Turner v. Progressive Casualty Insurance Company et al

Filing 10

AMENDED ORDER TO SHOW CAUSE by Magistrate Judge Laura Fashing. Order amended to fix a typo. Show Cause Response and Second Amended Complaint due by 5/24/2024. (lj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WESLEY TURNER,
Plaintiff,
v.

No. 1:24-cv-00269-LF

PROGRESSIVE CASUALTY INSURANCE COMPANY,
PROGRESSIVE NORTHERN INSURANCE COMPANY, and
UNITED SERVICES AUTOMOTIVE ASSOCIATION,
Defendants
ORDER TO SHOW CAUSE
Plaintiff was involved in a “vehicle crash.” Amended Complaint of Unlawful Conduct and
Resulting Tort, and Motion for Remedies Sought at 2, Doc. 8, filed April 8, 2024 (“Amended
Complaint”). Defendants Progressive Casualty Insurance Company and Progressive Northern
Insurance Company (together “Progressive”) are “the insurer for the negligent driver” and insured
the other vehicle. Amended Complaint at 2-3. Plaintiff does not identify or assert claims against
the driver of the other vehicle. Defendant United Services Automotive Association (“USAA”) “is
the insurer for the plaintiff.” Amended Complaint at 2.
Jurisdiction
As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”); Evitt v. Durland, 243 F.3d
388 *2 (10th Cir. 2000) (“even if the parties do not raise the question themselves, it is our duty to

address the apparent lack of jurisdiction sua sponte”) (quoting Tuck v. United Servs. Auto. Ass'n,
859 F.2d 842, 843 (10th Cir.1988).
The Amended Complaint does not contain “a short and plain statement of the grounds for
the court’s jurisdiction” as required by Rule 8(a)(1) of the Federal Rules of Civil Procedure.
Plaintiff states only that “US District Court has jurisdiction over the parties.” Amended Complaint
at 1.
There is no properly alleged federal-question jurisdiction because the Complaint does not
allege that this action “aris[es] under the Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331.
“For a case to arise under federal law within the meaning of § 1331, the plaintiff's
well-pleaded complaint must establish one of two things: either that federal law
creates the cause of action or that the plaintiff's right to relief necessarily depends
on resolution of a substantial question of federal law” . . . “The complaint must
identify the statutory or constitutional provision under which the claim arises, and
allege sufficient facts to show that the case is one arising under federal law.”
Davison v. Grant Thornton LLP, 582 Fed. App’x. 773, 775 (10th Cir. 2014) (quoting Firstenberg
v. City of Santa Fe, 696 F.3d 1018, 1023 (10th Cir.2012) and Martinez v. U.S. Olympic Committee,
802 F.2d 1275, 1280 (10th Cir. 1986)).
Plaintiff states this case arises “from the unlawful acts concerning 12 U.S. Code § 5531 –
Prohibiting unfair, deceptive, or abusive acts or practices and 18 U.S. Code § 1031 – Major fraud
against the United States.” Amended Complaint at 6. The Amended Complaint fails to show that
the Court has jurisdiction pursuant to 12 U.S.C. § 5531. See Section 1031 of the Dodd-Frank Wall
Street Reform and Consumer Protection Act, 124 Stat. 1376, codified at 12 U.S.C. § 5531.
Section 5531 describes the actions the Bureau of Consumer Financial Protection is authorized “to
take to prevent a covered person or service provider from committing or engaging in an unfair,
deceptive or abusive act or practice under Federal law in connection with any transaction with a
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consumer for a consumer financial product or service, or the offering of a consumer financial
product or service.” 12 U.S.C. § 5531(a). Section 5531 does not create a private cause of action
allowing individuals to enforce the provisions of the Dodd-Frank Act. See Beider v. Retrieval
Masters Creditors Bureau, Inc., 146 F.Supp.3d 465, 472 (E.D.N.Y. 2015) (stating “courts have
commonly declined to read private causes of action into provisions of Dodd-Frank that do not
explicitly provide for them”). Plaintiff has not pointed to any language in Section 5531 explicitly
providing for a private cause of action for unfair, deceptive, or abusive acts or practices. The
second federal statute cited in the Amended Complaint, 18 U.S. Code § 1031, also fails to establish
the Court’s jurisdiction because, as discussed below, it appears Plaintiff cannot bring claims on
behalf of the United States and criminal statutes do not provide for private civil causes of action.
There is no properly alleged diversity jurisdiction. Plaintiff, who resides in New Mexico,
alleges that Defendants are “headquartered out of state, [but] operate[] offices inside and outside
New Mexico, and have personnel (employees) operating in and out of New Mexico.” Amended
Complaint at 1. To invoke diversity jurisdiction, “a party must show that complete diversity of
citizenship exists between the adverse parties and that the amount in controversy exceeds
$75,000.” Symes v. Harris, 472 F.3d 754, 758 (10th Cir.2006). “Complete diversity is lacking
when any of the plaintiffs has the same residency as even a single defendant.” Dutcher v.
Matheson, 733 F.3d 980, 987 (10th Cir. 2013). The Amended Complaint does not show that
Defendants are citizens of states other than New Mexico.

