017, Federal wrote to CALV and said it would wait
for Fava and Monardes to ask Federal for coverage.
Id. On August 22, 2017, CALV replied to Federal and
pointed out that the policy did not require that Fava and
Monardes invoke coverage. Id.
August 28, 2017, CALV wrote to Federal demanding payment
under the policy and noting that Federal had not articulated
any basis for denying its claim. Id. On September 1,
2017, Federal refused to discuss the matter further with
January 9, 2018, CALV filed the underlying complaint
asserting fourteen claims for relief against several
individual and entity defendants. Id. In the instant
motion, Federal moves to dismiss the two state law claims
CALV asserts against it. (ECF No. 29).
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).
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).
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.
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.
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 quotation marks
omitted). When the allegations in a complaint have not
crossed the line from ...