United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
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. (Docket 107). Plaintiff David Wetch filed
a response to both motions. (Docket 109). Defendants filed a
reply in support of both motions. (Docket 110).
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.
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
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,  conversion; count V, exemplary
and punitive damages; and count VI, exploitation of an adult
with a disability. Id. at pp. 13-17.
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.
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).
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 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. ¶ 3 ...