See, for example, Management

Nominees, Inc. v. Alderney Investments, LLC, 813 F.3d 1321, 1324 (10th Cir. 2016) (“in
determining the citizenship of an unincorporated association for purposes of diversity, federal
courts must include all the entities’ members”).

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The Court orders Plaintiff to show cause why the Court should not dismiss this case for
lack of jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action”). If Plaintiff asserts the Court should
not dismiss this case, Plaintiff must file a second amended complaint.
Stating a Claim
Plaintiff asserts a “tort” claim against Defendants Progressive stating:
1)
Progressive Casualty Insurance company has a duty (financial
responsibility) for the damages stemming from the accident due to the vehicle being
insured via Progressive insurance companies.
2)
Progressive breached the financial responsibility duty by not paying any
bills provided. As of this writing no payments have been made.
3)
Progressive breached the financial responsibility duty by offering
settlements (2) amounts less than the total due for medical expenses.
Amended Complaint at 3. The Amended Complaint fails to state a claim for negligence because
there are no factual allegations showing that Progressive has a duty to Plaintiff. See Zamora v. St.
Vincent Hosp., 2014-NMSC-035, ¶ 22 (“A negligence claim requires that the plaintiff establish
four elements: (1) defendant's duty to the plaintiff, (2) breach of that duty, typically based on a
reasonable standard of care, (3) injury to the plaintiff, and (4) the breach of duty as cause of the
injury”) (emphasis added). Conclusory allegations, such as “Defendant has a duty because
Defendant insured the vehicle,” without factual allegations showing Defendant had a duty to
Plaintiff are insufficient to state a negligence claim. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (“[c]onclusory allegations without supporting factual averments are insufficient
to state a claim on which relief can be based”). The Amended Complaint fails to state a breach of
contract claim because there are no factual allegations supporting Plaintiff’s conclusory allegation
that Progressive had a contractual obligation to pay the full amount of Plaintiff’s damages claims.

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See McLaughlin v. Santa Fe Community College, 2023 WL 7018418 *3 (N.M. Ct. App.) (“In order
to establish a breach of contract claim, a party must show that (1) there was a contractual
obligation; (2) the opposing party breached the contract; and (3) the breach resulted in damages”)
(citing Cent. Mkt., Ltd., Inc. v. Multi-Concept Hosp., LLC, 2022-NMCA-021, ¶ 38, 508 P.3d 924).
While it appears that Defendants Progressive may have a duty to the driver/owner of the vehicle
they insured, whom Plaintiff has not named as a Defendant, there are no factual allegations
describing Progressive’s duty to pay Plaintiff damages. See Gallagher v. Continental Ins. Co., 502
F.2d 827, 833 (10th Cir. 1974) (“We have held that the right of a third-party to sue on a contract
made for his benefit requires that the right be apparent from the express provisions of the contract
and that the benefit cannot be incidental ‘but must be a direct benefit intended by the contracting
parties to accrue in favor of the third party’”).
Plaintiff asks the Court to “order USAA pay for the court confirmed amounts of the medical
costs and vehicle repair costs, and thus allow USAA to attempt getting financial compensation
from 3rd parties as USAA deems fit.” Amended Complaint at 11. The only factual allegations
regarding USAA state:
USAA has the financial responsibility protecting its insured driver and vehicle via
insurance contract [current contract 2024 Exh 16] is the insurance, and having
contracted with the plaintiff to cover full coverage (damage and medical) and
uninsured Motorist Insurance [Exh 16]. At the point of the involvement of
Progressive insurance, the Plaintiff and USAA thought the matter would be
completely handled. To this day, plaintiff has not given USAA the additional details
of the accident such as MEDICARE paid bills and vehicle repair costs. I fully
expect a demand letter from USAA to the plaintiff, as the plaintiff will obviously
comply. USAA denies in 2023 that they “totaled” the vehicle as the Carfax online
research company states.
....
The concise medical records from the date of the accident are available to
Progressive and had been given to progressive by both USAA and Presbyterian . . . .

