Cosby v. Safeco Insurance Company of America

Filing 28

MEMORANDUM-DECISION and ORDER - That SAFECO's 19 motion to dismiss is GRANTED. That Cosby's amended complaint (Dkt. No. 15) is DISMISSED. That the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 8/24/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PATRICIA A. COSBY,
Plaintiff,

1:14-cv-640
(GLS/RFT)

v.
SAFECO INSURANCE
COMPANY OF AMERICA,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Patricia A. Cosby
Pro Se
300 North Street
Apartment 3
Bennington, VT 05201
FOR THE DEFENDANT:
Jaffe, Asher Law Firm
600 Third Avenue
9th Floor
New York, NY 10016

MARSHALL T. POTASHNER,
ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Patricia A. Cosby commenced this action against

SAFECO Insurance Company of America,1 asserting what appears to be a
negligence claim as a result of an automobile accident.2 (See generally
Am. Compl., Dkt. No. 15.) Pending is SAFECO’s motion to dismiss for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 19.)
For the reasons that follow, SAFECO’s motion is granted.
II. Background3
Very few cogent facts may be gleaned from Cosby’s amended
complaint and the documents attached thereto. What the court has
ascertained, however, is that Cosby suffered personal injuries, “pain[,] and
long term suff[er]ing” as a result of an automobile accident, which occurred
on December 4, 2009, and for which she was not at fault. (Am. Compl.

1

Cosby’s amended complaint captions defendant’s name as “SAFCO,” (Am. Compl. at
1), which, as revealed through subsequent filings, (Dkt. No. 19, Attach. 1 ¶ 1), is an incorrect
spelling. Accordingly, the court will refer to defendant as “SAFECO.”
2

The court notes that Cosby did not specifically identify a legal cause of action in her
amended complaint. After construing the scant factual allegations contained in her amended
complaint in a light most favorable to her, however, negligence appears to be the only
plausible claim asserted.
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“Generally, in determining a 12(b)(6) motion, the court may only consider those
matters alleged in the complaint, documents attached to the complaint, . . . matters to which
the court may take judicial notice[,]” and documents incorporated by reference in the
complaint. Spence v. Senkowski, No. 91-CV-955, 1997 WL 394667, at *2 (N.D.N.Y. July 3,
1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)); see Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). Here, the facts are drawn
from Cosby’s amended complaint and presented in the light most favorable to her. The court
also considers various documents attached to Cosby’s amended complaint, including medical
records and a payment log sent to Cosby from State Farm Insurance. (Am. Compl. at 3-9.)

2

¶¶ 2-4, at 5, 9.) Cosby claims that she has “exhausted all of [her] medical
expense for no fault insurrance [sic],” yet continues to incur medical bills
for her injuries; she now seeks damages from SAFECO in the amount of
$7,200,000. (Id. ¶¶ 3, 4.)
On April 1, 2014, Cosby commenced this action in New York State
Supreme Court, Rensselaer County. (Compl., Dkt. No. 1, Attach. 1 at 2.)
SAFECO then removed the action to this court, on the basis of diversity
jurisdiction. (Dkt. No. 1.) Shortly thereafter, SAFECO filed a motion for a
more definite statement, (Dkt. No. 5), which the court granted, (Dkt. No.
14). In its Decision and Order granting SAFECO’s motion for a more
definite statement, the court observed that Cosby’s complaint “d[id] not
meet the requirements of Federal Rules of Civil Procedure 8 and 10,” and
was “virtually incomprehensible.” (Id. at 2.) The court then ordered Cosby
to file an amended complaint, consistent with the pleading requirements
set forth in Rules 8, 10, and 12(e) of the Federal Rules of Civil Procedure.
(Id. at 5-9.) Cosby then filed her amended complaint, and SAFECO filed
its now-pending motion to dismiss. (Dkt. No. 19.)
III. Standard of Review
The standard of review applicable to Fed. R. Civ. P. 12(b)(6) motions
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is well settled and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on
other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191
(2d Cir. 2015).
IV. Discussion4
SAFECO seeks dismissal of Cosby’s amended complaint on two
separate grounds: (1) the amended complaint fails to meet the basic
pleading requirements, as Cosby has failed to allege that SAFECO was in
any way involved with the automobile accident; and (2) Cosby’s negligence
claim is time-barred under New York’s three-year statute of limitations.
(Dkt. No. 19, Attach. 4 at 4-7.) Although Cosby filed a response, she has
failed to rebut SAFECO’s arguments in any meaningful or substantive way.
(See generally Dkt. No. 23.) The court agrees with SAFECO that Cosby’s
amended complaint must be dismissed, both because she has failed to
state a negligence claim against SAFECO, and because her claim is
time-barred.
Turning first to SAFECO’s argument that Cosby has failed to state a
4

The court is satisfied that New York law applies to this diversity action.

