United States District Court, D. Nevada
before the court is defendant Financial Pacific Insurance
Company's (“defendant”) motion to dismiss or,
in the alternative, sever/bifurcate and stay plaintiff's
claims for bad faith. (ECF No. 6). Plaintiff William Gildas
(“plaintiff”) filed a response (ECF No. 7), to
which defendant replied (ECF No. 9).
instant action arises from a dispute regarding the valuation
of an underinsured motorist claim. On November 24, 2014,
plaintiff was driving a vehicle owned by his employer, Done
Right Plumbing, Inc. (“Done Right”). (ECF No. 1-1
at 3). Done Right had an underinsured and/or uninsured
motorist (“UIM”) policy with defendant.
Id. at 5. Non-party driver Eric Espinoza-Cuellar hit
plaintiff's vehicle and fled the scene. Id. at
sustained “severe injuries and damages, ” which
included “extensive medical special damages.”
Id. at 4. Ezpinoza-Cuellar had an insurance policy
with GEICO Casualty Co. (“Geico”) with a $15, 000
per-person policy limit. Id. at 3. Geico tendered
its $15, 000 policy limit to plaintiff. Id. Due to
the extent of plaintiff's damages, however, the
Geico's $15, 000 policy limit was not enough to
compensate plaintiff for his damages. Id. at 4.
plaintiff notified defendant that he had a claim under his
employer's UIM policy. Id. Defendant
acknowledged the claim, requested additional information, and
ultimately offered plaintiff $25, 000. Id. Plaintiff
declined the $25, 000 as insufficient and requested a
certified copy of the UIM policy. Id. Plaintiff
alleges that defendant's refusal to pay the policy limits
was made in bad faith and “without a reasonable basis
in fact or law.” Id.
then filed the instant action in the Eighth Judicial District
Court, alleging breach of contract, bad faith, unfair claims
practices, and unjust enrichment against
defendant. The complaint was timely removed to this
court. (ECF No. 1). Defendant now moves to dismiss
plaintiff's bad faith claim or, in the alternative,
sever/bifurcate and stay the bad faith claim until
plaintiff's breach of contract claim is resolved. (ECF
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 unfair to require the opposing party to be
subjected to the expense of discovery and continued
Motion to bifurcate
Rule of Civil Procedure 42(b) states, in relevant part, that
“[f]or convenience, to avoid prejudice, or to expedite
and economize, the court may order a separate trial of one or
more separate issues, claims, cross-claims, counterclaims, or
third-party claims.” Fed.R.Civ.P. 42. The decision to
bifurcate is committed to the sound discretion of the trial
court. Hirst v. Gertzen, 676 F.2d 1252, 1261 (9th
Cir .1982). Bifurcation is appropriate when it simplifies the
issues for the jury and avoids the danger of unnecessary jury
confusion. Id. Bifurcation is particularly
appropriate when resolution of a single claim or issue could
be dispositive of the entire case. See O'Malley v.
United States Fidelity and Guaranty Co., 776 F.2d 494,
501 (5th Cir. 1985) (“Since a recovery on the ...