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Nichols v. Wright National Flood Insurance Co.

United States District Court, W.D. Louisiana, Alexandria Division

January 16, 2019

ERIC NICHOLS, Plaintiff
v.
WRIGHT NATIONAL FLOOD INSURANCE CO., Defendant

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Background

         On 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.” (Doc. 1-1).

         Nichols 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).

         Wright 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).

         Wright 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).[1]

         Nichols 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).

         II. Law and Analysis

         A. Standards governing the 12(b)(6) Motion to Dismiss

         A court 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).

         To 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).

         Although 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 ...


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