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Montgomery v. Allstate Property and Casualty Insurance Co.

United States District Court, W.D. Pennsylvania

June 23, 2015

ROBERT EDWARD MONTGOMERY, et al., Plaintiffs,
v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE CO., Defendant.

MEMORANDUM OPINION ON DEFENDANT'S MOTION TO DISMISS

LISA PUPO LENIHAN, Magistrate Judge.

I. Summation

For the reasons set forth below, Defendant's Motion to Dismiss (ECF No. 3) will be denied. This case was filed in the Court of Common Pleas of Westmoreland County by Writ of Summons on April 16, 2014 and removed by Defendant to this Court on March 9, 2015 (ECF No. 1). Defendant Allstate Property and Casualty Insurance Company ("Defendant" or "Allstate") argues that is entitled to either (a) dismissal on statute of limitations grounds where the Praecipe for Writ was undisputedly filed within the one-year period for commencement of an action, and subsequently served in good faith and close proximity to the applicable ninety (90) day period to effectuate service; or (b) Rule 12(b)(6) dismissal of Plaintiff's Count II bad faith claim at this juncture. The Court finds that it is not for the reasons set forth below.

II. Factual and Procedural History

Defendant observes that this matter was commenced by filing of a Praecipe for Writ of Summons on April 16, 2014, with a Praecipe to Issue Duplicate Writ filed and issued on or about July 1 ( i.e., approximately 10 weeks later), and service effected on Defendant on July 23, 2014. See Defendant's Brief in Support.

Plaintiffs attest, in the Complaint filed on February 16, 2015 (ECF No. 1, Ex. A), that their mobile home and its contents were destroyed by fire on May 1, 2013 at a time they were insured by Defendant, an insurance company doing business throughout the United States and having a principal place of business in Illinois.

Plaintiffs further attest that Defendant's adjuster, Robert Sherry ("Sherry") inspected the property and declared the home a "total loss" but that Defendant subsequently refused to provide reimbursement for foundation repair/replacement, home jacks, replacement landscaping and other expenses that were assertedly covered under the policy.[1] The Complaint alleges counts for both breach of contract and bad faith.

Defendant's Motion to Dismiss and Brief in Support (ECF No. 4) were filed on March 16, 2015 and Plaintiffs' Brief in Opposition (ECF No. 8) was filed on April 2, 2015.

III. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must be dismissed for failure to state a claim if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (May 18, 2009) ("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."). The Supreme Court further explained:

The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'"

Id. (citing Twombly, 550 U.S. at 556-57).

Recently, the United States Court of Appeals for the Third Circuit aptly summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level, " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal ...

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