Frazier v. MDOW Insurance Company et al
OPINION AND ORDER granting the defendants' 42 motion to dismiss; denying Frazier's 46 motion to amend the complaint; and dismissing this action without prejudice. Signed by Judge J. Leon Holmes on 9/8/2016. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DONALD R. FRAZIER
No. 5:16CV00127 JLH
MDOW INSURANCE COMPANY;
and MARK S. BREEDING
OPINION AND ORDER
This is an insurance coverage dispute. According to the complaint, the plaintiff, Donald R.
Frazier, purchased a homeowner’s insurance policy from MDOW Insurance Company in February
of 2016. In March of 2016, a fire destroyed Frazier’s residence, and Frazier submitted a claim under
the policy. MDOW hired Mark S. Breeding, an attorney, to examine Frazier under oath. Frazier
complied with the request for an examination under oath. Nevertheless, after that examination,
MDOW denied coverage, claiming that Frazier had made material misrepresentations on the
application for the policy and during the examination under oath and that he submitted an inventory
of items destroyed that was inaccurate and inflated. Frazier alleges that MDOW has breached its
contract and has committed the tort of bad faith. He alleges that Breeding owed him a fiduciary duty
and did not uphold his duty of care in the manner in which he conducted the examination under oath.
Frazier invokes this Court’s jurisdiction by alleging federal causes of action against the
defendants under 42 U.S.C. § 1983 for violations of the first, fourth, eighth, and fourteenth
amendments of the United States constitution, 42 U.S.C. § 1981, the Rehabilitation Act of 1973, the
Americans with Disabilities Act, and the Civil Rights Acts of 1964 and 1965. The defendants have
filed a motion to dismiss, arguing that (1) this Court lacks subject-matter jurisdiction, Fed. R. Civ.
P. 12(b)(1), or alternatively (2) Frazier’s complaint fails to state a claim upon which relief can be
granted, Fed. R. Civ. P. 12(b)(6). In his response to the defendants’ motion to dismiss, Frazier
moves to amend the complaint, seeking only to add additional defendants. For the reasons explained
below, the defendants’ motion to dismiss is granted, and Frazier’s motion to amend is denied.
The United States constitution extends the federal judicial power to “Cases” and
“Controversies” “arising under” the constitution, laws, or treaties of the United States and to
disputes between parties of different states. U.S. Const. art. III, § 2, cl. 1. By statute, the United
States District Courts “shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Whether a district court has
federal question jurisdiction is determined by the “well-pleaded complaint rule,” which provides that
a district court has jurisdiction “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, 107 S. Ct. 2425,
2429, 96 L. Ed. 2d 318 (1987) (citation omitted). Alternatively, a United States District Court may
have jurisdiction in a civil action in which the amount in controversy exceeds $75,000 and the
dispute is between citizens of different states. 28 U.S.C. § 1332(a). The Supreme Court has held
that this statute requires “complete diversity of citizenship,” which means that the citizenship of
each plaintiff must be diverse from the citizenship of each defendant. See Caterpillar Inc. v. Lewis,
519 U.S. 61, 68, 117 S. Ct. 467, 472, 136 L. Ed. 2d 437 (1996).
Frazier and Breeding are both citizens of Arkansas, which means that complete diversity of
citizenship is lacking, so this Court does not have jurisdiction under 28 U.S.C. § 1332. Therefore,
if this Court has jurisdiction, it must be because Frazier’s claims arise under the constitution or laws
of the United States. The defendants argue that Frazier’s complaint is facially defective because it
does not allege facts that would support federal-question jurisdiction. Specifically, the defendants
argue that the causes of action Frazier’s complaint alleges require either a state actor or employeremployee relationship. With neither present, the defendants contend that Frazier’s complaint must
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). While Rule 8(a)(2) does not require a complaint to
contain detailed factual allegations, it does require a plaintiff to state the grounds of his entitlement
to relief, which requires more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007). In ruling on a motion to dismiss, the
Court must accept as true all factual allegations in the complaint and review the complaint to
determine whether its allegations show that the pleader is entitled to relief. Gorog v. Best Buy Co.,
Inc., 760 F.3d 787, 792 (8th Cir. 2014). All reasonable inferences from the complaint must be
drawn in favor of the nonmoving party. Id. The Court need not, however, accept as true legal
conclusions, even those stated as though they are factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009). A pro se complaint must be liberally
construed, however inartfully pleaded, and held to less stringent standards than pleadings drafted
by lawyers. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007);
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014).
Where a defendant has made a facial challenge under Rule 12(b)(1), “all of the factual
allegations concerning jurisdiction are presumed to be true and the motion is successful if the
plaintiff fails to allege an element necessary for subject matter jurisdiction.” Titus v. Sullivan, 4 F.3d
590, 593 (8th Cir. 1993) (citation omitted). Here, the complaint contains no allegations that the
defendants, MDOW and Breeding, are state actors. Indeed, it is apparent from the complaint that
they are not. MDOW is an insurance company; Breeding is an attorney in private practice. A cause
of action brought pursuant to section 1983 requires that the conduct in question be attributable to
a state actor. See Adams ex rel. Harris v. Boy Scouts of America–Chickasaw Council, 271 F.3d 769,
778 (8th Cir. 2001). Frazier’s complaint fails to allege an element necessary for a cause of action
under section 1983.
