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Wetch v. Crum & Forster Commercial Ins.

United States District Court, D. South Dakota, Western Division

March 21, 2019

DAVID WETCH, Plaintiff,
v.
CRUM & FORSTER COMMERCIAL INS.; NORTH RIVER INSURANCE COMPANY; UNITED STATES FIRE INSURANCE COMPANY; and CRUM & FORSTER HOLDINGS CORP., Defendants.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         Defendants Crum & Forster Commercial Insurance, Crum & Forster Holdings Corporation and the North River Insurance Company filed a motion to withdraw their earlier motions to dismiss and defendant Crum & Forster Holdings Corporation, in the same pleading, filed a renewed motion for a protective order.[1] (Docket 107). Plaintiff David Wetch filed a response to both motions. (Docket 109). Defendants filed a reply in support of both motions. (Docket 110).

         Defendants' motions are intertwined with a report and recommendation on the earlier motions (Docket 82), defendants' objections to the report and recommendations (“R&R”) (Docket 83), an order granting in part and denying in part a motion for a protective order (Docket 105) and defendants' objections to the order (Docket 106). Those earlier filings will be addressed as necessary in resolving defendants' present motions.

         For the reasons stated below, defendants' motion to withdraw the earlier motions to dismiss is granted and C&F Holding's renewed motion for a protective order is denied as moot.

         ANALYSIS

         Plaintiff David Wetch filed a six-count amended complaint against all four defendants. (Docket 44). The claims asserted are: count I, bad faith; count II, intentional infliction of emotional distress; count III, Medicare Secondary Payer Act private cause of action; count IV, [2] conversion; count V, exemplary and punitive damages; and count VI, exploitation of an adult with a disability. Id. at pp. 13-17.

         Defendants filed motions to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(2) and(b)(6). (Dockets 45 & 46). They assert the court fails to have personal jurisdiction over them and the amended complaint fails to state a claim upon which relief may be granted. Id.

         U.S. Fire filed a motion pursuant to Rule 12(b)(6) to dismiss plaintiff's “exploitation cause of action (and all related allegations, specifically paragraphs 97-99 and 135-139 of the Amended Complaint) . . . .” (Docket 47). U.S. Fire subsequently filed an answer asserting the amended complaint “fails to state a claim for relief against defendant and should therefore be dismissed.” (Docket 50 at p. 26 ¶ 2).

         Pursuant to 28 U.S.C. § 636, the case was referred to United States Magistrate Judge Veronica L. Duffy “for the purposes of resolving pretrial motions and conducting any necessary hearings, including evidentiary hearings . . . .” (Docket 75). The magistrate judge issued a R&R addressing all four motions. (Docket 82). The report recommended the following:

1. C&F Holdings' motion to dismiss should “be granted in part and denied in part.” Id. at p. 49 ¶ 1. The magistrate judge recommended defendant's motion to dismiss “for lack of personal jurisdiction over this defendant be granted” and that “[t]he remaining arguments for dismissal on the basis of Rule 12(b)(6) (failure to state a claim) . . . be denied as moot.” Id. (bold and capitalization omitted);
2. C&F Commercial's and North River's motion to dismiss should “be granted in part and denied in part.” Id. ¶ 2. The magistrate judge recommended the defendants' motion to dismiss “for lack of personal jurisdiction should be denied . . . [the] motion to dismiss count [six[3] of [the] complaint should be granted . . . and [the] motion to dismiss [the] remaining counts against these two defendants should be denied.” Id. (bold and capitalization omitted); and
3. U.S. Fire's motion to dismiss “should be granted as to count [six] of [the amended] complaint and denied as to all other counts.” Id. ΒΆ 3 ...

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