United States District Court, D. New Mexico
ORDER GRANTING MOTION TO DISMISS AND ORDER TO SHOW
C. BRACK UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant Haas &
Wilkerson Insurance Co.'s Motion to Dismiss, filed May
10, 2017. (Doc. 7.) Mr. Jaramillo (Plaintiff) has not
responded, and the time for doing so has passed. See
D.N.M. LR-Civ. 7.1(b), 7.4(a). The Court, being fully advised,
finds that the motion is well-taken and should be granted.
due to Plaintiff's failure to comply with court orders
and respond to the Motion to Dismiss, Plaintiff is required
to show cause why this case should not be dismissed as
case arises out of an automobile accident between Plaintiff,
a resident of New Mexico, and Defendant Scott Rawlin, a
resident of Colorado. (Doc. 1-A ¶¶ 1-2.) At the
time of the accident, Defendant Rawlin was driving a vehicle
owned and maintained by Defendant Wright's Amusements, a
business with its principal place of business in Colorado.
(Id. ¶¶ 3, 7.) Plaintiff alleges that
Defendants Rawlin and Wright's Amusements caused the
accident, in part because the vehicle's turn signal was
inoperable. (Id. ¶¶ 6, 8.) Plaintiff filed
a Complaint for Personal Injury Automobile Accident in the
Fifth Judicial District Court, County of Lea, State of New
Mexico, against Defendants Rawlin, Wright's Amusements,
and Haas & Wilkerson Insurance Company (H&W).
(See Id. at 1.)
H&W removed the state case to this Court on May 4, 2017.
(Doc. 1.) Defendant H&W alleges that it is an insurance
company and is “handling the claim under the relevant
insurance policy in this matter.” (Id. ¶
3.) Defendant H&W asserts that it is incorporated with
its principal place of business in Kansas. (Id.
¶ 4.) Thus, it removed the case based on diversity
jurisdiction pursuant to 28 U.S.C. §1332. (Id.
H&W moves to dismiss, arguing that Plaintiff's claims
against it should be dismissed because “[t]here are no
causes of action alleged against” it. (Doc. 7 at 2.)
reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court “must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light
most favorable to the plaintiff.” In re Gold Res.
Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015)
(quotation omitted). “To survive a motion to dismiss,
” the complaint does not need to contain
“detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556.)
H&W argues that Plaintiff “has made no attempt to
allege or state any cause of action against H&W.”
(Doc. 7 at 2.) The Court agrees.
allegations involve the actions of Defendants Rawlin and
Wright's Amusements. Plaintiff alleges that Defendant
Wright's Amusements had a duty to maintain its vehicle in
an operable condition, as well as to train and supervise its
driver, Defendant Rawlin. (Doc. 1-A ¶¶ 9-10.) He
alleges that Defendant “Rawlin had a duty to operate
the vehicle in a safe and prudent manner” and “to
inspect the vehicle he was operating to insure the equipment
was operating correctly.” (Id. ¶ 11-12.)
Plaintiff alleged that the accident was “a direct and
proximate result of” Defendants Rawlin's and
Wright's Amusements' negligence. (Id. ¶
than describing Defendant H&W as “a formal business
entity licensed to and actually conducting business within
the State of New Mexico” that “issued a policy of
liability insurance to Defendant[, ]” (id.
¶ 4), Plaintiff did not make any specific allegations
against or concerning Defendant H&W. “Where a
plaintiff has asserted no causes of action against a named
defendant, that party may be terminated as a
defendant.” Whiting v. Hogan, 855 F.Supp.2d
1266, 1289 (D.N.M. 2012) (citing R.B. ex rel. Parent v.
Mastery Charter Sch., 762 F.Supp.2d 745, 754 (E.D. Pa.
2010) (“Because the complaint makes no claims against
the School District, its Motion to Dismiss for failure to
state a claim is hereby GRANTED.”); Flaherty v.
Massapequa Pub. Schs., 752 F.Supp.2d 286, 299 (E.D.N.Y.
2010) (“Similarly, as the plaintiff has asserted no
causes of action against named defendant Marianne Fisher, she
is also terminated as a defendant.”); Jones v.
Countrywide Home Loans, Inc., No. 09-4313, 2010 WL
551418, at *10 (N.D. Ill. Feb. 11, 2010) (“Defendants
‘Does 1-10' are alleged to be individuals who
otherwise ‘engaged in or aided and abetted' the
wrongdoing alleged in the First Amended Complaint. . . .
Jones has stated no claims against individual defendants in
the First Amended Complaint. Defendants Does 1-10 are
therefore dismissed.”); Shook v. Shook, No.
5:06cv76, 2007 WL 2491327, at *16 (W.D. N.C. Aug. 29, 2007)
(“While plaintiff named Western Surety in her Amended
Complaint, she has asserted no claims against such defendant
. . . . [T]he court will dismiss Western Surety with
prejudice from this action inasmuch as plaintiff has failed
to state any cognizable claims against it.”)); see
also Chavez v. Chenoweth, 553 P.2d 803, 708 (N.M. Ct.
App. 1976) (affirming dismissal of defendant where defendant
“show[ed] up in the pleadings only as a name included
in the prayer” for relief). Because Plaintiff failed to
state any causes of action against Defendant H&W, the
Court will dismiss it from this action.