# Sifuentes

> District Court, N.D. Ohio · June 12, 2026

URL: https://www.frixlaw.com/law-library/cases/11356418

## Case

- **Full name:** David Angel Sifuentes III v. Progressive Corporation (a/k/a Progressive Casualty Insurance Company)
- **Court:** District Court, N.D. Ohio
- **Decided:** June 12, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID ANGEL SIFUENTES III., ) Case No. 1:25-cv-1253
)
Plaintiff, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge
) Jonathan D. Greenberg
PROGRESSIVE CORPORATION, )
(a/k/a Progressive Casualty )
Insurance Company) )
)
Defendant. )
)

OPINION AND ORDER
Plaintiff David Sifuentes filed this action without a lawyer, bringing a variety
of claims against his former auto insurance provider, Defendant Progressive
Corporation. Defendant indicates that its correct name as relevant here is
Progressive Marathon Insurance Company. (ECF No. 22, PageID #340.) Plaintiff’s
claims involve two separate sets of operative facts: (1) a 2018 data breach that
compromised Progressive’s data and leaked some of Mr. Sifuentes’ personal
information; and (2) two insurance claims in December 2024 and February 2025,
which Mr. Sifuentes alleges Progressive settled improperly.
Progressive moves to dismiss the complaint for failure to state a claim under
Rule 12(b)(6). In doing so, Progressive asks the Court to take judicial notice of several
court documents outside the pleadings. In response, Mr. Sifuentes moves for
summary judgment and to strike Progressive’s affirmative defenses. Also, Plaintiff
requests appointment of counsel and electronic access for filing. For reasons that
follow, the Court GRANTS IN PART Defendant’s motions for judicial notice and
GRANTS Progressive’s motion to dismiss; DENIES Plaintiff’s requests for appointed
counsel, electronic access to the docket, and leave to amend; and, therefore,

determines that Plaintiff’s motion for summary judgment and motion to strike
Progressive’s defenses are MOOT.
FACTUAL AND PROCEDURAL BACKGROUND
Taking the facts alleged in the amended complaint as true and construing
them in Plaintiff’s favor, as the Court must in the current procedural posture, the
complaint alleges the following facts.

A. First Amended Complaint
A.1. 2018 Data Breach
Mr. Sifuentes resides in Grand Rapids, Michigan and was an insurance
customer of Progressive’s from 2018 through 2025. (ECF No. 14.) In March 2018,
unauthorized users infiltrated Progressive’s system and exposed sensitive customer
data. (ECF No. 14, ¶ 8, PageID #194.) Mr. Sifuentes was unaware of this incident
until May 2025, when he received a cybersecurity alert that the credentials linked to

his Progressive account appeared on the dark web. (Id., ¶ 10, PageID #194.) Through
this data breach, Mr. Sifuentes alleges that he was a victim of identity theft and
“experienced unauthorized logins and reputational harm.” (Id., ¶ 11, PageID #195.)
He does not explain what the identity theft and reputational harms consisted of, or
how damages resulted. Mr. Sifuentes does allege that Progressive never notified him
of the breach after it occurred. (Id., ¶ 9, PageID #194.)
A.2. Insurance Claims
On December 14, 2024, Mr. Sifuentes’s vehicle, which he insured with
Progressive, was involved in an accident. (Id., ¶ 15, PageID #195.) On February 10,

2025, that same vehicle was destroyed in a fire. (Id.) When Mr. Sifuentes filed
insurance claims following these incidents, Progressive denied portions of his claims
and notified LexisNexis Risk Solutions, Inc. that he was at fault for the accidents and
insurance losses. (Id., ¶¶ 12 & 16, PageID #195.) Mr. Sifuentes asserts that
Progressive’s reports to LexisNexis resulted in “denial of credit, increased premiums,
and reputational injury.” (ECF No. 14-2, ¶ 7, PageID #204.) Thereafter, Progressive

and Mr. Sifuentes entered into an agreement settling these claims. (ECF No. 14,
¶ 16, PageID #195.) Mr. Sifuentes indicates that he only accepted the settlement
under duress, “as he was without transportation at the time of the settlement and
Progressive advised him that non-acceptance would void coverage.” (Id., ¶¶ 16 & 17.)
For this reason, he notified Progressive at the time of settlement that he intended to
pursue legal action. (ECF No. 14-2, ¶ 12, PageID #204.)
* * *

