United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a Rule 12(b)(6) Motion to Dismiss, filed by
Defendant Wright National Flood Insurance Co.
(“Wright”). (Doc. 7). Plaintiff Eric Nichols
(“Nichols”) filed a brief (2-page) response.
(Doc. 15). Wright's Motion to Dismiss (Doc. 7) should be
granted because Nichols's state law claims are preempted.
March 7, 2018, Nichols filed this lawsuit in the Ninth
Judicial District Court, Rapides Parish, State of Louisiana.
(Doc. 1-1). Nichols named Wright, his flood insurance
company, as the sole defendant. (Doc. 1-1). Nichols alleges
his home was flooded due to severe weather on April 2, 2017.
(Doc. 1-1). Nichols claims Wright partially paid his claim
for damages from the April 2, 2017 flood. (Doc. 1-1). Nichols
alleges Wright breached its duty to their insured by denying
full payment for his flood claim. (Doc. 1-1). Nichols asserts
negligence and/or strict liability claims against Wright for
failing to fully evaluate the claim and for “[f]ailing
to see what should have been seen.” (Doc. 1-1). Nichols
claims the following damages: “expenses (past, present,
and future), mental anguish aggravation (past, present, and
future), inconvenience, loss of enjoyment of life, property
damage to his home, loss of tranquility, diminished value in
property, contents of his home, and repair costs.”
also claims Wright violated their duty of good faith under
La. R.S. 22:1973. (Doc. 1-1). Nichols seeks penalties under
La. R.S. 22:1973. (Doc. 1-1). Nichols also seeks legal
interest and costs. (Doc. 1-1).
removed based upon this Court's original exclusive
jurisdiction under 42 U.S.C. § 4072, and federal
question jurisdiction under 28 U.S.C. § 1331. (Doc. 1).
Wright asserts it is a Write-Your-Own Program
(“WYO”) insurance carrier participating in the
National Flood Insurance Program (“NFIP”), under
the National Flood Insurance Act of 1968
(“NFIA”), as amended, 42 U.S.C. § 4001,
et seq. (Doc. 1). Wright alleges that Nichols claims
it breached the Standard Flood Insurance Policy
(“SFIP”) it issued to Nichols by failing to pay
the full amount of flood insurance benefits as a result of a
flood on April 2, 2017. (Doc. 1). Wright alleges Nichols
asserts various other damages under state law. (Doc. 1).
now seeks dismissal of all Nichols's claims, except his
claim for breach of the SFIP under Rule 12(b)(6). (Doc. 7).
Specifically, Wright seeks dismissal of Nichols's claims
for negligence, strict liability, violations of La. R.S.
22:1973, penalties, expenses, mental anguish aggravation,
inconvenience, loss of enjoyment of life, property damage,
loss of tranquility, diminished value, contents of his home,
repair costs, litigation costs, general damages, and special
damages. (Doc. 7). Wright alleges Nichols's state law
claims are preempted and barred under federal statutory,
regulatory, and common law. (Doc. 7-1). Wright further
alleges Nichols's claim for interest is barred by the
“no interest rule.” (Doc. 7-1). Wright attaches
its flood declarations page in support of its motion to
dismiss. (Doc. 7-1).
filed a brief opposition. (Doc. 15). Nichols simply seeks to
reserve any and all remaining claims that he would have
available to him under the flood policy and his rights to
proceed forward with the litigation. (Doc. 15). Nichols
further asserts he is not in receipt of the policy. (Doc.
15). Nichols did not otherwise address Wright's
arguments. (Doc. 15).
Law and Analysis
Standards governing the 12(b)(6) Motion to
may grant a motion to dismiss for “failure to state a
claim upon which relief can be granted” under
Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief
when, inter alia, it contains a “short and
plain statement . . . showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2).
withstand a motion to dismiss, “a complaint must
contain sufficient factual matter accepted as true, ”
to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)). A claim is facially plausible when it contains
sufficient factual content for the court “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Plausibility does not
equate to possibility or probability; it lies somewhere in
between. Id. Plausibility simply calls for enough
factual allegations to raise a reasonable expectation that
discovery will reveal evidence to support the elements of the
claim. See Twombly, 550 U.S. at 556. The court must
view all well-pleaded facts in the light most favorable to
the plaintiff. Yumilicious Francise, L.L.C. v.
Barrie, 819 F.3d 170, 174 (5th Cir. 2016).
the court must accept as true all factual allegations set
forth in the complaint, the same presumption does not extend
to legal conclusions. Iqbal, 556 U.S. at 678. A
pleading comprised of labels and conclusions, a formulaic
recitation of the elements of a cause of action, or naked
assertions devoid of further factual enhancement will not
stand. Id. Similarly, where the well-pleaded facts
do not permit the Court to infer more than the mere