United States District Court, W.D. Washington, Seattle
DONALD W. MORGAN, and MORGAN INSURANCE, LLC, Plaintiffs,
CAPITOL INDEMNITY CORPORATION, et al., Defendants.
HONORABLE JOHN C. COUGHENOUR JUDGE
matter comes before the Court on Defendants' uncontested
motion to dismiss (Dkt. No. 9). Having thoroughly considered
Defendants' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS the motion
for the reasons explained herein.
Donald Morgan and Morgan Insurance, LLC initiated a breach of
contract action in Snohomish County Superior Court. (Dkt.
Nos. 1, 7.) Defendants removed the action to federal court.
(Dkt. No. 1.) Defendants now move to dismiss all claims
against them for failure to (1) properly serve Defendants
with the summons and complaint, and (2) state a claim for
breach of contract. (Dkt. No. 9 at 2, 5.) Plaintiffs did not
file a response to Defendants' motion to dismiss.
Local Civil Rule 7(b)(2)
initial matter, the Court notes that Plaintiffs did not file
a response to Defendants' motion to dismiss. Under Local
Civil Rule 7(b)(2), “if a party fails to file papers in
opposition to a motion, such failure may be considered by the
court as an admission that the motion has merit.”
Accordingly, the Court takes Plaintiffs' failure to file
a response to Defendants' motion to dismiss as an
admission that the motion has merit.
Failure to Properly Serve Defendants with the Summons and
diversity case, where no federal statute governing
jurisdiction is applicable, courts apply the long-arm statute
of the state in which the district court sits. Terracom
v. Valley Nat'l Bank, 49 F.3d 555, 559 (9th Cir.
1995). In order to exercise personal jurisdiction over a
defendant, service must be proper. Pascua v. Heil,
108 P.3d 1253, 1257 (Wash.Ct.App. 2005).
Washington State, service of process for foreign insurance
companies “can be had only by service upon the
[Insurance] Commissioner.” Wash. Rev. Code §
48.05.200(1). The Plaintiffs did not serve the Washington
State Insurance Commissioner. (Dkt. No. 10 at ¶ 4.)
Service of process was not proper; accordingly, the Court
lacks jurisdiction over Defendants.
Failure to State a Claim
defendant may move for dismissal when a plaintiff
“fails to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). On a 12(b)(6) motion
to dismiss, the Court accepts all factual allegations in the
complaint as true and construes them in the light most
favorable to the non-moving party. Vasquez v. L.A.
County, 487 F.3d 1246, 1249 (9th Cir. 2007). However, to
survive a motion to dismiss, a plaintiff must cite facts
supporting a “plausible” cause of action.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). A claim has “facial plausibility” when
the party seeking relief “pleads factual content that
allows the Court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)
(internal quotations omitted). Although the Court must accept
as true a complaint's well-pleaded facts,
“conclusory allegations of law and unwarranted
inferences will not defeat an otherwise proper motion to
dismiss.” Vasquez, 487 F.3d at 1249 (internal
quotations omitted). “Dismissal for failure to state a
claim is appropriate only if it appears beyond doubt that the
non-moving party can prove no set of facts in support of his
claim which would entitle him to relief.” Id.
(internal quotations omitted).
case of a pro se litigant, her complaint must be
liberally construed. Litmon v. Harris, 768 F.3d 1237
(9th Cir. 2014). However, a court “may not supply
essential elements of the claim that were not initially
ple[aded].” Ivey v. Bd. of Regents of Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
general rule, courts may not consider “any material
beyond the pleadings” when ruling on a 12(b)(6) motion
to dismiss. Lee v. City of L.A., 250 F.3d 668, 688
(9th Cir. 2001) (citation and internal quotations omitted).
In limited circumstances, a court may consider extrinsic
evidence without converting the motion into one for summary
judgment. Id. The Court may consider “material
which is properly submitted as part of the complaint.”
Id. If the parties do not contest the document's