United States District Court, D. Oregon
SURFSAND RESORT, LLC, an Oregon limited liability company, Plaintiff,
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, an Ohio company, and HARLEYSVILLE INSURANCE COMPANY, a Pennsylvania company, Defendants.
LEE GUSE Barker Martin Attorneys for Plaintiff
L. POLSCER BRIAN C. HICKMAN KAYLEIGH T. KEILTY PATRICIA M.
LAMBERT Pessin Katz Law, P.A. Attorneys for Defendants
OPINION AND ORDER
J. BROWN United States Senior District Judge.
matter comes before the Court on Defendants' Motion (#18)
to Dismiss Count II of Plaintiff's Complaint and Motion
(#17) to Strike Jury Demand. For the reasons that follow, the
Court GRANTS Defendants' Motions.
following facts are taken from Plaintiffs' Complaint and
the parties' filings related to Defendants' Motion to
Dismiss and Motion to Strike.
September 14, 2015, Defendants Nationwide Mutual Fire
Insurance Company and Harleysville Insurance Company issued
to Plaintiff Surfsand Resort, LLC, a Standard Flood Insurance
Policy (SFIP) pursuant to the National Flood Insurance Act
(NFIA), 42 U.S.C. § 4001(a). The policy period was from
September 14, 2015, through September 14, 2016. The policy
provides in relevant part that it and “all disputes
arising from the handling of any claim under the policy are
governed exclusively by the flood insurance regulations
issued by Federal Emergency Management Agency (FEMA), the
National Flood Insurance Act of 1968 . . . and federal common
law.” Decl. of Kayleigh Toth Keilty, Ex. B at 24.
December 11, 2015, the tidal waters of the Pacific Ocean
overflowed and allegedly damaged the bottom level of hotel
rooms at the Surfsand Resort in Cannon Beach, Oregon, which
is owned by Plaintiff.
3, 2016, Nationwide issued a coverage determination letter in
which it denied coverage on the ground that there were not
any visible signs of covered flood damage. Plaintiff appealed
Nationwide's denial of coverage to FEMA as required by
the terms of the SFIP. “A formal denial letter [of
Plaintiff's appeal] was received by Plaintiff on March
27, 2017.” Compl. at ¶ 24.
2, 2017, Plaintiff filed an action in this Court against
Defendants asserting claims for breach of insurance contract
and negligence per se. Plaintiff seeks damages,
attorneys' fees, and a jury trial.
August 21, 2017, Defendants filed a Motion to Dismiss Count
II of Plaintiff's Complaint and a Motion to Strike Jury
Demand. The Court took the Motions under advisement on
September 21, 2017.
MOTION (#18) TO DISMISS COUNT II OF PLAINTIFF'S
moves to dismiss Plaintiff's claim for negligence per
se and Plaintiff's demand for attorneys' fees on
the ground that they are preempted by the NFIA and/or the
National Flood Insurance Program (NFIP), C.F.R. Title 44,
Chapter I, Subchapter B, Part 59, et seq.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
[Bell Atlantic v. Twombly, 550 U.S. 554');">550 U.S. 554, ] 570, 127
S.Ct. 1955 [(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. Id. at 556. . . . 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.
Ibid. Where a complaint pleads facts that are
“merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
relief.'” Id. at 557, 127 S.Ct. 1955');">127 S.Ct. 1955
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
See also Bell Atlantic, 550 U.S. at 555-56.
The court must accept as true the allegations in the
complaint and construe them in favor of the plaintiff.
Novak v. U.S., 795 F.3d 1012, 1017 (9th
ruling on a 12(b)(6) motion, a court may generally consider
only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice." Akhtar v. Mesa, 698 F.3d
1202, 1212 (9th Cir. 2012)(citation omitted). A
court, however, "may consider a writing referenced in a
complaint but not explicitly incorporated therein if the
complaint relies on the document and its authenticity is
unquestioned." Swartz v. KPMG LLP, 476 F.3d
756, 763 (9th Cir. 2007)(citation omitted).
National Flood ...