# KROISS v. CINCINNATI INSURANCE COMPANIES

> District Court, M.D. North Carolina · September 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10253592

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GERHARD M. KROISS, Ph.D. and )
CHRISTINE M. KROISS, )
)
Plaintiffs, )
)
v. ) 1:19-CV-1183
)
CINCINNATI INSURANCE )
COMPANIES, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.
Before the court is the motion of Defendant Cincinnati
Insurance Companies (“Cincinnati Insurance”)1 to dismiss pursuant
to Federal Rules of Civil Procedure 4, 8, 12(b)(1), 12(b)(2),
12(b)(4), 12(b)(5), 12(b)(6), and 41. (Doc. 10.) Pro se
Plaintiffs Gerhard Kroiss and wife Christine Kroiss filed a
response in opposition (Doc. 15) and a supplement (Doc. 14).2

1 “Cincinnati Insurance Companies” is a misnomer for the actual
Defendant, Cincinnati Insurance Company. (See Doc. 10-1 at 2–3.)
Although Plaintiffs have not brought suit against the company in its
correct legal name, this defect does not prevent the court from deciding
the motions before it. See United States v. A.H. Fischer Lumber Co.,
162 F.2d 872, 874 (4th Cir. 1947) (noting that a correct defendant who
has “unquestionably been brought into the case” under an incorrect name
will be bound by the court's judgment); Hughes v. Dollar Gen., No. 1:14-
CV-148, 2015 WL 1292234, at *1 n.1 (M.D.N.C. Mar. 23, 2015).

2 Although Plaintiffs filed over 190 pages in their opposition and
supplement, only a small portion of these filings addresses the case at
hand. (See Doc. 14 at 70–91; Doc. 15 at 6–8.) The vast majority of
Plaintiffs’ complaint, opposition, and supplements is wholly unrelated
to the present case. (See, e.g., Doc. 14 at 4–8, 151–69 (family photos);
Doc. 14 at 11–41 (European history); Doc. 15 at 4–5 (same); Doc. 14 at
42-49 (American history); Doc. 15 at 5 (same); Doc. 14 at 50–67 (critique
Cincinnati Insurance replied (Doc. 18), and Plaintiffs filed a
second supplement (Doc. 19). Cincinnati Insurance moved to strike
that supplement. (Doc. 20.) For the reasons set forth below,
Cincinnati Insurance’s motion to dismiss will be granted and its
motion to strike will be denied as moot.
I. BACKGROUND

The allegations, taken in the light most favorable to
Plaintiffs as the non-moving parties, show the following:
On December 5, 2017, Mrs. Kroiss — an approximately 75-year-
old German national who speaks only German — was rear-ended by
Sarah Schott while driving. (Doc. 1-4 at 1.) Sarah, through her
father Mark Schott, was insured by Cincinnati Insurance. (See
id.; Doc. 11 at 3.) At the time of the accident, and with the
encouragement of Mr. and Ms. Schott, Mrs. Kroiss did not call the
police or an ambulance or write down Ms. Schott’s license plate
number. (Doc. 1-7 at 14.) Mr. Schott provided Mrs. Kroiss with
the name of their insurance provider, Cincinnati Insurance. (See

id.) Mrs. Kroiss then left the scene of the accident in her
damaged vehicle without calling Mr. Kroiss or her daughter. (Id.
at 14–15.)
“[P]artly because of the accident,” Mrs. Kroiss suffered

of mathematics); Doc. 15 at 5 (same); Doc. 14 at 112–50 (Mr. Kroiss’s
educational and professional background); Doc. 15 at 8–10 (same); Doc.
1-7 at 4–5, 9–11 (Mr. Kroiss’s personal friendships with Anna Freud,
Paul Feyerabend, and Karl Popper); Doc. 14 at 103-11 (same)).
severe cognitive decline. (Id. at 1, 14–15; Doc. 1-4 at 1.) She
struggled to recognize familiar places, was forgetful, and is no
longer able to drive. (Doc. 1-7 at 15; Doc. 1-4 at 1.) Presently,
she has “the mind of a forgetful three-year-old” (Doc. 15 at 11),
and Mr. Kroiss has quit work to care for her full-time (Doc. 1-7
at 15).