Mr. Sifuentes’ eleven-count amended complaint presents claims arising out of
both the data breach and insurance settlement. In relation to the insurance
settlement, he asserts claims under the Fair Credit Reporting Act (Count I). With
respect to the data breach, he brings a claim under the Computer Fraud and Abuse
Act (Count II). For each set of facts, he asserts claims for negligence and gross
negligence (Count III), breach of contract (Count IV), fraud and misrepresentation
(Count V), and breach of fiduciary duty (Count VII). Additionally, he brings claims
for defamation and false reporting (Count VI), civil rights violations (Count VIII),
invasion of privacy (Count IX), bad faith and unfair business practices under

Michigan law (Count XI), and intentional and negligent infliction of emotional
distress (Count X). (ECF No. 14, PageID #196–97.)
Mr. Sifuentes alleges that he suffered loss of income, reputational damage,
emotional distress, and costs associated with identity theft risk mitigation. (ECF
No. 14-2, ¶ 23, PageID #205.) He seeks $300,000 in actual damages, $25,000,000 in
punitive damages, and declaratory and injunctive relief. (Id., at ¶ 24.)

B. Related Lawsuits
The judicial system is familiar with much of the fact pattern outlined above.
In 2025, Mr. Sifuentes pursued a lawsuit in Michigan State court that challenged
Defendant’s handling of the same two automobile insurance claims and did so on
similar grounds. (ECF No. 14-3 & 20-1; Sifuentes v. Progressive Mich. Ins. Co., No. 25-
00225-NZ (Mich. Cir. Ct. 2025). That case concluded on April 3, 2025 when the court
granted Progressive’s motion for summary disposition. (ECF No. 14-3.) Although

Mr. Sifuentes intended to seek an appeal in that case, he was not able to post the
$25,000 appeal bond which the Michigan court set in recognition of Mr. Sifuentes’
pattern of behavior as a litigator. (ECF No. 20-2, PageID #268; ECF No. 14-1, PageID
#200.) Describing his litigation conduct, the Michigan court noted that Mr. Sifuentes
“filed numerous motions in this case and has also filed another action involving the
same claims,” as well as numerous related motions in the court of appeals and in the
Michigan Supreme Court. (ECF No. 20-2, PageID # 267.) Also, it cited Mr. Sifuentes’
admission that “he had filed 10–20 lawsuits in the past 3 years and that number was
closer to 60 when appeals are considered.” (ECF No. 20-2, PageID #268.)
When the Michigan court dismissed Mr. Sifuentes’ claims through summary

disposition, it made several findings. (ECF No. 14-3.) The court found that
Progressive based its fault determination on police reports and that this was not a
negligent or improper means of making the determination (Id., PageID #211–12.)
Additionally, no contractual term obligated Progressive to conduct a deeper
investigation into either vehicle incident. (Id., PageID #213.) Finally, it found that
Mr. Sifuentes was unable to establish damages for his claims because Progressive

paid him a settlement. (Id., PageID #211 & #213.) On these grounds, the court
dismissed the entire suit, including claims for negligence, defamation, breach of
contract, bad faith dealing, and intentional and negligent infliction of emotional
distress. (ECF No. 14-3.)
After Defendant brought this earlier case to the Court’s attention,
Mr. Sifuentes acknowledged it in his amended complaint. (ECF No. 14, PageID #195
& #200.) Because of his dissatisfaction with how the Michigan court engaged with

