Veldhuis et al v. GEICO General Insurance Company et al

Filing 36

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS. For the reasons stated in the attached order, the Court GRANTS without prejudice defendants' motion to dismiss (Doc. # 18 ). This order of dismissal is without prejudice because a court should ordinarily grant a pro se plaintiff at least one opportunity to file an amended complaint unless it is clear that any restated or added claims in an amended complaint would be futile. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Ci r. 2014). It is too early for me to say that any amended complaint would necessarily be futile. If the plaintiffs have good faith grounds to file an amended complaint that overcomes the deficiencies discussed in this ruling or that plausibly allege a dditional claims for relief, then they may file an amended complaint on or before February 9, 2023. I caution the plaintiffs, however, that they should very carefully consider whether there are well-founded grounds to continue this lit igation in federal court and whether they would be better off as the defendants suggest pursuing their state law claim against GEICO for breach of contract in state court. The type of dispute about car insurance that the plaintiffs have with the defe ndants is ordinarily the type of dispute that is resolved in state court. The federal claims that the plaintiffs have lodged to date under the ADA and § 1983 are obviously deficient for the reasons explained in this ruling. At oral argum ent, the plaintiffs suggested that they may wish to add federal RICO and ERISA claims, but it was apparent that they were not familiar with what these highly complex statutes require to state a successful claim. And it does not appear to me that the actions alleged in the amended complaint would support either a RICO or ERISA claim. It would be disappointing if the plaintiffs decide to file a second amended complaint only to assert claims that have not been carefully thought out and that will be readily subject to dismissal again.The Clerk of Court shall close this case subject to re-opening only in the event that the plaintiffs choose to timely file an amended complaint. It is so ordered. Signed by Judge Jeffrey A. Meyer on 1/19/23. (Heavenrich, S.)

Case 3:22-cv-01042-JAM Document 36 Filed 01/19/23 Page 1 of 9

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BALLY LEE VELDHUIS and OLF
VELDHUIS,
Plaintiffs,
No. 3:22-cv-1042 (JAM)

v.
GEICO GENERAL INSURANCE CO. et al.,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
This case is about an insurance dispute. The pro se plaintiffs are husband and wife, and
they have sued their car insurance company and several officers and employees of the insurance
company. They allege federal law claims for violation of Title III of the Americans with
Disabilities Act (ADA) and for violation of their civil rights under 42 U.S.C. § 1983. They also
allege a state law claim for breach of the insurance contract.
The defendants have moved to dismiss. I agree with the defendants that the complaint
does not allege enough facts to plausibly support the plaintiffs’ ADA and § 1983 claims. I also
agree with the defendants that I should decline to exercise supplemental jurisdiction over the
plaintiffs’ state law claim. Therefore, I will grant without prejudice the defendants’ motion to
dismiss.
BACKGROUND
The plaintiffs—Olf and Bally Lee Veldhuis—live in Connecticut. 1 They have filed this
lawsuit against the defendant Geico General Insurance Co. (“GEICO”) and multiple GEICO
officers and employees.

1

Doc. #8 at 2.

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The lawsuit arises from an automobile accident in New York involving a car that was
driven by Olf Veldhuis, that was owned by Bally Lee Veldhuis, and that was insured by
GEICO. 2 The amended complaint alleges that GEICO did not properly handle the claim for
insurance coverage. 3 In addition, Bally Lee Veldhuis alleges that she has a mental health
disability that prevents her from effectively orally advocating on behalf of herself with respect to
negotiation of an insurance claim and that GEICO failed to grant her a reasonable
accommodation for this disability. In particular, she alleges that GEICO refused to send her a
“C-380 form” so that she could communicate her concerns to GEICO in writing and in a way
that “would provide structure to the conversation.” 4
The complaint relies on these allegations concerning the denial of a C-380 form to
support federal law claims against the defendants for disability discrimination in violation of
Title III of the ADA and under 42 U.S.C. § 1983 for violation of the plaintiffs’ federal civil
rights. 5 The complaint also alleges that the defendants breached the insurance contract by
discontinuing payments for a substitute rental car and by insisting on the execution of a powerof-attorney form to relinquish title for the car to GEICO. 6 The defendants now move to dismiss. 7
DISCUSSION
When considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true
all factual matters alleged in a complaint, although a complaint may not survive unless the facts
it recites are enough to state plausible grounds for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Hernandez v. United States, 939 F.3d 191, 198 (2d Cir. 2019). 8 The
Id. at 2, 10.
Id. at 2.
4
Id. at 4–6, 10–12, 16–17.
5
Id. at 13–14.
6
Id. at 15–16.
7
Doc. #18.
8
Unless otherwise indicated, this ruling omits internal quotation marks, alterations, citations, and footnotes in text
2
3