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negligence claim against it, the court notes that, “[u]nder New York law, . . .
a plaintiff must establish three elements to prevail on a negligence claim:
(1) the existence of a duty on [the] defendant’s part as to [the] plaintiff; (2)
a breach of this duty; and (3) injury to the plaintiff as a result thereof.”
Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000) (internal
quotation marks and citation omitted). “Because a finding of negligence
must be based on the breach of a duty, a threshold question in tort cases
is whether the alleged tortfeasor owed a duty of care to the injured party.”
Espinal v. Melville Snow Contractors Inc., 98 N.Y.2d 136, 138 (2002)
(citations omitted).
Here, not only has Cosby failed to allege that SAFECO owed a duty
to her, but she has also failed to identify any facts that suggest that
SAFECO was involved, in any way, with the automobile accident that
caused her injuries. Indeed, it remains completely unclear to the court why
SAFECO is named as a defendant in this action. As SAFECO points out,
(Dkt. No. 19, Attach. 4 at 4-5), Cosby has not alleged that SAFECO owned
the vehicle that allegedly caused the accident, that a SAFECO employee,
while acting in the scope of his or her employment, caused or was
otherwise involved in the accident, or even that SAFECO is liable for the
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tortious acts of its insured.5 While the court is cognizant that it must
liberally read a pro se plaintiff’s submissions, see Rahl v. N.Y. Tel. Co., No.
1:09-cv-01165, 2010 WL 3338832, at *2 (N.D.N.Y. Aug. 24, 2010), “the
complaint, nonetheless, must satisfy the minimum pleading requirements
of Rule 8(a) of the Federal Rules of Civil Procedure,” Gould v. Russi, 830
F. Supp. 139, 142 (N.D.N.Y. 1993). In other words, pro se plaintiffs must
“sufficiently apprise . . . defendant[s] of the charges asserted against”
them. Id. at 143. Accordingly, the amended complaint must be dismissed
for failure to state a claim.
Turning to SAFECO’s second argument, (Dkt. No. 19, Attach. 4 at
6-7), the court is similarly persuaded that Cosby’s amended complaint may
alternatively be dismissed as time-barred. In New York, negligence claims
are generally subject to a three-year statute of limitations, “which begins to
accrue on the date of the injury to the person or her property.” Salzman v.
Cont’l Airlines, Inc., No. 1:10-cv-1209, 2011 WL 4566429, at *2 (N.D.N.Y.
Sept. 29, 2011); see N.Y. C.P.L.R. § 214(5). Here, it is clear that Cosby
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The court notes that, even if Cosby were seeking to hold SAFECO liable for the
tortious acts of its insured, that claim would also fail, because a stranger to an insurance
policy—i.e., an injured party—cannot bring an action against the tortfeasor’s insurance
company, without first seeking and obtaining a judgment against the insured tortfeasor. See
Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 353-55 (2004). Here, there is no allegation that
Cosby sought and obtained a judgment against the individual who caused the accident.

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seeks damages only for personal injuries that she sustained during a
December 4, 2009 automobile accident. (Am. Compl. ¶¶ 2-4, at 5, 9.)
Cosby even acknowledges that this is the correct date of the accident in
her response to SAFECO’s motion to dismiss. (Dkt. No. 23 at 2.) Because
her complaint was not filed until April 2014—more than four years since the
date that her negligence claim arose—Cosby’s amended complaint must
also be dismissed as time-barred.
Finally, although in all cases “[t]he court should freely give leave [to
amend] when justice so requires,” Fed. R. Civ. P. 15(a)(2), “a pro se litigant
in particular should be afforded every reasonable opportunity to
demonstrate that [s]he has a valid claim,” Matima v. Celli, 228 F.3d 68, 81
(2d Cir. 2000) (internal quotation marks and citations omitted).
Specifically, a complaint filed by a pro se litigant “should not [be]
dismiss[ed] without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid claim might be
stated.” Shomo v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (internal
quotation marks and citation omitted). However, “granting a pro se plaintiff
an opportunity to amend is not required where the plaintiff has already
been given a chance to amend h[er] pleading.” Koehl v. Greene, No. 9:067

CV-0478, 2007 WL 2846905, at *3 (N.D.N.Y. Sept. 26, 2007); see Shuler
v. Brown, No. 07-CV-0937, 2009 WL 790973, at *5 & n.25 (N.D.N.Y. Mar.
23, 2009). Moreover, the court need not extend an opportunity to amend
where “[t]he problem with [the plaintiff’s] causes of action is substantive”
such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000).
Here, Cosby has already been afforded one opportunity to amend
her complaint, and she was unable to cure the pleading deficiencies. (Dkt.
No. 14; Am. Compl.) Further, in her motion response, Cosby has neither
requested nor offered any reason why she should be given leave to amend
a second time. (Dkt. No. 23.) Moreover, because Cosby’s amended
complaint is clearly time-barred, amendment would be futile. See Roach v.
Clark, No. 5:15-CV-0408, 2015 WL 4067504, at *13 (N.D.N.Y. July 2,
2015) (denying leave to amend where certain claims were dismissed on
statute of limitations grounds). The court, therefore, declines to afford
Cosby the opportunity to amend her complaint a second time.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that SAFECO’s motion to dismiss (Dkt. No. 19) is
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GRANTED; and it is further
ORDERED that Cosby’s amended complaint (Dkt. No. 15) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 24, 2015
Albany, New York

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