Brown v. Certain Underwriters Mendes & Mount

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EMOGENE RICHARDSON BROWN, *

*

Plaintiff, *

*

vs. * CIVIL ACTION NO. 19-00066-JB-B

*

CERTAIN UNDERWRITERS MENDES & *

MOUNT, et al., *

*

Defendants. *

REPORT AND RECOMMENDATION

Plaintiff Emogene Richardson Brown, who is proceeding pro se,

filed a complaint and a motion to proceed without prepayment of

fees. (Docs. 1, 2). At the Court’s directive, Plaintiff filed an

amended complaint; thus, it is the operative pleading. (See Docs.

3, 4). This matter is now before the undersigned Magistrate Judge

for review pursuant to 28 U.S.C. § 636(b)(1)(A) and S.D. Ala. GenLR

72(b).1 Because Plaintiff is proceeding in forma pauperis, her

amended complaint is subject to screening under 28 U.S.C. §

1915(e)(2)(B).2 See Taliaferro v. United States, 677 F. App’x 536,

1 S.D. Ala. GenLR 72(b) provides for the automatic referral of non-

dispositive pretrial matters, such as Plaintiff’s motion to

proceed without prepayment of fees, to a Magistrate Judge.

2 Section 1915(e)(2)(B) provides:

(2) Notwithstanding any filing fee, or any portion

thereof, that may have been paid, the court shall dismiss

the case at any time if the court determines that—

(A) the allegation of poverty is untrue; or

537 (11th Cir. 2017) (“[U]nder § 1915(e), district courts have the

power to screen complaints filed by all IFP litigants, prisoners

and non-prisoners alike.”), cert. denied, 138 S. Ct. 338 (2017).

Having screened Plaintiff’s complaint, the Court finds that

federal jurisdiction is lacking. Accordingly, it is recommended

that this action be dismissed without prejudice, prior to service

of process, for lack of subject matter jurisdiction.

I. BACKGROUND AND PROCEDURAL HISTORY

On February 13, 2019, Plaintiff Emogene Richardson Brown

(“Plaintiff”) filed a complaint (Doc. 1), along with a motion to

proceed without prepayment of fees. (Doc. 2). In her initial

complaint, Plaintiff listed the grounds for jurisdiction as

“Breach of promise” and asserted that “Mendes & Mount Insurance

Company” of New York City refused to pay her claim for damage to

her roof as a result of “Hurricane Nat,” which occurred on October

8, 2017. (Doc. 1 at 1-2). According to Plaintiff, when the

insurance adjuster came to her home, she had buckets catching water

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be

granted; or

(iii) seeks monetary relief against a defendant who is

immune from such relief.

28 U.S.C. § 1915(e)(2)(B).

from the roof, yet he denied her claim. (Id. at 2). For relief,

Plaintiff requested that her roof be repaired. (Id.).

Plaintiff attached to her complaint various documents from

small claims case number SM-2018-000166.00 in the District Court

of Mobile County, Alabama, including a statement of claim

(complaint), an application and affidavit for entry of default

judgment, and a court order. (Id. at 5-8). In the state court

complaint, Plaintiff named as Defendants Raphael and Associates

and Mendes & Mount, and she claimed that the defendants owed her

$6,000 because “they didn’t fix my roof, and my home has mildew

and I’ve lose clothes and furniture and, I smell the mildew in my

home every day.” (Id. at 5). In an application and affidavit for

entry of default judgment, Plaintiff again claimed that she was

owed $6,000, plus $306 in court costs. (Id. at 6). The state

court, in an order dated December 19, 2018, found as follows:

At the trial of this case, a preliminary issue was the

identity of the Defendant or Defendants sued by

Plaintiff. To clear up any confusion, any claims stated

against Defendants Raphael and Associates or Mendes &

Mount are hereby dismissed, with prejudice. The

Defendant in this case for trial is Certain Underwriters

at Lloyds, London.3

The case arises from an insurance claim made by Plaintiff

for damage to her property located at [Mobile, Alabama].

