ROY v. CUMBERLAND MUTUAL FIRE INSURANCE COMPANY

Filing 10

OPINION. Signed by Chief Judge Jerome B. Simandle on 8/17/2016. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

FRANK ROY,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

v.
CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY,

Civil Action
No. 15-8171 (JBS/AMD)
OPINION

Defendant.

SIMANDLE, Chief Judge:
Plaintiff Frank Roy, proceeding pro se, brings this suit
against Defendant Cumberland Mutual Fire Insurance Company
(“Cumberland Mutual”), alleging that Defendant discriminated
against him when they failed to indemnify Plaintiff for a pair
of eye glasses that Plaintiff lost during the recent Papal visit
to Philadelphia. Pending before the Court is Defendant’s motion
to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief may be granted [Docket Item 4]. For the
reasons explained below, the Court will grant Defendant’s
motion. The court finds as follows:
1.

Plaintiff Frank Roy, who is African American, alleges

in his Complaint [Docket Item 1] that he submitted a claim with
Defendant Cumberland Mutual Fire Insurance Company for the
replacement cost for a “very expensive” pair of eye glasses that
was lost or stolen during the most recent Papal visit in

September of 2015. (Compl. ¶ 1.) A claims adjuster for Defendant,
Matt McDonald, took Plaintiff’s initial report. According to
Plaintiff, the authorities in Philadelphia were notified and
found six pairs of expensive eye glasses, none of which belonged
to Plaintiff. (Compl. ¶ 1.)
2.

Plaintiff’s chief complaint appears to be that

Defendant’s subsequent actions in attempting to resolve
Plaintiff’s insurance claim were motivated by discriminatory
animus, but the remaining allegations are cursory and less than
clear. Plaintiff alleges discrimination based on a question
McDonald asked Plaintiff during one phone call, “How can a man
of your stature afford such glasses?” (Id. ¶ 2.) Plaintiff
alleges that at the time the question was posed, McDonald knew
that Plaintiff was the only African American policy holder in
Vineland, New Jersey. (Id. ¶ 3.) Plaintiff also complains that
McDonald told Plaintiff that he could not settle Plaintiff’s
claim because Plaintiff had a claim history from 4 years ago,
even though McDonald knew “that the underwriting was based on a
no claim history in a two-year period.”1 (Id. ¶¶ 6-7.) Plaintiff
further alleges discrimination based on the fact that Defendant
failed to assign Plaintiff a claim number; Plaintiffs’ claim was

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Plaintiff claims Defendant’s adjuster Matt McDonald had
knowledge that Plaintiff’s underwriting was based on no claim
history in a two year period rather than a four year period. The
policy in question was issue number HON 102387101 (Compl. ¶ 7.)
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initially denied; and Plaintiff was sent a bill for additional
payment. (Id. ¶¶ 8-9.) Finally, Plaintiff vaguely asserts
Defendant tried to use “entrapment procedures” after denying his
claim and “stupidly sent a letter requesting a recorded
statement needed almost 30 days later violating my civil
rights.” (Id. ¶ 10.) The Complaint charges Defendant with
engaging in “discriminatory procedures against him violating his
civil rights,” and seeks damages in the amount of $325,000 plus
interests and cost of suit. (Id. at 1-2.)
3.

Defendant subsequently filed a motion to dismiss under

Fed. R. Civ. P. 12(b)(6) arguing that the Complaint fails to
state a claim upon which relief may be granted because it fails
to specify what “civil rights” statute has been violated.
[Docket Item 4.] In his opposition to Defendant’s motion, styled
as a “Motion to Vacate Defendant’s Motion to Dismiss,” [Docket
Item 6], Plaintiff argues that dismissal is not warranted
because his claim falls under the Americans with Disabilities
Act (“ADA”). Plaintiff contends that the ADA prohibits
discrimination against qualified individuals with respect to
employment; public services provided by public utilities; public
transportation; and public accommodations and services operated
by private entities. He alleges that his claim falls within the
ADA because Defendant is a private entity that provides public
services. (Pl. Opp’n, at 2.)
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4.

After reviewing Plaintiff’s Complaint, the Court

agrees with the Defendant that Plaintiff has failed to state a
cause of action for discrimination, and fails to state a claim
under the ADA.
5.

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may

be granted only if, accepting all well-pleaded allegations in
the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that plaintiff
failed to set forth sufficient facts to state a claim for relief
that is plausible on its face. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007); Fleisher v. Standard Ins. Co., 679 F.3d
116, 120 (3d Cir. 2012). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). However, legal conclusions are not entitled to the same
assumption of truth, and “[a] pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause
of action will not do.” Id. To determine if a complaint meets
the pleading standard, the Court must strip away conclusory
statements and “look for well-pled factual allegations, assume
their veracity, and then determine whether they plausibly give
rise to an entitlement of relief.” Bistrian v. Levi, 696 F.3d
352, 365 (3d Cir. 2012) (internal quotation marks omitted).
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Because Roy is a pro se plaintiff, the Court construes his
Complaint liberally. Alston v. Parker, 363 F.3d 229, 234 (3d
Cir. 2004); Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.
2003).
6.

