Lopez v. GEICO Indemnity Company ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Julie Elizabeth Lopez, No. CV-19-01748-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 GEICO Indemnity Company, et al., 13 Defendants. 14 15 16 Before the Court is Defendant GEICO Indemnity Company’s (“GEICO”) motion to 17 dismiss, which is fully briefed. (Docs. 14, 17, 19.) For the following reasons, the Court 18 will deny GEICO’s motion. 19 I. Background 20 Plaintiff Julie Lopez was involved in an automobile accident with a non-party on 21 June 10, 2014 in Maricopa County, Arizona. (Doc. 8 at 3.) Plaintiff alleged that she was 22 insured by GEICO with underinsured motorist limits of up to $100,000 per person, but 23 GEICO disagreed on the value of Plaintiff’s underinsured motorist claim. (Id. at 4-5.) On 24 June 10, 2017, GEICO offered Plaintiff $40,000. (Id. at 5.) Plaintiff thereafter filed a 25 complaint for breach of contract and bad faith against GEICO in the Maricopa County 26 Superior Court, and the action was removed to this Court. (Id. at 7.) The parties soon 27 stipulated to a dismissal of the complaint without prejudice in order to complete arbitration 28 on the breach of contract claim. (Id.) The Honorable David G. Campbell ordered that 1 Plaintiff would be required to file any lawsuit on the bad faith claims no later than 45 days 2 following the entry of an arbitration award. (Id.) Ultimately, however, the parties did not 3 arbitrate. (Id. at 8.) Rather, prior to the arbitration hearing, on January 15, 2019, GEICO 4 agreed to tender the remaining limits of the $100,000 policy to Plaintiff, and the parties 5 reached a settlement. (Id.) The remaining funds were deposited into the trust account of 6 Viper Law Group on January 30, 2019. (Id.) Plaintiff filed her complaint on the bad faith 7 claims on March 15, 2019. (Doc. 1.) GEICO then moved to dismiss, asserting that 8 Plaintiff’s suit is untimely. (Doc. 14.) The motion is now ripe. 9 II. Legal Standard 10 A motion to dismiss based on untimeliness is properly brought under Rule 12(b)(6). 11 Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). “A court should not dismiss a 12 complaint unless plaintiff cannot plausibly prove a set of facts demonstrating the timeliness 13 of the claim.” Ranch Realty, Inc. v. DC Ranch Realty, LLC, 614 F. Supp. 2d 983, 987 (D. 14 Ariz. 2007) (citing Bell Atlantic Corp v. Twombly, 550 U.S. 544, 546 (2007)). “Since the 15 court cannot consider materials outside the pleadings for Rule 12(b)(6) purposes, and since 16 the applicability of doctrines related to filing deadlines often depends on matters outside 17 the pleadings, whether a claim is time-barred is ‘not generally amenable to resolution on a 18 Rule 12(b)(6) motion.’” Id. (quoting Cervantes v. City of San Diego, 5 F.3d 1273, 1276 19 (9th Cir. 1993)). 20 III. Discussion 21 GEICO asserts, without support, that Plaintiff’s complaint is subject to dismissal 22 because she failed to file her complaint 45 days after the date in which the parties reached 23 a settlement. (Doc. 14 at 2.) But according to Plaintiff’s first amended complaint, Judge 24 Campbell ordered Plaintiff to file her complaint no later than 45 days following the entry 25 of an arbitration award. (Doc. 8 at 7.) The order did not speak to settlement. Without an 26 order directly on point, Plaintiff supposed that the accrual period began on the date of 27 receipt of GEICO’s settlement check, January 30, 2019—not the date of receipt of an email 28 offering to tender the check, January 15, 2019—if at all. GEICO, in contrast, argues that 1 || Judge Campbell’s reference to the entry of an arbitration award equally encompasses entry 2|| into a settlement agreement. 3 The Court cannot adopt GEICO’s approach at the motion to dismiss stage, where construction must be in favor of the non-moving party and the Court cannot consider materials outside the pleadings. Usher v. City of Los Angeles, 828 F. 2d 556, 561 (9th Cir. 6|| 1987). To be clear, the Court is not definitively concluding that Plaintiff's complaint is timely. Rather, because the prior dismissal order is ambiguous with respect to settlement 8 || agreements, the Court must construe it in Plaintiffs favor at the time. Nothing in this order 9|| precludes GEICO from reasserting its untimeliness defense at summary judgment or trial || if there is evidence that, in stipulating to dismissal of the first lawsuit, the parties intended 11 || for the 45-day deadline to begin on the date of entry into a settlement agreement. 12 IT IS ORDERED that GEICO’s motion to dismiss (Doc. 14) is DENIED. 13 Dated this 22nd day of October, 2019. 14 15 16 {Z, 17 {UO 18 Uaited States District Judge 19 20 21 22 23 24 25 26 27 28 -3-