Plaintiff claims that her property was damaged during

3 In her complaint in the instant case, Plaintiff only names

Certain Underwriters Mendes & Mount as a Defendant. (Doc. 1 at 1-

2; see also Doc. 4 at 1-2). Based on the state trial court order

attached to Plaintiff’s complaint, it would appear that the proper

Defendant is Certain Underwriters at Lloyds, London.

Hurricane Nate, which struck the area in October, 2017.

The trial Defendant provided property insurance coverage

for Plaintiff’s residence. The value of the policy of

insurance was $143,000.00, but there was a general

deductible under the policy of $2,500. This general

deductible was increased to $4,290.00 in the event of

damage caused by wind or hail.

Plaintiff reported the damage following the hurricane.

Within a few days, Mr. Brett Pastor appeared at

Plaintiff’s residence, to inspect the property and to

prepare an estimate of the cost of repairs. He did this

work acting in an agency capacity for Defendant Certain

Underwriters at Lloyd’s London. Mr. Pastor determined

that the total cost to repair damage at Plaintiff’s

property, caused by wind driven rain, was in the amount

of $1,005.16. This amount was well below the policy

deductible as set out above. Accordingly, coverage was

not denied. The claim simply fell below the policy

deductible.

At trial, there was no credible evidence from Plaintiff

to dispute the damage calculation prepared by Mr.

Pastor. Accordingly, Judgment is entered for Defendant,

pursuant to the terms of the contract of insurance

between the parties. Costs are taxed as paid.

(Id. at 7).

On June 7, 2019, the undersigned entered an order granting

Plaintiff’s motion to proceed without fees and screening

Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). (Doc.

3). In the order, the undersigned observed that Plaintiff’s

complaint failed to indicate the states of citizenship of the

Defendants, failed to allege the amount in controversy, and did

not assert any basis for federal jurisdiction. (Id. at 4).

Accordingly, Plaintiff was ordered to file an amended complaint

which set forth the basis for this Court’s jurisdiction no later

than June 28, 2019. (Id.). The undersigned also noted in the

order that, based on a preliminary review of Plaintiff’s complaint

and the documents attached thereto, it appeared that Plaintiff had

litigated the same claims she raises in the instant case against

the same Defendants in state court, that Plaintiff’s claims against

Mendes & Mount were dismissed with prejudice, and that the state

court rendered judgment in favor of Certain Underwriters at Lloyds,

London. (Id. at 5). Plaintiff was placed on notice that res

judicata precludes claims which a plaintiff actually raised or

could have raised in a prior suit when (1) there is a final judgment

in a prior suit on the merits; (2) the decision in the prior suit

is rendered by a court of competent jurisdiction; (3) the parties

in both suits are identical; and (4) both suits involve the same

cause of action, and she was ordered to show cause, by June 28,

2019, why her claims against Defendants are not barred by res

judicata. (Id. at 4-5).

On June 24, 2019, apparently in response to the Court’s order,

Plaintiff filed a handwritten document, which the Court is treating

as her amended complaint. (Doc. 4). On the first page of the

document, Plaintiff listed her name and address, the name and

address of Defendant Certain Underwriters Mendes & Mount, and

listed the grounds for jurisdiction as “Denying my insurance

claim[.]” (Id. at 1). On the third page of the document, Plaintiff

stated: “My roof need repairing which is still damaged, from

Hurricane Nate. This insurance company refuse to pay, me for my

damages. I am asking the court to grant me payment for my damages.”

(Id. at 3). Plaintiff did not address the issue of res judicata.

(See id.).

II. STANDARDS OF REVIEW UNDER 28 U.S.C. § 1915(e)(2)(B)

Because Plaintiff filed a motion to proceed in forma pauperis

(Doc. 2), the Court is reviewing her complaint and amended

complaint (Doc. 1, 4) under 28 U.S.C. § 1915(e)(2)(B). Under §

1915(e)(2)(B)(i), a claim may be dismissed as “frivolous where it

lacks an arguable basis either in law or fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). A claim is frivolous as a

matter of law where, inter alia, the defendants are immune from

suit, or when the claim seeks to enforce a right that clearly does

not exist. Id. at 327. In addition, a complaint may be dismissed

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim

upon which relief may be granted. Mitchell v. Farcass, 112 F.3d

1483, 1490 (11th Cir. 1997).

