United States District Court, W.D. Pennsylvania
Flowers Conti Chief United States District Judge
before the court is a partial motion to dismiss filed by NGL
National Guardian Life Insurance Company (“Defendant,
” “NGL”). [ECF No. 5]. NGL seeks to dismiss
the claim of Plaintiff Leslie May (“Plaintiff” or
“May”) for a violation of the Pennsylvania Unfair
Trade Practices and Consumer Protection Law
(“UTPCPL”) 73 Pa. Cons. Stat. §
201-1-201.9-3 [ECF No. 5]. For the reasons set forth below,
NGL's motion will be granted with prejudice.
Factual and Procedural Background
factual background is derived from the Complaint which is
accepted as true for the purposes of the Motion to Dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). Around November 7, 1990, May alleges that he purchased
a disability income policy from NGL. Compl. ¶
6. The policy was never issued. Compl. Exhibit 1. On
May 22, 1991, May was injured in an automobile accident and
applied for benefits under his policy with NGL. Id.
¶ 7. NGL disputed the application. Id. The
parties entered into a settlement agreement titled
“Agreement of Release” on March 6, 1992.
Id. ¶ 9, Ex. 1. NGL made payments to May in the
amount of $2, 000 per month for 22 years, from 1992 until
May's 65th birthday in 2014. Id. ¶ 13. May
received his last payment on November 17, 2014. Id.
¶ 14. May alleges that NGL agreed to pay him $2000
monthly until he was no longer disabled and NGL breached the
agreement because it refused to make any payments past
May's 65th birthday. Id. ¶¶ 1-2. May
asserts claims for breach of contract (Count I) and violation
of the UTPCPL (Count II). Id. NGL moved for a
partial dismissal of the UTPCPL claim because he failed to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); [ECF No. 5].
Standard of Review
Court of Appeals for the Third Circuit recently reiterated
the standards and procedures that a district court must apply
when deciding a motion to dismiss made pursuant to Federal
Rule of Civil Procedure 12(b)(6):
A complaint may be dismissed under Rule 12(b)(6) for
“failure to state a claim upon which relief can be
granted.” But a detailed pleading is not generally
required. The Rules demand “only ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the NGL
fair notice of what the ... claim is and the grounds upon
which it rests.' ” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). “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) (citation and internal
quotation marks omitted). “A claim has facial
plausibility when the May pleads factual content that allows
the court to draw the reasonable inference that the NGL is
liable for the misconduct alleged.” Id.;
see also Sheridan v. NGK Metals Corp., 609 F.3d 239,
262 n.27 (3d Cir. 2010). Although the plausibility standard
“does not impose a probability requirement, ”
Twombly, 550 U.S. at 556, it does require a pleading
to show “more than a sheer possibility that a NGL has
acted unlawfully.” Iqbal, 556 U.S. at 678. A
complaint that pleads facts “merely consistent with a
NGL's liability...stops short of the line between
possibility and plausibility of entitlement to relief.”
Id. (citation and internal quotation marks omitted).
The plausibility determination is “a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at
Under the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a complaint must
take three steps. First, it must “tak[e] note of the
elements [the] May must plead to state a claim.”
Iqbal, 556 U.S. at 675. Second, it should identify
allegations that, “because they are no more than
conclusions, are not entitled to the assumption of
truth.” Id. at 679; see also Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)
(“Mere restatements of the elements of a claim are not
entitled to the assumption of truth.” (citation and
editorial marks omitted)). Finally, “[w]hen there are
well-pleaded factual allegations, [the] court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
Connelly v. Lane Constr. Corp., 809 F.3d 780, 786-87
(3d Cir. 2016).
United States Court of Appeals for the Third Circuit has
instructed that “if a complaint is vulnerable to
12(b)(6) dismissal, a district court must permit a curative
amendment, unless an amendment would be inequitable or
futile.” Phillips v. Cty. of Allegheny, 515
F.3d 224, 236 (3d Cir. 2008). An amendment is futile if the
amended complaint cannot withstand a renewed motion to
dismiss. Shane v. Fauver, 213 F.3d 113, 116 (3d Cir.
2000). Moreover, “if the court determines that
plaintiff has had multiple opportunities to state a claim but
has failed to do so, leave to amend may be denied.” 6
Charles A. Wright, Arthur R. miller, mary kay kane, Richard
L. marcus & Adam N. Steinman, Federal Practice and
Procedure § 1487 (3d ed. 2013).
court's analysis is limited to the Agreement of Release
because May is seeking only to enforce that agreement. The
UTPCPL is limited, among other things, to situations
involving a purchase or lease of goods or services.
Specifically, the UTPCPL states in relevant part:
Any person who purchases or leases goods or services
primarily for personal, family or household purposes and
thereby suffers any ascertainable loss of money or property,
real or personal, as a result of the use or employment by any
person of a method, act or practice declared unlawful by