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Amended Complaint at 2, ¶ 5; 10, ¶ 24. The Amended Complaint fails to state a claim against
USAA because there are no allegations describing what Defendant USAA did and how it harmed
Plaintiff. See, for example, Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice
Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a complaint
must explain what each defendant did to him or her; when the defendant did it; how the defendant’s
action harmed him or her; and, what specific legal right the plaintiff believes the defendant
violated.”).
Plaintiff has not named the allegedly negligent driver or the owner of the other vehicle
involved in the crash as defendants. Rule 19(a) of the Federal Rules of Civil Procedure provides:
(1) Required Party. A person who is subject to service of process and whose joinder
will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief among
existing parties; or
(B) that person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the
interest; or
(ii) leave an existing party subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a). Rule 19(b) provides in part that: “If a person who is required to be joined if
feasible cannot be joined, the court must determine whether, in equity and good conscience, the
action should proceed among the existing parties or should be dismissed.” Fed. R. Civ. P. 19(a);
see Symes v. Harris, 472 F.3d 754, 760 (10th Cir. 2006) (“The issue of indispensability, generally,
is not waivable, and is one which courts have an independent duty to raise sua sponte”). Under
New Mexico law, a person is an indispensable party if that “person’s interests are necessarily
affected by the judgement.” State Farm Mut. Auto. Ins. Co. v. Foundation Reserve Ins. Co., 19676

NMSC-197, ¶ 32. It appears that the driver and/or owner of the other vehicle may have interests
that would necessarily be affected by a judgment in this case and that the absence of the
driver/owner from this case may present a risk of subjecting Progressive to a double or inconsistent
obligations because of the driver/owner’s interest.
The Court orders Plaintiff to show cause why the Court should not dismiss the claims
against Progressive and USAA for failure to state a claim and to file a second amended complaint
containing allegations addressing the deficiencies regarding Plaintiff’s claims against Defendants
Progressive and USAA. The response to this Order must also: (i) address whether the driver/owner
of the other vehicle has interests that would necessarily be affected by a judgment in this case; (ii)
explain why Plaintiff has not named the driver/owner of the other vehicle as a defendant in this
case; (iii) identify any other lawsuits Plaintiff has filed in state or federal court dealing with the
same facts involved with this case; and (iv) describe any settlement or other agreements between
Plaintiff and the driver/owner of the other vehicle. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 558 (2007) (“a district court must retain the power to insist upon some specificity in pleading
before allowing a potentially massive factual controversy to proceed”); Lowrey v. Sandoval County
Children Youth and Families Department, 2023WL4560223 *2 (10th Cir. July 17, 2023) (stating:
“Given a referral for non-dispositive pretrial matters, a magistrate judge may point out deficiencies
in the complaint [and] order a litigant to show cause”) (citing 28 U.S.C. § 636(b)(1)(A) and
Fed. R. Civ. P. 72(a)).
Asserting Claims on Behalf of the United States
Although the Amended Complaint does not name the United States as a plaintiff, it appears
Plaintiff may be asserting claims on behalf of the United States because Plaintiff states he is “the
chief plaintiff,” alleges Progressive “acted overtly to defraud the federal government,” “believes

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that a federal court should preside over issues financially impacting the federal government,” and
asserts this case arises from unlawful acts “concerning . . . . 18 U.S. Code § 1031 – Major fraud
against the United States.” Amended Complaint at 1, 4, 6.
It does not appear that Plaintiff can assert claims on behalf of the United States. Plaintiff
is proceeding pro se and is not a licensed attorney admitted to practice in the District of New
Mexico. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) ("A
litigant may bring his own claims to federal court without counsel, but not the claims of others");
Georgakis v. Illinois State University, 722 F.3d 1075, 1077 (7th Cir. 2013) ("to maintain a suit on
behalf of the government, the relator (as the qui tam plaintiff is termed) has to be either licensed
as a lawyer or represented by a lawyer"); U.S. ex rel. Mergent Services v. Flaherty, 540 F.3d 89
(2d Cir. 2008) (stating that the proposition, that private parties cannot bring qui tam actions pro se,
is a sound one, and noting that the Second Circuit has "cit[ed] with approval cases in which other
courts of appeals have concluded that a pro se plaintiff who is not a lawyer cannot bring a qui tam
action under the [False Claims] Act").
Furthermore, the Amended Complaint fails to state a claim upon which relief can be
granted pursuant to 18 U.S.C. § 1031, Major fraud against the United States, because
18 U.S.C. § 1031 is a criminal statute. “[C]riminal statutes do not provide for private civil causes
of action.” Kelly v. Rockefeller, 69 Fed.Appx. 414, 415-416 (10th Cir. 2003); see Diamond v.
Charles, 476 U.S. 54, 64 (1986) (“a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another”).
The Court orders Plaintiff to show cause why the Court should not dismiss the claims
Plaintiff appears to be asserting on behalf of the United States. If Plaintiff asserts the Court should
not dismiss those claims, Plaintiff must file a second amended complaint.

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IT IS ORDERED that Plaintiff shall, by May 24, 2024: (i) show cause why the Court should
not dismiss Plaintiff’s claims; and (ii) file a second amended complaint. Failure to timely show
cause and file a second amended complaint may result in dismissal of this case.

_____________________________________
UNITED STATES MAGISTRATE JUDGE

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