(PS)Murphy v. Allstate Insurance Company ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON O. MURPHY ESQ. SR. dba No. 2:20-cv-753-KJM-EFB PS SHEETMETAL & ASSOCIATES, 12 Plaintiff, 13 ORDER v. 14 ALLSTATE INSURANCE COMPANY, 15 Defendant. 16 17 18 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 19 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 20 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 21 Determining that plaintiff may proceed in forma pauperis does not complete the required 22 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 23 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 24 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 25 below, plaintiff’s complaint must be dismissed for lack of subject matter jurisdiction and for 26 failure to state a claim. 27 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 562-563, 570 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. at 555 (citations omitted). Dismissal is appropriate based either on the lack of 10 cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal 11 theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 Under this standard, the court must accept as true the allegations of the complaint in 13 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 14 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 15 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 16 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 17 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 18 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 19 which it rests.” Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47). 20 Additionally, a federal court is a court of limited jurisdiction, and may adjudicate only 21 those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 22 511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332, 23 confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction 24 requires that the complaint (1) arise under a federal law or the U. S. Constitution, (2) allege a 25 “case or controversy” within the meaning of Article III, § 2 of the U. S. Constitution, or (3) be 26 authorized by a federal statute that both regulates a specific subject matter and confers federal 27 jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). To invoke the court’s diversity 28 jurisdiction, a plaintiff must specifically allege the diverse citizenship of all parties, and that the 1 matter in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World 2 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside the jurisdiction 3 of the federal courts unless demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of 4 subject matter jurisdiction may be raised at any time by either party or by the court. Attorneys 5 Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). 6 Liberally construed, the complaint alleges that in February 2020, plaintiff submitted a 7 claim with his auto insurance company, defendant Allstate Insurance Company, after he 8 discovered damage to his vehicle. ECF No. 1 at 2. Although plaintiff reported that the damage 9 was caused by vandalism, the claims agent concluded that the damage was due to a collision, 10 which was not covered under plaintiff’s policy. Id. Plaintiff appears to allege that his insurance 11 claim should have been approved because he had requested his policy be upgraded to “full 12 coverage” in January 2020, one month prior to submitting his claim. Id. at 3. Plaintiff alleges 13 that he fell ill and required medical attention as a result of the insurance claim being denied. Id. 14 at 2. The complaint purports to assert claims for negligence and breach of contract, as well as a 15 claim styled as “Injury/Illness.” Id. 16 As a threshold matter, plaintiff’s fails to establish subject matter jurisdiction. He asserts 17 only state law claims but does not allege facts showing that the court has diversity jurisdiction 18 pursuant to 28 U.S.C. § 1332. Plaintiff alleges that he resides in Pittsburg, California—which 19 suggests he is a Citizen of California—but he does not provide any allegations establishing 20 defendant’s citizenship. See Bautista, 828 F.2d at 552 (to establish diversity jurisdiction plaintiff 21 must allege diverse citizenship of all parties). 22 Aside from the jurisdictional defect, the complaint’s allegations are insufficient to state a 23 claim. Plaintiff’s allegations of a breach of contract are inadequate. To succeed on a breach of 24 contract claim under California law, plaintiff must establish (1) the existence of a contract; (2) 25 plaintiff’s performance; (3) defendant’s breach of the contract; and (4) damages flowing from the 26 breach. CDF Firefighters v. Maldonado, 158 Cal. App. 4th 1226, 1239 (2008). This requires 27 plaintiff to plead “the contract either by its terms, set out verbatim in the complaint or a copy of 28 the contract attached to the complaint and incorporated therein by reference, or by its legal 1 effect.” N. County Commc’ns Corp. v. Verizon Global Networks, Inc., 685 F. Supp. 2d 1112, 2 1122 (S.D. Cal. 2010) (quoting Mckell v. Washington Mut., Inc., 142 Cal. App. 4th 1457, 1489 3 (2006)). Thus, “[t]he complaint must identify the specific provision of the contract allegedly 4 breached by the defendant.” Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 930 (N.D. Cal. 2012) 5 (citation omitted). Although plaintiff claims he had an insurance policy with defendant, he fails 6 to identify the specific provision of the policy that the defendant breached. 7 Plaintiff’s negligent claim also fails. “The well-known elements of any negligence cause 8 of action are duty, breach of duty, proximate cause and damages.” Berkley v. Dowds, 152 Cal. 9 App. 4th 518, 526 (2007). Plaintiff’s allegations do not establish defendant owed him a duty of 10 care, much less a breach of a duty. But more significantly, in California “‘negligence is not 11 among the theories of recovery generally available against insurers.’” Tento Int’l, Inc. v. State 12 Farm Fire & Cas. Co., 222 F.3d 660, 664 (9th Cir. 2000) (quoting Sanchez v. Lindsey Morden 13 Claims Servs., Inc., 72 Cal. App. 4th 249, 254 (1999)). 14 Finally, “Injury/Illness” is not a cause of action, and it is not apparent from plaintiff’s 15 allegations what specific claim he is attempting to assert. Consequently, this claim must be 16 dismissed. 17 For these reasons plaintiff’s complaint must be dismissed for failure to state a claim. 18 Plaintiff is granted leave to amended complaint. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th 19 Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity to amend to correct 20 any deficiency in their complaints). Any amended complaint must allege a cognizable legal 21 theory against a proper defendant and sufficient facts in support of that cognizable legal theory. 22 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set 23 forth the allegations against each defendant and shall specify a basis for this court’s subject matter 24 jurisdiction. Any amended complaint shall plead plaintiff’s claims in “numbered paragraphs, 25 each limited as far as practicable to a single set of circumstances,” as required by Federal Rule of 26 Civil Procedure 10(b), and shall be in double-spaced text on paper that bears line numbers in the 27 left margin, as required by Eastern District of California Local Rules 130(b) and 130(c). Any 28 amended complaint shall also use clear headings to delineate each claim alleged and against wOASe 2 CUNY EP OUING INI ER MVOC I OF VI 1 || which defendant or defendants the claim is alleged, as required by Rule 10(b), and must plead 2 | clear facts that support each claim under each header. 3 Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to 4 | make an amended complaint complete. Local Rule 220 requires that an amended complaint be 5 || complete in itself. This is because, as a general rule, an amended complaint supersedes the 6 || original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once 7 | plaintiff files an amended complaint, the original no longer serves any function in the case. 8 || Therefore, “a plaintiff waives all causes of action alleged in the original complaint which are not 9 | alleged in the amended complaint,” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 10 | 1981), and defendants not named in an amended complaint are no longer defendants. Ferdik v. 11 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions plaintiff that failure to 12 || comply with the Federal Rules of Civil Procedure, this court’s Local Rules, or any court order 13 || may result in a recommendation that this action be dismissed. See E.D. Cal. L.R. 110. 14 | HI. Conclusion 15 Accordingly, it is hereby ORDERED that: 16 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 17 2. Plaintiff’s complaint is dismissed with leave to amend, as provided herein. 18 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 19 || complaint. The amended complaint must bear the docket number assigned to this case and must 20 | be labeled “First Amended Complaint.” Failure to timely file an amended complaint in 21 || accordance with this order will result in a recommendation this action be dismissed. 22 || DATED: August 28, 2020. tid, PDEA EDMUND F. BRENNAN 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28