United States District Court, D. Nevada
before the court is defendant Liberty Mutual Fire
Insurance's (“Liberty Mutual”) motion to
dismiss. (ECF No. 5). Plaintiffs Farooq Abdulla (“Mr.
Abdulla”), Nighat Abdulla, and Ethan Volungis filed a
response (ECF No. 12), to which Liberty Mutual replied (ECF
2, 2013, Volungis and Mr. Abdulla were involved in a motor
vehicle accident. (ECF No. 1, Ex. 1). At the time of the
accident, Mr. Abdulla was insured under a personal automobile
insurance policy issued by Liberty Mutual with limits of
$100, 000 per person/$300, 000 per accident (“the
policy”). Id. Volungis sustained serious
bodily injuries as a result of the accident. Id.
February 14, 2014, Volungis's attorney mailed a policy
limit demand for $100, 000 to Liberty Mutual. Id. at
3. The demand was expressly contingent upon Volungis's
attorney receiving Liberty Mutual's acceptance, in
writing, by 5:00 p.m. on March 14, 2014, or the offer would
be withdrawn. Id. at 4. The demand was also
conditioned upon Liberty Mutual providing a copy of the
Abdullas' policy declaration sheet, and a representation
confirming that there was no additional insurance coverage
covering either the owner or the driver of the subject
March 14, 2014, Liberty Mutual mailed a letter to
Volungis's attorney providing a settlement and release
form. Id. Liberty Mutual did not provide
Volungis's attorney with a copy of the Abdullas'
policy declaration sheet or a representation confirming that
there was no additional insurance coverage. Id.
March 26, 2014, Liberty Mutual drafted another letter to
Volungis's attorney confirming its settlement offer of
$100, 000. Id. The letter did not include a copy of
the Abdullas' policy declaration sheet or a
representation confirming that there was no additional
insurance coverage. Id.
20, 2014, Volungis filed his complaint against Mr. Abdulla in
the Eighth Judicial District Court of Clark County, Nevada.
Id. at 5. On July 2, 2014, Liberty Mutual contacted
Volungis's attorney regarding Liberty Mutual's
agreement to settle for the limits of the policy.
Id. Volungis's attorney responded that Volungis
was no longer willing to settle because Liberty Mutual failed
to provide a copy of the Abdullas' policy declaration
sheet or a representation confirming that there was no
additional insurance coverage by the March 14, 2014,
6, 2016, a jury found in favor of Volungis on his personal
injury claims against Mr. Abdulla, awarding Volungis damages
totaling $6, 798, 413.07. Id. at 6. On October 31,
2016, the Abdullas filed for bankruptcy protection.
Id. at 7. Mr. Abdulla subsequently assigned to
Volungis all assignable claims that he has against Liberty
Mutual, up to the total amount of the judgment. Id.
27, 2017, plaintiffs filed a complaint in the Eighth Judicial
District Court of Clark County, Nevada, asserting four claims
for relief. Id. On August 24, 2017, Liberty Mutual
filed a petition for removal to this court. (ECF No. 1). In
the instant motion, Liberty Mutual moves to dismiss
plaintiffs' complaint. (ECF No. 5).
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 ...