Kasidonis v. State Auto Insurance Company

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS - It is Ordered that: 1. Defendant's Motion to Dismiss (Doc. 11 ) is GRANTED; 2. Plaintiff's Complaint is DISMISSED without prejudice; 3. Pursuant to 28 U.S.C. § 1915(a), this Court certifies that an appeal of this Order adopting the R&R would not be taken in good faith and Plaintiff is DENIED leave to appeal in forma pauperis. Plaintiff remains free to apply to proceed in forma pauperis in the Court of Appeals; and 4. This matter is CLOSED and TERMINATED from the active docket of this Court. Signed by Judge Michael R. Barrett on 9/7/2016. (jee)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Catherine Poulos Kasidonis,
Plaintiff,
Case No.: 1:15-cv-285
v.
Judge Michael R. Barrett
State Auto Insurance Agency,
Defendant.

OPINION & ORDER
This matter is before the Court on the Magistrate Judge’s March 31, 2016 Order
and Report and Recommendation (“R&R”) recommending that Defendant’s Motion to
Dismiss (Doc. 11) be granted; and the Complaint be dismissed without prejudice. (Doc.
30). 1
The parties were given proper notice under Rule 72(b) of the Federal Rules of
Civil Procedure, including notice that the parties would waive further appeal if they failed
to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d
947, 949-950 (6th Cir. 1981). Plaintiff filed Objections to the R&Rs (Doc. 31), to which
Defendant responded (Doc. 33). Plaintiff filed a response to Defendant’s response
(Doc. 34), to which Defendant responded (Doc. 35). For the reasons stated below, the
Court OVERRULES Plaintiff’s Objections, and the Magistrate Judge’s R&R is
ADOPTED in its entirety.

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The Magistrate Judge also ordered that Plaintiff’s Motion and Memorandum to Respond
to Defendant State Auto Insurance Reply (Doc. 26) is denied; and Defendant’s Motion to Strike
Plaintiff’s Response to Defendant’s Reply in Support of the Motion to Dismiss (Doc. 25) is
denied as moot. However, no objections have been filed to the Magistrate Judge’s ruling on
these motions.

I. BACKGROUND
The factual and procedural history of this case is described in the Magistrate’s
R&R, and the same will not be repeated except to the extent necessary to address
Plaintiff’s objections.
Plaintiff, as executrix of the Estate of William Peter Basileios Theofano Poulos,
brings claims pro se for fire losses under a property insurance policy issued by
Defendant State Auto Insurance. Defendant moves to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(1) based on lack of subject matter jurisdiction.
The Magistrate Judge concluded that this Court lacks subject matter over
Plaintiff’s claims based on the Rooker-Feldman doctrine.

In the alternative, the

Magistrate Judge concluded that this Court lacks subject matter jurisdiction under 28
U.S.C. §§ 1331 and 1343(a)(3).
II. ANALYSIS
A. Standard of Review
When objections to a magistrate judge’s report and recommendation are
received on a dispositive matter, the assigned district judge “must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed.
R. Civ. P. 72(b)(3). After review, the district judge “may accept, reject, or modify the
recommended decision; receive further evidence; or return the matter to the magistrate
judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).

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B. Motion to Dismiss
“Challenges to subject-matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) ‘come in two varieties: a facial attack or a factual attack.’” Carrier Corp. v.
Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012) (quoting Gentek Bldg. Prod., Inc. v.
Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)). As the Magistrate Judge
explained, Defendant has raised a facial attack.

A facial attack challenges the

sufficiency of the pleading and goes to whether or not the plaintiff laid a sufficient basis
for subject matter jurisdiction. Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014).
All of the allegations in a facial analysis must be taken as true, like that of a 12(b)(6)
motion. Carrier, 673 F.3d at 440; see also Lovely v. United States, 570 F.3d 778, 781
(6th Cir. 2009), cert. denied, 558 U.S. 1111 (2010).

“Plaintiff bears the burden of

establishing that subject matter jurisdiction exists.” Cartwright, 751 F.3d at 760.
C. Rooker-Feldman
The Rooker-Feldman doctrine “is confined to cases of the kind from which the
doctrine acquired its name: cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
As the Magistrate Judge explained, Plaintiff is complaining of injuries caused by
a state court judgment. In her objections, Plaintiff does not make any arguments to the
contrary.

Instead, Plaintiff reiterates that her claims are based on the dismissal of

claims brought by Poulos and his wife, Georgia Poulos, in the Hamilton County Court of

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Common Pleas. Plaintiff explains that the state court claims were dismissed because
Plaintiff’s attorney of record did not respond to the court.
III. CONCLUSION
Based on the foregoing, the Magistrate Judge’s March 31, 2016 Report and
Recommendation (“R&R”) that Defendant’s Motion to Dismiss be granted (Doc. 30) is
ADOPTED. Accordingly, it is hereby ORDERED that:
1. Defendant’s Motion to Dismiss (Doc. 11) is GRANTED;
2. Plaintiff’s Complaint is DISMISSED without prejudice;
3. Pursuant to 28 U.S.C. § 1915(a), this Court certifies that an appeal of this
Order adopting the R&R would not be taken in good faith and Plaintiff is
DENIED leave to appeal in forma pauperis. Plaintiff remains free to apply to
proceed in forma pauperis in the Court of Appeals; and
4. This matter is CLOSED and TERMINATED from the active docket of this
Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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