United States District Court

for the

Southern District of Florida

5650 N Miami Ave LLC, Plaintiff,

v.

Scottsdale Insurance Company, 

Defendant.

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Civil Action No. 20-21702-Civ-Scola

Order Granting Motion to Dismiss

Plaintiff 5650 N Miami Ave LLC claims that Defendant Scottsdale 

Insurance Company breached an insurance contract by failing to cover 

damages suffered by the Plaintiff’s property (the “Property”) on or about 

January 15, 2019. (Am. Compl., ECF No. 8 at ¶ 8.) The Plaintiff seeks relief

under one count, which is for breach of contract. (Id. at 3.) The Defendant

argues that the amended complaint should be dismissed for failure to state a 

claim upon which relief can be granted or, in the alternative, the Defendant

moves for a more definite statement. (Def.’s Mot., ECF No. 13). 

The Plaintiff failed to respond to the motion by the deadline of June 5, 

2020, which is “sufficient cause for granting the motion by default.” S.D. Fla. 

L.R. 7.1(c)(1). In fact, this is the second time that the Plaintiff has failed to 

respond to a motion to dismiss in this case. The Plaintiff’s pattern of delay in 

this action started when it failed to respond to the Defendant’s first motion to 

dismiss. Eventually, after being ordered to show cause for its failure, the

Plaintiff filed its amended complaint, which is the subject of the motion at bar.

After careful review of the record, briefing, and legal authorities, the Court 

grants the motion to dismiss (ECF No. 13).

1. Factual Background

The Plaintiff owns the Property and maintains an insurance policy on the 

Property through the Defendant. (ECF No. 8 at ¶¶ 2, 6). On or about January 

15, 2019, “a fire caused a covered loss and substantial damage” to the 

Property. (Id. at ¶ 8.) The Defendant assigned a claim number to the loss and

has not paid the full amount of damages that the Plaintiff sought in its claim.

(Id. at ¶¶ 8-10.) The Plaintiff also timely filed a notice of the loss to the 

Defendant. (Id.)

The Plaintiff filed its original complaint in state court on March 24, 2020. 

(Def.’s Not. of Removal, ECF No. 1.) The Defendant removed this case to federal 

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court on April 23, 2020, on grounds of diversity jurisdiction, alleging diversity 

of citizenship and an amount in controversy in excess of $75,000. (Id.)

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as 

true, construing them in the light most favorable to the plaintiff. Pielage v. 

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain 

“a short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does 

not require detailed factual allegations, but it demands more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must articulate 

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 

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.” Iqbal, 556 U.S. at 678. “The plausibility 

standard is not akin to a ‘probability requirement,’ but it asks for more than a 

sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of action” will 

not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable 

and generous departure from the hyper-technical, code-pleading regime of a 

prior era, but it does not unlock the doors of discovery for a plaintiff armed 

with nothing more than conclusions.” Iqbal, 556 U.S. at 679.

3. Analysis

The Court finds that the amended complaint is based on legal 

conclusions without adequate factual support to state a claim upon which 

relief can be granted. The Plaintiff alleges that a fire caused a loss and that the 

Defendant breached an insurance policy by failing to pay for the damages. 

While those allegations provide a basic sketch of virtually every imaginable firebased insurance claim, they do not provide sufficient information to show that 

this Plaintiff was harmed by this Defendant whose action or inaction breached 

a particular term of their contract. By failing to show what policy provisions the 

Defendant breached by not covering the loss, or even what portions of the 

claim the Defendant declined to cover under the policy, the amended complaint 

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presents nothing more than the sort of “the defendant-unlawfully-harmed-me 

accusation” that Iqbal prohibits. 556 U.S. at 678.

“It is a basic tenet of contract law that a party can only advance a claim 

of breach of written contract by identifying and presenting the actual terms of 

the contract allegedly breached.” Herssein Law Grp. v. Reed Elsevier, Inc., 594 

F. App'x 606, 608 (11th Cir. 2015) (affirming dismissal of complaint that failed 

to allege breach with sufficient specificity). The 18th paragraph of the amended 

complaint is representative of its overall conclusory nature. In that paragraph, 

the Plaintiff alleges that the Defendant’s refusal to pay the full amount of the 

claim was “contrary to the terms of the Policy and/or Florida law . . . .” (ECF 

No. 8 at ¶ 18.) Which (of many) terms of the policy? Which (of many) Florida 

laws? The Defendant cannot be tasked with defending itself by guesswork

against such a catchall allegation. See Herssein Law Grp., 594 F. App’x at 608. 

The amended complaint’s reference to the claim number assigned by the 

Defendant does not change the result. The mere citation of the claim number 

does not put the Defendant (much less the Court) on notice as to the nature of

the precise dispute between the parties. It also gives no notice as to the legal 

theories to which the Defendant must respond. Because the Plaintiff does not 

provide facts that support its legal conclusions, its complaint fails to rise above 

a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 

at 555. As such, the Court finds that the Plaintiff has failed to state a claim for 

which relief can be granted.

4. Conclusion

Because the Plaintiff does not allege specific facts in support of its legal 

conclusions, the Court finds that the amended complaint fails to adequately 

state a claim for breach of contract upon which relief can be granted under 

count one. The Plaintiff has had multiple opportunities to state a claim and has 

failed to do so. The Court therefore dismisses the complaint with prejudice and 

without leave to amend. Further, the Plaintiff has not requested leave to 

amend. Wagner v. Daewoo Heavy Industries Am. Corp., 314 F.3d 541, 542 

(11th Cir. 2002) (“A district court is not required to grant a plaintiff leave to 

amend his complaint sua sponte when the plaintiff, who is represented by 

counsel, never filed a motion to amend nor requested leave to amend before the 

district court.”); Avena v. Imperial Salon & Spa, Inc., 17-14179, 2018 WL 

3239707, at *3 (11th Cir. July 3, 2018) (“[W]e’ve rejected the idea that a party 

can await a ruling on a motion to dismiss before filing a motion for leave to 

amend.”)

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Accordingly, the Court grants the Defendant’s motion to dismiss (ECF 

No. 13) without prejudice and without leave to amend. The Clerk is directed to 

close this case. Any pending motions are denied as moot.

Done and ordered in chambers, at Miami, Florida, on July 8, 2020.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-21702-RNS Document 16 Entered on FLSD Docket 07/08/2020 Page 4 of 4