The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DOMINICK MARCHETTI CIVIL ACTION
VERSUS NO. 23-4743
THE TRAVELERS CASUALTY COMPANY SECTION: “G”(1)
ORDER AND REASONS
Before the Court is Defendant The Travelers Casualty Company’s (“Travelers”) “Rule
12(b)(6) Motion to Dismiss for Failure to State a Claim and/or Rule 12(b)(7) Motion to Dismiss
for Nonjoinder of an Indispensable Party.”1 Travelers argues that it should be dismissed as a
Defendant in this case because it did not insure Plaintiff Dominick Marchetti (“Plaintiff”).2
Travelers also argues in the alternative that Plaintiff’s Complaint should be dismissed because
Plaintiff failed to join an indispensable party, Virginia Marchetti, in this matter.3 Plaintiff does not
oppose the motion.4 Having considered the motion, the record, and the applicable law, the Court
grants Traveler’s “Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim” and finds
Travelers’ “Rule 12(b)(7) Motion to Dismiss for Nonjoinder of an Indispensable Party” moot.
This litigation arises out of property damage caused by Hurricane Ida on August 29, 2021.5
1 Rec. Doc. 8.
2 Id. at 1.
3 Id.
4 Travelers filed the motion on November 27, 2023, and Travelers set the motion for submission on December
13, 2023. Pursuant to Local Rule 7.5, any opposition to the motion was due on December 5, 2023.
5 Rec. Doc. 1 at 3–4.
Plaintiff filed a Complaint in this Court on August 28, 2023 against Travelers to recover damages
related to his property at 1300 Severn Avenue, Metairie, LA 70001 (“Property”).6 In the
Complaint, Plaintiff alleges that the Property sustained damages as a result of Hurricane Ida.7
Plaintiff further alleges that he contracted with Travelers to insure the Property and that the
Property is therefore covered under a policy (“Policy”) issued by Travelers.8 Plaintiff asserts a
breach of contract claim and claims for violations of Louisiana Revised Statute § 22:1892 and
Louisiana Revised Statute § 22:1973 as a result of Travelers’ alleged failure to timely pay
insurance proceeds due under the Policy.9
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for
failure to state a claim upon which relief can be granted.”10 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”11 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face.”12 The “[f]actual allegations must be enough to raise a right to relief above
the speculative level.”13 The complaint need not contain detailed factual allegations, but it must
offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a cause
6 Id. at 2.
7 Id. at 3.
8 Id. at 2.
9 Id. at 6–7.
10 Fed. R. Civ. P. 12(b)(6).
11 Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
(internal quotation marks omitted).
13 Twombly, 550 U.S. at 555. Put another way, a plaintiff must plead facts that allow the court to draw a
“reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
of action.14 That is, the complaint must offer more than an “unadorned, the defendant-unlawfully-
harmed-me accusation.”15 Although a court must accept all “well-pleaded facts” as true, a court
need not accept legal conclusions as true.16 “[L]egal conclusions can provide the framework of a
complaint, [but] they must be supported by factual allegations.”17 Similarly, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements” will not suffice.18
If the factual allegations are insufficient to raise a right to relief above the speculative level, or an
“insuperable” bar to relief exists, the claim must be dismissed.”19
The Court finds that Plaintiff fails to state a claim against Travelers as the Policy for the
Property names The Standard Fire Insurance Company as the insurer.20 The Policy does not name
Travelers as an insurer.21 In addition, Plaintiff did not file a response opposing the instant motion
or raise any argument as to why Travelers should not be dismissed. Therefore, Travelers must be
dismissed as a Defendant.
The Court need not reach Travelers’ “Rule 12(b)(7) Motion to Dismiss for Failure to Join
an Indispensable Party” because Plaintiff’s claims against it are dismissed based on Travelers’
“Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim.”
14 Iqbal, 556 U.S. at 678.
15 Id.
16 Id. at 677–78.
17 Id. at 679.
18 Id. at 678.
19 Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dist., No. 09-6470,
2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
20 Rec. Doc. 8-2 at 2.
21 Id.
Accordingly,
IT IS HEREBY ORDERED that The Travelers Casualty Company’s “Rule 12(b)(6)
Motion to Dismiss for Failure to State a Claim”*” is GRANTED. Plaintiff Dominick Marchetti’s
claims against The Travelers Casualty Company are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that The Traveler Casualty Company’s “Rule 12(b)(7)
Motion to Dismiss for Nonjoinder of an Indispensable Party””? is MOOT.
NEW ORLEANS, LOUISIANA, this 11th day of December, 2023.
NANNETTE JO poke BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
2 Rec. Doc. 8.
3 Td.