On or around May 22, 2018, Mr. Kroiss sent Sherri Walker, a
Claims Specialist with Cincinnati Insurance, a copy of Mrs.
Kroiss’s medical bill. (Doc. 1-4; Doc. 10-1 at 14–16.) Walker
replied to this letter on July 24, 2018, and indicated that she
would like to speak with him. (Doc. 1-4 at 2; Doc. 10-1 at 11.)
Mr. Kroiss reports that he has made multiple phone calls to
Cincinnati Insurance, which were not answered. (Doc. 1 at 2; Doc.
1-3 at 1.) On February 6, 2019, Mr. Kroiss sent a letter via
certified mail to Cincinnati Insurance that also went unanswered.
(Doc. 1 at 2; see Doc. 1-4.)
Plaintiffs charge that Mr. Schott discriminated against his

wife based on her German national origin when he encouraged her
not to call the police or an ambulance. (Doc. 1-3; Doc. 1-4 at
1.) Plaintiffs further allege that Walker had a relationship with
Mr. Schott that influenced her response to Plaintiffs’ claims.
(Doc. 15 at 7–8.)
II. ANALYSIS
Cincinnati Insurance rests its motion to dismiss on multiple
grounds, specifically lack of subject matter jurisdiction, lack of
standing, procedural failings, and a failure to state a cognizable
claim.3 (Doc. 10.) As the court “may not assume jurisdiction for
the purpose of deciding the merits of the case,” Sinochem Int'l
Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007),
the court must consider these arguments first.

A. Subject Matter Jurisdiction
Cincinnati Insurance argues that Plaintiffs have demonstrated
neither federal question nor diversity jurisdiction. (Doc. 11 at
22–24.) Because subject matter jurisdiction serves as a limitation
on the court’s power, the court must address this issue first.
Owens–Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir.
1999) (“Questions of subject matter jurisdiction must be decided
‘first, because they concern the court’s very power to hear the
case.’”) (citation omitted). The party seeking to invoke the
court’s power bears the burden of establishing subject matter
jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S.

178, 189 (1936).
As Plaintiffs are proceeding pro se, the court construes their
pleadings liberally and holds them to a less stringent standard

3 Cincinnati Insurance also argues that this court lacks personal
jurisdiction over it. (Doc. 10 ¶ 33; Doc. 11 at 19–21.) However,
Cincinnati Insurance bases its argument solely on Plaintiffs’ alleged
insufficiency of process and service of process and does not raise due
process concerns. (See Doc. 11 at 19–20.) As such, the court considers
the company’s personal jurisdiction claim jointly with its allegations
of insufficiency of process and service of process.
than for those drafted by attorneys. Haines v. Kerner, 404 U.S.
519, 520–21 (1972). However, they are held to compliance with the
Federal Rules of Civil Procedure and this court’s local rules.
Federal question jurisdiction exists when a case “arises
under” federal law. 28 U.S.C. § 1331. Under the well-pleaded
complaint rule, “federal jurisdiction exists only when a federal

question is presented on the face of the plaintiff’s properly
pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987). It is not “enough that there may be a defense grounded
in federal law or that the complaint anticipates and rebuts such
a defense.” Pressl v. Appalachian Power Co., 842 F.3d 299, 302
(4th Cir. 2016) (citing Caterpillar, 482 U.S. at 392–93). A claim
invoking federal-question jurisdiction under 28 U.S.C. § 1331 may
be dismissed for lack of subject-matter jurisdiction if it is not
colorable, i.e., if it is “immaterial and made solely for the
purpose of obtaining jurisdiction” or is “wholly insubstantial and
frivolous,” also referred to as the insubstantiality doctrine.

Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006) (citing Bell
v. Hood, 327 U.S. 678, 682–83 (1946)). Dismissal for lack of
jurisdiction under the insubstantiality doctrine is disfavored.
See Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448,
452 (4th Cir. 2012) (“[T]he subject matter jurisdiction of a
federal court is not generally resolved by concluding that the
plaintiff has failed to allege an element of a federal cause of
action. . . . Deficiencies in the statement of a federal cause of
action should normally be addressed by a motion under rules
challenging the sufficiency of the complaint.”); Brickwood
Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 394 (4th
Cir. 2004) (“[T]he ultimate failure of a complaint to state a cause
of action does not deprive the district court of subject-matter

jurisdiction.”); Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 89 (1998) (“It is firmly established in our cases that
absence of a valid (as opposed to arguable) cause of action does
not implicate subject matter jurisdiction.”); Bell, 327 U.S. at
682–83 (“[I]t is well settled that the failure to state a proper
cause of action calls for a judgment on the merits and not for a
dismissal for want of jurisdiction. . . . The accuracy of calling
. . . dismissals [under the insubstantiality doctrine]
jurisdictional has been questioned.”).
Here, the complaint claims federal question jurisdiction but
does not specify a federal cause of action. Plaintiffs merely

