Cosby v. Safeco Insurance Company of America
Filing
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DECISION & ORDER: GRANTING the # 5 Motion for More Definite Statement. Plaintiff shall file an Amended Complaint consistent with the direction herein within thirty (30) days of this Order. Safeco must respond within twenty (20) days thereafter. Copy of this Decision & Order served upon plaintiff by regular mail} Signed by Magistrate Judge Randolph F. Treece on 10/28/2014. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PATRICIA A. COSBY,
Plaintiff,
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Civ. No. 1:14-CV-640
(GLS/RFT)
SAFECO INSURANCE COMPANY OF AMERICA,
Defendant.
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APPEARANCES:
OF COUNSEL:
PATRICIA A. COSBY
Pro Se Plaintiff
610 Gage Street #2
Bennington, Vermont 05201
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JAFFE, ASHER LAW FIRM
Attorney for Defendant
600 Third Avenue, 9th Floor
New York, New York 10016
MARSHALL T. POTASHNER, ESQ.
RANDOLPH F. TREECE
United States Magistrate Judge
DECISION and ORDER
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On May 29, 2014, Safeco Insurance Company of America (hereinafter
“Safeco”) filed a Notice to remove this matter from the New York State Supreme
Court, Rensselaer County to this District. Dkt. No. 1, Notice of Removal, dated May
29, 2014. Attached to the Notice is pro se Plaintiff Patricia Cosby’s (hereinafter
“Cosby”) Complaint. Dkt. No. 1-1, Compl. On June 4, 2014, Safeco filed a Motion
for a More Definite Statement, pursuant to FED. R. CIV. P. 12(e). Dkt. No. 5, Def.’s
Mot., dated June 4, 2014. On July 8, 2014, Cosby filed a Response to Safeco’s
Motion, Dkt. No. 9, to which Safeco filed a Reply, Dkt. No. 10. On August 5, 2014,
Cosby submitted a Supplemental Filing. Dkt. No. 12. Once the Motion was fully
briefed, the Honorable Gary L. Sharpe, Chief United States District Judge, determined
that a motion for a definite statement is non-dispositive and accordingly referred the
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Motion to this Court. Dkt. No. 13, Text Order, dated Oct. 15, 2014.
Cosby’s Complaint approximates a paragraph, possibly two. Dkt. No. 1-1.
Safeco contends that the Complaint is “unintelligible” and “impossible to determine
on what basis or on what facts plaintiff claims any right of action against [it].” Dkt.
No. 5-1, Marshall T. Potashner, Esq., Aff., dated June 4, 2014, at ¶ 4. Safeco cannot
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tell from the Complaint whether Cosby is pleading that it has breached a settlement
or if she is attempting to compel it to enter into a settlement of a claim. Id. Though
Cosby refers to this matter as a “misrepresentation” by Safeco, Safeco notes that there
are no facts nor legal basis to support a cause of action sounding in either a fraud or
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misrepresentation. Id. at ¶¶ 4-6.
The Court concurs with Safeco’s observations that Cosby’s Complaint does not
meet the requirements of Federal Rules of Civil Procedure 8 and 10 and, moreover,
in its current state, is virtually incomprehensible to follow. As best that the Court can
discern, Cosby is claiming to be a victim of Safeco’s “unprofessional conduct,” and
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is seeking a “settlement of $7,200,000[.]” Dkt. No. 1-1 Compl. Without more, Safeco
is unable to respond appropriately to the Complaint.
Federal Rule of Civil Procedure 12(e) states that
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[a] party may move for a more definite statement of a pleading to which
a responsive pleading is allowed but which is so vague or ambiguous that
the party cannot reasonably prepare a response. The motion must be
made before filing a responsive pleading and must point out the defects
complained of and the details desired. If the court orders a more definite
statement and the order is not obeyed within 14 days after notice of the
order or within the time the court sets, the court may strike the pleading
or issue any other appropriate order.
