United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion to Dismiss and
Memorandum of Law in Support filed by Defendant Federated
Mutual Insurance Company ("Federated"). (ECF No. 8)
Federated filed its motion on December 3, 2018. Pursuant to
Local Rule 7-4.01, Plaintiffs Diamond Shoppe Jewelers, LLC,
Jeffrey Politte, and Gary Wagner (collectively referred to as
"Plaintiffs") had seven days in which to file a
response. They have yet to respond. On January 31, 2019, the
Court issued an Order for Plaintiffs to show cause in writing
and no later than February 14, 2019 as to why they had not
responded to Federated's motion. The Court warned
Plaintiffs that failure to do so would result in the Court
ruling on the unopposed motion and could result in the Court
dismissing their case in its entirety for failure to
prosecute their case. Plaintiffs failed to submit a response
to the Court's show cause order. Consequently, the Court
now considers Federated's Motion to Dismiss unopposed.
Jeffrey Politte and Gary Wagner operated Diamond Shoppe
Jewelers, LLC, located in St. Peters, Missouri. They allege
Federated failed to compensate them in accordance with an
insurance policy for losses suffered after a burglary that
occurred in April 2016. Plaintiffs sued Federated in state
court for vexatious refusal to pay, seeking "$120,
999.45 pre-and post-judgment interest, attorneys' fees,
and a penalty of 20% of the first $15, 000.00 of loss and 10%
of the amount in excess of $15, 000.00." (ECF No. 4)
Federated removed the case to federal court on the basis of
diversity jurisdiction pursuant to 28 U.S.C. §§
1332, 1441, and 1446.
December 3, 2018, Federated filed the instant Motion to
Dismiss and Memorandum of Law in Support. (ECF No. 8)
Pursuant to Local Rule 4.01(B), Plaintiffs had seven days
within which to file any opposition memorandum. On January
31, 2019, the Court issued an Order for Plaintiffs to show
cause in writing and no later than February 14, 2019 as to
why they had not responded to Federated's motion. (ECF
No. 9) Plaintiffs failed to submit a response to the
Court's show cause order or otherwise take any action in
this case after it was removed to federal court despite being
represented by counsel.
complaint must be dismissed under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted if the complaint fails to plead
"enough facts to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "Factual
allegations must be enough to raise a right to relief above
the speculative level. . . ." Id. at 555.
Courts must liberally construe the complaint in the light
most favorable to the plaintiff and accept the factual
allegations as true. See Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (stating that
in a motion to dismiss, courts accept as true all factual
allegations in the complaint); Eckert v. Titan Tire
Corp., 514 F.3d 801, 806 (8th Cir. 2008) (explaining
that courts should liberally construe the complaint in the
light most favorable to the plaintiff).
"[w]here the allegations show on the face of the
complaint there is some insuperable bar to relief, dismissal
under Rule 12(b)(6) is appropriate." Benton v.
Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir.
2008) (citation omitted). Courts "are not bound to
accept as true a legal conclusion couched as a factual
allegation." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 555). When
considering a motion to dismiss, a court can "begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of
truth." Id. at 679. Legal conclusions must be
supported by factual allegations to survive a motion to
Missouri's vexatious refusal statute, a court or jury in
a case against an insurance company may award damages in
addition to the plaintiffs proven loss under the policy
"if it appears from the evidence that such company has
refused to pay such loss without reasonable cause or
excuse." Mo. Rev. Stat. § 375.420. "A claim of
vexatious refusal to pay requires proof (1) of an insurance
policy, (2) of the insurer's refusal to pay and (3) that
the insurer's refusal was without reasonable cause or
excuse." D.R. Sherry Const., Ltd. v. Am. Family Mut.
Ins. Co., 316 S.W.3d 899, 907 (Mo. 2010) (en banc)
(citing Dhyne v. State Farm Fire & Cas. Co., 188
S.W.3d 454, 456-57 (Mo. 2006) (en banc)).
argues Plaintiffs' petition fails to state a claim upon
which relief can be granted and, therefore, should be
dismissed pursuant to Rule 12(b)(6). Specifically, Federated
argues Plaintiffs have failed to allege facts supporting
their claim that they are entitled to coverage under the
insurance policy. Further, they have not requested a finding
of coverage or that Federated breached the insurance policy.
Rather, Federated states Plaintiffs have alleged bare legal
conclusions that the Court should disregard when considering
the instant motion to dismiss. See Iqbal, 556 U.S.
Court agrees that Plaintiffs have failed to state a claim
upon which relief can be grated and dismisses Plaintiffs'
claim for vexatious refusal to pay. In addition to stating
mere legal conclusions, Plaintiffs have not asserted a
separate underlying claim for breach of the insurance policy
or pleaded sufficient facts to establish such a contract as
they have failed to allege any facts relating to the terms of
the insurance policy or its performance. See generally
Smith Flooring, Inc. v. Pennsylvania Lumbermens Mut. Ins.
Co., 713 F.3d 933, 941 (8th Cir. 2013) (quoting
Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104
(Mo. 2010) (en banc) ("Under Missouri law, '[a]
breach of contract action includes the following essential
elements: (1) the existence and terms of a contract; (2) that
plaintiff performed or tendered performance pursuant to the
contract; (3) breach of the contract by the defendant; and
(4) damages suffered by the plaintiff").
the Court previously warned Plaintiffs in the January 31,
2019 Order that failure to timely respond could result in the
Court dismissing their case in its entirety for failure to
prosecute their case. Therefore, in addition to dismissing
the case under Rule 12(b)(6) for failure to state a claim,
the Court also dismisses the case for Plaintiffs' failure
to prosecute and otherwise comply with the Court's
directives. E.D.Mo. L.R. 8.01.
IT IS HEREBY ORDERED that Defendant
Federated Mutual Insurance Company's Motion to Dismiss
and Memorandum of Law in Support in this case (ECF No. 8) is
GRANTED and Plaintiffs Diamond Shoppe
Jewelers, Jeffrey Politte, and Gary ...