his claims, he hopes to have these same matters litigated anew. (Id., ¶¶ 19–23,
PageID #195.) According to Mr. Sifuentes, “[b]ecause Plaintiff was denied due
process and equal protection, no valid final judgment exists; therefore, res judicata
and collateral estoppel do not apply.” (Id., ¶ 24, PageID #195.)
At this time, Mr. Sifuentes is also pursuing a federal lawsuit in the Northern
District of Georgia which bears a strong resemblance to this one, concerns the same
auto insurance settlement, and names Progressive as one of its defendants. (ECF
No. 20-4.) Previously, he filed another similar federal lawsuit against Progressive in
the Western District of Michigan before voluntarily withdrawing his complaint. (ECF

No. 20-3.)
Three weeks before filing this lawsuit, Mr. Sifuentes filed a federal lawsuit
against Xfinity, Comcast Corporation in which he alleged a 2018 data breach with
facts substantially similar to those presented here. (ECF No. 10-3.) Before filing this
lawsuit against Progressive, Mr. Sifuentes withdrew his complaint against Xfinity
without prejudice. (ECF No. 10-2.)

C. Pending Motions
Defendant moves to dismiss for failure to state a claim on which relief can be
granted. (ECF No. 21.) In support of the motion to dismiss, Defendant also filed two
motions requesting that the Court take judicial notice of several documents from
State and federal court cases involving Plaintiff and some of the facts he presently
alleges. (ECF No. 10; ECF No. 20.) Plaintiff opposes judicial notice of these
documents. (ECF No. 23.)

Plaintiff moves for summary judgment (ECF No. 25.) and to strike Defendant’s
affirmative defenses (ECF No. 26). Additionally, he requests appointed counsel and
unlimited PACER access. (ECF No. 27.) Based on its review of the record, the Court
determines that resolution of the pending motions does not require oral argument.
ANALYSIS
I. Appointment of Counsel
As an initial matter, Mr. Sifuentes requests that the Court appoint counsel.

(ECF No. 27.) A district court has the discretion to appoint counsel in a civil
proceeding. See Lavado v. Keohane, 992 F.2d 601, 604–05 (6th Cir. 1993); 28 U.S.C.
§ 1915(e)(1). In civil cases, there is no constitutional right to the assistance of a
lawyer. Unlike in a criminal case, the Constitution does not entitle a civil litigant to
a lawyer. Appointment of counsel is a privilege that “is justified only by exceptional
circumstances.” Lavado, 992 F.2d at 606. (citation omitted). When determining

whether exceptional circumstances exist, courts generally examine “the complexity
of the factual and legal issues involved” and “the plaintiff’s ability to represent
himself.” Id. at 606 (cleaned up). “Courts should not appoint counsel when the claims
are frivolous or when the chances of success are extremely slim.” Cleary v. Mukasey,
307 F. App’x 963, 965 (6th Cir. 2009) (citation and quotation marks omitted).
The Court has no doubt that Mr. Sifuentes would benefit from the assistance
of a lawyer—most litigants would—and that he has exhausted all normal channels

for finding representation. However, the Court discerns no exceptional circumstance
warranting the appointment of counsel. Nor does it appear that counsel would make
a difference in the ultimate outcome of this case. Therefore, the Court DENIES
Plaintiff’s request for appointment of counsel.
II. Defendant’s Motion to Dismiss
Although pro se pleadings are liberally construed and held to less stringent
standards than pleadings drafted by lawyers, Boag v. MacDougall, 454 U.S. 364, 365

