Zirkin v. State Farm Mutual Automobile Insurance Company

Opinion

Nevada Bar No. 005260 rclayton@lawhjc.com 7425 Peak Drive Las Vegas, Nevada 89128 (702)316-4111 Fax (702) 316-4114 Attorneys for Defendant, State Farm Mutual Automobile Insurance Company UNITED STATES DISTRICT COURT THOMAS ZIRKIN,individually, Case No. 2:22-cv-01627-JCM-DJA Plaintiff, STIPULATION AND ORDER TO DENY vs. USAA GIC’S MOTION TO DISMISS (Doc. 5) AND STATE FARM’S STATE FARM MUTUAL AUTOMOBILE JOINDER (Doc. 9) AS MOOT INSURANCE COMPANY, an Illinois Corporation; and USAA GENERAL INDEMNITY COMPANY; a Texas Corporation, Defendants. This Stipulation and Order to Deny USAA GIC’s Motion to Dismiss Plaintiff’s Second Cause of Action and State Farm’s Joinder as Moot (hereinafter “Stipulation”) is entered into by Plaintiff, Thomas Zirkin (“Plaintiff”), and Defendant, USAA General Indemnity Company (“USAA GIC”), and Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”) (collectively referred to as the “Parties”). On September 30, 2022, Defendant USAA GIC filed its Motion to Dismiss Plaintiff’s Second Cause of Action and Motion to Strike Plaintiff’s Request for Attorney’s Fees (Doc. 5). The Motion requested the Court dismiss Plaintiff’s tortious breach of the covenant of good faith and fair dealing (“bad faith”) cause of action and strike Plaintiff’s request for attorney’s fees. On October 10, 2022, Defendant State Farm Mutual Automobile Insurance Company filed a Joinder to USAA GIC’s Motion to Dismiss Plaintiff’s Second Cause of Action and Motion to Strike Plaintiff’s Request for Attorney’s Fees (Doc. No. 9). On October 17, 2022, Plaintiff Zirkin filed his Response to Defendant USAA GIC’s Motion to Dismiss/Strike Attorneys Fees (Doc. 15). Plaintiff stated, in essence, that he would be filing an amended complaint, which eliminated the second cause of action for bad faith, thereby rendering the Motion/Joinder moot. Also on October 17, 2022, Plaintiff filed his First Amended Complaint (Doc. 14). The First Amended Complaint removed Plaintiff’s second cause of action for bad faith, making the action solely a UIM breach of contract case. The First Amended Complaint, therefore, renders the Motion to Dismiss (Doc. 5) and the Joinder to the Motion to Dismiss (Doc. 9) moot. See e.g., Barnes v. District of Columbia, 42 F. Supp. 3d 111, 117 (D.D.C. 2014)(“[w]hen a plaintiff files an amended complaint as a right . . . the amended complaint becomes the operative pleading . . .any pending motion to dismiss becomes moot.”) / / / / / / / / / / / / / / / / / / Accordingly, the parties stipulate that the Motion to Dismiss (Doc. 5)/Joinder (Doc. 9) should be denied as “moot.” Dated October 21, 2022 Dated October 21, 2022 HALL JAFFE & CLAYTON, LLP THE MEDRALA LAW FIRM, PROF. LLC /s/ Riley A. Clayton /s/ Jakub P. Medrala RILEY A. CLAYTON JAKUB P. MEDRALA Nevada Bar No. 005260 Nevada Bar No. 12822 7425 Peak Drive 615 S. 6" Street Las Vegas, Nevada 89128 Las Vegas, NV 89101 Attorneys for Defendant, State Farm Mutual | Attorneys for Plaintiff Automobile Insurance Compan Dated October 21, 2022 SPENCER FANE LLP 4s/Mary E. Bacon MARY E. BACON Nevada Bar No. 12686 300 S. Fourth Street, Suite 950 Las Vegas, Nevada 89101 Attorneys for Defendant, USAA General Indemnity Compan IT ISSO ORDERED. Dated: October 27, 2022 73 Piddid ©. “Callan UNITE) STATES DISTRICT COURT JUDGE