Gebrekidan et al v. USAA Insurance Company et al, No. 2:2013cv00508 - Document 21 (W.D. Wash. 2013)
Court Description: ORDER granting defendants 17 Motion to Dismiss for Failure to State a Claim; granting 20 Motion to Dismiss for Failure to State a Claim. The court GRANTS the motion to dismiss with respect to Mr. Robles, USAA, Mr. Southwell, and Kemper. The cou rt also grants Plaintiffs leave to amend within 14 days of the date of this order. If Plaintiffs do not amend their complaint within 14 days, the court will dismiss the complaint with prejudice with respect to the above-listed defendants, by Judge James L. Robart.(MD, mailed copy of order to pro se parties )
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 SEWRAWIT H. GEBREKIDAN, et al., 11 Plaintiffs, CASE NO. C13-0508JLR ORDER GRANTING MOTIONS TO DISMISS 12 v. 13 14 USAA INSURANCE COMPANY, et al., Defendants. 15 16 Before the court are two motions to dismiss brought by Defendants Josue Robles, 17 USAA Casualty Insurance Company (“USAA”), Donald Southwell, and Kemper 18 Corporation (“Kemper”). (USAA Mot. (Dkt. # 17); Kemper Mot. (Dkt. # 20).) 19 Defendants each move to dismiss the complaint under Federal Rule of Civil Procedure 20 12(b)(6) on the grounds that the complaint asserts no causes of action against them and 21 alleges no facts whatsoever that, if proven, would make them liable to the Plaintiffs. 22 (USAA Mot. at 5; Kemper Mot. at 6-7.) The court has examined the complaint in light of ORDER- 1 1 the applicable legal standards and concludes that dismissal under Rule 12(b)(6) is 2 appropriate with respect to Mr. Robles, USAA, Kemper, and Mr. Southwell. 3 Accordingly, the court GRANTS both motions to dismiss with leave to amend within 4 fourteen days of the date of this order. 5 6 I. BACKGROUND On July 15, 2013, Plaintiffs Sewrawit Gebrekidan and Kevin Johnson 7 (collectively, “Plaintiffs”) filed this complaint against Kenneth Anderson, Karen Sharp, 8 and the above-listed defendants. (Compl. (Dkt. # 13).) The complaint is very short. (See 9 id.) It begins by asserting numerous causes of action, 10 11 12 13 14 15 including but not limited to Civil Rights Violations, violations under the Federal Trade Commission Act, Federal Consumer Protection Act, False and Deceptive Practices Act, 42 U.S.C. § 1981, et seq. 15 U.S.C. §§ 2301, 2306, et seq., Breach of Implied-In-Law Covenant of Good Faith and Fair Dealings, Bad Faith Refusal to Pay a Valid Claim on the basis of discrimination on account of national origin language (Tigrinya), Breach of contract with regard to an insurance policy, loss of consortium, intentional infliction of emotional distress, loss wages, medical expenses, property damages, false reporting, breach of fiduciary duty, compensatory damages, consequential damages and special damages in the amount of $100,000,000.00 for the violations, omissions, and intentional acts contained herein below. 16 (Compl. at 2-3 (emphasis in original).) Next, the complaint identifies the defendants, 17 including Mr. Robles, USAA, Mr. Southwell, and Kemper. (See id. at 3-4.) The rest of 18 the complaint describes a series of events in which Defendants Karen Sharp and Kenneth 19 Anderson allegedly caused an automobile collision that damaged Plaintiffs’ car in ways 20 listed at the end of the complaint. (Id. at 4-5.) The complaint makes no further mention 21 22 ORDER- 2 1 (beyond the initial identification) of movants Mr. Robles, USAA, Mr. Southwell, or 2 Kemper. 3 Mr. Robles and USAA moved to dismiss the complaint on August 20, 2013. (See 4 USAA Mot.) Plaintiffs have not responded to the motion (see Dkt.), and the time to 5 respond has now passed (see Local Rules W.D. Wash. LCR 7(d)). Mr. Southwell and 6 Kemper moved to dismiss a week later. (See Kemper Mot.)1 7 II. ANALYSIS 8 A. Legal Standard on a Motion to Dismiss under Rule 12(b)(6) 9 A Rule 12(b)(6) motion challenges the sufficiency of pleadings and asserts that a 10 complaint does not plead a claim upon which relief can be granted. Under the Federal 11 Rules of Civil Procedure, a complaint must contain “a short and plain statement of the 12 claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a)(2). The 13 purpose of this rule is to “‘give the defendant fair notice of what . . . the claim is and the 14 grounds upon which it rests.’” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 15 U.S. 41, 47 (1957)). 