(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the lenient
treatment accorded pro se plaintiffs has limits, see e.g., Pilgrim v. Littlefield, 92 F.3d
413, 416 (6th Cir. 1996). Pro se litigants must still meet basic pleading requirements,
and courts are not required to conjure allegations on their behalf or create claims for
them. See Erwin v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001).
Under Rule 12(b)(6), a court may dismiss a complaint if it fails to state a claim

on which a court may grant relief. Fed. R. Civ. P. 12(b)(6). A motion under Rule
12(b)(6) tests “the plaintiff’s cause of action as stated in the complaint” and is “not a
challenge to the plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d
950, 958-59 (6th Cir. 2005). A complaint must “contain sufficient factual matter,
accepted as true, 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 where “the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). To survive a motion to
dismiss, a complaint must “raise a right to relief above the speculative level” into the
“realm of plausible liability.” Twombly, 550 U.S. at 555, 557 n.5.
On a motion to dismiss, the Court construes factual allegations in the light
most favorable to the plaintiff, accepts them as true, and draws all reasonable
inferences in the plaintiff’s favor. Wilburn v. United States, 616 F. App’x 848, 852
(6th Cir. 2015) (citing DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). But
a pleading must offer more than mere “labels and conclusions,” and “a formulaic

recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Nor is a court required to accept “[c]onclusory
allegations or legal conclusions masquerading as factual allegations.” Eidson v.
Tennessee Dep’t of Child.’s Servs., 510 F.3d 631, 634 (6th Cir. 2007) (citing Twombly,
550 U.S. at 544).
Therefore, a court must distinguish between “well-pled factual allegations,”

which must be treated as true, and “naked assertions,” which need not be. Iqbal, 556
U.S. at 678 (cleaned up); see also, e.g., Center for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 375 (6th Cir. 2011) (determining that because some of the
plaintiff’s factual allegations were not well-pled, their conclusory nature disentitled
them to the presumption of truth). To withstand a motion to dismiss, a plaintiff need
not include detailed factual allegations, but must provide more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Rule 8

“does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Id. at 678-79.
II.A. Judicial Notice
For the purpose of considering Defendant’s motion to dismiss, Defendant
requests that the Court take judicial notice of several court documents that are
outside the record. (ECF No. 10; ECF No. 20.) These documents include orders and
filings from Plaintiff’s lawsuits against Defendant in Michigan and in the Northern
District of Georgia, as well as a Western District of Michigan docket report labeling
Plaintiff a restricted filer. (Id.) Mr. Sifuentes objects to this request. (ECF No. 23.)
First, he argues that while the Court may acknowledge the existence of the filings,

the Court cannot accept any contested facts as true. (Id., PageID #354.) Second,
Plaintiff suggests that his “restricted filer” designation is irrelevant and merely an
attempt by Defendant to make propensity inferences. (Id.)
Generally, a court may not consider documents outside the pleadings when
deciding a motion under Rule 12(b)(6). Gunasekera v. Irwin, 551 F.3d 461, 469 n.4
(6th Cir. 2009). However, a court may “take judicial notice of ‘matters of public

record’” when undertaking a Rule 12(b)(6) analysis, but “only when the ‘contents
prove facts whose accuracy cannot reasonably be questioned.’” Electronic Merch. Sys.
LLC v. Gaal, 58 F.4th 877, 883 (6th Cir. 2023) (quoting Golf Vill. North, LLC v. City
of Powell, 14 F.4th 611, 617 (6th Cir. 2021), and Passa v. City of Columbus, 123 F.
App’x 694, 697 (6th Cir. 2005)). Additionally, the Sixth Circuit “has taken a liberal
view of what matters fall within the pleadings for purposes of Rule
12(b)(6).” Armengau v. Cline, 7 F. App’x 336, 344 (6th Cir. 2001). If a document is

“referred to in a complaint and central to the claim, documents attached to a motion
to dismiss form part of the pleadings.” Id. (citing Jackson v. City of Columbus, 194
F.3d 737, 745 (6th Cir. 1999)).
Plaintiff refers to the State court and federal court proceedings in his
complaint. (ECF No. 14, ¶¶ 19–26, PageID #195–96; ECF No. 14-2.) Additionally,
both parties refer to the earlier proceedings in their briefs. (ECF No. 21-1, PageID
#320–22; ECF No. 23, PageID #353.) Although Mr. Sifuentes presents arguments
regarding the relevance and permissible use of these documents, he does not question
the accuracy of their contents. (ECF No. 23, PageID #354.) Accordingly, the Court

takes notice of all related lawsuits, in particular their outcomes, claims, and dates of
filing and decision. (ECF No. 10; ECF No. 20.) In doing so, the Court continues to
take the allegations in the complaint in this case as true and construes them in
Plaintiff’s favor.
II.B. Issue Preclusion
Defendant argues that Plaintiff’s insurance settlement-related claims are
precluded because the Michigan State court already decided the underlying issue in

