# Brown v. Certain Underwriters Mendes & Mount

> District Court, S.D. Alabama · July 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10631339

## Case

- **Court:** District Court, S.D. Alabama
- **Decided:** July 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10631339. Public record. Not legal advice.