When considering a pro se litigant’s allegations, a court

gives them a liberal construction, holding them to a more lenient

standard than those drafted by an attorney. Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, even in

the case of pro se litigants, the court does not have “license to

. . . rewrite an otherwise deficient pleading in order to sustain

an action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d

1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other

grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).

Moreover, a court treats a plaintiff’s factual allegations as true,

but a court is not required to accept conclusory assertions or

formulaic recitations of a cause of action’s elements. Ashcroft

v. Iqbal, 556 U.S. 662, 681 (2009). Further, a pro se litigant

“is subject to the relevant law and rules of court, including the

Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835,

837 (11th Cir. 1989), cert. denied, 493 U.S. 863 (1989).

III. ANALYSIS

A. Requirements for Subject Matter Jurisdiction.

Federal district courts are courts of limited jurisdiction,

which are authorized by the Constitution or by statute to hear

only certain types of actions.4 Exxon Mobil Corp. v. Allapattah

Servs., Inc., 545 U.S. 546, 552 (2012). “It is to be presumed

that a cause lies outside this limited jurisdiction, and the burden

of establishing the contrary rests upon the party asserting

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994) (internal citations omitted). A plaintiff

4 “In a given case, a federal district court must have at least

one of three types of subject matter jurisdiction: (1) jurisdiction

under a specific statutory grant; (2) federal question

jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity

jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron

Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997), cert. denied,

525 U.S. 841 (1998).

invoking a federal court’s jurisdiction must allege a proper

jurisdictional basis in the complaint. Taylor v. Appleton, 30

F.3d 1365, 1367 (11th Cir. 1994) (requiring that not only must the

jurisdictional provision be stated in the complaint, but also

“facts demonstrating the existence of jurisdiction”); Kirkland v.

Masonry, Inc. v. Comm’r of Internal Revenue, 614 F.2d 532, 533

(5th Cir. 1980) (same).5

“Federal courts ‘are obligated to inquire into subject-matter

jurisdiction sua sponte whenever it may be lacking.’” Cadet v.

Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) (quoting Galindo-Del

Valle v. Att’y Gen., 213 F.3d 594, 599 (11th Cir. 2000)). The

inquiry into whether a federal court has subject matter

jurisdiction should be done “at the earliest possible stage in the

proceedings.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,

410 (11th Cir. 1999). When a court considers dismissal for lack

of subject matter jurisdiction, it accepts the “well-pled facts as

true,” but it “is not required to accept plaintiff’s legal

conclusions.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260

(11th Cir. 2009) (citing Iqbal, 556 U.S. at 678-79), overruled on

other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449 (2012).

“[O]nce a court determines that there has been no [jurisdictional]

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), the Eleventh Circuit adopted as binding precedent

the decisions of the former Fifth Circuit rendered prior to October

1, 1981.

grant that covers a particular case, the court’s sole remaining

act is to dismiss the case for lack of jurisdiction.” Morrison v.

Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).

B. Lack of Subject Matter Jurisdiction.

Because Plaintiff is proceeding as a pro se litigant, the

Court has liberally construed her complaint and amended complaint

in search of facts sufficient to establish subject matter

jurisdiction. As an initial matter, even after being advised by

the Court as to the possible bases for federal subject matter

jurisdiction, Plaintiff has failed to set forth any statute or

Constitutional provision that might confer jurisdiction. Instead,

Plaintiff has listed as grounds for jurisdiction “[b]reach of

promise” and “[d]enying my insurance claim[.]” (See Doc. 1 at 1;

Doc. 4 at 1). Neither of these provide a basis for federal subject

matter jurisdiction.

Nor has Plaintiff alleged any facts that suggest, let alone

establish, the existence of federal jurisdiction, including

diversity jurisdiction.6 After being ordered to file an amended

complaint setting forth the bases for this Court’s jurisdiction,

Plaintiff filed an amended complaint that again did not list the

6 As Plaintiff was previously advised, a district court has federal

diversity jurisdiction over any civil case if the parties are

citizens of different states and the amount in controversy exceeds

$75,000.00, exclusive of interest and costs. 28 U.S.C. § 1332(a).

states of citizenship of the Defendants or the amount in

controversy. (See Doc. 4). Although the Court might infer that

the parties are citizens of different states or countries based on

their addresses as listed in Plaintiff’s complaint, Plaintiff has

alleged no facts suggesting that the amount in controversy exceeds

$75,000. Plaintiff appears to claim breach of contract based upon

Defendants’ refusal to pay her insurance claim for roof damage.