Progressive’s favor. (ECF No. 21-1, PageID #326–29.) In Defendant’s view, the
Michigan court’s finding that Progressive adequately investigated Plaintiff’s vehicle
accidents and property determined that Plaintiff was at fault is a critical
determination which is ultimately fatal to all of Plaintiff’s auto insurance-related
claims. (ECF No. 21-1, PageID #328–29.) Additionally, Defendant notes that the
Michigan court expressly dismissed six of the auto insurance-related claims asserted

in this case: negligence (Count III), breach of contract (Count IV), defamation
(Count VI), intentional and negligent infliction of emotional distress (Count X), and
bad faith (Count XI). (Id., PageID #328.)
Collateral estoppel, also known as issue preclusion, “precludes a party from
relitigating an issue actually decided in a prior case and necessary to the judgment.”
Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 590 U.S. 405, 411 (2020)
(citing Allen v. McCurry, 449 U.S. 90, 94 (1980)). The doctrine “bars ‘successive
litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment,’ even if the issue recurs in the context
of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New

Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)). Issue preclusion prevents
“repetitive litigation of the same issue between the same parties[,]” so that “if two
parties actually litigated an issue in a prior case, and a court necessarily decided the
issue pursuant to entry of a final judgment, then the losing party cannot relitigate
the issue against the winner in a later case.” Amos v. PPG Industries, Inc., 699 F.3d
448, 451 (6th Cir. 2012). “Essentially, parties get one chance to litigate an issue of

fact or law.” Pogue v. Principal Life Ins. Co., 979 F.3d 534, 536 (6th Cir. 2020).
“When a federal court is asked to give preclusive effect to a state court
judgment, the federal court must apply the law of the state in which the prior
judgment was rendered in determining whether and to what extent the prior
judgment should be given preclusive effect in a federal action.” In re Fordu, 201 F.3d
693, 703 (6th Cir. 1999). Under Michigan law, issue preclusion applies where three
elements are satisfied: (1) a question of fact essential to the judgment was actually

litigated and determined by a valid and final judgment; (2) the same parties had a
full and fair opportunity to litigate the issue; and (3) there must be mutuality of
estoppel, meaning the party seeking to enforce the earlier adjudication would have
been bound by an adverse judgment in it. Monat v. State Farm Ins. Co., 677 N.W.2d
843, 846–47 (Mich. 2004) (citations omitted).
A question of fact in an action is considered “actually litigated” if it was “put
into issue by the pleadings, submitted to the trier of fact for determination, and is
thereafter determined.” Latimer v. William Mueller & Son, Inc., 386 N.W.2d 618,

627 (Mich. Ct. App. 1986) (citation omitted). An issue is necessarily determined only
if it is “essential” to the judgment previously entered. People v. Gates, 452 N.W.2d
627, 631 (Mich. 1990). Where an action is resolved by summary disposition, that
outcome “triggers the doctrine of collateral estoppel on relitigation” of its essential
factual determinations. National City Bank of Mich./Il. v. Employees Life Co. Mut.,
No. 227559, 2002 WL 1308638, at *2 (Mich. Ct. App. June 11, 2002).

