IREIFEJ v. TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WAJIH IREIFEJ, )

)

Plaintiff, )

)

v. ) 1:20CV739

)

TRAVELERS CASUALTY INSURANCE )

COMPANY OF AMERICA, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This matter is before the Court on a Motion to Dismiss by Travelers Casualty

Insurance Company of America (“Travelers”) [Doc. #9]. Travelers contends that

the breach of contract and bad faith claims are barred by the statute of limitations

and that the Complaint fails to state a claim for bad faith or unfair and deceptive

trade practices for which relief can be granted. For the reasons explained below,

the motion is granted.

I.

On April 28, 2015, Plaintiff Wajih Ireifej’s property suffered direct physical

loss and damage. (Compl. ¶ 5 [Doc. #5].) Notice of the loss was promptly given

to Travelers, who had issued the replacement cost policy (“the Policy”) covering

the property. (Id. ¶¶ 4-6, 11.) The loss was deemed covered, and an adjustment

of the loss commenced. (Id. ¶ 7.) However, after the adjustment, the parties

disagreed on the amount of loss and the claim was sent to appraisal. (Id. ¶ 8.) On

September 25, 2019, an appraisal award was signed by the umpire, and Travelers

issued a check for the appraisal award on October 10, 2019. (Id. ¶¶ 9-10.) Over

the next few months, Ireifej attempted to locate a suitable replacement property

because the appraisal funds were insufficient to repair the property. (Id. ¶ 13.) On

March 27, 2020, Ireifej’s representative notified Travelers that Ireifej intended to

purchase a replacement property and, before he spent millions of dollars, he

wanted to confirm that Travelers would comply with its obligations under the

Policy. (Id. ¶ 14.) Travelers allegedly refused. (Id. ¶ 15.) Ireifej filed suit against

Travelers on July 13, 2020 for breach of contract, bad faith, and unfair and

deceptive trade practices.

II.

Travelers has moved to dismiss pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure because, it argues, the statute of limitations bars the

breach of contract and bad faith claims and the allegations of bad faith and unfair

and deceptive trade practices are insufficient. In support of its motion, Travelers

attached three exhibits identified as a certified copy of the Policy [Docs. #9-1, 9-

2], a copy of the actual cash value payment letter [Doc. #9-3], and a copy of the

denial letter [Doc. #9-4].

To survive a motion to dismiss made pursuant to Rule 12(b)(6), a complaint

“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 Atlantic Corp. v. Twombly, 550 U.S. 544, 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); see also McCleary-Evans v. Md.

Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015)

(noting that a complaint must “contain[] sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face in the sense that the

complaint’s factual allegations must allow a court to draw the reasonable inference

that the defendant is liable for the misconduct alleged”). However, when a

complaint states facts that are “’merely consistent with’ a defendant’s liability, it

‘stops short of the line between possibility and plausibility of ‘entitlement to

relief.’’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). When

evaluating whether the complaint states a claim that is plausible on its face, the

facts are construed in the light most favorable to the plaintiff and all reasonable

inferences are drawn in his favor. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance

Agency, 745 F.3d 131, 136 (4th Cir. 2014). Nevertheless, “labels and

conclusions[,]” “a formulaic recitation of the elements of a cause of action[,]” and

“naked assertions . . . without some further factual enhancement” are insufficient.

Twombly, 550 U.S. at 557. In other words, “[f]actual allegations must be enough

to raise a right to relief above the speculative level”. Id. at 555.

Furthermore, a defendant may raise the statute of limitations bar, which is

an affirmative defense, pursuant to a Rule 12(b)(6) motion. Dean v. Pilgrim’s Pride

Corp., 395 F.3d 471, 474 (4th Cir. 2005). But, “the time bar [must be] apparent

on the face of the complaint.” Id.

“While a 12(b)(6) motion focuses on the allegations of the complaint, it is

well established that a document attached to a motion to dismiss may be

considered when evaluating a motion to dismiss if the document was integral to

the complaint and authentic.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,

164 (4th Cir. 2016) (internal quotation omitted). A document is not integral to the

complaint when the “claims do not turn on, nor are . . . otherwise based on” the

document. Id. at 166 (finding that the police incident report was not integral to the

complaint where “the complaint included a few quotes from and references to the”

report but the claims did not turn on and were not otherwise based on the

statements in the report) (citing Chambers v. Time Warner, Inc., 282 F.3d 147,

153 (2d Cir. 2002) (“explaining that a document is ‘integral to the complaint’

