United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. Johnston, Judge
before the Court is Defendant Nationwide Property &
Casualty Insurance Company's (“Nationwide”)
Motion to Dismiss, (ECF No. 6). For the reasons stated
herein, the Court GRANTS IN PART and
DENIES IN PART Nationwide's Motion to
October 22, 2017, a fire occurred at Plaintiff's
residence resulting in severe damage to the dwelling and the
personal property inside. (Id. at 5.) Plaintiff
insured his residence through Nationwide and submitted a
claim for insurance benefits to Nationwide following the
fire. (Id.) Upon Plaintiff's submission,
Nationwide began its investigation, which included requiring
Plaintiff to produce certain materials and documents, execute
releases and authorizations, and submit to an examination
under oath. (Id. at 6.) Nationwide additionally
interviewed Plaintiff's neighbors and acquaintances.
(Id.) Having complied with Nationwide's requests
but not having received his payment, Plaintiff took legal
action. (ECF No. 11 at 3.)
December 29, 2017, Plaintiff filed his Complaint in the
Circuit Court of Kanawha County, West Virginia. (ECF No. 1-1
at 4.) The Complaint states that despite Plaintiff's full
cooperation and timely filing of his claim, Nationwide denied
his claim and failed to properly settle the claim, and as a
result, he “has been deprived of the use and enjoyment
of [his residence], as well as his personal property, and . .
. has not been compensated and paid by Defendant Nationwide
for the covered losses and damages.” See
Compl. ¶¶ 1-20, 29. The Complaint further alleges
that these actions by the Defendants were “part of a
general business practice and constitutes unfair claims
settlement practices under applicable consumer protection
statutes and regulations.” See Compl.
¶¶ 28-38. The Complaint demands compensatory
damages for Plaintiff's net economic damages, for
“Defendants' business practice of violating the
Unfair Trade Practices Act, ” interest, costs and
attorney's fees, and punitive damages against Nationwide.
(See ECF No. 1-1 at 11.)
removed the case to this Court on February 5, 2018. (ECF No.
1.) On July 13, 2018, this Court denied Plaintiff's
Motion to Remand, granted Defendants Kenneth Conway, Betsy
Ross, and Lisa McGahan's Motion to Dismiss Count III of
Plaintiff's Complaint, and dismissed Count III and those
defendants from this action. (ECF No. 44.) Nationwide filed
the current Motion to Dismiss on February 12, 2018, (ECF No.
6), asserting that Plaintiff has prematurely filed his claim
and that this Court lacks subject matter jurisdiction based
on ripeness. (See ECF No. 7 at 1.) Plaintiff
responded to the motion on February 26, 2018, (ECF No. 11),
and Nationwide filed its reply brief on March 5, 2018, (ECF
No. 14). As such, this motion is fully briefed and ripe for
Rule of Civil Procedure 8(a)(2) requires that a pleader
provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.” Fed.R.Civ.P.
8(a)(2); Erickson v. Pardus, 551 U.S. 89 (2007).
Rule 12(b)(6) correspondingly permits a defendant to
challenge a complaint when it “fail[s] to state a claim
upon which relief can be granted . . . .” Fed.R.Civ.P.
required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled
on other grounds, Twombly, 550 U.S. at 563); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007). In order 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, (2009) (quoting Twombly, 550 U.S. at 570);
see also Monroe v. City of Charlottesville, 579 F.3d
380, 386 (4th Cir. 2009).
of the Rule 12(b)(6) standard requires that the court
“‘accept as true all of the factual allegations
contained in the complaint. . . .'”
Erickson, 551 U.S. at 94 (quoting Twombly,
550 U.S. at 555-56); see also S.C. Dept. of Health and
Envt'l Control v. Commerce and Indus. Ins. Co., 372
F.3d 245, 255 (4th Cir. 2004) (quoting Franks v.
Ross, 313 F.3d 184, 192 (4th Cir. 2002)). The court must
likewise “draw all reasonable . . . inferences from
th[e] facts in the plaintiff's favor. . . .”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999). Although “detailed factual
allegations” are not necessary, the facts alleged must
be enough “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
This requires “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation, ” or
“threadbare recitals of a cause of action's
elements, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663, 678.
argues that this Court lacks subject matter jurisdiction
because Plaintiff's claims are not ripe since Nationwide
never denied the insurance claim at issue. (See ECF
No. 7 at 2-6.) Plaintiff argues that Nationwide's motion
is actually a motion for summary judgment prior to discovery.
(ECF No. 11 at 6-7.) Plaintiff further maintains that he has
set forth valid causes of actions against Nationwide due to
Nationwide's delay in payment of the benefits due.
(Id. at 7-14.)
Court lacks subject matter jurisdiction to hear any case that
is not ripe for adjudication. Fed.R.Civ.P. 12(b)(1). A case
is ripe when “the issues are purely legal and when the
action in controversy is final and not dependent on future
uncertainties.” See Miller v. Brown, 42 F.2d
312, 318 (4th Cir. 2006). Thus, a claim “should be
dismissed as unripe if the plaintiff has not yet suffered
injury and any future impact remains wholly
speculative.” Doe v. Va. Dep't of State
Police, 713 F.3d 745, 758 (4th Cir. 2013). To determine
if a case is ripe, a court must “balance ‘the
fitness of the issues for judicial decision with the hardship
of the parties of withholding the court's
consideration.'” Franks v. Ross, 313 F.3d
184, 194 (4th Cir. 2002) (quoting Ohio Forestry Ass'n
v. Sierra Club, 523 U.S. 726, 733 (1998)). As noted
earlier, the Court has already dismissed Count III from
Plaintiff's Complaint. (See ECF No. 44.)
Therefore, the Court will address the ripeness of
Plaintiff's two remaining claims separately.
Breach of Contract In his Complaint, Plaintiff alleges that
“Nationwide's failure and refusal to pay for the
covered damages the Plaintiff sustained as a result of the
October 22, 2017 fire loss constitutes a breach of the terms
of Defendant Nationwide's Policy and Defendant
Nationwide's contractual duties to the Plaintiff.”
(See ECF No. 1-1 at ¶ 22.) Nationwide argues
that since it has not denied Plaintiff's claim and is