Parties had a full and fair opportunity to relitigate an issue where the party
against whom preclusion is sought could, “as a matter of law, have obtained review
of the judgment in the initial action.” Monat, 677 N.W.2d. at 847. And mutuality of
estoppel is not an issue where, as here, the parties or their privies litigated in a prior
action. Id. (citations omitted).
When it comes to Plaintiff’s claims based on his auto insurance dispute with
Progressive, the present lawsuit raises questions about the company’s performance

of its duties and response to the claims Mr. Sifuentes submitted. Also, Plaintiff
claims damages not fully redressed by his settlement with Defendant. In a final
judgment on the merits, the Michigan court directly addressed these questions.
Further, the Michigan court engaged with those questions as essential issues in the
litigation before it. “[A]s a matter of law,” Mr. Sifuentes could have sought appeal of
the Michigan court’s finding. Id. He did not, and he cannot relitigate the issues here.
The doctrine of issue preclusion bars all of Plaintiff’s claims arising from his
complaints about Progressive’s handling of his auto insurance claims from further
consideration.

II.C. Failure to State a Claim
The Court proceeds to consider the remaining data breach-related claims
under Rule 12(b)(6). Plaintiff’s allegations regarding the data breach give rise to
claims under the Computer Fraud and Abuse Act (Count II) and for negligence and
gross negligence (Count III), breach of contract (Count IV), fraud and
misrepresentation (Count V), breach of fiduciary duty (Count VII), invasion of privacy
(Count IX), and intentional and negligent infliction of emotional distress (Count X).

(ECF No. 14, PageID #196-97.)
II.C.1. Computer Fraud and Abuse Act (Count II)
First, the Court considers Plaintiff’s claim that Defendant violated the
Computer Fraud and Abuse Act (Count II). This federal statute imposes civil liability
on anyone who knowingly “accesses a protected computer without authorization or
exceeds authorized access” of a protected computer. 18 U.S.C. § 1030(a)(4). To state

a civil claim under this statute, a plaintiff must show that “(1) a particular defendant
(i) intentionally accessed (ii) a protected computer (iii) without authorization, (iv)
causing damage or loss to it, and that (2) the defendant’s actions caused $5,000 of
‘loss’ within a one-year period as forth in § 1030(c)(4)(A)(i)(I).” DeSoto v. Board of
Parks & Recreation, 64 F. Supp. 3d 1070, 1101 (M.D. Tenn. 2014).
Plaintiff fails to state a claim against Progressive under this statute. Someone
likely engaged in conduct that violates this statute by accessing a computer without
authorization. But that person is not Progressive—and Plaintiff does not allege that
it was. Indeed, he pleads that “Progressive’s systems were infiltrated by
unauthorized users, exposing sensitive customer data.” (ECF No. 14, ¶ 8, PageID

#194.) According to Plaintiff’s own allegations, Progressive was not the party that
obtained unauthorized access. Because Plaintiff cannot establish an element of this
claim, Progressive is not liable under the statute.
II.C.2. State-Law Claims
In the remaining counts, Plaintiff asserts claims under State law, over which
the Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Under federal

law “the district courts shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy under Article III.” 28 U.S.C. § 1367(a). This
grant of jurisdiction brings all claims arising from a common nucleus of operative fact
before the Court. Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 588 (6th Cir.
2016).
Even then, a court “may decline to exercise supplemental jurisdiction” in

certain circumstances. 28 U.S.C. § 1367(c). Supplemental jurisdiction “is a doctrine
of discretion.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).
To determine whether to exercise supplemental jurisdiction, “a federal court should
consider and weigh in each case, and at every stage of the litigation, the values of
judicial economy, convenience, fairness, and comity[.]” Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988); see also James v. Hampton, 592 F. App’x 449, 462–63
(6th Cir. 2015) (quoting Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1882
(6th Cir. 1993)). Section 1367(c)(3) provides that a district court may decline to
exercise supplemental jurisdiction where “(1) the claim raises a novel or complex

issue of State law, (2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction, (3) the district court has
dismissed all claims over which it has original jurisdiction, or (4) in exceptional
circumstances, there are other compelling reasons for declining jurisdiction.”
Because the Court dismisses all of Plaintiff’s federal claims, the Court may, in
its discretion, either retain jurisdiction over Plaintiff’s State-law claims and proceed