However, as noted supra, Plaintiff has failed to set forth any

specific amount in controversy, and the state court documents

attached to her complaint strongly suggest that the disputed amount

is, at the high end, approximately $6,000.

In sum, it appears that, in bringing this action, Plaintiff

seeks to re-litigate her unsuccessful small claims case in federal

court. The undersigned previously notified Plaintiff that her

original complaint failed to establish federal subject matter

jurisdiction and afforded her an opportunity to amend her complaint

to establish jurisdiction. In her subsequent filing, Plaintiff

manifestly failed to do so. “Breach of promise” and “[d]enying my

insurance claim” are not bases for a federal court’s jurisdiction.

Because Plaintiff has not established this Court’s jurisdiction in

either her complaint or her amended complaint (Docs. 1, 4), this

action is due to be dismissed for lack of subject matter

jurisdiction.7

IV. CONCLUSION

For the foregoing reasons, the undersigned RECOMMENDS that

this action be DISMISSED without prejudice, prior to service of

process, for lack of subject matter jurisdiction.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on

7 It appears that this case is also due to be dismissed based on

the doctrine of res judicata. That doctrine “bars the parties to

an action from litigating claims that were or could have been

litigated in a prior action between the same parties.” Lobo v.

Celebrity Cruises, Inc., 704 F.3d 882, 892 (11th Cir. 2013). “A

federal court must give preclusive effect to state-court decisions

‘whenever the court of the State from which the judgment emerged

would do so.’” Thompson v. Smith, 52 F. Supp. 2d 1364, 1368 (M.D.

Ala. 1999). Under Alabama law, any claim that was or could have

been adjudicated in a previous action is precluded when (1) there

was a prior judgment on the merits, (2) rendered by a court of

competent jurisdiction, (3) with substantial identity of the

parties, and (4) when both suits present the same cause of action.

Hughes v. Allenstein, 514 So. 2d 858, 860 (Ala. 1987). Each of

those elements appear to be present here. Based on the documents

attached to Plaintiff’s complaint, it appears that Plaintiff

brought the same claims she raises in the instant case against

Mendes & Mount and Raphael and Associates in state small claims

court, that her claims against Mendes & Mount and Raphael and

Associates were dismissed with prejudice because Plaintiff’s

property was insured by Certain Underwriters at Lloyds, London

rather than by those entities, and that the state court rendered

judgment on the merits in favor of Certain Underwriters at Lloyds,

London following a trial. Further, Plaintiff has failed to show

cause, as ordered, why her claims are not barred by res judicata.

However, the Court need not decide the question because federal

subject matter jurisdiction is absent. See Occidental of Umm al

Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker

Dauntless Colocotronis, 577 F.2d 1196, 1201 (5th Cir. 1978).

all parties in the manner provided by law. Any party who objects

to this recommendation or anything in it must, within fourteen

(14) days of the date of service of this document, file specific

written objections with the Clerk of this Court. See 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The

parties should note that under Eleventh Circuit Rule 3-1, “[a]

party failing to object to a magistrate judge’s findings or

recommendations contained in a report and recommendation in

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the

right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions if the party was

informed of the time period for objecting and the consequences on

appeal for failing to object. In the absence of a proper

objection, however, the court may review on appeal for plain error

if necessary in the interests of justice.” 11th Cir. R. 3-1.

In order to be specific, an objection must identify the

specific finding or recommendation to which objection is made,

state the basis for the objection, and specify the place in the

Magistrate Judge’s report and recommendation where the disputed

determination is found. An objection that merely incorporates by

reference or refers to the briefing before the Magistrate Judge is

not specific.

DONE this 15th day of July, 2019.

/s/ SONJA F. BIVINS

UNITED STATES MAGISTRATE JUDGE