‘where the complaint relies heavily upon its terms and effect’ (internal quotation

marks omitted)”); Smith v. Hogan, 794 F.3d 249, 255 (2d Cir. 2015) (“document

with ‘no independent legal significance to [plaintiff’s] claim’ was not integral to the

complaint”)). Not only does Ireifej quote from the Policy, but its contents are

integral to his claims, most evidently because the terms specify each party’s

obligations. Therefore, it is appropriate to consider the attached certified copy of

the Policy. On the other hand, Ireifej does not challenge the payment of the actual

cash value or refer to the existence or the contents of the so-called actual cash

value payment letter dated July 14, 2015. Likewise, Ireifej does not allege the

existence or contents of a denial letter dated April 10, 2020, only that Travelers

refused to comply with the Policy. Neither the actual cash value payment letter

nor the denial letter is integral to the Complaint, and, as such, neither will be

considered.

A.

1.

Travelers first challenges the timeliness of the breach of contract claim. It

contends that Ireifej’s property was damaged by fire and, because the Policy is a

fire insurance policy, North Carolina law requires that an action be brought within

three years of the date of loss, April 28, 2015. (Br. in Supp. of Mot. to Dismiss by

Travelers (“Br. in Supp.”) at 5-8 [Doc. #10].) Travelers argues that suit was

brought well beyond three years from the date of the loss. (Id. at 8.)

Ireifej does not appear to dispute the date of the loss or the three-year

statute of limitations but, instead, argues that his action could not possibly have

accrued on the date of the loss because Travelers did not breach the Policy until its

post-March 2020 refusal to comply. (Pl.’s Mem. of Law in Supp. of His Resp. in

Opp’n to Def.’s Mot. to Dismiss (“Br. in Opp’n”) at 4-6 [Doc. #14].) Furthermore,

he contends that “[t]he appraisal process and subsequent refusal by [Travelers] to

fully compensate [him] are conditions precedent to this suit.” (Id. at 5, 6 (relying

on Patel v. Scottsdale Ins. Co., 728 S.E.2d 394 (N.C. Ct. App. 2012).)

Despite the attractiveness of Ireifej’s arguments on their face, courts have

rejected them. In North Carolina, every fire insurance policy must contain certain

standard provisions set out in N.C. Gen. Stat. § 58-44-16. Of particular relevance

here is the standard provision governing suit: “No suit or action on this policy for

the recovery of any claim shall be sustainable in any court of law unless all the

requirements of this policy have been complied with and unless commenced within

three years after inception of the loss.” N.C. Gen. Stat. § 58-44-16(f)(18). Indeed,

as required, the Policy states:

No one may bring a legal action against us under this Coverage Form

unless:

1. There has been full compliance with all of the terms of this

Coverage Form, and

2. The action is brought within 3 years after the date on which the

direct physical loss or damage occurred.

(Policy Endorsement N.C. Changes § 1 at 161 [Doc. #9-1].) North Carolina’s

Supreme Court has interpreted the word “inception” as used in “inception of the

loss” in this context to mean “’the beginning, the commencement, the initiation of

the loss [that was] caused by fire.’” Marshburn v. Associated Indem. Corp., 353

S.E.2d 123, 126 (N.C. Ct. App. 1987) (quoting Boyd v. Bankers & Shippers Ins.

Co., 96 S.E.2d 703, 707 (N.C. 1957)). The North Carolina Court of Appeals has

since held that “that the phrase ‘inception of the loss,’ when used in a policy of

insurance . . . means that the policy limitation period runs from the date of the

occurrence of the event out of which the claim for recovery arose.“ Id. A claim

filed after the limitations period is barred “unless the insurer, by its conduct,

waives or is estopped from relying upon the limitation provision of the policy.” Id.

1 The page number corresponds to “Travelers Doc Mgmt” number.

As is evident, a claim for breach of an insurance policy like the one at issue

here begins to run on the date of the loss, not the date the insurer denies the

claim, as Ireifej argues. The plaintiff in Dorman v. Grain Dealers Mutual Insurance

Company, No. 1:09CV268, 2010 WL 1462551 (W.D.N.C. Mar. 18, 2020),

recommendation adopted by, 2010 WL 1462557 (Apr. 13, 2010), took the same

position in opposition to a motion to dismiss but the court was not persuaded.

