United States District Court, D. Nevada
before the court is defendant Geico General Insurance
Company's (“defendant”) motion to dismiss or,
in the alternative, sever/bifurcate and stay plaintiff's
claims for bad faith. (ECF Nos. 4; 5). Plaintiff Heriberto
Plaza, Jr. (“plaintiff”) filed a response and
countermotion for additional time pursuant to Federal Rule of
Civil Procedure 56(d) (ECF Nos. 6; 8), to which defendant
replied (ECF No. 9).
instant action arises from a dispute regarding
plaintiff's claim for underinsured motorists
(“UIM”) benefits. (ECF No. 1-1). Plaintiff
alleges that he was a fault-free passenger when he was
rear-ended by Jeremy Maurello, an underinsured motorist.
Id. Maurello “tendered the global policy
limits of $10, 000, ” and plaintiff filed a UIM claim
with defendant. Id. at 4. Plaintiff included
“a comprehensive medical summary” of his
injuries, which included roughly $38, 822.40 in medical
bills. Id. Defendant offered plaintiff $8, 400,
which plaintiff believes was unreasonable and
“doesn't begin to compensate [p]laintiff for his
medical specials.” Id. at 4-5.
filed the instant action in state court, alleging breach of
contract, violations of Nevada's Unfair Claims Practices
Act (Nev. Rev. Stat. 686A.310), and bad faith. (ECF No. 1-1).
Defendant timely removed the case. (ECF No. 1). Defendant now
moves to dismiss plaintiff's extra-contractual claims for
failure to state a claim or, in the alternative, moves to
stay those claims. (ECF No. 4).
Legal Standard 
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