16 17 1 The noting date for these two motions has not yet passed. Nevertheless, the court 18 deems it fit to rule on USAA’s motion immediately because Plaintiffs have not submitted a 19 20 21 22 response even after the deadline for doing so has passed. (See Dkt.) The court also deems it fit to rule on Kemper’s motion now in the interest of conserving judicial resources and because Plaintiffs will suffer no prejudice. With respect to resources, the two motions to dismiss are practically mirror images of one another (compare USAA Mot. with Kemper Mot.), and both require only examining the complaint under the Rule 12(b)(6) standard. It is possible that Plaintiffs could allege additional facts in their response, but that would not change what is in the complaint, nor would it alter the court’s ruling. Accordingly, the court can competently rule without hearing from Plaintiffs. With respect to prejudice, Plaintiffs will suffer no prejudice from these early rulings because the court is granting leave to amend. ORDER- 3 1 To analyze a Rule 12(b)(6) motion, courts apply the standards set forth in Ashcroft 2 v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Corp v. Twombly, 550 U.S. 544, 5623 63 (2007). Under the Twombly/Iqbal standard, it is not enough that a claim to relief be 4 merely “possible” or “conceivable.” Instead, it must be “plausible on its face.” Iqbal, 5 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim for relief is plausible on its 6 face when “the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 8 Twombly, 550 U.S. at 556). This standard is “not akin to a ‘probability requirement,’ but 9 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. To 10 cross the threshold from conceivable to plausible, a complaint must contain a sufficient 11 quantum of “factual matter” alleged with a sufficient level of specificity to raise 12 entitlement to relief above the speculative level. Twombly, 550 U.S. at 555. 13 In determining whether to grant a Rule 12(b)(6) motion, the court must accept as 14 true all “well-pleaded factual allegations” in the complaint. Iqbal, 556 U.S. at 679. 15 However, the court is not bound to accept as true labels, conclusions, formulaic 16 recitations of the elements, or legal conclusions couched as factual allegations. Twombly, 17 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). As the Supreme 18 Court said in Iqbal, a complaint must do more than tender “‘naked assertions’ devoid of 19 ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 20 557). 21 22 ORDER- 4 1 B. 2 3 The Complaint Does Not Allege Plausible Claims Against Mr. Robles, USAA, Mr. Southwell, or Kemper Plaintiffs’ complaint does not meet the standard articulated above. Indeed, the complaint does not even “tender naked assertions,” recite labels, conclusions, or elements 4 against the movants. See Twombly, 550 U.S. at 555. Instead, the complaint alleges no 5 connection at all between the movants and the conduct alleged against Mr. Anderson and 6 Ms. Sharp. (See Compl.) The substantive allegations in the complaint relate only to Mr. 7 8 Anderson and Ms. Sharp (see id. at 4-5), and accordingly do not provide a “short and plain statement of the claim showing that” Plaintiffs are entitled to relief from the 9 movants, see Fed. R. Civ. Pro. 8(a)(2). Nor does the complaint give the movants fair 10 notice of the grounds for the claims asserted against them. See Twombly, 550 U.S. at 11 555. Even accepting all of the allegations in the complaint as true, the complaint is not 12 “plausible on its face” because it does not contain factual content that allows the court to 13 draw reasonable inferences that the movants are in any way liable to Plaintiffs. See 14 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). It alleges no facts at all that 15 would establish liability for Mr. Robles, USAA, Mr. Southwell, or Kemper. 16 Accordingly, dismissal under Rule 12(b)(6) is appropriate. 17 Following dismissal, a pro se litigant ordinarily “must be given leave to amend his 18 or her complaint unless it is absolutely clear that the deficiencies of the complaint could 19 not be cured by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 20 Here, the court grants Plaintiffs leave to amend within 14 days because there is no way to 21 tell whether the deficiencies in the complaint could be cured by amendment. The 22 ORDER- 5 1 complaint is so devoid of factual allegations against movants that the court cannot make 2 this determination at this time. 3 4 III. CONCLUSION For the foregoing reasons, the court GRANTS the motion to dismiss with respect 5 to Mr. Robles, USAA, Mr. Southwell, and Kemper. The court also grants Plaintiffs leave 6 to amend within 14 days of the date of this order. If Plaintiffs do not amend their 7 complaint within 14 days, the court will dismiss the complaint with prejudice with 8 respect to the above-listed defendants. 9 Dated this 11th day of September, 2013. 10 12 A 13 JAMES L. ROBART United States District Judge 11 14 15 16 17 18 19 20 21 22 ORDER- 6
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