United States District Court

for the

Southern District of Florida

Teresa Viamontes, Plaintiff,

v.

Scottsdale Insurance Company, 

Defendant.

)

)

)

)

)

)

Civil Action No. 20-22532-Civ-Scola

Order Granting Motion to Dismiss

This matter is before the Court upon Defendant Scottsdale Insurance 

Company’s motion to dismiss the complaint. (Def.’s Mot., ECF No. 3.) Plaintiff 

Teresa Viamontes claims that the Defendant breached an insurance contract 

by failing to cover damages suffered on or about September 10, 2017, by a 

property located at 10632 SW 145th Avenue, Miami, FL 33186 (the “Property”) 

owned by the Plaintiff. (Compl., ECF No. 1-1 at ¶¶ 8-9.) After the Plaintiff failed 

to respond to the motion to dismiss, the Court ordered a response, which was 

ultimately filed albeit belatedly. (Pl.’s Resp., ECF No. 10.) The Defendant did 

not file a reply and the time to do so has passed. After careful review of the 

record, briefing, and legal authorities, the Court grants the motion to dismiss 

(ECF No. 3).

1. Background

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

Property through the Defendant. (ECF No. 1-1 at ¶7.) On or about September 

10, 2017, “the Property sustained a covered loss as a result of a [sic] Hurricane 

Irma.” (Id. at ¶9.) The Defendant assigned a claim number to the loss and has 

not paid the full amount of damages that the Plaintiff sought in her claim. (Id. 

at ¶¶ 10-11.)

The Plaintiff filed her original complaint in state court on March 31, 

2020. (Def.’s Not. of Removal, ECF No. 1.) The Defendant removed this case to 

federal court on June 19, 2020, on grounds of diversity jurisdiction, alleging 

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

The Notice of Removal was timely filed because it was filed within 30 days of 

the Plaintiff’s June 11, 2020 settlement demand, which established that the 

amount in controversy satisfied the Court’s jurisdictional threshold. (Id.)

Case 1:20-cv-22532-RNS Document 11 Entered on FLSD Docket 10/08/2020 Page 1 of 4
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 complaint, which alleges a single count for 

breach of contract, is based on legal conclusions without adequate support to 

state a claim upon which relief can be granted. “[A] complaint must at bottom 

state a plausible material breach and notify defendant of the grounds on which 

it rests whether through factual allegations or citation to the contract. ” 

Sanfelippo v. Cincinnati Ins. Co., No. 220CV527FTM38MRM, 2020 WL 5203531, 

at *1 (M.D. Fla. Sept. 1, 2020). Here, the complaint fails to provide sufficient 

factual allegations or citations to the Policy that would notify the Defendant of 

the grounds of its purported breach.

The Plaintiff alleges that the Property “suffered a covered loss” and that 

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

(ECF No. 1-1 at ¶9.) “While those allegations provide a basic sketch of virtually 

every imaginable . . . insurance claim, they do not provide sufficient 

Case 1:20-cv-22532-RNS Document 11 Entered on FLSD Docket 10/08/2020 Page 2 of 4
information to show that this Plaintiff was harmed by this Defendant whose 

action or inaction breached a particular term of their contract.” 5650 N. Miami 

Ave. LLC v. Scottsdale Ins. Co., No. 20-21702-CIV, 2020 WL 3839809, at *2 

(S.D. Fla. July 8, 2020) (Scola, J.). Other than alleging that the damages were 

“a result of a [sic] Hurricane Irma,” the complaint provides the Defendant with 

no further notice as to the damages, their nature, or their cause. Did the 

hurricane bring a storm surge that caused flood damage? Did high speed winds 

break windows? Did rain seep through the roof? Or perhaps a downed 

powerline caused a fire. The complaint gives the Defendant no opportunity to 

determine whether the loss is covered by the Policy.

Next, “[i]t 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); see also Toca v. Tutco, 

LLC, 430 F. Supp. 3d 1313, 1324 (S.D. Fla. 2020) (Singhal, J.) (“It follows that, 

to state a claim for breach of an express warranty, the plaintiff must first 

identify the express warranty that the defendant allegedly breached.”). The 

seventeenth paragraph of the amended complaint is representative of its overall 

conclusory nature. In that paragraph, the Plaintiff alleges that as a result of the 

Defendant’s refusal to “make any payment of insurance proceeds to the 

Plaintiff . . . the Defendant has breached the Policy.” (ECF No. 1-1 at ¶17.) This 

gives the Defendant no notice as to which terms of the Policy were purportedly 

breached. See Boca Raton Sailing v. Scottsdale Ins., No. 18-cv-81236, 2019 WL 

7904805, at *2 (S.D. Fla. Mar. 18, 2019) (Middlebrooks, J.) (The “complaint 

must at least provide enough information regarding the disputed terms to give 

the opposing party reasonable notice of which provisions are being contested.”).

By failing to describe the factual basis of the damages claim, and by failing to 

identify the Policy provisions that the Defendant breached by not paying the

Plaintiff’s claim, the complaint presents nothing more than the sort of “the 

defendant-unlawfully-harmed-me accusation” that Iqbal prohibits. 556 U.S. at 

678. 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.

4. Conclusion

In sum, because the Plaintiff does not provide facts that support its legal 

conclusions, such as details regarding how the Property was damaged or how 

the Policy was breached, the 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 complaint fails to state a claim upon which relief 

Case 1:20-cv-22532-RNS Document 11 Entered on FLSD Docket 10/08/2020 Page 3 of 4
can be granted. Further, as the Plaintiff has not requested leave to amend, the 

Court dismisses the complaint without prejudice and without 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.”).

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

No. 3) and dismisses the complaint 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 October 8, 2020.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-22532-RNS Document 11 Entered on FLSD Docket 10/08/2020 Page 4 of 4