United States District Court, D. South Carolina, Orangeburg Division
RONNIE FLOOD, individually and as attorney in fact for Willie Flood, Plaintiff,
SAFECO INSURANCE COMPANY OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS
GEIGER LEWIS, UNITED STATES DISTRICT JUDGE
an action for breach of an insurance contract and related
claims. The Court has jurisdiction over this matter under 28
U.S.C. § 1332.
before the Court is Defendant's partial motion to dismiss
Plaintiff's amended complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. ECF No. 23. Having
carefully considered the motion, the response, the reply, the
record, and the applicable law, it is the judgment of the
Court Defendant's Motion to Dismiss will be granted.
FACTUAL AND PROCEDURAL HISTORY
action arises out of Defendant's failure to pay
Plaintiff's claim for benefits under a homeowners'
insurance policy Defendant issued to Plaintiff's father.
Plaintiff has power of attorney rights for his father.
filed his initial complaint in the Court of Common Pleas for
Orangeburg County, South Carolina, on March 1, 2018. ECF No.
1-2. On March 30, 2018, Defendant removed the action to this
Court, ECF No. 1-1, and filed a motion to dismiss the initial
complaint, ECF No. 4. On May 17, 2018, the Court granted
Plaintiff leave to amend his complaint and dismissed without
prejudice Defendant's motion to dismiss the initial
complaint. ECF No. 20. Plaintiff thereafter filed an amended
complaint, which asserts claims for breach of contract,
violation of S.C. Code Ann. § 38-57-70, which is a
provision of the South Carolina Insurance Trade Practices
Act, and negligence. ECF No. 21.
filed its partial motion to dismiss Plaintiff's amended
complaint on May 31, 2018. ECF No. 23. Plaintiff responded on
June 14, 2018, ECF No. 24, and Defendant replied on June 15,
2018, ECF No. 26. Having been fully briefed on the relevant
issues, the Court is now prepared to discuss the merits of
Defendants' motion to dismiss the amended complaint.
STANDARD OF REVIEW
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint.” Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). To survive a motion to
dismiss, the Federal Rules of Civil Procedure require a
complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). “In alleging fraud or mistake, a
party must state with particularity the circumstances
constituting fraud or mistake.” Fed.R.Civ.P. 9(b).
Rule 8(a) does not require “‘detailed factual
allegations, '” it requires “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation,
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)), to “‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests, '” Twombly, 550 U.S. at 555
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In other words, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
considering a motion to dismiss, a plaintiff's well-pled
allegations are taken as true, and the complaint and all
reasonable inferences are liberally construed in the
plaintiff's favor. Mylan Labs., Inc. v. Matkari,
7 F.3d 1130, 1134 (4th Cir. 1993). The Court may consider
only the facts alleged in the complaint, which may include
any documents either attached to or incorporated in the
complaint, and matters of which the Court may take judicial
notice. Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007). Although the Court must
accept the plaintiff's factual allegations as true, any
conclusory allegations are unentitled to an assumption of
truth, and even those allegations pled with factual support
need be accepted only to the extent “they plausibly
give rise to an entitlement to relief.” Iqbal,
556 U.S. at 679. In sum, factual allegations must be enough
to raise a right to relief above the speculative level, on
the assumption all the allegations in the complaint are true,
even if doubtful in fact. Twombly, 550 U.S. at 555.
CONTENTIONS OF THE PARTIES
partial motion to dismiss, Defendant argues Plaintiff's
second cause of action for violation of S.C. Code Ann. §
38-57-70, which is a provision of the South Carolina
Insurance Trade Practices Act, must be dismissed because the
Act fails to create a private cause of action. Plaintiff
responds his complaint alleges bad faith adjustment of his
claim for insurance benefits, and ...