After a fire occurred at the insured property on April 3, 2005, the plaintiff, his

attorney, an adjuster, and attorneys for the insurer exchanged communications

about the repair estimates. Id. at *1. After not having heard from the plaintiff or

his attorney, the insurer mailed the plaintiff a check on January 17, 2007, after

which the plaintiff’s attorney responded on September 24, 2007 with additional

repair estimates. Id. at *1-*2. The parties met on January 31, 2008, and the

plaintiff’s attorney sent the insurer another estimate on May 2, 2008. Id. at *2.

On June 26, 2008, the insurer denied the plaintiff’s “claim based upon the

provisions of the policy that required that any legal action would have to be

brought within three years after the date on which the loss or damage occurred.”

Id.

The plaintiff argued that the statute of limitations did not begin to run until

the insurer denied his claim in June 2008. Id. at *6. The court responded, “This

contention finds no legal support and appears to be contrary to what is now well

settled law in North Carolina.” Id. (citing Marshburn, 353 S.E.2d 123 and Lanier v.

State Farm Fire & Casualty Co., No. 5:07CV129-V, 2009 WL 926914 (W.D.N.C.

Mar. 31, 2009)).

Just as a plaintiff cannot rely on the date of the claim denial for accrual, he

cannot rely on the date the appraisal is completed. In Bankaitis v. Allstate

Insurance Company, 229 F. Supp. 3d 381, 383 (M.D.N.C. 2017), the plaintiffs’

home was destroyed by fire on January 29, 2012. After disagreement over the

cost to rebuild, the plaintiffs invoked the appraisal process which concluded on

August 4, 2015. Id. at 383-84. The plaintiffs filed suit on January 27, 2016. Id.

at 384. The plaintiffs argued that they could not have brought suit before the

appraisal was complete on August 4, 2015 and, like Ireifej, relied on Patel, 728

S.E.2d 394. While Patel addressed the prerequisites to bringing suit, the Bankaitis

court recognized that “of significance” the Patel court “did not address the

interplay between a condition precedent under an insurance policy and a statute of

limitations.” 229 F. Supp. 3d at 386. The Bankaitis plaintiffs “provided no North

Carolina authority for their argument that participation in, or completion of, an

appraisal has any impact on the applicable statutory or contractual limitations for

them to file action”, nor did the court find any. Id. Furthermore, the court noted

that North Carolina is not among the “jurisdictions [that] have enacted statutes

that specifically toll the statute of limitations during appraisal”. Id. Quoting Lanier,

2009 WL 926914, at *4, the court explained, “If the North Carolina legislature

intended for the statutory limitations period to be tolled during the entirety of the

claims process to allow . . . a final decision on the claim, either the standard policy

form or governing statute would expressly provide for tolling”; “[i]t has not seen fit

to do so.” Bankaitis, 229 F. Supp. 3d at 386.

Therefore, just as the plaintiffs’ arguments in Dorman and Bankaitis were

foreclosed, so, too, are Ireifej’s. North Carolina law required him to bring his

breach of contract claim within three years of April 28, 2015, and he did not do so

until July 13, 2020.

2.

Travelers also argues that the bad faith claim is time-barred by the same

statute of limitations (accruing from the same date of loss) “established by the

Standard Policy” because the “claim derives from the insurance policy.” (Br. in

Supp. at 8-9.) As above, Ireifej does not appear to dispute the three-year statute

of limitations, nor does he appear to disagree that the bad faith claim arises from

the Policy2. Instead, he argues that the claim did not accrue until Travelers

allegedly refused to comply with the Policy after his March 2020 inquiry. (Br. in

Opp’n at 7.) Once again, the law does not support Ireifej’s position. Because the

bad faith claim arises from the Policy, it is governed by the same three-year statute

of limitations and accrues from the same date as the breach of contract claim,

April 28, 2015. See Bankaitis, 229 F. Supp. 3d at 385-86; Quillen v. Allstate

Corp., No. 1:14-cv-00015-MR-DLH, 2014 WL 6604897, at *4 (W.D.N.C. Nov.

2 A review of the allegations in support of the bad faith claim confirm that they derive

from the Policy. (See Compl. ¶¶ 30-31.)

20, 2014); Lanier, 2009 WL 926914, at *2-*3; Page v. Lexington Ins. Co., 628

S.E.2d 427, 430 (N.C. Ct. App. 2006). Therefore, it, too is time-barred.

3.

However, even though the breach of contract and bad faith claims are

untimely, they may be pursued if, as is relevant here, Travelers is “estopped from

relying upon the limitation provision of the policy.” Marshburn, 353 S.E.2d at 126.