state that jurisdiction is proper because the claim involves
“[q]uestions involving the United States Constitution (National
Origin Discrimination).” (Doc. 1 at 1.) Cincinnati Insurance
construes the complaint to allege claims under 18 U.S.C. § 1981 or
§ 19834 (Doc. 11 at 10–11) and argues that these claims are wholly
unsupported by facts sufficient to invoke federal question
jurisdiction (id. at 22–24). However, Cincinnati Insurance’s
arguments are better suited for consideration on the merits rather
than jurisdiction. As Plaintiffs’ complaint is construed to make
claims under federal law, and cognizant of Plaintiffs’ pro se

status, the court accepts the complaint as sufficient to invoke
federal question jurisdiction.5
As the court accepts federal question jurisdiction, it need
not consider the extent to which Plaintiffs have alleged diversity
jurisdiction.
B. Standing
The court must next consider Cincinnati Insurance’s argument
that Mr. Kroiss lacks standing. See Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 94 (1998) (standing cannot be assumed

4 As Plaintiffs’ response to Cincinnati Insurance’s motion to dismiss is
silent on this point and does not indicate any other cause of action,
the court will accept this construction of Plaintiffs’ claims.

5 To the extent Cincinnati Insurance argues that subject matter
jurisdiction does not exist because Plaintiffs brought the present
complaint under a misnomer, that argument fails. See n.1 supra. The
misnomer of Defendant’s corporate name is better considered a procedural
issue impacting process, rather than an issue of jurisdiction. See In
re QDN, LLC, 363 F. App'x 873, 878 (3d Cir. 2010) (“[M]isnomer is simply
not a matter implicating subject matter jurisdiction.”); Terra Eng'g &
Const. Corp. v. Camp, Dresser & McKee, Inc., No. 03-C-582, 2007 WL
397493, at *8 (E.D. Wis. Feb. 1, 2007) (“This court retains subject
matter jurisdiction despite the misnomer.”); Cropp v. Golden Arch Realty
Corp., No. 2:08-CV-0096-CWH, 2009 WL 10710585, at *2 (D.S.C. Mar. 31,
2009) (considering misnomer as an issue of process); Int'l Fire & Safety,
Inc. v. HC Servs., Inc., No. CIV A 206CV63KS-MTP, 2006 WL 2403496, at
*1 (S.D. Miss. Aug. 18, 2006) (same).
to reach a claim’s merits). For the purposes of assessing
standing, therefore, the court assumes Plaintiffs will prevail on
the merits of their claims. Cooksey v. Futrell, 721 F.3d 226, 239
(4th Cir. 2013).
Section 1983 provides a private right of action only to those
who allege that they have been deprived of rights, privileges, or

immunities secured by the Constitution or laws of the United
States. Parrat v. Taylor, 451 U.S. 527, 535 (1981). Accordingly,
a § 1983 plaintiff, like any person who claims a deprivation of
constitutional or federally protected rights, must allege some
violation of his or her personal rights — not those of another.
See English v. Powell, 592 F.2d 727 (4th Cir. 1979) (wife had no
standing to maintain action arising from husband's demotion on
job); Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982) (right to
bring action under civil rights act is personal in nature and does
not accrue to a relative); Topic v. Circle Realty Co., 532 F.2d
1273 (9th Cir. 1976) (litigants have no standing to assert civil

rights of third parties injured by unlawful conduct). Similarly,
§ 1981 provides a cause of action only to a plaintiff who has
personal rights under an existing contract that he wishes to
enforce. Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 348
(4th Cir. 2013). “Section 1981 plaintiffs must identify injuries
flowing from a racially motivated breach of their own contractual
relationship, not of someone else's.” Id. (quoting Domino's Pizza,
Inc. v. McDonald, 546 U.S. 470, 480 (2006)). Thus, the issue here
is whether Mr. Kroiss’s injuries constitute the type of deprivation
of personal rights contemplated by the relevant statutes.
In their complaint, Plaintiffs make no claims regarding any
injuries suffered by Mr. Kroiss due to the alleged discrimination.
At best, Mr. Kroiss alleges that he was forced to leave his

employment as a result of his wife’s accident. (Doc. 1-7 at 15.)
However, there is no evidence that he was in any way involved in
the discriminatory incident alleged -- his wife’s car accident.
As such, his personal loss does not rise to the level required to
state a valid claim under 42 U.S.C. §§ 1981 or 1983. Therefore,
Cincinnati Insurance’s motion to dismiss the claims brought by Mr.
Kroiss based on lack of standing will be granted.
C. Failure to State a Claim
The remaining claims are those brought by Mrs. Kroiss.
Cincinnati Insurance alleges that Plaintiffs’ action has numerous
procedural deficiencies that should result in dismissal, including

insufficient process, insufficient service of process, and failure
to provide proof of service. However, as Mrs. Kroiss’s claims
ultimately fail on the merits, the court will forego consideration
of the procedural claims and directly address the merits.
1. Standard of Review
Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
(8)(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter . . . 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 plausible “when

the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In considering a Rule 12(b)(6) motion,
a court “must accept as true all of the factual allegations
contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), and all reasonable inferences must be drawn
in the plaintiff’s favor. Ibarra v. United States, 120 F.3d 472,
474 (4th Cir. 1997). “Rule 12(b)(6) protects against meritless
litigation by requiring sufficient factual allegation ‘to raise a
right to relief above the speculative level’ so as to ‘nudge[]
the[] claims across the line from conceivable to plausible.’”

