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Porch v. Ochoa's Construction, Inc.

United States District Court, D. Montana, Billings Division

February 26, 2018

KELLY D. PORCH and MICHELLE R. PORCH, Plaintiffs,
v.
OCHOA'S CONSTRUCTION, INC., PREFERRED CONTRACTORS INSURANCE COMPANY RISK RETENTION GROUP, GOLDEN STATE CLAIMS ADJUSTERS, and JOHN DOES 1-V, Defendants.

          ORDER

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         I. Introduction

         Defendants Preferred Contractors Insurance Company Risk Retention Group and Golden State Claims Adjusters ("Defendants") have moved to dismiss Plaintiffs' Second Amended Complaint (Doc. 3). On January 22, 2018, Magistrate Judge Timothy Cavan issued his Findings and Recommendations recommending that this Court deny the motion to dismiss. (Doc. 38).

         When a party timely objects to any portion of the magistrate judge's Findings and Recommendations, the district court must conduct a de novo review of the portions of the Findings and Recommendations to which objections are made. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981). The district court may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions." 28 U.S.C. § 636(b)(1).

         Defendants filed timely objections to Judge Cavan's Findings and Recommendations. (Doc. 40). After independently reviewing and considering those objections, this Court adopts Judge Cavan's findings and recommendations, as set forth below.

         II. Relevant Background

         Defendants do not object to the factual history contained in the Background section of Judge Cavan's Findings and Recommendations. Judge Cavan's Background section is therefore adopted in full.

         III. Applicable Law

         A. Legal Standard

         A defendant may move under Fed. R. Civ. Pro. 12(b)(6) to dismiss an action for failure to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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 plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

         For purposes of ruling on a Rule 12(b)(6) motion, a court must "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A court is not required to "assume the truth of legal conclusions merely because they are cast in the form of factual allegations, " however. Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011). A court may also reject factual allegations contradicted by judicially noticed material. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000) (citation omitted). Finally, '"a plaintiff may plead [him]self out of court' " if he "plead[s] facts which establish that he cannot prevail on his ... claim." Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.l (9th Cir. 1997) (quoting Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995)).

         IV. Discussion

         Defendants object to Judge Cavan's findings that (1) Defendants failed to argue that Plaintiffs' Second Amended Complaint either lacked a cognizable legal theory or failed to allege sufficient facts to support a cognizable legal theory, and (2) that Defendants' motion was not a motion to dismiss. Defendants object to Judge Cavan's recommendation that this Court deny their motion. (Doc. 40 at 3). The Court addresses these objections together.

         From the briefing, it appears to this Court that Defendants could not identify any other mechanism to protest Judge Gustafson's order allowing Plaintiffs to amend their complaint, so Defendants defaulted to moving to dismiss under Rule 12(b)(6). But, as Judge Cavan points out, Defendants completely failed to make a 12(b)(6) argument. Defendants do not allege anywhere in their briefing that Plaintiffs failed to allege plausible facts in support of a cognizable legal theory. Presumably this is because the Second Amended ...


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