United States District Court, D. Nevada
before the court is GEICO Casualty Company's
(“defendant”) motion to dismiss or, in the
alternative, sever and stay the case. (ECF Nos. 5,
Plaintiff Lucia Nease (“plaintiff”) filed a
single response to both motions (ECF No. 8), to which
defendant replied (ECF No. 9).
instant action arises from plaintiff's car accident with
non-party Robert Sullivan (“Sullivan”). (ECF No.
1-1). Sullivan changed lanes “[s]uddenly and without
warning” and collided with plaintiff's vehicle.
Id. at 4. Plaintiff alleges that she sustained
serious injuries. Id. In total, plaintiff asserts
that her past and future medical expenses as a result of the
accident totals $517, 074. Id. at 6.
had and maintains an insurance policy with defendant; the
policy includes underinsured motorist coverage with a $300,
000 limit. Id. at 4. Sullivan's insurance limit
was $100, 000. Id. As a result of her $517, 074
claim, plaintiff argues Sullivan was an underinsured driver.
Id. Plaintiff filed an underinsured motorist claim,
submitted documentation in support of her damages, and
demanded the policy limit from defendant. Id. at
documentation notwithstanding, defendant retained Dr. David
E. Fish to evaluate plaintiff's claim. Id. at 6.
Based on Dr. Fish's valuation of plaintiff's
claim-$25, 623, including pain and suffering-defendant
declined coverage because it determined that Sullivan was not
underinsured. Id. at 6-7.
result of defendant's denial of coverage, plaintiff filed
the instant action in state court on March 13, 2019.
Id. Defendant removed the case to federal court on
April 15, 2019. (ECF No. 1).
Motion to dismiss
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, 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. at 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.
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
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that 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 it has not shown - that the pleader is
entitled to relief.” Id. at 679. 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.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held,
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 relief, such
that it is not ...