First Mercury Insurance Company v. Great Divide Insurance Company

MOTION to Dismiss Per FRCP12

N.D. Cal.June 2, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MOTION TO DISMISS PURSUANT TO FRCP 12(B)(6) Case No. 5:16-cv-02114 LHK 3506950v1 0986623 MARIA S. QUINTERO (SBN 223629) mquintero@hinshawlaw.com HINSHAW & CULBERTSON LLP One California Street, 18th Floor San Francisco, CA 94111 Telephone: 415-362-6000 Facsimile: 415-834-9070 Attorneys for Defendant GREAT DIVIDE INSURANCE COMPANY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION FIRST MERCURY INSURANCE COMPANY, Plaintiff, vs. GREAT DIVIDE INSURANCE COMPANY; and DOES 1 - 50, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 5:16-cv-02114 LHK DEFENDANT GREAT DIVIDE INSURANCE COMPANY'S NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FRCP 12(B)(6) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, OR IN THE ALTERNATIVE, MOTION TO STAY DATE: SEPTEMBER 1, 2016 TIME: 1:30 P.M. DEPT: 8 / 4TH FLOOR Complaint Filed: April 21, 2016 TO PLAINTIFF AND ITS COUNSEL OF RECORD: PLEASE TAKE NOTICE that, on September 1, 2016, at 1:30 p.m., or as soon thereafter as the matter may be heard in Courtroom 8 – 4th Floor of the above-captioned Court, located at 280 South First Street, San Jose, California, the Honorable Lucy H. Koh presiding, Defendant Great Divide Insurance Company will, and hereby does, move to dismiss Plaintiff First Mercury Insurance Company's Complaint ("Complaint") under Federal Rule of Civil Procedure 12(b)(6). Defendant Great Divide seeks dismissal of the Complaint in its entirety with prejudice under Rule 12(b)(6) because the Complaint’s allegations fail to state a claim against Defendant Great Divide upon which Case 5:16-cv-02114-LHK Document 15 Filed 06/02/16 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 MOTION TO DISMISS PURSUANT TO FRCP 12(B)(6) Case No. 5:16-cv-02114 LHK 3506950v1 0986623 relief can be granted as a matter of law. In the alternative, Defendant Great Divide will and hereby does move to stay this coverage litigation pending resolution of the underlying liability action, Patel v. San Francisco Forty Niners et al. Santa Clara Superior Court Case No. 2015-1-CV-286138, under this Court's discretionary authority pursuant to Brillhart v. Excess Ins. Co., 316 U.S. 491, 495 (1942). This Motion is made based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities in support thereof, the Request for Judicial Notice, the pleadings and papers on file herein, and upon such other matters as may be presented to the Court at the time of the hearing. DATED: June 2, 2016 By: HINSHAW & CULBERTSON LLP /s/ Maria S. Quintero MARIA S. QUINTERO Attorneys for Defendant GREAT DIVIDE INSURANCE COMPANY Case 5:16-cv-02114-LHK Document 15 Filed 06/02/16 Page 2 of 2