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Wilkie v. Amica Mutual Insurance Co.

United States District Court, W.D. North Carolina, Asheville Division

April 30, 2018

ROBERT V. WILKIE, Individually and as Executor of the Estate of Judith Kathryn Sellers Wilkie, Plaintiffs,
v.
AMICA MUTUAL INSURANCE COMPANY, Defendant.

          MEMORANDUM AND RECOMMENDATION

          Dennis L. Howell, United States Magistrate Judge

         This matter is before the Court on Defendant's Motion to Dismiss (# 10) pursuant to Federal Rule of Civil Procedure 12(b)(6). The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons addressed below, this Court will recommend that Defendant's Motion to Dismiss be granted.

         I. Procedural Background

         On November 16, 2017, Plaintiffs, proceeding pro se, filed a complaint, both individually and as Executor of the Estate of Judith Kathryn Sellers Wilkie, and a demand for a jury trial.[1] See Compl. (# 1). Plaintiffs allege that Defendant violated their rights. Id. at 5. In particular, Plaintiffs have purportedly stated the following causes of action: (1) negligence; (2) “bad and deceptive business practices”; (3) “exploitation of a person for profit during a tragic event”; (4) “lying to member to cover up bid rigging practices”; (5) fraud; (6) “refusing to legally recognize two legally filed subsequent claims”; (7) breach of contract; and (8) “gross” breach of contract. Id. Plaintiffs seek “triple reward damages, ” an apology, and attorney's fees. Id. at 6.

         On February 13, 2018, Defendant filed the instant Motion to Dismiss (# 10) and Memorandum in Support. Plaintiffs filed a Response in Opposition (# 12), and Defendant filed a Reply (# 13).

         II. Factual Background[2]

         The facts, viewed in a light most favorable to Plaintiffs, are the following: Plaintiffs' allegations relate to a fire that occurred on January 31, 2015, and remediation efforts by Dolbier Restoration, LLC, and Plaintiffs' dissatisfaction with the remediation efforts. Compl. (# 1) at 2, 4. Defendant evidently had issued a fire insurance policy providing fire insurance coverage for the dwelling of either Plaintiffs or some other person. See id. Plaintiffs acknowledge that as a result of a dispute between the parties, they engaged in a mediated settlement conference on August 3, 2016, in Morganton, North Carolina, which resulted in a “Memorandum Of Mediated Settlement” (“Settlement Memorandum”). Id. (# 1-1) at 1. The Settlement Memorandum provides that “Defendant shall pay Plaintiff the total sum of $10, 400 within 7 days from the date of this Agreement.” Id. The Settlement Memorandum was signed by Plaintiffs and their former attorney, Wayne O. Clontz. Id. Defendant paid the $10, 400 to Plaintiffs. Id. at 4.

         II. Legal Standard

         The central issue for resolving a Federal Rule of Civil Procedure 12(b)(6) motion is whether the complaint states a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009). In considering a defendant's motion, the court accepts the allegations in the complaint as true and construes them in the light most favorable to plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588 F.3d at 192. Although a court accepts well-pled facts as true, it is not required to accept “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Consumeraffairs.com, 591 F.3d at 255; see Giacomelli, 588 F.3d at 192.

         The claims need not contain “detailed factual allegations, ” but must contain sufficient factual allegations to suggest the required elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Consumeraffairs.com, 591 F.3d at 256. “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor will mere labels and legal conclusions suffice. Id. Federal Rule of Civil Procedure 8 “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         The complaint is required to contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Consumeraffairs.com, 591 F.3d at 255. “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.” Iqbal, 556 U.S. at 678; accord Consumeraffairs.com, 591 F.3d at 255. The mere possibility that a defendant acted unlawfully is not sufficient for a claim to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d at 256; Giacomelli, 588 F.3d at 193. Ultimately, the well-pled factual allegations must move a plaintiff's claim from possible to plausible. Twombly, 550 U.S. at 570; Consumeraffairs.com, 591 F.3d at 256.

         III. Discussion

         A. Plaintiffs' third, fourth, and sixth claims are not viable causes of action under North Carolina or federal law.

         With respect to Plaintiffs' third claim, “exploitation of a person for profit during a tragic event, ” fourth claim “lying to member to cover up bid rigging practices, ” and sixth claim, “refusing to legally recognize two legally filed subsequent claims, ” Compl. (# 1) at 5, Plaintiffs have failed to show that these claims are recognized causes of action under North Carolina or federal law. Therefore, dismissal of these claims is warranted. See Gaston v. PBI Gordon Corp., No. 1:13CV891, 2014 WL 4114324, at *3 (M.D. N.C. Aug. 20, 2014) (“Because Plaintiff relies on causes of action not recognized in North Carolina, [the specific counts] are subject to dismissal.); Godbey v. Stanley Furniture Co., Inc., No. CIV 299CV28, 1999 WL 33315652, at *2 (W.D. N.C. Apr. 23, 1999) (“[T]his Court is not at liberty to allow causes of action not recognized by the courts of the forum state.”); Cortes v. McDonald's Corp., 955 F.Supp. 539, 541 (E.D. N.C. June 3, 1996) (“[T]he generally held view [is] that federal courts applying a state's law should not provide a cause of action which that state has not recognized.” (quotation omitted)). Accordingly, Plaintiffs' third, fourth, and sixth claims must be dismissed on the basis that they are non-existent under either North Carolina or federal law.

         B. Plaintiffs have failed to state a claim under ...


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