on the merits, Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639–40 (2009), or
decline jurisdiction and dismiss the complaint without prejudice to Plaintiff’s right to
pursue the remaining claim in State court, see 28 U.S.C. § 1367(c)(3). “[G]enerally
‘when all federal claims are dismissed before trial, the balance of considerations
usually will point to dismissing the [S]tate law claims.” Packard v. Farmers Ins. Co.
of Columbus, 423 F. App’x 580, 585 (6th Cir. 2011) (quoting Musson Theatrical v. Fed.
Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996)); see also Juergensen v. Midland

Funding, LLC, No. 5:18-cv-1825, 2018 WL 5923707, at *2 (N.D. Ohio Nov. 13, 2018).
Based on its review of the record, and in the interest of judicial economy given
the number of lawsuits Plaintiff has pursued against Progressive, the Court exercises
its discretion to retain supplemental jurisdiction over Plaintiff’s remaining State-law
claims, which arise out of the data breach.
II.C.2.a. Choice of Law
A federal court exercising diversity jurisdiction applies the choice of law rules
of the forum State. Mulch Mfg., Inc. v. Advanced Polymer Sols., LLC, 947 F. Supp.

2d 841, 854 (S.D. Ohio 2013). Ohio employs the choice-of-law rules of the
Restatement (Second) of Conflict of Laws. Galaria v. Nationwide Mut. Ins. Co.,
No. 2:13-cv-118, 2017 WL 4987663, at *5 (S.D. Ohio Aug. 16, 2017) (citations
omitted). In a matter of contract law, where the parties have not expressly made a
choice of law, the Restatement applies the law of the State which “has the most
significant relationship to the transaction and the parties.” Restatement (Second) of

Conflict of Laws § 188(1) (1971). Similarly, “[t]he rights and liabilities of the parties
with respect to an issue in tort are determined by the local law of the state which,
with respect to that issue, has the most significant relationship to the occurrence and
the parties.” Restatement (Second) of Conflict of Laws § 145 (1971). Among the
considerations are the place where the injury and conduct occurred as well as the
respective domiciles of the parties. Id. At the motion-to-dismiss stage, the Court
assumes, without deciding, that Michigan law applies to Plaintiff’s claims because

Mr. Sifuentes resides there.
II.C.2.b. Statutes of Limitations
Mr. Sifuentes bases his claims under State law on a data breach that occurred
in March 2018. (ECF No. 14, ¶ 8, PageID #194.) He filed this lawsuit in June 2025—
more than seven years later. Under Michigan law, Plaintiff’s claims for fraud, breach
of contract, and his statutory claims have the longest limitations period: six years.
Mich. Comp. Laws § 600.5813; id. § 600.5807(9); id. § 445.911(9). Michigan law has
shorter limitations periods for Plaintiff’s other claims. See, e.g., id. § 600.5805(2)
(three years for tort claims); id. § 600.5805(11) (one year for defamation). In response

to Defendant’s motion to dismiss based on the applicable statutes of limitations,
Plaintiff makes no argument that a discovery rule applies that might make his claims
timely. It is not the Court’s job to make arguments for a pro se litigant or to do legal
research that might support his position. It is enough that he has failed to do so.
Under Michigan law, Plaintiff waited too long to bring his claims. They are time-
barred.