Even extending special solicitude to this pro se Plaintiff as well as viewing her
Complaint with exceptional liberality, her pleading is vague, ambiguous, and woefully
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deficient.
As suspected, Cosby’s Response confirms that she is seeking to compel Safeco
to engage in settlement regarding injuries sustained from a car accident. Dkt. No. 9,
Pl.’s Resp. Accepting the Response as true, Cosby was injured on December 4, 2009
in a “high speed accident” caused by a “Drunken Driver.” Id. at p. 1. Apparently, this
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errant driver’s insurance company is Safeco who may have opened a claim file
pertinent to this accident. Cosby seems confounded that Safeco would be asking her
for medical and social security authorizations, when she surmises that Safeco already
had obtained those records.
In her view, additional requests for medical
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authorizations is “unprofessional” and deceitful. Id.1
Cosby’s Complaint suffers from both substantive and procedural deficiencies.
Accepting that Cosby is seeking to compel Safeco to settle with her, she may not have
either a statutory or common law cause of action. The New York Court of Appeals,
addressed the question whether a “stranger” to an insurance policy – an injured party
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– can bring an action against the tortfeasor’s insurance company for a determination
of coverage issues. The Court of Appeals answered in the negative concluding that,
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[u]nder the common law, “an injured person possessed no
cause of action against the insurer of the tort feasor”
(Jackson v Citizens Cas. Co., 277 N.Y. 385, 389 [1938]).
When a plaintiff acquired a judgment against the insured
and the insured failed to satisfy the judgment due to
insolvency, the plaintiff could not sue the insurance
company directly because there was no privity of contract
between plaintiff and the insurance carrier (Burke v London
Guar. & Acc. Co., 47 Misc. 171 [Kings County 1905], affd
126 App Div 933 [2d Dept 1908], affd 199 N.Y. 557
[1910]). A direct suit by an injured party against the
tortfeasor's insurer was thus unknown to the common law
(Thrasher v United States Liab. Ins. Co., 19 N.Y.2d 159,
166 [1967]).
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Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 353 (N.Y. Ct. App. 2004).
And this Court knows of no common law right to compel anyone to settle a matter
Attached to Cosby’s Response are copies of her medical records. Her Supplement Filing
is a medical note providing a diagnosis of yet another ancillary medical condition caused by her
physical injuries sustained on December 4, 2009. Dkt. No. 12.
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with an aggrieved party. There is a very limited statutory exception to this common
law rule. In a case where a judgment has been rendered against the tortfeasor-insured
and it remains unsatisfied for more than thirty days, then an action may be maintained
against the insurance company. N.Y. INS. LAW § 3420(a). Ostensibly, here, there is
no judgment of liability against the tortfeasor-insured.2
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This Court is not being asked to dismiss the Complaint because it fails to state
a cause of action nor will it do so sua sponte. The matter before this Court is to
determine whether a more definite statement that complies with the Federal Rules of
Civil Procedure is justified. Under these circumstances a more definite statement is
warranted. But there are other requirements Cosby must follow as well. Rule 8 of the
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Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for
relief shall contain, inter alia, “a short and plain statement of the claim showing that
the pleader is entitled to relief.” See FED. R. CIV. P. 8(a)(2). The purpose of this Rule
“is to give fair notice of the claim being asserted so as to permit the adverse party the
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opportunity to file a responsive answer [and] prepare an adequate defense.” Hudson
v. Artuz, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy) (other citations
Although courts should not provide advisory opinions, this Court nonetheless urges Cosby
to consult with an attorney to consider her options including commencing an action against the
alleged tortfeasor.
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omitted)). Rule 8 also provides that a pleading must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction
. . .;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
FED. R. CIV. P. 8(a).
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Moreover, Rule 10 of the Federal Rules of Civil Procedure provides, in part:
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(b) Paragraphs; Separate Statements. A party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. If doing so would promote clarity, each
claim founded on a separate transaction or occurrence – and each defense
other than a denial – must be stated in a separate count or defense.
