United States District Court, E.D. Virginia, Norfolk Division
Rebecca Beach Smith Chief Judge.
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.
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.
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
Review of the Magistrate Judge's R&R
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).
Motion to Dismiss
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)).
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).
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
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) .
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 ...