III. Leave to Amend
At the end of his opposition to Defendant’s motion to dismiss, Plaintiff includes
a request for leave to amend. (ECF No. 23, PageID #355.) In its entirety, that request
reads: “If the Court identifies any pleading deficiency, Plaintiff respectfully requests
leave to amend. Amendments should be freely granted when justice so requires.” (Id.
(citations omitted).) Plaintiff fails to attach any proposed amendment or to identify
with any specificity what allegations he might wish to amend. His request is not

proper.
Procedurally, Rule 15 generally directs a court to give leave to amend freely.
Fed. R. Civ. P. 15(a)(2). However, perfunctory amendment requests at the end of a
brief are inadequate. See Pulte Homes, Inc. v. Laborers’ Int’l Union of N. Am., 648
F.3d 295, 305 (6th Cir. 2011). “[A] request for leave to amend, almost as an aside, to
the district court in a memorandum in opposition to the defendant’s motion to dismiss
is not a motion to amend.” Alexander v. Eagle Mfg. Co., 714 F. App’x 504, 511 (6th
Cir. 2017) (cleaned up). And an amendment request in a brief opposing a Rule 12
motion does not constitute a proper motion. Begala v. PNC Bank, 214 F.3d 776, 784

(6th Cir. 2000). Plaintiff has not separately moved for leave to amend or proffered a
proposed amended complaint. Therefore, the Court will not allow Plaintiff to amend
the complaint.
IV. Remaining Motions
Mr. Sifuentes requests free and unlimited PACER access for the duration of
this case. (ECF No. 27.) He contends that without “meaningful electronic docket

access,” he is impaired in his ability to “review and cite records referenced by
Defendant.” (Id., PageID #390.)
PACER is an online public platform that allows users to access court dockets
and filings across the federal court system. Users create free accounts and then pay
between $0.10 to $3.00 for each document printed, viewed, or downloaded. However,
fees are waived if a user accrues less than $30 of charges within one quarter of the
calendar year or if he is party in a case and receives a free copy from the court.

PACER content may also be accessed for free at courthouse public access
terminals. 28 U.S.C.A. § 1914 note (Judicial Conference Schedule of Fees, Electronic
Public Access Fee Schedule).
“[F]ee exemptions are the exception, not the rule.” Stinson v. Fowlkes,
No. 2:22-cv-02694, 2023 WL 3938880, at *9 (W.D. Tenn. June 9, 2023). “To be eligible
for an exemption from PACER user fees, the requesting party must show that an
exemption is necessary to: (1) avoid unreasonable burden; and (2) promote public
access to information.” Blount v. Whole Foods Mkt. Downtown Nashville, No. 3:23-
cv-00343, 2025 WL 2054362, at *5 (M.D. Tenn. July 22, 2025) (citation omitted). “A

party must demonstrate that both standards have been met in order for a court to
grant an exemption from payment of this fee.” Tolston v. City of Atlanta, 723 F. Supp.
3d 1263, 1324 (N.D. Ga. 2024) (citation omitted). In forma pauperis status does not
automatically entitle a plaintiff to exemption from PACER fees. Blount, 2025 WL
2054362, at *6 (collecting cases). “User fees should not be waived in the absence of
exceptional circumstances.” Tolston, 723 F. Supp. at 1324.

Plaintiff does not demonstrate that PACER fees present him with an
unreasonable burden. As a party to this case, he receives filings free of charge. The
Court discerns no exceptional circumstances that warrants a waiver in this case. In
any event, based on this ruling, the case is at its end. Accordingly, the Court DENIES
Mr. Sifuentes’ motion for unlimited access without cost to PACER.
Finally, based on the foregoing analysis, the Court determines that Plaintiff’s
motion for summary judgment and motion to strike Progressive’s defenses are

MOOT.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion for
appointment of counsel and for electronic access to the docket without cost (ECF
No. 27); GRANTS IN PART Defendant’s motions for judicial notice (ECF No. 10;
ECF No. 20) and GRANTS Defendant’s motion to dismiss without leave to amend
(ECF No. 21). Therefore, the Court DENIES AS MOOT Plaintiffs motion for
summary judgment (ECF No. 25) and his motion to strike Defendant’s affirmative
defenses (ECF No.26) and OVERRULES his objection (ECF No. 28).
SO ORDERED.
Dated: June 12, 2026

J. Philip Calabrese
United States District Judge
Northern District of Ohio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11356418. Public record. Not legal advice.