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“plausibility” requirement is “not akin to a probability requirement,” but it “asks for more than a
sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. The Court need
not accept allegations that couch legal conclusions in the form of factual allegations or that are
otherwise conclusory. See Hernandez, 939 F.3d at 198. In short, my role in reviewing a motion
to dismiss under Rule 12(b)(6) is to determine if the complaint—apart from any of its conclusory
allegations—states enough facts to establish a facially plausible claim for relief.
The Court liberally construes the pleadings of a pro se party in a non-technical manner to
raise the strongest arguments that they suggest. See, e.g., McLeod v. Jewish Guild for the Blind,
864 F.3d 154, 156–57 (2d Cir. 2017) (per curiam). Still, a pro se complaint may not survive
dismissal if its factual allegations do not meet the basic plausibility standard. See Meadows v.
United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (per curiam).
ADA claim
Title III of the ADA prohibits places of public accommodations and owners, lessors,
lessees, and operators of public accommodations from discriminating on the basis of disability.
See 42 U.S.C. § 12182(a). “In order to state a claim for violation of Title III, … a plaintiff must
establish that (1) he or she is disabled within the meaning of the ADA; (2) that the defendants
own, lease, or operate a place of public accommodation; and (3) that the defendants
discriminated against the plaintiff within the meaning of the ADA.” Krist v. Kolombos Rest. Inc.,
688 F.3d 89, 94–95 (2d Cir. 2012).
Solely for purposes of this motion I will assume that the plaintiffs have established the
first two of these elements—that Ms. Veldhuis has a disability and that GEICO provides a public

quoted from court decisions.

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accommodation subject to the ADA. I will focus instead on the third element—whether the
complaint plausibly alleges an act of discrimination that is prohibited under Title III of the ADA.
As Title III makes clear, one form of unlawful discrimination is the failure to make a
reasonable modification or accommodation. The statute lists as one form of discrimination “a
failure to make reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities, unless the entity can demonstrate that making
such modifications would fundamentally alter the nature of such goods, services, facilities,
privileges, advantages, or accommodations.” § 12182(b)(2)(A)(ii).
This language states that the proposed accommodation must be one that is both
“reasonable” and that is “necessary” for the disabled person to have access and use the goods and
services offered by the provider of public accommodations. A plaintiff may show that an
accommodation is necessary by showing that without the accommodation they will not have
meaningful access to the provider’s goods and services. See Powell v. Nat’l Bd. of Med.
Examiners, 364 F.3d 79, 85 (2d Cir. 2004); see also Henrietta D. v. Giuliani, 119 F. Supp. 2d
181, 209 (E.D.N.Y. 2000), aff’d sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir.
2003).
The complaint alleges that GEICO’s failure to furnish a C-380 form as requested by Ms.
Veldhuis constituted a denial of a reasonable accommodation. But the complaint is vague about
what a C-380 form is and in what manner it meaningfully “structures” written communications
between a policyholder and the insurance company. At oral argument, Ms. Veldhuis
acknowledged that she had never seen such a form. And when I asked her if the specific

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information that she wanted to put in writing to GEICO was elicited on the form, she could not
say whether it was.
To be sure, public accommodations must “furnish appropriate auxiliary aids and services
where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R.
§ 36.303(c)(1). And examples of such auxiliary aids or services include “written materials” or an
“exchange of written notes.” 28 C.F.R. § 36.303(b)(1). If GEICO had barred Ms. Veldhuis from
communicating at all with the company in writing and required her solely to negotiate the claim
by means of oral communications, then such conduct might well qualify as a failure to provide a
reasonable modification that was necessary in light of Ms. Veldhuis’s disability.
But Ms. Veldhuis does not allege that GEICO prohibited her from communicating in
writing writ large—only that GEICO did not provide her with and allow her to use the requested
C-380 form. There is no dispute that GEICO allows customers to submit written requests and
materials. The complaint does not allege enough facts to show that it was necessary for Ms.
Veldhuis to receive and use a C-380 form in particular in order for her to negotiate her claim
with GEICO or more generally to access and use GEICO’s insurance services.
In short, the complaint does not allege facts to plausibly suggest that GEICO denied Ms.
Veldhuis a reasonable modification or accommodation. Accordingly, I will dismiss the ADA
claim as alleged in the amended complaint.
Section 1983 claim
The amended complaint alleges that the defendants violated 42 U.S.C. § 1983, a statute
which allows a plaintiff to seek a remedy for the violation of a federal statute or the federal
constitution against a person who has engaged in the violation while acting under color of state
law. Section 1983 provides in relevant part that “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
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subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.”
As I understand the amended complaint, it alleges a violation of § 1983 by reason of the
defendants’ underlying violation of the ADA. But as discussed above, the amended complaint
does not allege plausible grounds for relief under the ADA. So that means it does not allege
plausible grounds for relief under § 1983 either.
In addition, the amended complaint fails to allege facts to suggest that any of the
defendants acted under color of state law as § 1983 requires. A party acts under color of state law
if they are a “state actor” who “exercise[s] power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins,
487 U.S. 42, 49 (1988). “[T]he under-color-of-state-law element of § 1983 excludes from its
reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999).
Only rarely does § 1983 extend to private persons or entities who are not employed by
the state or local government. For a private person or entity to be liable under § 1983, a plaintiff
must show that: “(1) the [person or] entity acts pursuant to the coercive power of the state or is
controlled by the state; (2) the state provides significant encouragement to the [person or] entity,
and the [person or] entity is either a willful participant in joint activity with the state or the
entity’s functions are entwined with state policies; or (3) the [person or] entity has been
delegated a public function by the state.” Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 147
(2d Cir. 2020).

