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Empire Fire & Marine Insurance Company v. Pandt-Brown

United States District Court, E.D. Virginia, Norfolk Division

April 12, 2018



          Rebecca Beach Smith Chief Judge.

         This matter is before the court on the Motion to Dismiss ("Motion") filed by the Defendant, Jack Guemple ("Guemple"), on December 8, 2017. ECF Nos. 11, 12. The Plaintiff Empire Fire and Marine Insurance Company ("Empire") filed an Opposition to the Motion ("Opposition") on December 22, 2017. ECF No. 14. Guemple filed a Reply in Opposition ("Reply") on January 5, 2018. ECF No. 18. Upon order of the court, a Sur-Reply was filed by Empire on February 1, 2018. ECF No. 21.

         On January 11, 2018, the Motion was referred to United States Magistrate Judge Robert J. Krask, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned district judge proposed findings of fact, if applicable, and recommendations for the disposition of the Motion. ECF No. 19. The Magistrate Judge filed the Report and Recommendation ("R&R") on February 26, 2018, ECF No. 22, recommending that Guemple's Motion be denied. Id. at 1.

         By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge, Id. at 18-19. On March 12, 2018, both parties filed objections to the R&R. ECF Nos. 23, 24. On March 26, 2018, Empire responded to Guemple's objections. ECF No. 25. The matter is now ripe for review.


         A. Review of the Magistrate Judge's R&R

         Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the R&R to which the plaintiff has specifically objected. Fed.R.Civ.P. 72(b). Objections must be "specific and particularized." United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007). The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).

         B. Motion to Dismiss

         Pursuant to Rule 12(b)(6), a complaint must be dismissed when a plaintiff s allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests only the sufficiency of a complaint; it does not resolve contests regarding the facts of the case, the merits of a claim, or the applicability of any defense. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). "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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         Facial plausibility means that a "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). It is, therefore, not enough for a plaintiff to allege facts demonstrating a "sheer possibility" or "mere[] consist[ency]" with unlawful conduct. Id. (citing Twombly, 550 U.S. at 557).

         The Supreme Court, in Twombly and Iqbal, offered guidance to courts evaluating a motion to dismiss:

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 679. That is, the court accepts facts alleged in the complaint as true and views those facts in the light most favorable to the plaintiff. See, e.g., Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005). After doing so, the court should not grant the defendant's motion if the plaintiff "demonstrate[s] more than 'a sheer possibility''' that the defendant has violated his rights, by "articulat[ing] facts, when accepted as true, that 'show' that the plaintiff has stated a claim entitling him to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 677-78) .

         In considering a motion to dismiss, courts are generally "not to consider matters outside the pleadings or resolve factual disputes." Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007); see also Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). However, the court "may . . . consider documents attached to the complaint." Philips v. Pitt Cty. Mem'1 Hosp., 572 F.3d 176, 180 (4th Cir. 2009). The court may also consider ...

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