Plaintiff claims that his civil rights were violated

by Defendant Cumberland Mutual Fire Insurance Company, and in
particular, that Defendant discriminated against him in failing
to adequately address his insurance claim. While Plaintiff’s
Complaint does not specify the grounds that entitle Plaintiff to
relief, 42 U.S.C. § 1983 and the New Jersey Civil Rights Act,
N.J.S.A. § 10:6-1 et seq., provide remedies for certain civil
rights violations. For example, 42 U.S.C. § 1983 provides a
cause of action for violations of federal constitutional rights
under color of state law, while the New Jersey Civil Rights Act
(“NJCRA”) provides a cause of action for violations of state
constitutional rights.
7.

Plaintiff’s Complaint does not state a cause of action

under either statute. To state a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate “a violation of a right secured by
the Constitution and the laws of the United States, and must
show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42,
47 (1988); see also Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d
Cir. 1996). Defendant is not a government actor, nor are there
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any facts in the Complaint to suggest that Cumberland Mutual
acted “under color of state law.” See Groman v. Twp. Of
Manalapan, 47 F.3d 628, 638-639 (3d Cir. 1995) (describing
various approaches for detecting the presence of action under
color of state law). Plaintiff himself acknowledges that
Cumberland Mutual Fire Insurance Company is a private entity.
(Pl. Opp’n, at 2). Thus, Plaintiff’s Complaint does not
plausibly state a claim under 42 U.S.C. § 1983.
8.

A claim under the NJCRA fails for similar reasons. The

NJCRA was modeled after 42 U.S.C. § 1983 and “[c]ourts in this
district have previously recognized that ‘the New Jersey Civil
Rights Act is interpreted analogously to 42 U.S.C. § 1983.’”
Coles v. Carlini, -- F. Supp. 3d ---, 2015 WL 5771134, at *16,
(D.N.J. 2015) (Simandle, J.) (quoting Martin v. Unknown U.S.
Marshals, 965 F. Supp. 2d 502, 548 (D.N.J. 2013)). Like § 1983,
the NJCRA “does not permits private suits against private
persons absent state action.” Cottrell v. Zagami, LLC, No. 083340, 2010 WL 2652229, at *4 (D.N.J. June 23, 2010). Having
established that Plaintiff has not made out a § 1983 claim for
discrimination because Defendant is a private actor, a similar
claim under the NJCRA must also be dismissed. See Catlett v.
N.J. State Police, No. 12-153, 2015 WL 9272877, at *4 (D.N.J.
Dec. 18, 2015) (Simandle, J.); Major Tours, Inc. v. Colorel, 720
F. Supp. 2d 587, 604 (D.N.J. 2010) (Simandle, J.) (applying one
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analysis to equal protection claim brought under both § 1983 and
the NJCRA because there was no reason to believe analysis would
be different).
9.

Nor has Plaintiff stated a plausible cause of action

under the ADA. The ADA makes it unlawful to discriminate against
disabled individuals in areas such as employment, housing,
public accommodations, transportation, education, communication,
recreation, health services, and access to public services. See
42 U.S.C. § 12101(a)(3). Further, the ADA only protects
individuals who are disabled, as defined under 42 U.S.C.
§  12102(1). Plaintiff’s Complaint, however, contains no facts
whatsoever to suggest that he qualifies as a disabled individual
under the ADA, nor that any disability was a basis for
discriminatory treatment. Plaintiff pleads that he is African
American, and his Complaint alleges only race discrimination.2
10.

Accordingly, the Court will dismiss Plaintiff’s

Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief may be granted.

2

 Additionally, the Court notes that Plaintiff’s ADA claim was

first raised in his opposition to Defendant’s motion to dismiss,
and was not pleaded in his original Complaint. Should Plaintiff
wish to pursue a claim under the ADA, the Complaint itself must
be amended to include a cause of action under that statute,
accompanied by factual allegations that would plausibly give
rise to relief under the ADA. 
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11.

Absent a viable claim under this Court’s federal

question jurisdiction, it also appears that this court lacks
subject matter jurisdiction. For diversity jurisdiction to exist
under 28 U.S.C. § 1332, a plaintiff must show that the parties
are citizens of different states and that the matter in dispute
is at least $75,000. If this case is a disputed insurance claim
for a pair of eyeglasses, it would appear that the monetary
threshold of $75,000 cannot be met, and that Plaintiff’s case
should be dismissed without prejudice to proceeding in a court
of competent jurisdiction, for example, the Superior Court of
New Jersey.
12.

If a complaint is vulnerable to dismissal, “a district

court must permit a curative amendment, unless an amendment
would be inequitable or futile.” Phillips v. County of
Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Here, because
Plaintiff is pro se, and because Plaintiff may be able to submit
an amended pleading that cures the deficiencies discussed
herein, the Court will dismiss Plaintiff’s Complaint without
prejudice. Plaintiff may file a motion for leave to file an
Amended Complaint within thirty (30) days, accompanied by the
proposed Amended Complaint that attempts to cure the
deficiencies noted herein with clear and concise factual
allegations of the grounds for jurisdiction and the cause of
action. As stated above, any proposed amendment alleging racial
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discrimination must also show how the defendant acted under
color of state law – that is, as a state actor. If Plaintiff
files a motion to amend, it must contain the proposed Amended
Complaint as an attachment, and it must be received by the
Clerk’s Office and served on opposing counsel within thirty (30)
days hereof.

August 17, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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