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Doll Construction, LLC v. Amco Insurance Co.

United States District Court, D. Nebraska

April 21, 2015

DOLL CONSTRUCTION, LLC, a Nebraska Limited Liability Company, Plaintiff,
AMCO INSURANCE COMPANY, an Iowa Corporation; UNITED FIRE AND CASUALTY INSURANCE COMPANY, an Iowa Corporation; BLUE CROSS AND BLUE SHIELD OF NEBRASKA, a Nebraska Corporation; and CHASTAIN OTIS, INC., a Nebraska Corporation; Defendants.


THOMAS D. THALKEN, Magistrate Judge.

This matter is before the court on several motions. The defendant, Chastain Otis, Inc. (Chastain), filed a Motion to Dismiss for Failure to State a Claim (Filing No. 9). The defendant, Blue Cross and Blue Shield of Nebraska (BCBS), also filed a Motion to Dismiss (Filing No. 11). The plaintiff, Doll Construction, LLC (Doll), filed a Motion to Remand (Filing No. 16); a Motion to Strike Pleading (Filing No. 19); and a Motion for Leave to File a Surreply Brief in Opposition to Motions to Dismiss (Filing No. 29), with the Surreply Brief (Filing No. 29-1). The respective parties have briefed, responded, and replied to the pending motions.

On February 23, 2015, the defendant, AMCO Insurance Company (AMCO), removed this action from the District Court of Douglas County, Nebraska, to the United States District Court for the District of Nebraska. See Filing No. 1 - Notice of Removal. AMCO alleges this action is removable pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. Id. ¶¶ 8-9. AMCO alleges joinder of Chastain and BCBS, which would otherwise destroy diversity jurisdiction, is improper. Id. ¶ 6. AMCO filed a brief in support of the notice of removal, which is subject to Doll's Motion to Strike Pleading. See Filing Nos. 2 and 19. Following removal, Chastain and BCBS filed the motions to dismiss arguing Doll's Complaint fails to state a claim against Chastain and BCBS. See Filing Nos. 9 and 11. Doll opposes the motions to dismiss, argues Chastain and BCBS are properly joined, and moved to remand the case. See Filing Nos. 16, 27, 29-1. For the reasons set forth below, the undersigned magistrate judge recommends Chastain and BCBS's motions to dismiss be granted and Doll's motion to remand be denied.


This case arises from a mishap that occurred on March 10, 2013, when an employee of Doll's subcontractor, Down & Dirty, LLC (DDL), struck a parking garage arm and damaged certain parking gates at BCBS's premises at 1919 Aksarben Drive, Omaha, Nebraska. Doll and BCBS contracted for Doll to remove snow and ice from BCBS's office located in Omaha, Nebraska. See Filing No. 1-1 - Complaint ¶ 12. Doll subcontracted with DDL to have DDL perform the snow and ice removal services required under the BCBS contract. Id. ¶¶ 14-15. From April 15, 2012, to April 15, 2013, AMCO insured Doll under a policy of Commercial General Liability issued through Chastain. Id. ¶ 10. The policy provided coverage to Doll's contractors and subcontractors. Id. ¶ 11.

On March 13, 2013, Doll informed Chastain of the March 10, 2013, incident and requested coverage for any losses. Id. ¶ 17. On March 25, 2013, BCBS sent Doll a quote for the repair of the parking garage in the amount of $18, 822. Id. ¶ 18. On March 26, 2013, BCBS sent correspondence to Doll demanding payment of $18, 822. Id. ¶ 19. Doll sent the quote to Chastain on March 27, 2013. Id. ¶ 18. A day later, on March 28, 2013, Chastain forwarded BCBS's claim to AMCO. Id. ¶ 20. Between March 28, 2013, and June 24, 2013, Doll requested Chastain and AMCO pay BCBS's claim. Id. ¶¶ 21-23. Doll also requested United Fire and Casualty Insurance Company (United Fire), which issued an insurance policy to DDL, to pay the claim. Id. ¶¶ 23-25. As the claim remained unpaid, on June 24, 2013, BCBS terminated its snow and ice removal contract with Doll. Id. ¶ 29.

On October 30, 2014, Doll filed its Complaint against the defendants. Id. In Doll's first cause of action, Doll alleges a "Breach of Contract" claim against AMCO and United Fire. Id. ¶¶ 31-35. In the second cause of action, Doll asserts a "Delay & Bad Faith" claim against Chastain, AMCO, and United Fire under the Nebraska Uniform Insurance Claims Practices Act. Id. ¶¶ 36-37. Lastly, Doll seeks judgment declaring the rights of the parties set forth in the various policies. Id. ¶¶ 38-40. Doll asserts it would have realized net profits in the amount of $170, 301 had its contract with BCBS continued. Id. ¶¶ 30, 40.


A. Motions to Dismiss

Under the Federal Rules, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" See Fed.R.Civ.P. 8(a)(2). "[A]lthough a complaint need not include detailed factual allegations, a plaintiffs 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.'" C.N. v. Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "To survive a motion to dismiss, a complaint must plead enough facts to state a claim to relief that is plausible on its face.'" Gomes v. American Century Co., Inc., 710 F.3d 811, 815 (8th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "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. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged- but it has not show[n]'-that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

"Courts must accept... specific factual allegations as true but are not required to accept... legal conclusions." Outdoor Cent., Inc. v., Inc., 643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010)) (internal quotation marks omitted); see also Iqbal, 556 U.S. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. The complaint's factual allegations must be "sufficient to raise a right to relief above the speculative level." Williams v. Hobbs, 658 F.3d 842, 848 (8th Cir. 2011) (internal quotation marks omitted). In applying these standards, "a court assumes all facts in the complaint to be true and construes all reasonable inferences most favorably to the complainant." United States ex rel. Raynor v. Nat'l Rural Util. Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012). The court reviews "the plausibility of the plaintiff's claim as a whole, not the plausibility of each individual allegation." Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012).

1. BCBS's Motion to Dismiss

BCBS argues it should be dismissed from this case because Doll does not assert any claim against BCBS. See Filing No. 12 - Brief. In response, Doll argues the court does not need to decide BCBS's motion because this case should be remanded to state court as the parties are not diverse, namely Chastain is of the same citizenship as Doll. See Filing No. 27 - Response p. 5-6. However, Doll admits it only named BCBS to afford the parties full relief. Id. In reply, BCBS argue requiring a non-party, to participate in this case, on the possibility of remand, places a high burden on BCBS in terms of both time and litigation costs. See Filing No. 31 - Reply. BCBS contends Doll cannot be allowed to list a party in a caption, serve that party with process, and require the party to participate in litigation when Doll does not allege any cause of action against that party. Id.

Doll has not argued BCBS is a necessary or indispensable party under Fed.R.Civ.P. 19. Additionally, BCBS has not argued it must be joined to protect its interests. Because Doll has not asserted a claim ...

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