United States District Court, D. Montana, Billings Division
KELLY D. PORCH and MICHELLE R. PORCH, Plaintiffs,
OCHOA'S CONSTRUCTION, INC., PREFERRED CONTRACTORS INSURANCE COMPANY RISK RETENTION GROUP, GOLDEN STATE CLAIMS ADJUSTERS, and JOHN DOES 1-V, Defendants.
P. WATTERS UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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.
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)).
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.
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