Title 42 of the United States Code section 1981 provides that all persons within the United
States shall have the same right to make and enforce contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all of the laws and proceedings for the security of persons and
property as is enjoyed by white citizens. The Courts have recognized this provision as having a
contract clause and an equal benefits clause. Adams ex rel. Harris v. Boy Scouts of America, 271
F.3d 769, 777 (8th Cir. 2001). A claim under the equal benefits clause requires state action, but a
claim under the contracts clause does not. Id. Frazier, presumably, is proceeding under the contracts
clause of section 1981. To state a claim under the contracts clause of section 1981, a plaintiff must
allege that he is a member of a protected class, the defendants intentionally discriminated against
him, he sought to exercise his right to make and enforce contracts with the defendants, and the
defendants interfered with that exercise. Gregory v. Dillards, Inc., 565 F.3d 464, 469 (8th Cir.
2009). The difficulty here is with the third element. While Frazier claims that the defendants
discriminated against him based on his race, his allegations are purely conclusory and do not meet
the Twombly standard.
Frazier also attempts to invoke the Civil Rights Acts of 1964 and 1965, the Americans with
Disabilities Act and the Rehabilitation Act of 1973. The Rehabilitation Act has a number of
provisions, but Frazier does not specify which of those provisions authorizes his claim. It is not
apparent from his complaint, even when the complaint is construed liberally, that any of the
provisions of the Rehabilitation Act apply here. The same is true of the Civil Rights Acts: Frazier
does not specify under which provision his claim is brought, nor is it apparent that any provisions
of the Civil Rights Acts apply.
Frazier alleges that he is a person with a “certified disability” and is covered by Titles I
through V of the Americans with Disabilities Act, but other than saying that he has a “mental
disability,” he does not specify the nature of his disability. Document #1 at 5, ¶ 24 and 7, ¶ 38.
After alleging that he has a “certified disability,” he alleges that the defendants violated Title V of
the ADA. Title V of the ADA is another way of referring to 42 U.S.C. § 12201-12213. See
Rickmyer v. Browne, No. 13-CV-559 (SRN/LIB), 2014 WL 1607590, at *12 n.32 (D. Minn. April
18, 2014). The only provision in Title V that appears to give rise to a cause of action is section
12203. That provision prohibits discrimination against an individual who has opposed an act or
practice made unlawful by that chapter or has testified or participated in a proceeding under that
chapter and makes it unlawful to coerce, intimidate, threaten, or interfere with any individual in the
exercise or enjoyment of any right granted by that chapter. 42 U.S.C. § 12203. Nothing in Frazier’s
complaint alleges a claim under this provision.
Frazier’s complaint makes reference to numerous provisions in the laws and the constitution
of the United States, including the first, fourth, fifth, eighth and fourteenth amendments to the
constitution, 42 U.S.C. §§ 1981 and 1983, Titles I through V of the Americans with Disabilities Act,
the entirety of the Rehabilitation Act of 1973, and the Civil Rights Acts of 1964 and 1965. It
appears that he is attempting to invoke every civil rights statute in the United States Code. He
alleges that he has been subject to discrimination based on his race, color, sex, national origin, and
disability, which pretty well exhausts the possibilities for a discrimination claim. While it is
theoretically possible that the defendants could have discriminated against him on all of these
grounds, it is not plausible. Frazier’s complaint never really specifies what federal law he claims
that the defendants have violated nor how they have violated it. Rather, he invokes every federal
civil rights statute and claims to have been the victim of every form of discrimination prohibited by
federal law, which leaves the Court and the defendants to guess as to the nature of and basis for his
Assuming the allegations in his complaint are true, Frazier may have claims for breach of
contract and the tort of bad faith. Those, however, are claims that arise under state law, not federal
law. Even construing Frazier’s complaint liberally, the Court cannot find allegations sufficient to
show that he has a claim that arises under the constitution or laws of the United States.
This brings the Court to Frazier’s motion to amend the complaint. Frazier’s proposed
amended complaint would add as defendants another insurance company and the law firm with
which Breeding practices but would not correct any of the complaint’s deficiencies. A district court
may deny an motion for leave to amend if the proposed amendment would be futile. Reuter v. Jax,
Ltd., 711 F.3d 918, 922 (8th Cir. 2013). Because the proposed amendments would not remedy the
fundamental deficiencies in the complaint, Frazier’s motion would be futile and is denied.
The defendants’ motion to dismiss is GRANTED. Document #42. Frazier’s motion to
amend the complaint is DENIED. Document #46. This action is dismissed without prejudice.
IT IS SO ORDERED this 8th day of September, 2016.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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