Indeed, in response to Travelers’ motion to dismiss, Ireifej argues that he “has

sufficiently alleged a viable equitable estoppel claim to survive dismissal”. (Br. in

Opp’n at 16 (contending that Travelers “acted even more egregiously and

unreasonably” than the insurer in Bankaitis against whom the court found the

plaintiff had sufficiently alleged facts to support equitable estoppel).) He asserts

that Travelers “conceal[ed] from [him] its intent to refuse to comply with the

replacement cost provision of the Policy”, “withheld its position that the damage

was limited in scope which did not warrant replacement”, and “attempt[ed] to

punish [him] for not making a repair or replacement ‘as soon as reasonably possible

after the loss or damage’” although Travelers “did not issue the check for the

appraisal award until October 10, 2019”. (Id.)

The North Carolina Supreme Court has explained that when assessing the

propriety of equitable estoppel, both parties’ conduct is “weighed in the balances

of equity”. Hawkins v. M & J Finance Corp., 77 S.E.2d 669, 672 (1953). The

party asserting estoppel must allege

(1) [c]onduct which amounts to a false representation or concealment

of material facts, or at least, which is reasonably calculated to convey

the impression that the facts are otherwise than, and inconsistent

with, those which the party afterwards attempts to assert; (2)

intention or expectation that such conduct shall be acted upon by the

other party, or conduct which at least is calculated to induce

a reasonably prudent person to believe such conduct was intended or

expected to be relied and acted upon; (3) knowledge, actual or

constructive, of the real facts.

Id. That party must also allege: “(1) [his] lack of knowledge and the means of

knowledge of the truth as to the facts in question; (2) [his] reliance upon the

conduct of the party sought to be estopped; and (3) action based thereon of such

a character as to change his position prejudicially.” Id. Travelers argues that Ireifej

has not alleged his inability to learn the facts in question or that Travelers “lulled

him into a false sense of security”. (Reply Br. in Supp. of Mot. to Dismiss by

Travelers at 8-12 [Doc. #15].) The Court agrees.

Ireifej has not alleged any misrepresentation or concealment by Travelers

that would have prevented him from filing suit within the limitations period.

Furthermore, despite Ireifej’s position otherwise, the facts of this case are

distinguishable from those in Bankaitis where the plaintiff sufficiently alleged,

among other facts, that the insurer concealed its intent to deny coverage. See 229

F. Supp. 3d at 383-84, 387. Here, the extent of the allegations of Travelers’

conduct is that it deemed Ireifej’s loss covered, disagreed with him on the

adjustment of loss, paid the appraisal award just over two weeks after it was

signed, and refused to pay the replacement cost value.3 In sum, Ireifej has not

sufficiently pled facts to support the application of equitable estoppel. Therefore,

because his claims for breach of contract and bad faith are barred by the statute of

limitations, they are dismissed.4

B.

Next, Travelers argues that the Complaint fails to sufficiently allege facts to

support the unfair and deceptive trade practices claim which is based on alleged

misrepresentations and unfair settlement practices. It contends that the

misrepresentations are not alleged with the requisite particularity. (Br. in Supp. at

13-14.) And, it argues, the two paragraphs on which the Complaint relies to show

unfair settlement practices do no such thing because they either simply allege

breach of contract or are conclusory. (Id. at 14-16.) Ireifej disagrees. (Br. in Opp’n

at 13-14.)

A plaintiff asserting a violation of N.C. Gen. Stat. § 75-1.1 must allege: “(1)

an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which

proximately caused injury to plaintiff[].” Gray v. N.C. Ins. Underwriting Ass’n, 529

S.E.2d 676, 681 (N.C. 2000). “[A] practice is deceptive if it has the tendency to

3 There are also no dates alleged of any events during the limitations period other

than the date of the loss.

4 It is, therefore, unnecessary to address whether or not Ireifej sufficiently alleged

bad faith. Travelers also argues in its brief that Ireifej has not sufficiently alleged a

breach of contract claim, (Br. in Supp. at 9-10), but it does not list that in its

motion as among the bases for dismissal. Nevertheless, it is likewise unnecessary

to address that argument.

deceive” and “’is unfair when it offends established public policy as well as when

the practice is immoral, unethical, oppressive, unscrupulous, or substantially

injurious to consumers.’” Id. (citing and quoting Marshall v. Miller, 276 S.E.2d

397, 403 (N.C. 1981)). When a plaintiff alleges that misrepresentations and his

detrimental reliance on them form the basis of his unfair and deceptive trade

practices claim, he must comply with the pleading requirement of Rule 9(b) of the

Federal Rules of Civil Procedure. Topshelf Mgmt., Inc. v. Campbell-Ewald Co., 117

F. Supp. 3d 722, 731 (M.D.N.C. 2015). Rule 9(b) requires that a plaintiff allege

“the time, place, and contents of the false representations, as well as the identity

of the person making the misrepresentation and what he obtained thereby.” U.S.

ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008).

In addition, the insurance industry is specifically prohibited from “unfair

methods of competition and unfair and deceptive acts or practices”. See N.C. Gen.

Stat. § 58-63-15. Section 58-63-15(11) provides “examples of conduct . . .

support[ing] a finding of unfair or deceptive acts or practices,” Gray, 529 S.E.2d at

683 (holding that “conduct that violates subsection (f) of N.C. [ Gen. Stat.] § 58-

63-15(11) constitutes a violation of N.C. [ Gen. Stat.] § 75-1.1, as a matter of

law”). The unfair claim settlement practices identified in § 58-63-15(11) are:

a. Misrepresenting pertinent facts or insurance policy provisions

relating to coverages at issue;

b. Failing to acknowledge and act reasonably promptly upon

communications with respect to claims arising under insurance

policies;

c. Failing to adopt and implement reasonable standards for the prompt

investigation of claims arising under insurance policies;

d. Refusing to pay claims without conducting a reasonable

investigation based upon all available information;

e. Failing to affirm or deny coverage of claims within a reasonable

time after proof-of-loss statements have been completed;

f. Not attempting in good faith to effectuate prompt, fair and equitable

settlements of claims in which liability has become reasonably clear;

g. Compelling [the] insured to institute litigation to recover amounts

due under an insurance policy by offering substantially less than the

amounts ultimately recovered in actions brought by such insured;

h. Attempting to settle a claim for less than the amount to which a

reasonable man would have believed he was entitled;

i. Attempting to settle claims on the basis of an application which was

altered without notice to, or knowledge or consent of, the insured;

j. Making claims payments to insureds or beneficiaries not

accompanied by [a] statement setting forth the coverage under which

the payments are being made;

k. Making known to insureds or claimants a policy of appealing from

arbitration awards in favor of insureds or claimants for the purpose of

compelling them to accept settlements or compromises less than the

amount awarded in arbitration;

l. Delaying the investigation or payment of claims by requiring an

insured claimant, or the physician, of [or] either, to submit a

preliminary claim report and then requiring the subsequent submission

of formal proof-of-loss forms, both of which submissions contain

substantially the same information;

m. Failing to promptly settle claims where liability has become

reasonably clear, under one portion of the insurance policy coverage in

order to influence settlements under other portions of the insurance

policy coverage; and

n. Failing to promptly provide a reasonable explanation of the basis in

the insurance policy in relation to the facts or applicable law for denial

of a claim or for the offer of a compromise settlement.

(Alterations in original.) Here, Ireifej alleges that Travelers:

made material misrepresentations of fact concerning the nature and

quality of the policy of insurance . . . for the sole purpose of inducing

justifiable reliance by [him] in the premiums for a policy of insurance

which [Travelers] represented would protect [his] interest in the

premises on a replacement cost basis, when [Travelers] knew that

these representations were false, fraudulent and misleading.

(Compl. ¶ 39.) Travelers also allegedly “misled [Ireifej] by inappropriately relaying

[sic] on policy language in an inconsistent or improper manner causing confusion”

and Ireifej “justifiably relied upon the material misrepresentations”. (Id. ¶¶ 40-41.)

Yet, nowhere in the Complaint is there any factual allegation of a

misrepresentation, much less one on which Ireifej relied or its content, date, or

source. And, there are no facts, particularly alleged or otherwise, as to how

Travelers “misled” Ireifej. His allegation of misrepresentations that constitute

unfair or deceptive trade practices fails.

Ireifej alleges that Travelers violated § 58-63-15(11)5 “by engaging in the

conduct referenced in paragraphs 25 and 31 of [the] Complaint.” (Id. ¶¶ 42-43.)

In paragraph 25, he alleges,

Despite submission of reasonable proof and demand for full and

complete payment with respect to [his] loss and replacement cost

benefits, [Travelers] has not paid to [him] all of the policy benefits to

which [he] is entitled under the Policy and has refused to provide

funds sufficient to bring [his] home to pre-loss condition.

This paragraph alleges, if anything, a breach of contract, and “[i]t is well

recognized . . . that a mere breach of contract, even if intentional, is not

sufficiently unfair or deceptive to sustain an action under N.C.[ Gen. Stat.] § 75-

1.1”, Branch Banking & Trust Co. v. Thompson, 418 S.E.2d 694, 700 (N.C. Ct.

