United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE.
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.
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
Motion to Dismiss
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.
Motion for Protective Order
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”).
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
Motion to Sever and Dismiss
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.
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. ...