Williams v. Progressive Insurance Company
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Motion to Dismiss [ 6 ] is GRANTED. A separate judgment of dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 3/28/17. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PROGRESSIVE INSURANCE CO., et al.,
No. 4:16-CV-01214 JAR
MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss pursuant to Rule
12(b)(6) (Doc. No. 6). The motion is fully briefed and ready for disposition.1 For the following
reasons, the motion will be granted.
The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to
test the legal sufficiency of the complaint. “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Although pro se complaints are to be construed liberally, “they still must allege
sufficient facts to support the claims advanced.” Stringer v. St. James R-1 Sch. Dist., 446 F.3d
799, 802 (8th Cir. 2006) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). “[P]ro se
litigants must set [a claim] forth in a manner which, taking the pleaded facts as true, states a
Defendants filed their motion on August 17, 2016. On September 23, 2016, Plaintiff filed a “Motion to
Dismiss Defendants Motion to Dismiss” (Doc. No. 13). He also requested an extension of time to “perfect
his response” to, inter alia, the motion to dismiss (Doc. No. 14). On October 3, 2016, Defendants filed
their reply (Doc. No. 15). On October 4, 2016 the Court granted Plaintiff’s request in part and ordered
him to file his response to Defendants’ motion to dismiss no later than October 23, 2016 (Doc. No. 19).
On October 21, 2016, Plaintiff filed a “Motion to Dismiss Defendants Reply” (Doc. No. 20).
claim as a matter of law.” Id. (quoting Cunningham v. Ray, 648 F.2d 1185, 1186 (8th Cir.
On July 25, 2016, Plaintiff Maurice Williams, proceeding pro se, filed a complaint
against Defendants Progressive Insurance Company, David Bowser and Katie Lade arising from
the alleged denial of a claim for a stolen car under his insurance policy (Complaint (“Compl.”),
Doc. No. 1). Plaintiff alleges claims under the Americans with Disability Act (“ADA”), the
Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 42 U.S.C. §§1981, 1983, 1985,
and violations of the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Defendants
move to dismiss Plaintiff’s complaint for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
The ADA makes it unlawful to discriminate against people with disabilities in
employment, transportation, public accommodation, communications, and governmental
activities. Plaintiff alleges no facts to support a claim under the ADA. The ADA defines the term
“disability” as: (A) a physical or mental impairment that substantially limits one or more of the
major life activities of such individual; (B) a record of such an impairment; or (C) being regarded
as having such an impairment. 42 U.S.C. § 12102(2). Plaintiff does not allege in his complaint
that he has a physical or mental impairment, other than to state in his background statement of
facts that he has pain in his hip and legs. Moreover, there are no allegations that Plaintiff’s hip
and leg pain substantially limited him in any major life activity, that he had a record of such
impairment, or that Defendants regarded him as having such an impairment. It is also fatal to his
ADA claim that Plaintiff has not alleged that Defendants took adverse action against him, in
other words denied his insurance claim, on account of his hip and leg pain. Thus, the Court finds
Plaintiff has failed to state a claim of disability discrimination under the ADA.
Enacted to strengthen criminal and civil remedies against organized crime, RICO
provides a private right of action for any person who has been injured in his business or property
from a RICO violation. Dahlgren v. First Nat’l Bank of Holdrege, 533 F.3d 681, 689 (8th Cir.
2008) (quoting 18 U.S.C. § 1964(c)). To state a RICO claim, Plaintiff must show “(1) conduct
(2) of an enterprise (3) through a pattern (4) of racketeering activity.” Nitro Distrib., Inc. v.
Alticor, Inc., 565 F.3d 417, 428 (8th Cir. 2009) (internal quotation omitted). A RICO claim must
be pleaded with particularity under Rule 9(b). Crest Const. II, Inc. v. Doe, 660 F.3d 346, 353
(8th Cir. 2011). Rule 9(b) requires that a party alleging fraud or mistake “state with particularity
the circumstances constituting a fraud or mistake.” Fed. R. Civ. P. 9(b). Plaintiff alleges no facts
to support a RICO claim. Plaintiff’s complaint fails to allege the existence of a RICO enterprise,
a pattern of racketeering, multiple predicate acts (i.e., mail fraud, wire fraud, use of facilities of
interstate commerce), and lacks the particularity required of fraud-based claims by Rule 9(b).
