United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
YIM YOU UNITED STATES MAGISTRATE JUDGE.
se plaintiff Michael Bracken brought this action against
defendant USAA General Indemnity Company in Multnomah County
Circuit Court (Case No. 19CV19058), and defendant timely
removed. See Notice Removal, ECF #1. This court has
jurisdiction over the action pursuant to 28 U.S.C. §
1332. Plaintiff alleges claims for (1) breach of contract,
(2) “breach of good faith, ” and (3) “fraud
by inducement.” Id., Ex. 1
(“Compl.”), ECF #1-1.
has filed a motion to dismiss under F.R.C.P 12(b)(6) for
failure to state a claim. Mot. Dismiss (“Mot.”),
ECF #6. The court finds this matter suitable for decision
without oral argument pursuant to L.R. 7-1(d)(1). For the
reasons discussed below, the motion to dismiss is GRANTED.
The First Claim is dismissed with prejudice, while the Second
and Third Claims are dismissed without prejudice and with
leave to amend.
state a claim for relief, a pleading must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” F.R.C.P. 8(a)(2). This
standard “does not require ‘detailed factual
allegations, '” but does demand “more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). “A pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Id. (quoting Twombly, 550
U.S. at 555).
12(b)(6) motion tests whether there is a cognizable legal
theory or sufficient facts to support a cognizable legal
theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir.
2015). To survive a Rule 12(b)(6) motion, “the
complaint must allege ‘enough facts to state a claim to
relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570). In
evaluating a motion to dismiss, the court must accept
“all allegations of material fact as true and construe
them in the light most favorable to the non-moving
party.” Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
courts hold a pro se litigant's pleadings to
“‘less stringent standards than formal pleadings
drafted by lawyers.'” Eldridge v. Block,
832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)); see
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per
curiam) (holding that a document filed pro se
“is to be liberally construed”; a plaintiff
“need only give the defendant fair notice of the claim
and the grounds on which it rests”) (citations and
internal quotation marks omitted).
dispute arises out of an underinsured motorist
(“UIM”) policy issued by defendant to plaintiff.
Plaintiff paid defendant an annual premium in exchange for
UIM coverage of up to $500, 000. Compl. ¶¶ 18, 20,
March 31, 2016, plaintiff was riding as a passenger in a
motor vehicle when it was struck from behind by another
vehicle. Id. ¶ 5. Plaintiff claims he suffered
injuries to his face, head, neck, and back in excess of $1,
400, 000. Id. ¶¶ 5, 13. Both drivers
carried personal automobile insurance policies with limits of
$100, 000, and plaintiff accepted the tender of the limits of
both drivers. Id. ¶ 6. Plaintiff filed a UIM
claim with defendant seeking the maximum policy amount of
$500, 000. Id. ¶¶ 13, 23. Defendant denied
plaintiff's request for payment and made plaintiff a
settlement offer of $25, 000. Id. ¶ 24.
March 5, 2018, plaintiff filed a complaint in Multnomah
County Circuit Court, Bracken v. USAA General Indemnity
Co., No. 18CV07587 (“Bracken I”),
alleging a claim for “underinsured motorist
benefits.” Bracken I Compl., ECF #18-1.
Plaintiff subsequently amended his complaint to allege a
single claim for breach of contract. Bracken I Am.
Compl. ¶ 15, ECF #7-1.
January 11, 2019, plaintiff filed a motion to amend his
complaint to add additional claims for “breach of good
faith” and “fraud by inducement.” Opinion
2, ECF #13, at 20. The court denied plaintiff's motion on
April 5, 2019, finding that plaintiff waited ten months to
file his motion to amend, trial was scheduled to begin on May
20, 2019, and defendant would be prejudiced if the amendment
was allowed at such a late date. Id. at 3.
on April 26, 2019, plaintiff filed a second action in
Multnomah County Circuit Court, Bracken v. USAA General
Indemnity Co., No. 19CV19058 (“Bracken
II”)), in which he alleged the same facts and the
same claim (breach of contract), almost verbatim, as the
complaint in Bracken I. Compare Bracken I Am. Compl.
¶¶ 5-14, 20, ECF #7-1, with Compl.
¶¶ 5-13, 34, ECF #1-1. Plaintiff also added claims
for “breach of good faith” and “fraud by
inducement.” Compl. ¶¶ 36-39, ECF #1-1.
Bracken II was ultimately removed to this court and
resulted in the instant case. Mot. 2, ECF #6.
16, 2019, Bracken I settled after mediation.
Bracken I Tr. Settlement Announcement, ECF #7-2,
see also Bracken I Notice Intent Dismiss, ECF #7-3.
The parties agreed to “$70, 000 new UIM money for
bodily injury” and that although the “settlement
is not a settlement of 19-cv-19058, ” it “settles
the bodily injury UIM part of that lawsuit.”
Bracken I Tr. Settlement Announcement 2, ECF #7-2.
Id. On June 26, 2019, by stipulation of the parties,
Bracken I was dismissed with prejudice. Bracken
I Stipulated General J. Dismissal, ECF #18-2.
Requests for Judicial Notice
preliminary matter, the court considers the parties'
requests for judicial notice. See Def.'s Req.,
ECF #7; Pl.'s Req., #13; Def.'s Req., ECF #18.
“Although generally the scope of review on a motion to
dismiss for failure to state a claim is limited to the
Complaint, a court may consider evidence on which the
‘complaint “necessarily relies” if: (1) the
complaint refers to the document; (2) the document is central
to the plaintiff's claim; and (3) no party questions the
authenticity of the copy attached to the 12(b)(6)
motion.'” Daniels-Hall v. Nat'l Educ.
Ass'n, 629 F.3d 992, 998 (9th Cir. 2010) (quoting
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006));
see alsoF.R.E. 201(b)(2) (“The court may
judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be
parties ask the court to take judicial notice of various
pleadings from Bracken I. These documents are a
matter of public record and not reasonably subject to
dispute. See Anderson v. Holder, 673 F.3d 1089, 1094
n.1 (9th Cir. 2012) (holding courts “may take judicial
notice of records and reports of administrative
bodies”) (citation and internal quotation marks
omitted); Reyn's Pasta Bella, LLC v. Visa USA,
Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (holding
courts may take “judicial notice of court
filings” in another case to determine what issues were
presented and litigated); Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“A
court may take judicial notice of ‘matters of public
record' without converting a motion to dismiss into a
motion for summary judgment.”) (citation omitted).
Therefore, this court takes judicial notice of the
parties' requested materials.
First Claim-Breach of Contract
breach of contract claim, plaintiff alleges that
“defendant breached its obligation under [its] policy
by failing to pay underinsured motorist coverage
benefits.” Compl. ¶ 34, ECF #1-1. As defendant
correctly asserts, the doctrine of claim preclusion bars this
claim because plaintiff previously sued defendant in
Bracken I, alleging breach of contract for unpaid
UIM benefits, and that claim was dismissed with prejudice.
Mot. 5, 9-12, ECF #6.
Relevant Law ...