United States District Court, D. Montana, Billings Division
KELLY D. PORCH and MICHELLE R. PORCH, Plaintiff,
OCHOA'S CONSTRUCTION, INC.; PREFERRED CONTRACTORS INSURANCE COMPANY RISK RETENTION GROUP; GOLDEN STATE CLAIMS ADJUSTERS; and JOHN DOES I-V, Defendants.
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
TIMOTHY J. CAVAN United States Magistrate Judge.
the Court is defendants Preferred Contractors Insurance
Company Risk Retention Group's (“PCIC”) and
Golden State Claims Adjusters' (“Golden
State”) (collectively, “Defendants”) Motion
to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) and Request for
Oral Argument (the “Motion”). (Doc. 3.) For the
reasons that follow, the Court recommends that
Defendants' Motion be denied.
considering motions to dismiss, a court must accept as true
all well-pleaded allegations of material fact and construe
them in the light most favorable to the nonmoving party.
Daniels-Hall v. National Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010). The Court also may
consider materials attached to the complaint or incorporated
by reference. U.S. v. Ritchie, 342 F.3d 903, 908
(9th Cir. 2003). Accordingly, the following facts are derived
from plaintiffs Kelly D. Porch's (“Kelly”)
and Michelle R. Porch's (“Michelle”)
(collectively, “Plaintiffs”) Second Amended
Complaint and Demand for Jury Trial (“SAC”) (Doc.
28.), together with the events occurring in the course of
this litigation as reflected by the Court's docket.
filed their original Complaint and Demand for Jury Trial
(“Complaint”) on November 24, 2014, in the
Montana Thirteenth Judicial District Court, Yellowstone
County. (Doc. 6.) The initial Complaint alleged damages
arising from a workplace accident Kelly claims to have
sustained in July 2014. (Id.) Neither PCIC nor
Golden State were named as defendants.
time of Kelly's alleged accident, PCIC insured defendant
Ochoa's Construction, Inc. (“Ochoa”) under a
commercial general liability policy. (Doc. 28 at ¶ 13.)
PCIC informed Ochoa by letter dated May 21, 2015, that no
coverage existed for the allegations in Plaintiffs'
Complaint, and that PCIC would be denying coverage for
defense and indemnity. (Id. at ¶¶ 14, 16.)
February 24, 2016, Ochoa entered into a stipulated consent
judgment and covenant not to execute, and assigned to
Plaintiffs all of its rights against Defendants.
(Id. at ¶ 19.) Plaintiffs thereafter dismissed
all defendants except Ochoa. (Docs. 18, 23.)
March 28, 2017, Judge Ingrid Gustafson of the Montana
Thirteenth Judicial District Court held a reasonableness
hearing with respect to Plaintiffs' and Ochoa's
stipulated consent judgment. (Doc. 26.) Plaintiffs were
present at the hearing and presented evidence in support of
the reasonableness of the judgment; Ochoa did not appear.
(Id.) On March 30, 2017, Judge Gustafson entered
judgment in the amount of $4, 700, 000.00 in favor of
Plaintiffs and against Ochoa. (Id.)
19, 2017, Plaintiffs filed an Unopposed Motion for Leave to
File [SAC]. That motion apparently was not accompanied by any
briefing or argument as to the appropriateness of amending a
complaint after judgment had been entered against the last
remaining defendant. (Doc. 5-1 at 521-522.) Judge
Gustafson's order granting Plaintiffs leave to file the
SAC notes “that the parties have conferred and the sole
remaining current Defendant in this case, [Ochoa], has
consented in writing to the filing of the [SAC].” (Doc.
27.) The order does not address any concerns as to the timing
of the amendment.
filed the SAC on May 23, 2017, adding PCIC and Golden State
as defendants, and asserting various claims against them
based on their coverage decisions with respect to Ochoa.
(See generally Doc. 28.) The SAC also restates
Plaintiffs' original claims against Ochoa. (Id.)
entered a Notice of Appearance in Montana State Court on June
28, 2017, whereupon they promptly removed the case to this
Court. (Docs. 1, 5-1 at 527-528.) They filed the instant
Motion July 5, 2017, seeking the dismissal of Plaintiffs'
claims against them pursuant to Rule 12(b)(6), Fed.R.Civ.P.
The Court may discuss additional facts below as necessary.
12(b)(6) motion to dismiss tests the sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001); see also Chavez v. Bank of America,
N.A., 2010 WL 1854087 at *4 (E.D. Cal. 2010)
(summarizing the legal standard to be applied to Rule
12(b)(6) motions to dismiss). “Dismissal under Rule
12(b)(6) is proper when the complaint either (1) lacks a
cognizable legal theory or (2) fails to allege sufficient
facts to support a cognizable legal theory.”
Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir.
2013) (quoting Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)).
Court evaluates Rule 12(b)(6) motions to dismiss in light of
Rule 8(a), which requires a “short and plain statement
of the claim showing that the pleader is entitled to
relief.” While “detailed factual
allegations” are not required, Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quotations and citations omitted). “[A]
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do....” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations
and citations omitted). ...