42 U.S.C. §1981 prohibits intentional race discrimination in the making and enforcing of
contracts. Plaintiff identifies himself as an “Afro-American male,” but otherwise makes no
allegation that his race played any role in the Defendants’ handling of his claim.
42 U.S.C. § 1983 allows a person who has had any rights, privileges, or immunities
secured by the Constitution violated by another, under the color of state law, to sue the violator
for damages. To state a § 1983 claim, a plaintiff must allege that he was injured by either a state
actor or a private party acting under color of state law. Schmidt v. City of Bella Villa, 557 F.3d
564, 571 (8th Cir. 2009). Plaintiff’s complaint fails to allege facts that could establish that
Defendants are state actors or acted under color of state law. Moreover, it is well established that
private insurers are not state actors for purposes of a Section 1983 claim. See American
Manufacturers Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999).
42 U.S.C. § 1985 is a federal cause of action for recovery when there is a conspiracy to
deprive a person of civil rights. In order to state a claim for conspiracy under § 1985, a plaintiff
“must allege with particularity and specifically demonstrate with material facts that the
defendants reached an agreement.” Kelly v. City of Omaha, 813 F.3d 1070, 1078 (8th Cir. 2016)
(quoting City of Omaha Emps. Betterment Ass’n v. City of Omaha, 883 F.2d 650, 652 (8th Cir.
1989)). This standard requires that “allegations of a conspiracy [be] pleaded with sufficient
specificity and factual support to suggest a meeting of the minds directed toward an
unconstitutional action.” Id. (quoting Nelson v. City of McGehee, 876 F.2d 56, 59 (8th Cir.
1989)). Here, Plaintiff alleges in a conclusory manner that Defendants conspired, among other
things, to deny his insurance claim, terminate a rental vehicle, deny his access to the courts, and
deprive him of his “equal rights under the law,” but his complaint fails to allege specific facts
showing that any of the Defendants’ alleged misconduct arose from any such meeting of minds.
Having determined that the allegations of Plaintiff’s complaint do not support federal
question jurisdiction in this case, the Court considers whether Plaintiff adequately asserts a basis
for the Court to exercise diversity of citizenship jurisdiction over his claims. To establish
diversity jurisdiction under 28 U.S.C. § 1332(a), the party asserting jurisdiction must show
complete diversity of citizenship among the parties and an amount in controversy exceeding
$75,000. In this regard, Plaintiff must specifically allege each party’s citizenship to show that
Plaintiff and Defendants are citizens of different states. Sanders v. Clemco Industries, 823 F.2d
214, 216 (8th Cir. 1987). It is well established that when jurisdiction depends upon diversity, the
absence of sufficient averments or facts in the record showing such required diversity of
citizenship is fatal and cannot be overlooked by the Court. Id.; see also Poling v. K. Hovnanian
Enters., 99 F.Supp.2d 502, 515 (D.N.J. 2000) (“The court can only ‘properly determine whether
complete diversity of the parties in fact exists and thus whether the court has jurisdiction to
adjudicate the matter[,]’ when the plaintiff, even if proceeding pro se, affirmatively pleads facts
regarding the citizenship of individual defendants and the dual citizenship of corporate
defendants.”) Because Plaintiff’s complaint is silent as to the citizenship of the parties, and
complete diversity of citizenship is not apparent from the pleadings, the Court cannot exercise
jurisdiction over this case under 28 U.S.C. § 1332. See Sanders, 823 F.2d at 216.
After a careful review of Plaintiff’s pro se Complaint, the Court will grant Defendants’
motion to dismiss. To the extent Plaintiff’s complaint can be liberally construed as alleging a
state law breach of contract claim, such a claim cannot serve as a sufficient basis for subject
matter jurisdiction in this case.
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss  is GRANTED. A
separate judgment of dismissal will accompany this Memorandum and Order.
Dated this 28th day of March, 2017.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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