United States District Court, W.D. Louisiana, Lake Charles Division
D. CAIN, JR. UNITED STATES DISTRICT JUGDE.
the Court is a "Motion to Dismiss by Nationwide Mutual
Insurance Company" (Doc. #15) wherein defendant,
Nationwide Mutual Insurance Company (improperly named as
"Nationwide Insurance Company" and hereinafter
referred to as "Nationwide") moves under Rules 8
and 12(b)(6) of the Federal Rules of Civil Procedure to
dismiss all of Plaintiff s claims against Nationwide. The
time for filing an opposition has lapsed and Plaintiff has
not opposed the motion. For the reasons that follow, the
motion will be granted.
filed its Petition for Damages in the 14th
Judicial District Court which was later removed to this
Court. Plaintiff named three (3) defendants, Nationwide,
Scottsdale Insurance Company and Louisiana Companies as its
alleged insurers, . Plaintiff asserts that it maintained a
policy of insurance with the named defendants which covered
the business premises and personal property.
about March 29, 2018, an accident occurred whereby two
vehicles collided with the covered premises at 801 E. Prien
Lake Rd. in Lake Charles, Louisiana which caused damage to an
exterior wall of the covered building and left an additional
covered property within the building at risk of
loss. Shortly thereafter, on April 14, 2019
while Plaintiffs claim remained in processing, rain entered
through the damaged exterior of the covered premises, causing
additional covered losses in the interior. Defendants denied
coverage for Plaintiffs alleged covered losses resulting in
the instant lawsuit.
Federal rule of Civil Procedure 8(a)(2), a pleading must
contain a 'short and plain statement of the claim showing
that the pleader is entitled to relief." Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, (2009) quoting
Bell Atlantic Corp. v. Twombly, 550 U.s. 544, 570,
127 S.Ct. 2955 (2007).
Rule of Civil Procedure 12(b)(6) allows dismissal of a
complaint when it fails to state a claim upon which relief
can be granted. The test for determining the sufficiency of a
complaint under Rule 12(b)(6) is that "'a complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.'" Hitt v. City of Pasadena, 561
F.2d 606, 608 (5th Cir. 1977)(per curium) citing Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, (1957)).
within the rigorous standard of the Conley test is
the requirement that the plaintiffs complaint be stated with
enough clarity to enable a court or an opposing party to
determine whether a claim is sufficiently alleged. Elliot
v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). The
plaintiffs complaint is to be construed in a light most
favorable to plaintiff, and the allegations contained therein
are to be taken as true. Oppenheimer v. Prudential
Securities, Inc., 94 F.3d 189, 194 (5th Cir. 1996). In
other words, a motion to dismiss an action for failure to
state a claim "admits the facts alleged in the
complaint, but challenges plaintiffs rights to relief based
upon those facts." Tel-Phonic Servs., Inc. v. TBS
Intl, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992).
order to avoid dismissal for failure to state a claim, a
plaintiff must plead specific facts, not mere conclusory
allegations...." Guidry v. Bank of LaPlace, 954
F.2d 278, 281 (5th Cir. 1992). "Legal conclusions
masquerading as factual conclusions will not suffice to
prevent a motion to dismiss." Blackburn v. City of
Marshall, 42 F.3d 925, 931 (5th Cir. 1995)."[T]he
complaint must contain either direct allegations on every
material point necessary to sustain a recovery ... or contain
allegations from which an inference fairly may be drawn that
evidence on these material points will be introduced at
trial." Campbell v. City of San Antonio, 43
F.3d 973, 975 (5th Cir. 1995).
Rule 8 of the Federal Rules of Civil Procedure, the pleading
standard does not require a complaint to contain
"detailed factual allegations," but it demands
"more than an unadorned, the
Atlantic Corp. v. Twombly, 550 U.s. 544, 555, 127
S.Ct. 1955 (2007). A complaint that offers "labels and
conclusions:" or "a formulaic recitation of the
elements of a cause of action will not do." Id.
Nor does a complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual
enhancement."Jd, at 557, 127 S.Ct. 1955.
survive 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.'Ttf., at
570, 127 S.Ct. 1955.