United States District Court, N.D. Mississippi, Greenville Division
M. BROWN UNITED STATES DISTRICT JUDGE
29, 2019, Glenn Goss and Molly Goss filed a complaint in the
United States District Court for the Northern District of
Mississippi against Allstate Vehicle & Property Insurance
Company. Doc. #1. The complaint asserts a claim for breach of
contract and a claim for bad faith, each premised in part on
allegations of fraud by Allstate regarding its denial of a
fire loss claim on the Gosses' residence. Id. at
6-10. The Gosses seek compensatory damages,
“extra-contractual consequential damages, ” and
punitive damages. See id. at 10-11.
12, 2019, Allstate, pursuant to Federal Rule of Civil
Procedure 12(b)(6),  filed a motion to dismiss the claims
“for fraud, bad faith, punitive damages, and
extra-contractual damages, such that the only remaining count
remaining [sic] will be the claim for a breach of
contract.” Doc. #6. The Gosses did not respond to the
motion to dismiss.
Local Rules of this Court prohibit the granting of a
dispositive motion on the ground of non-opposition. L.U. Civ.
R. 7(b)(3)(E). However, “[c]ourts have consistently
held that inadequate briefing results in a waiver of a
party's arguments.” TGIP, Inc. v. AT & T
Corp., 512 F.Supp.2d 696, 712 (E.D. Tex. 2007)
(collecting cases). Thus, where a plaintiff fails to
adequately respond to a motion to dismiss targeting specific
claims, the failure amounts to a waiver “regarding the
viability” of the claims as pled. Ronaldo Designer
Jewelry, Inc. v. Cox, No. 1:17-cv-2, 2018 WL 1370610, at
*2 (N.D. Miss. Mar. 16, 2018). In such circumstances, it is
proper to grant the motion to dismiss, not as unopposed, but
on the ground that arguments regarding the adequacy of the
claims at issue are waived. Id. Such a dismissal
should be without prejudice. Id.
the Gosses failed to respond to Allstate's motion seeking
dismissal of the bad faith claim, dismissal without prejudice
of this claim is warranted on the ground of waiver.
Similarly, while it is unclear whether the Gosses intended to
assert a freestanding fraud claim, to the extent they do,
such claim must also be dismissed without prejudice. However,
by its terms, a Rule 12(b)(6) motion only targets a
“failure to state a claim upon which relief can be
granted.” And, “[b]ecause a demand for relief is
not part of a plaintiff's statement of the claim, the
nature of the relief sought is immaterial to the question of
whether a complaint adequately states a claim upon which
relief can be granted.” Charles v. Front Royal
Volunteer Fire & Rescue Dep't, Inc., 21
F.Supp.3d 621, 631 (W.D. Va. 2014) (cleaned up). Thus, a
party “may not move ‘to dismiss' a damages
demand.” MI Windows & Doors, LLC v. Liberty
Mut. Fire Ins. Co., 123 F.Supp.3d 1332, 1342 (M.D. Fla.
2015). Consistent with this rule, Allstate's
motion will be denied to the extent it seeks dismissal of the
specific demands for punitive damages and extra-contractual
damages, which are not “claims” in any sense.
the motion to dismiss  is GRANTED in Part and
DENIED in Part. The motion is GRANTED to the extent
it seeks dismissal of the bad faith claim and a claim for
fraud, to the extent one is asserted. Such claims are
DISMISSED without prejudice. The motion is DENIED in all
 The motion itself does not refer to
Rule 12(b)(6). See Doc. #6. However, the memorandum
accompanying the motion does. See Doc. #7 at 6
See also In re Smith & Nephew
Birmingham Hip Resurfacing (BHR) Hip Implant Prods. Liab.
Litig., 401 F.Supp.3d 538, 563 (D. Md. 2019) (“A
claim for punitive damages is derivative and therefore
survives if the plaintiffs' underlying claims that
support it survive.”) (cleaned up); Thompson v.
Harrie, 404 F.Supp.3d 1233, 1240 (D.S.D. 2019)
(“Punitive damages are a form of relief and not a
‘claim' that is subject to a Rule 12(b)(6)
motion.”); Douglas v. Miller, 864 F.Supp.2d
1205, 1220 (W.D. Okla. 2012) (“[W]hether [punitive]
damages are recoverable is not a proper subject for
adjudication in a Rule 12(b)(6) motion, as the prayer for
relief is not a part of the cause of action.”). But
see Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 182
F.R.D. 386, 399 (D.R.I. 1998) (concluding without analysis
that entitlement to punitive damages “is ...