Sauers v. Winston-Salem/Forsyth Cty. Bd. Of Educ., 179 F. Supp. 3d
544, 550 (M.D.N.C. 2016) (alteration in original) (quoting
Twombly, 550 U.S. at 555). “[T]he complaint must ‘state[] a
plausible claim for relief’ that permit[s] the court to infer more
than the mere possibility of misconduct based upon ‘its judicial
experience and common sense.’” Coleman v. Md. Ct. App., 626 F.3d
187, 190 (4th Cir. 2010) (alterations in original) (quoting Iqbal,
556 U.S. at 679). Thus, mere legal conclusions are not accepted
as true, and “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
As noted, Mrs. Kroiss proceeds pro se. Although courts must
construe pro se complaints liberally, “generosity is not a

fantasy.” Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th
Cir. 1998). The court is not expected to plead a plaintiff's claim
for her, id., or “construct full blown claims from sentence
fragments,” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985). Likewise, a court should not “conjure up questions
never squarely presented.” Id.
In ruling on a motion to dismiss, courts may consider
documents attached to either the complaint or the motion to dismiss
without converting the motion into one for summary judgment so
long as the documents are “integral to the complaint and
authentic.” Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180

(4th Cir. 2009).
2. Claims Under §§ 1981 and 1983
In her complaint, Mrs. Kroiss appears to bring claims against
Cincinnati Insurance under 42 U.S.C. §§ 1981 and 1983 based on a
vague allegation of discrimination due to her German national
origin. Both claims fail.
Section 1983 states that “[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects ... any citizen
of the United States ... to the deprivation of any rights ... shall
be liable to the party injured.” 42 U.S.C. § 1983 (2020). As its
plain language indicates, § 1983 applies only to persons acting
under color of state law, and Mrs. Kroiss here does not (nor could

she) allege that the Cincinnati Insurance was acting under color
of any state law when it allegedly discriminated against her. It
is well settled that § 1983 does not address claims of
discrimination brought against purely private individuals or
entities not acting under color of state law. Estate of Williams-
Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636,
648 (M.D.N.C. 2004). As such, any claim made by Mrs. Kroiss
against Cincinnati Insurance under § 1983 will be dismissed.
Section 1981 protects the equal right of “[a]ll persons within
the jurisdiction of the United States” to “make and enforce
contracts” without respect to race. Domino's Pizza, 546 U.S. at

474. “Any claim brought under § 1981, therefore, must initially
identify an impaired ‘contractual relationship,’ § 1981(b), under
which the plaintiff has rights.” Id. at 470. Here, Mrs. Kroiss
has failed to identify any contract to which she has rights.
Further, she has failed to allege any facts that would suggest
Cincinnati Insurance interfered with any purported rights based on
her race. As discussed in her complaint, the only tangible act of
discrimination alleged is that Mr. Schott encouraged Mrs. Kroiss
not to call the police or an ambulance. This incident involves no
contractual rights, nor does it even involve the named Defendant
in the present case. Although Mrs. Kroiss alleges Cincinnati
Insurance failed to respond to multiple phone calls and a certified
letter, she provides no basis for believing these actions occurred

due to her national origin, and even she did, such actions would
not constitute a violation of § 1981. Mrs. Kroiss’s claims of
discrimination based on a generalized history of discrimination in
America (Doc. 19 at 1–2, 15–16) and her personal experiences of
discrimination in unrelated incidents by parties other than
Cincinnati Insurance (Doc. 15 at 3, 4) do nothing to further this
claim.
As Mrs. Kroiss has failed to state a cognizable claim under
federal law, Cincinnati Insurance’s motion to dismiss will be
granted.
III. CONCLUSION

For the reasons stated,
IT IS THEREFORE ORDERED that Cincinnati Insurance’s motion to
dismiss (Doc. 10) is GRANTED and Plaintiffs’ complaint (Doc. 1) is
DISMISSED, and Cincinnati Insurance’s motion to strike (Doc. 20)
is DENIED AS MOOT.
/s/ Thomas D. Schroeder
United States District Judge
September 30, 2020

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253592. Public record. Not legal advice.