App. 1992), unless “the breach is surrounded by substantial aggravating

5 Ireifej does not specify which provisions among the fourteen apply here.

circumstances” in which case “it may sustain an action for” unfair and deceptive

trade practices, Griffith v. Glen Wood Co., Inc., 646 S.E.2d 550, 558 (N.C. Ct.

App. 2007). None of the circumstances of this contract dispute is alleged to be

substantially aggravating. Paragraph 25 does not support this claim.

Neither does Paragraph 31. There, Ireifej alleges that Travelers “has

engaged in the following conduct:”

a. by sending correspondence falsely representing that terms and

conditions of [his] policy, specifically the portions of [his] policy

relating to claim payments6;

b. by refusing to acknowledge the timing of the appraisal award in

conjunction with the reasonableness of [his] actions;

c. in manipulating and misrepresenting facts to fit a narrative that

would lead to denial despite the actual facts of the adjustment and

appraisal which would lead to coverage;

d. in failing to pay [his] covered loss in a prompt and timely manner;

e. in failing to objectively and fairly evaluate [his] claim;

f. in conducting an unfair and unreasonable investigation of [his]

claim;

g. in asserting Policy defenses without a reasonable basis in fact;

h. in flatly misrepresenting pertinent facts or policy provisions relating

to coverage at issue and placing unduly restrictive interpretations

on the Policy and/or claim forms;

i. in failing to keep [him] or his representatives fairly and adequately

advised as to the status of the claim, specifically by never

disclosing [its] intent to never pay replacement cost value on the

loss;

j. in failing to promptly provide a reasonable factual explanation of

the basis for the denial of [his] claim;

k. in unreasonably withholding policy benefits;

l. in acting unreasonably and unfairly in response to [his] claim;

6 This allegation is either incomplete or “that” is a typographical error that should

read “the”.

m. in unnecessarily and unreasonably compelling [him] to institute this

lawsuit to obtain policy benefits for a covered loss, that [it] should

have paid promptly and without the necessity of litigation.

Several of these allegations parallel conduct included in N.C. Gen. Stat. § 58-63-

15(11), but none of them are supported by the facts that are alleged in the

Complaint, see supra at 1-2. Because Ireifej has not alleged facts to support these

conclusory allegations, they, too, cannot support a claim of unfair or deceptive

trade practices. Therefore, this claim is dismissed for failure to state a claim for

which relief can be granted.7

III.

At the conclusion of his brief in opposition to dismissal, Ireifej “respectfully

requests leave to file an Amended Complaint” if the Court “were to find that [the]

Complaint is not sufficient to state claims upon which relief can be granted”. (Br.

in Opp’n at 16-17.) Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure

permits a party to “amend its pleading once as a matter of course within . . . 21

days after service of a motion under Rule 12(b) . . . .” But, Ireifej, who is

represented by counsel, chose not to do that.

A party may otherwise amend its pleading with leave of the court, which

“should freely” be given, Fed. R. Civ. P. 15(a)(2), unless there is “prejudice, bad

faith, or futility”, In re: Triangle Capital Corp. Sec. Litig., 988 F.3d 743, 750 (4th

7 Ireifej requests oral argument “given the factual complexity of this action”. The

parties have sufficiently briefed the issues such that nothing further could be gained

from oral argument. That request is denied.

Cir. 2021). The Local Civil Rules require that “[a]ll motions” “be in writing” and

“[e]ach motion . . . be set out in a separate pleading.” L. Civ. R. 7.3(a). The

motion must “state with particularity the grounds therefor, . . . cite any statute or

rule of procedure relied upon, and . . . set forth the relief or order sought.” L. Civ.

R. 7.3(b). And, Ireifej must “attach the proposed amended [Complaint] to the

motion.” L. Civ. R. 15.1. Ireifej’s request at the end of his brief in opposition does

not comply with the Local Rules, and without a proposed amended Complaint to

review, it cannot be determined if such amendment would be futile, assuming for

the sake of argument it would not be prejudicial or in bad faith. His request is

denied.

IV.

For the reasons stated in this Memorandum Opinion, IT IS HEREBY

ORDERED that the Motion to Dismiss by Travelers Casualty Insurance Company of

America [Doc. #9] is GRANTED.

This the 9th day of September, 2021.

/s/ N. Carlton Tilley, Jr.

Senior United States District Judge