UPSHAW v. PROGRESSIVE INSURANCE COMPANY et al
MEMORANDUM OPINION re 7 Order on Motion to Dismiss. Signed by Judge James E. Boasberg on 11/27/2017. (lcjeb2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 17-1969 (JEB)
PROGRESSIVE INSURANCE CO.;
Plaintiff Solomon Upshaw filed this pro se action to recover damages for the wrongful
death of Alma Upshaw (presumably a relative), who was killed in a car accident in Columbus,
Georgia, in 1993. Plaintiff seeks $8,000,000 in damages from Progressive Insurance Co. and
Progressive Corporation in an opaque Complaint that mentions wrongful death, negligence, and
possible constitutional claims. The Progressive Defendants now move to dismiss, arguing that
the Court cannot exercise personal jurisdiction over them and that all causes of actions are barred
by the relevant statutes of limitations. The Court, finding that Plaintiff lacks standing and that
Defendants’ arguments are sound, will grant the Motion.
Although the allegations are difficult to decipher, the Court, as it must at this stage, sets
out the facts as provided in the Complaint and accompanying exhibits. Complaints filed by pro
se parties are “h[e]ld to less stringent standards than those applied to formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
On June 19, 1993, a motor vehicle driven by Alexander Alarcon struck Alma Upshaw’s
car at an intersection in Columbus, Georgia. See ECF No. 1 (Complaint) at 1. She died less than
two hours after the crash in a local hospital. See ECF No. 1, Exh. A (Upshaw Exhibit) at 9.
Plaintiff alleges that Alarcon, though not listed as a party to this action, operated his vehicle
negligently at the time of the accident. See Compl. at 2. Although the Complaint never explains
Progressive’s role or indicates whether it insured either driver, Plaintiff’s Opposition does allege
that the company insured Alma Upshaw. See ECF No. 6 at 6. On May 26, 1995, Alarcon sued
Alma Upshaw’s estate and Alma Rae Upshaw Doleman, as executor of her mother’s estate,
alleging that the decedent’s negligence had directly caused his own injuries. See Upshaw Exh. at
2-5. The Complaint does not indicate the result of the Georgia tort action in Muscogee County
Superior Court, but Plaintiff nonetheless included the pleading as part of the record. Id. at 2-7.
Now, 24 years later, Upshaw has filed this action against Progressive. He rests part of his
claim for relief, however ambiguous, on the Georgia wrongful-death statute. See Compl. at 2.
Construing the pro se Complaint liberally, the Court also finds that Plaintiff alleges a claim for
negligence. See id. (seeking recovery for the “death of a human being result[ing] from a crime
or from criminal or other negligence”). Finally, the Complaint mentions violations of equalprotection and due-process rights under the U.S. Constitution. Id. Upshaw seeks to recover
$8,000,000, id., and Progressive now moves to dismiss for lack of personal jurisdiction and
failure to state a claim. The Court will also consider the question of standing.
Standard of Review
To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving
that the Court has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24
(D.C. Cir. 2000). A court also has an “affirmative obligation to ensure that it is acting within the
scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185
F. Supp. 2d 9, 13 (D.D.C. 2001). “For this reason, ‘the [p]laintiff’s factual allegations in the
complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a
12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).
Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider
materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of
jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see
also Venetian Casino Resort, L.L.C. v. EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005).
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a suit
if the court lacks personal jurisdiction over it. The plaintiff bears the burden of establishing
personal jurisdiction. See FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir.
2008). In deciding whether the plaintiff has shown a factual basis for personal jurisdiction over a
defendant, the court resolves factual discrepancies in favor of the plaintiff. See Crane v. N.Y.
Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). When personal jurisdiction is challenged,
“the district judge has considerable procedural leeway in choosing a methodology for deciding
the motion.” 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1351
(3d ed. 2004). The court may rest on the allegations in the pleadings, collect affidavits and other
evidence, or even hold a hearing. Id.
Under Federal Rule of Civil Procedure 12(b)(6), the Court must dismiss a claim for relief
when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a
motion to dismiss, the Court must “treat the complaint’s factual allegations as true and must
grant [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.”
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and internal
quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not
accept as true, however, “a legal conclusion couched as a factual allegation,” nor an inference
unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.
Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation omitted). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very
remote and unlikely,” but the facts alleged in the complaint “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)).
As jurisdictional issues take precedence, the Court will direct its attention first to whether
Plaintiff has standing to bring this suit and whether personal jurisdiction over Defendants exists.
It will then consider the merits of Plaintiff’s state-law and constitutional claims.
Although never mentioned by Progressive, the standing of a party to sue “can be raised at
any point in a case proceeding and, as a jurisdictional matter, may be raised, sua sponte, by the
court.” Cierco v. Mnuchin, 857 F.3d 407, 415 (D.C. Cir. 2017) (quoting Steffan v. Perry, 41
F.3d 677, 697 n.20 (D.C. Cir. 1994)). In order to file a claim on behalf of an individual not
present in the litigation, a plaintiff must allege a legally cognizable relationship between that
party and himself. See Fed. R. Civ. P. 17(a). He is otherwise not a real party in interest. Claims
filed on behalf of an estate, for example, must be brought by the designated personal
representative. Id. “The term personal representative is strictly construed under D.C. law to
mean only the decedent’s executor or administrator.” Estate of Manook v. Research Triangle
Inst., Int’l & Unity Res. Grp., LLC, 693 F. Supp. 2d 4, 17 (D.D.C. 2010) (internal citation
omitted). Alarcon’s Complaint filed with the Muscogee County Superior Court, which is
included as part of Plaintiff’s exhibits, specifies that Alma Rae Upshaw Doleman, not Plaintiff,
served as executor of Alma Upshaw’s estate. See Upshaw Exh. at 2. Plaintiff does not refute
that fact, nor does he provide any evidence that he currently serves (or at any time served) as the
personal representative of the estate. He thus cannot show an invasion of his legally protected
interests – a prerequisite for standing. See Lujan, 504 U.S. at 560. The Court must therefore
dismiss the case on that ground alone.