FED. R. CIV. P. 10(b).
The purpose of Rule 10 is to “provide an easy mode of identification for referring to
a particular paragraph in a prior pleading[.]” Sandler v. Capanna, 1992 WL 392597,
at *3 (E.D. Pa. Dec. 17, 1992) (citing 5 C. Wright & A. Miller, Federal Practice and
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Procedure, § 1323 at 735 (1990)).
A complaint that fails to comply with these Rules presents too heavy of a
burden for defendants in shaping a comprehensive defense, provides no meaningful
basis for a court to assess the sufficiency of a plaintiff’s claims, and may properly be
dismissed by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996)
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(McAvoy). As the Second Circuit has stated, “[w]hen a complaint does not comply
with the requirement that it be short and plain, the Court has the power, on its own
initiative, . . . to dismiss the complaint.” Salhuddin v. Cuomo, 861 F.2d 40, 42 (2d
Cir. 1988). “Dismissal, however, is usually reserved for those cases in which the
complaint is so confused, ambiguous, vague, or otherwise unintelligble that its true
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substance, if any, is well disguised.” Hudson v. Artuz, 1998 WL 832708, at *2
(quoting Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996) and further citing
Salhuddin v. Cuomo, 861 F.2d at 42). In those cases in which the court dismisses a
pro se complaint for failure to comply with these Rules, it should afford the plaintiff
leave to amend the complaint to state a claim that is on its face nonfrivolous. See
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Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).
Considering the instructions above, the Court directs Cosby to amend her
Complaint so that it comports with Rules 8, 10, and 12(e). In drafting the amended
complaint, the Court offers the following guidance. Any such amended complaint,
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which shall supersede and replace in its entirety the previous Complaint, must
contain a caption that clearly identifies, by name, each individual and/or entity that
Cosby is suing in the present lawsuit and must bear the case number assigned to this
action.
The body of Cosby’s amended complaint must contain sequentially
numbered paragraphs containing only one act of misconduct per paragraph.
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Thus, if Cosby claims that her rights were violated by more than one defendant, or on
more than one occasion, she should include a corresponding number of paragraphs in
her amended complaint for each such allegation, with each paragraph specifying (i)
the alleged act of misconduct; (ii) the date on which such misconduct occurred; (iii)
the names of each and every individual or entity who participated in such misconduct;
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(iv) where appropriate, the location where the alleged misconduct occurred; and, (v)
the nexus between such misconduct and Cosby’s claim for relief.
Cosby’s amended complaint shall also assert claims against each and every
defendant named in such complaint; any defendant not named in such pleading
shall not be a defendant in the instant action. Cosby is further cautioned that no
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portion of any prior complaint shall be incorporated into her amended complaint by
reference. Cosby shall state in the single amended complaint all claims that she
wishes this Court to consider as a basis for awarding her relief herein; her failure
to file such a pleading will result in dismissal of this action without further Order
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of the Court. Any amended complaint submitted by Cosby must set forth all of the
claims she intends to assert against the defendant(s) and must demonstrate that a case
or controversy exists between her and the defendant(s) which she has a legal right to
pursue and over which this Court has jurisdiction. If Cosby is alleging that the named
defendants violated some other federal or state law she should not the particular
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statute.
Accordingly, it is hereby
ORDERED, that Safeco’s Motion for a Definite Statement, Dkt. No. 5, is
granted; and it is further
ORDERED, that Cosby shall file an amended complaint consistent with the
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direction herein within thirty (30) days of the filing date of this Decision and Order.
Upon the service of the amended complaint, Safeco must respond within twenty (20)
days thereafter; and it is further
ORDERED, that the Clerk of the Court shall mail a copy of this Decision and
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Order to Patricia A. Cosby at her last known address.
IT IS SO ORDERED.
October 28, 2014
Albany, New York
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