United States District Court, District of New Hampshire
MEMORANDUM AND ORDER
PAUL BARBADORO UNITED STATES DISTRICT JUDGE
Cindy Bunker was injured at a Nashua, New Hampshire rental property owned by Brian Nadeau, a New Hampshire resident. She brought a negligence action against Nadeau in New Hampshire Superior Court and later filed a separate insurance coverage action in state court against Nadeau and his insurer, Midstate Mutual Insurance Company, a New York corporation. Midstate removed the insurance coverage action to this court. Nadeau subsequently filed a cross-claim seeking a declaratory judgment that Midstate’s insurance policy covers Bunker’s injuries.
Midstate has filed a motion to dismiss arguing that all of the claims against it are barred by the relevant statute of limitations. In the alternative, Midstate requests that I dismiss this action under the doctrine of forum non conveniens.
Bunker was seriously injured in August 2013 when she fell down a flight of stairs at a rental property owned by Nadeau in Nashua, New Hampshire. On October 4, 2013, she filed a negligence action against Nadeau in New Hampshire Superior Court. During the course of settlement discussions, Bunker asked Nadeau to produce all potentially applicable insurance policies. Nadeau produced the Midstate policy in response to her request on April 14, 2014. Upon examination, Bunker determined that the Midstate policy covered her injuries, and she submitted a claim to Midstate the next day. Midstate disagreed with Bunker’s interpretation of the policy and denied her claim on May 12. On May 14, Bunker filed the present action in New Hampshire Superior Court.
On June 26, Nadeau answered Bunker’s complaint and filed a cross-claim against Midstate seeking a declaratory judgment that the Midstate policy covers Bunker’s claims.
II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim, a plaintiff must make factual allegations sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 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. (citations omitted).
In deciding a motion to dismiss, I employ a two-step approach. See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I screen the complaint for statements that “merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action.” Id. (citations, internal quotation marks, and alterations omitted). A claim consisting of little more than “allegations that merely parrot the elements of the cause of action” may be dismissed. Id. Second, I credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then determine if the claim is plausible. Id. The plausibility requirement “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of illegal conduct. Twombly, 550 U.S. at 556. The “make-or-break standard” is that those allegations and inferences, taken as true, “must state a plausible, not a merely conceivable, case for relief.” Sepúlveda–Villarini v. Dep’t of Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”).
I begin by addressing Midstate’s statute of limitations argument before turning to the doctrine of forum non conveniens.
A. N.H. Rev. Stat. Ann. § 491:22
A motion to dismiss based on a statute of limitations is only successful when “the pleader’s allegations leave no doubt that an asserted claim is time-barred.” Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010) (internal quotation marks omitted). To support dismissal, Midstate relies upon New Hampshire’s statute of limitations for declaratory judgment actions. See N.H. Rev. Stat. Ann. § 491:22. Section 491:22 provides that a petition “to determine coverage of an insurance policy” must be filed “within 6 months after the filing of the writ, complaint, or other pleading initiating the action which gives rise to the question.” Bunker’s complaint in the negligence suit, filed on October 4, 2013, initiated the action which gave rise to the declaratory judgment claim. Midstate thus argues that any claim based on New Hampshire’s declaratory judgment statute is barred because it was not brought within the six month period after the complaint in which the underlying action was filed.
The six month limitations period is not without exceptions, however. It does not apply where (1) “the facts giving rise to such coverage dispute are not known to, or reasonably discoverable by, the insurer” until after the six month period; or (2) when the failure to file was “the result of accident, mistake or misfortune and not due to neglect.” Id. § 491:22(III). Both Nadeau and Bunker rely on the first exception, the so-called “late discovery exception.” Binda v. Royal Ins. Co., 144 N.H. 613, 616 (2000). The late discovery exception only applies when “the facts giving rise to a coverage dispute are not known or reasonably discoverable until after the expiration of the six-month period.” Id. In those circumstances, a ...