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The defendants in this action are a private insurance company and several of its officers
and employees. The complaint does not allege facts to plausibly show that these defendants are
controlled by the state government, that they acted pursuant to the coercive power of the state
government, that they were delegated a public function by the state government, or that they
were willful participants in state government activities.
Instead, the Veldhuises claim that the defendants were state actors because they are
subject to regulation under state insurance law. “But a private entity does not become a state
actor for purposes of § 1983 merely on the basis of the private entity’s creation, funding,
licensing, or regulation by the government.” Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.
2012). “Rather, there must be such a close nexus between the state and the challenged action that
the state is responsible for the specific conduct of which the plaintiff complains.” Ibid.
The Supreme Court has rejected an argument that a private insurance company
constitutes a “state actor” for purposes of § 1983 simply because the insurance company is
subject to state regulation. See Am. Mfrs. Mut. Ins. Co., 526 U.S. at 49–58. The Eastern District
of New York has specifically rejected the argument “that GEICO’s provision of insurance to
government employees or its regulation by the New York State Insurance Department somehow
makes it a state actor.” Gillingham v. Geico Direct, 2008 WL 189671, at *7 (E.D.N.Y. 2008).
And many other courts have likewise declined to find that a private insurance company is a
“state actor” who may be liable under § 1983. See Holmes v. Health First, 2022 WL 4134700, at
*3 (S.D.N.Y. 2022); Avent v. Progressive Cas. Ins. Co., 2021 WL 168500, at *3 (S.D.N.Y.
2021); Randall v. Amica Mut. Ins. Co., 2017 WL 6408937, at *4 (N.D.N.Y. 2017).
In short, the amended complaint does not allege facts to plausibly suggest that the
defendants violated any federal law that may serve as the basis for an action under § 1983 or that

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any of the defendants were state actors as § 1983 requires. Accordingly, I will dismiss the § 1983
claim as alleged in the amended complaint.
State law claim
The only remaining claim is for breach of contract under state law. But the complaint
does not allege any independent basis for federal jurisdiction over this claim. The diversity
jurisdiction statute requires that all the plaintiffs be citizens of a different State than all the
defendants and that there be an amount in controversy of more than $75,000. See 28 U.S.C.
§ 1332(a). Ms. Veldhuis told me at oral argument that the plaintiffs seek $30,000—less than half
what is required for federal diversity jurisdiction.
A federal court may exercise supplemental jurisdiction over a state law claim pursuant to
28 U.S.C. § 1367(c)(3). But federal courts ordinarily decline to exercise supplemental
jurisdiction when all federal law claims have been dismissed and it is early in the litigation. See
Klein & Co. Futures v. Bd. of Trade of City of N.Y., 464 F.3d 255, 262 (2d Cir. 2006). I decline
in light of the values of judicial economy, convenience, fairness, and comity to exercise
supplemental jurisdiction over the plaintiffs’ state law claim so long as there are no related
federal claims.
CONCLUSION
For the reasons set forth above, the Court GRANTS without prejudice defendants’
motion to dismiss (Doc. #18). This order of dismissal is without prejudice because a court should
ordinarily grant a pro se plaintiff at least one opportunity to file an amended complaint unless it
is clear that any restated or added claims in an amended complaint would be futile. See Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014). It is too early for me to say that any amended complaint
would necessarily be futile. If the plaintiffs have good faith grounds to file an amended
complaint that overcomes the deficiencies discussed in this ruling or that plausibly allege
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additional claims for relief, then they may file an amended complaint on or before February 9,
2023.
I caution the plaintiffs, however, that they should very carefully consider whether there
are well-founded grounds to continue this litigation in federal court and whether they would be
better off as the defendants suggest pursuing their state law claim against GEICO for breach of
contract in state court. The type of dispute about car insurance that the plaintiffs have with the
defendants is ordinarily the type of dispute that is resolved in state court.
The federal claims that the plaintiffs have lodged to date under the ADA and § 1983 are
obviously deficient for the reasons explained in this ruling. At oral argument, the plaintiffs
suggested that they may wish to add federal RICO and ERISA claims, but it was apparent that
they were not familiar with what these highly complex statutes require to state a successful
claim. And it does not appear to me that the actions alleged in the amended complaint would
support either a RICO or ERISA claim. It would be disappointing if the plaintiffs decide to file a
second amended complaint only to assert claims that have not been carefully thought out and that
will be readily subject to dismissal again.
The Clerk of Court shall close this case subject to re-opening only in the event that the
plaintiffs choose to timely file an amended complaint.
It is so ordered.
Dated at New Haven this 19th day of January 2023.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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