United States District Court, D. Arizona
HONORABLE JOHN J. TUCHI UNITED STATES H DISTRICT JUDGE
issue is Defendant Liberty Mutual’s Motion to Dismiss
and Motion to Compel Appraisal (Doc. 5, Mot.). Plaintiff
Right At Home Glass has filed a Response (Doc. 18, Resp.),
and Defendant a Reply (Doc. 22, Reply). The Court finds these
matters appropriate for decision without oral argument.
See LRCiv 7.2(f).
Right at Home Glass alleges that from November 2, 2017
through May 7, 2018, it replaced and installed glass for 139
customers who had automobile insurance through Defendant.
(Doc. 1-3, Complaint (Compl.) ¶ 15.) When Plaintiff
submitted invoices to Defendant for its work, Defendant paid
only a portion of each invoice instead of paying the entire
amount owed. (Compl. ¶ 18.) In total, Plaintiff asked
for $128, 986.46, but Defendant paid only $55, 183.25-leaving
an outstanding balance of $73, 803.21 on the 139 invoices.
(Compl. ¶ 19.) Plaintiff alleges that it attempted to
collect the outstanding balance, but Defendant refused to pay
it. (Compl. ¶ 22.)
each glass replacement and installation service, Plaintiff
alleges that the customer assigned his or her rights to
collect payment from Defendant under the customer’s
insurance policy in consideration for Plaintiff’s work.
Plaintiff issued two documents for each customer-a work order
and an invoice-that purportedly contained assignment
language. The assignment language on the work orders provided
to the Court is illegible. (Doc. 18-1, Ex. B.) The assignment
language on the invoices states as follows:
Assignment of Proceeds, Benefits and Authorization to Pay:
TERM NET 30 I hereby authorize the glass repairs and assign
to RIGHT AT HOME GLASS (hereinafter “Assignee”)
any and all Benefits from the insurer providing coverage for
the repaired vehicle. This assignment of benefits is given in
consideration for the glass repairs performed by Assignee.
This acts as an assignment of rights and benefits to the
extent of the services provided by Assignee. If the insurer
refuses to make payments in full upon demand by me or
Assignee, I hereby assign and transfer to Assignee any and
all causes of action and all proceeds therefrom, and further
authorize Assignee to prosecute said causes of action either
in my name or Assignee’s name. I further authorize
Assignee to compromise, settle or otherwise resolve claims
and/or cause of actions as it may see fit. If my insurer
sends payment to me, I will immediately forward payment to
(Doc. 18-1, Ex. B.)
the spring and summer of 2018, April Nasic, a representative
for Plaintiff, and Leah Cannon, a representative for
Defendant, communicated about Plaintiff’s invoices that
had outstanding balances. On March 29, 2018, Ms. Nasic emailed
Ms. Cannon “the next set of invoices totaling 164
claims that we are invoking appraisal for” under the
insurance policies, with the name and phone number of
Plaintiff’s appraiser. (Doc. 18, Ex. D-F, Nasic/Cannon
Emails at 6.) Ms. Nasic followed up with emails to Ms. Cannon
on March 30 and April 3 to ask if Ms. Cannon had received the
appraisal claims. (Nasic/Cannon Emails at 7.) Ms. Cannon
responded on April 3: “I did receive your email and the
164 claims you are invoking appraisal on. We will get these
processed and sent over to [the appraiser] just as soon as
possible!” (Nasic/Cannon Emails at 8.) On June 26, Ms.
Nasic emailed Ms. Cannon asking, “When will the next
set of claims be released? I am working on an offer letter
for you as discussed and should have that over to you this
week. Please keep me posted on the 450 PLUS claims I resent
over for appraisal beginning of this month.”
(Nasic/Cannon Emails at 12.) Ms. Nasic sent follow up emails
on June 28 and July 2 asking if Ms. Cannon had any updates.
(Nasic/Cannon Emails at 12-13.)
Nasic and Ms. Cannon communicated by phone and email in July
2018-but the parties disagree as to exactly what was said.
Each party blames the other for frustrating the appraisal
process. Ms. Nasic refers to two phone calls in which Ms.
Cannon “would not commit to releasing the claims for
appraisal” and “indicated that  the Defendant
 did not believe they had to honor [Plaintiff’s]
request for appraisal.” (Nasic Decl. ¶¶
23-25.) On the other hand, Ms. Cannon avers that on July 6,
Ms. Nasic sent her an email with “an ultimatum that
[Defendant] could either accept the national pricing
agreement or the alternative would be that [Plaintiff] would
not move forward with their appraisal request and would
rather pursue the claims through litigation[.]” (Doc.
22, Ex. A, Declaration of Leah Cannon (Cannon Decl.) ¶
19). Ms. Cannon states that subsequent phone calls with Ms.
Nasic “confirmed that she was only interested in
either securing a national pricing agreement or
litigating.” (Cannon Decl. ¶ 22.) In addition, Ms.
Cannon avers that Defendant never denied Plaintiff’s
right to appraisal in Arizona. (Cannon Decl. ¶ 25.)
October 22, 2018, Plaintiff filed this lawsuit alleging
claims for breach of contract (Count One), breach of the duty
of good faith and fair dealing (Count Two), and unjust
enrichment (Count Three). (Compl. at 6-8.) Defendant has now
moved to dismiss Plaintiffs Complaint in its entirety or
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) may attack either the allegations of the
complaint as insufficient to confer upon the court subject
matter jurisdiction, or the existence of subject matter
jurisdiction in fact.” Renteria v. United
States, 452 F.Supp.2d 910, 919 (D. Ariz. 2006) (citing
Thornhill Publ’g Co. v. Gen. Tel. & Elecs.
Corp., 594 F.2d 730, 733 (9th Cir. 1979)). “Where
the jurisdictional issue is separable from the merits of the
case, the [court] may consider the evidence presented with
respect to the jurisdictional issue and rule on that issue,
resolving factual disputes if necessary.”
Thornhill, 594 F.2d at 733; see also Autery v.
United States, 424 F.3d 944, 956 (9th Cir. 2005)
(“With a 12(b)(1) motion, a court may weigh the
evidence to determine whether it has jurisdiction.”).
The burden of proof is on the party asserting jurisdiction to
show that the court has subject matter jurisdiction. See
Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090,
1092 (9th Cir. 1990).
it involves a court’s power to hear a case, ”
subject matter jurisdiction “can never be forfeited or
waived.” United States v. Cotton, 535 U.S.
625, 630 (2002). Courts “have an independent obligation
to determine whether subject-matter jurisdiction exists, even
in the absence of a challenge from any party.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 513-14
analyzing a complaint for failure to state a claim for relief
under Federal Rule of Civil Procedure 12(b)(6), the well-pled
factual allegations are taken as true and construed in the
light most favorable to the nonmoving party. Cousins v.
Lockyer,568 F.3d 1063, 1067 (9th Cir. 2009). Legal
conclusions couched as factual allegations are not entitled
to the assumption of truth, Ashcroft v. Iqbal, 556
U.S. 662, 680 (2009), and therefore are insufficient to