Albert v. GEICO et al

Filing 42

ORDER ADOPTING REPORT AND RECOMMENDATION. 1. Plaintiff Kallys Albert, Sr.'s objections (Doc. No. 38 ) to Magistrate Judge Becky R. Thorson's October 10, 2017 Report and Recommendation are OVERRULED. 2. Magistrate Judge Becky R. Thorson 9;s October 10, 2017 Report and Recommendation (Doc. No. 37 ) is ADOPTED. 3. Defendant GEICO General Insurance Company\'s motion to dismiss (Doc.No. 5 ) is GRANTED.4. Plaintiff's Motions for a Declaratory Judgment; Temporary Restrain ing Order, and a Preliminary Injunction (Doc. No. 16 ) are DENIED. 5. This matter is DISMISSED due to lack of jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332, and Plaintiffs Complaint (Doc. No. 1 ) is DISMISSED WITHOUT PREJUDICE. (Written Opinion). Signed by Judge Donovan W. Frank on 12/4/2017. (BJS) cc: Albert. Modified text on 12/5/2017 (JDF).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Kallys Albert, Sr.,

Civil No. 17-1697 (DWF/BRT)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

GEICO, GEICO General Insurance
Company, and John Doe,
Defendants.

This matter is before the Court upon Plaintiff Kallys Albert, Sr.’s (“Plaintiff”)
objections (Doc. No. 38)1 to Magistrate Judge Becky R. Thorson’s October 10, 2017
Report and Recommendation (Doc. No. 37) insofar as it recommends that: (1) Defendant
GEICO General Insurance Company’s motion to dismiss be granted; (2) Plaintiff’s
Motions for a Declaratory Judgment; Temporary Restraining Order, and a Preliminary
Injunction be denied; and (3) this matter be dismissed due to lack of jurisdiction pursuant
to 28 U.S.C. §§ 1331 and 1332, and Plaintiff’s Complaint be dismissed without prejudice.
Defendant Geico General Insurance Company filed a response to Plaintiff’s objections on
November 2, 2017. (Doc. No. 39.)2

Plaintiff’s objections were not timely filed. The Court will consider the untimely
filing but cautions Plaintiff to adhere to the applicable rules in the future.
1

Plaintiff submitted a letter to the Court dated November 9, 2017, and received on
November 13, 2017 (Doc. No. 40) that appears to be a response to Defendant’s
opposition to Plaintiff ’s objections. Defendant correctly points out that this filing is
improper and is properly stricken. The Court also notes that even if it considered the
letter, the result here would be the same.
2

The Court has conducted a de novo review of the record, including a review of the
arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). The factual background for the above-entitled matter is clearly and
precisely set forth in the Report and Recommendation and is incorporated by reference
for purposes of Plaintiff’s objections. In the Report and Recommendation, Magistrate
Judge Thorson concluded that neither the Fair Credit Billing Act, 15 U.S.C. § 1601
(“FCBA”), nor anything else alleged, provides a basis for federal question jurisdiction.
Magistrate Judge Thorson explained that Plaintiff’s FCBA claim could not sustain federal
jurisdiction because the FCBA applies to providers of consumer credit and it is
undisputed that GEICO, a provider of automobile insurance, is not a creditor and has not
extended credit to Plaintiff. In addition, Magistrate Judge Thorson concluded that
Plaintiff has not established diversity jurisdiction by demonstrating an amount in
controversy greater than $75,000. Plaintiff objects to the Report and Recommendation,
arguing that the Magistrate Judge erred: (1) in finding that there was no federal question
jurisdiction; (2) in finding a lack of diversity jurisdiction; (3) in recommending the
dismissal of the case without an opportunity to amend the complaint; and (4) because the
cases cited are not applicable.
Having carefully reviewed the record, the Court concludes that Plaintiff’s
objections do not warrant a departure from the Magistrate Judge’s Report and
Recommendation. In particular, the Magistrate Judge correctly determined that the court
lacks subject-matter jurisdiction over this case. Based upon the de novo review of the
2

record and all of the arguments and submissions of the parties and the Court being
otherwise duly advised in the premises, the Court hereby enters the following:
ORDER
1.

Plaintiff Kallys Albert, Sr.’s objections (Doc. No. [38]) to Magistrate Judge

Becky R. Thorson’s October 10, 2017 Report and Recommendation are OVERRULED.
2.

Magistrate Judge Becky R. Thorson’s October 10, 2017 Report and

Recommendation (Doc. No. [37]) is ADOPTED.
3.

Defendant GEICO General Insurance Company’s motion to dismiss (Doc.

No. [5]) is GRANTED.
4.

Plaintiff’s Motions for a Declaratory Judgment; Temporary Restraining

Order, and a Preliminary Injunction (Doc. No. [16]) are DENIED.
5.

This matter is DISMISSED due to lack of jurisdiction pursuant to

28 U.S.C. §§ 1331 and 1332, and Plaintiff’s Complaint (Doc. No. [1]) is DISMISSED
WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 4, 2017

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

3