B. Personal Jurisdiction
Even if Plaintiff did have standing to bring suit here, Progressive points out that this
Court lacks personal jurisdiction over it. When a defendant does not reside in the District of
Columbia, the Court may exercise personal jurisdiction only if it is both empowered by D.C.’s
long-arm statute and permitted by the Constitution’s Due Process Clause. See United States v.
Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995); Daley v. Alpha Kappa Alpha Sorority, Inc., 26 A.3d
723, 727 (D.C. 2011); see also Fed. R. Civ. P. 4(k)(1)(A). D.C.’s long-arm statute has been
“‘given an expansive interpretation’ that is ‘coextensive with the due process clause.’” Helmer
v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004) (quoting Mouzavires v. Baxter, 434 A.2d 988,
992 (D.C. 1981)). The Court, accordingly, considers whether an exercise of personal jurisdiction
in this case would stay within constitutional confines.
Personal jurisdiction may take the form of general or specific jurisdiction. The former
exists where a non-resident defendant maintains sufficiently systematic and continuous contacts
with the forum state, regardless of whether those contacts gave rise to the claim in the particular
suit. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–15 (1984). For
corporations, general jurisdiction may be asserted if the forum is one in which the corporation is
“fairly regarded as at home,” which has been defined as generally being either its “place of
incorporation” or its “principal place of business.” Daimler AG v. Bauman, 134 S. Ct. 746, 760
(2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011)).
Here, Progressive is incorporated under the laws of Ohio and operates its principal place of
business in Mayfield Village, Ohio. See Motion at 22. As Plaintiff has alleged no facts to
support the contention that Progressive is essentially at home in the District of Columbia, general
jurisdiction cannot be found here.
This leaves the possibility of specific jurisdiction. “In contrast to general, all-purpose
jurisdiction, specific jurisdiction is confined to adjudication of issues deriving from, or connected
with, the very controversy that establishes jurisdiction.” Goodyear, 564 U.S. at 919 (citation
omitted). In other words, specific jurisdiction exists where a claim arises out of the non-resident
defendant’s contacts with the forum. See Helicopteros, 466 U.S. at 414 n.8; Ferrara, 54 F.3d at
828. Upshaw’s claim for relief concerns an alleged wrongful death that occurred in Georgia in
1993, and he fails to allege any relevant contact with the District of Columbia. Because the
underlying activity has no connection with the District, Plaintiff cannot establish specific
jurisdiction here. The Court must therefore dismiss on this ground as well.
Even if this Court had personal and subject-matter jurisdiction, Progressive contends that
Plaintiff’s wrongful-death, negligence, and constitutional claims are time-barred under both the
Georgia and D.C. statutes of limitation. As the Court agrees, Upshaw would still come up short
even if the merits questions could be reached.
The D.C. Code prescribes a three-year limit to actions for negligence, wrongful death,
and constitutional claims. See D.C. Code § 12-301(8); see also Earle v. District of Columbia,
707 F.3d 299, 305 (D.C. Cir. 2012) (“the appropriate statute of limitation for a claim brought
under [the Constitution] is that which the State provides for personal-injury torts”) (citation
omitted). This period begins to run upon the time of the actual injury or, if subject to the
discovery rule, when “the plaintiff has knowledge of (or by the exercise of reasonable diligence
should have knowledge of) (1) the existence of the injury, (2) its cause in fact, and (3) some
evidence of wrongdoing.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (quoting
Knight v. Furlow, 553 A.2d 1232, 1234 (D.C. 1989)). Both the actual injury and all three
elements prescribed by the discovery rule were readily apparent on June 19, 1993, the day of the
car accident. As Plaintiff offers no reason for any type of tolling, his claims are untimely under
the District’s statute of limitations.
Similarly, Upshaw’s wrongful-death claim, as alleged under Georgia Code Section 51-45, and any suit for negligence under Georgia law are subject to a two-year statute of limitations.
See Ga. Code § 9-3-33. In Georgia, the statute of limitations “begins running at the time the
victim of the negligent or wrongful act suffers death or injury resulting from such acts.” Hanflik
v. Ratchford, 848 F. Supp. 1539, 1544 (N.D. Ga. 1994). The date of accrual for these claims is
once again June 19, 1993. Upshaw is thus similarly out of luck.
Finally, Upshaw’s constitutional claims lack merit because the Constitution does not
provide equal-protection and due-process recourse for “private conduct abridging individual
rights.” Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988) (citation
omitted); see also Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974). Insofar as Plaintiff
alleges a violation of these rights, he does not attribute that deprivation to state action. Any
constitutional claims must thus be dismissed.
For the aforementioned reasons, the Defendants’ Motion to Dismiss will be granted. An
Order to this effect will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
November 27, 2017
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