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Page v. Johnson

United States District Court, D. South Carolina, Charleston Division

October 29, 2019

EMMA JO PAGE, Plaintiff,



         The following matter is before the court on defendants First National Insurance Company's (“FNIC”), Safeco Insurance's (“Safeco”), and Liberty Mutual Insurance's (“Liberty Mutual”) (collectively, “the insurer defendants”) motion to sever and dismiss, ECF No. 5, and Safeco's and Liberty Mutual's motion for a protection order, ECF No. 6. For the reasons set forth below, the court grants the motion to dismiss, finds as moot the motion for protective order, and remands the remaining claims to state court.

         I. BACKGROUND

         This case arises from a car accident. Plaintiff Emma Jo Page (“Page”) alleges that she was struck by defendant Heather Johnson (“Johnson”) at the intersection of Thomas Street and Ronald McNair Boulevard in Florence County. Page's first cause of action alleges negligence against Johnson. Strangely, Page's second cause of action alleges bad faith against Safeco and Liberty Mutual as Johnson's insurers. Safeco and Liberty Mutual removed the case to this court on September 20, 2019. ECF No. 1. Stranger yet, the same day, defendants filed a motion to dismiss in this action, claiming that FNIC is in fact Johnson's insurer but was misidentified in Page's complaint as Liberty Mutual and Safeco. ECF No. 5. On the same day, Liberty Mutual and Safeco filed a motion for a protective order. ECF No. 6. Plaintiff has not responded to the instant motions or otherwise appeared in this matter since the action was removed.

         II. STANDARD

         A. Motion to Dismiss

         A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). To be legally sufficient, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations as true and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7 F.3d at 1134. “To 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility 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.

         B. Motion for Protective Order

         Federal Rule of Civil Procedure 26(b)(1) limits the scope of discovery to “any nonprivileged matter that is relevant to any party's claim or defense.” “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden and expense” by forbidding or limiting the scope of discovery. Fed.R.Civ.P. 26(c)(1). “The scope and conduct of discovery are within the sound discretion of the district court.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995); see also U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (stating district courts are afforded “substantial discretion . . . in managing discovery”).

         “The party moving for a protective order bears the burden of establishing good cause.” Webb v. Green Tree Servicing, LLC, 283 F.R.D. 276, 278 (D. Md. 2012). “Normally, in determining good cause, a court will balance the interest of a party in obtaining the information versus the interest of his opponent in keeping the information confidential or in not requiring its production.” UAI Tech., Inc. v. Valutech, Inc., 122 F.R.D. 188, 191 (M.D. N.C. 1988). In other words, the district court “must weigh the need for the information versus the harm in producing it.” A Helping Hand, LLC v. Baltimore Cty., Md., 295 F.Supp.2d 585, 592 (D. Md. 2003) (quoting Valutech, 122 F.R.D. at 191). The district court, however, is afforded broad discretion “to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).


         A. Motion to Sever and Dismiss

         The insurer defendants ask the court to sever the claims against them from the claims against Johnson and dismiss them. Because the court does not need to sever the claims to dismiss the insurer defendants from the lawsuit, the court interprets the motion to sever and dismiss as simply one to dismiss. The insurer defendants argue that Page has failed to state a claim against them because she has no standing to bring her bad faith claim, the sole cause of action alleged against the insurer defendants. The court agrees.

         In South Carolina, the elements of bad faith refusal to pay are: (1) the existence of a contract of insurance between the parties; (2) refusal by the insurer to pay benefits due under the contract; (3) resulting from the insurer's bad faith or unreasonable action; and (4) causing damage to the insured. Howard v. State Farm Mut. Auto. Ins. Co., 450 S.E.2d 582, 586 (S.C. 1994). South Carolina does not recognize third-party bad faith claims. See Kleckley v. Nw. Nat. Cas. Co., 526 S.E.2d 218, 219 (S.C. 2000) (“This Court and the Court of Appeals have repeatedly denied actions for bad faith refusal to pay claims to third parties who are not named insureds.”) (citing Carter v. ...

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