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New Jersey Manufacturers Insurance Co. v. Carney

July 26, 2006

NEW JERSEY MANUFACTURERS INSURANCE COMPANY, PLAINTIFF,
v.
THOMAS L. CARNEY, SR. AND MICHELLE KOLESNIK CARNEY, HUSBAND AND WIFE, DEFENDANTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(JUDGE CAPUTO)

MEMORANDUM

Before me is the Rule 12(b)(6) Motion to Dismiss of Original Plaintiff, New Jersey Manufacturers Insurance Company ("NJM"). (Doc. 19.) The motion seeks to dismiss the counterclaim filed by the Defendant Thomas L. Carney, Sr. The counterclaim contains nine (9) counts as follows:

Count I Breach of Contract - Denial of the subject fire claim;

Count II Violation of Pennsylvania Unfair Trade Practices Act and Consumer Protection Law - Denial of subject fire claim;

Count III Bad Faith under 42 Pa.C.S.A. § 8371 - RE: denial of subject insurance claim;

Count IV Breach of Contract - Cancellation of unrelated automobile policy issued to Thomas L. Carney, Sr.;

Count V Withdrawn;

Count VI Violation of Pennsylvania Unfair Trade Practices Act and Consumer Protection Law - RE: Cancellation of unrelated automobile policy issued to Thomas L. Carney, Sr.;

Count VII Breach of Contract - Non-renewal of homeowner's insurance policy issued Thomas L. Carney, Sr. and Michelle Kolesnik Carney;

Count VIII Violations of Pennsylvania Unfair Trade Practices Act and Consumer Protection Law relative to non-renewal of homeowner's policy issued to Thomas L. Carney, Sr. and Michelle Kolesnik Carney; and Count IX Withdrawn.

The motion seeks the dismissal of Counts II, VI, VII and VIII. The matter is now ripe for disposition.

STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting all factual allegations in the complaint as true and "drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations in the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998).

In deciding a motion to dismiss, a court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the plaintiff's ...


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