Ross v. USAA, United Services Automobile Association

Filing 13

REPORT AND RECOMMENDATION1 THAT: (1) DEFENDANTS MOTION TO DISMISS (DOC. 9 ) BE GRANTED; (2) PRO SE PLAINTIFFS COMPLAINT BE DISMISSED WITHOUT PREJUDICE; (3) PRO SE PLAINTIFFS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 12 ) BE DENIED; AND ( 4) THIS CASE BE TERMINATED ON THE COURTS DOCKET. Objections to R&R due by 12/26/2017. Signed by Magistrate Judge Michael J. Newman on 12/11/17. (pb)(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 AT DAYTON
KEESYA D. ROSS,
Plaintiff,

Case No. 3:17-cv-234

v.
UNITED SERVICES AUTOMOBILE
ASSOCIATION,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) DEFENDANT’S MOTION TO
DISMISS (DOC. 9) BE GRANTED; (2) PRO SE PLAINTIFF’S COMPLAINT BE
DISMISSED WITHOUT PREJUDICE; (3) PRO SE PLAINTIFF’S MOTION FOR
LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 12) BE DENIED; AND (4) THIS
CASE BE TERMINATED ON THE COURT’S DOCKET
______________________________________________________________________________
This case is presently before the Court on Defendant United Services Automobile
Association’s (“USAA”) motion to dismiss for lack of jurisdiction. Doc. 9. Pursuant to the
Local Rules of this Court, pro se Plaintiff’s memorandum in opposition was to be filed on or
before October 9, 2017. Pro se Plaintiff originally failed to file a memorandum in opposition
with the Court and, on October 17, 2017, the undersigned issued an Order to Show Cause
directing Plaintiff to show cause, in writing, as to why USAA’s motion to dismiss should not be
granted for the reasons set forth therein. Thereafter, pro se Plaintiff filed a response to the
Court’s Order to Show Cause and requested leave to amend the complaint. Doc. 12. USAA
filed a reply memorandum in support of its motion to dismiss. Doc. 11. The Court has carefully
considered all of the foregoing, and USAA’s motion to dismiss is now ripe.

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

I.
This case arises out of an automobile accident that occurred in Daytona Beach, Florida on
July 21, 2015. Doc. 3 at PageID 17-18. At the time of the accident, Plaintiff -- an Ohio resident2
-- was a passenger in a vehicle owned and driven by Curtis Smith. Id. at PageID 18. The
accident occurred when Smith’s vehicle was rear-ended by another vehicle driven by tortfeasor
Dyrell Johnson -- a non-party to this suit. Id.
At the time of the accident, Smith was insured through a policy issued by USAA, and
such policy provided uninsured and underinsured motorist coverage. Id. Plaintiff alleges that,
because she was a passenger in Smith’s vehicle at the time of the accident, she was an insured
under the USAA policy. Id. Johnson was also insured at the time of the accident, but the limit
of Johnson’s liability insurance was only $10,000.00. Id.
Following the accident, Johnson’s liability insurer settled with and paid Plaintiff the
limits of Johnson’s insurance policy. Id. Plaintiff alleges, however, that the limits of Johnson’s
insurance policy were insufficient to compensate her in full for the injury and loss she sustained
in the automobile accident.

Id.

Plaintiff brings this action against Defendant seeking

underinsured motorist coverage under Smith’s USAA policy. Id. at PageID 18-19. In addition,
Plaintiff alleges that USAA has failed “to act in good faith[.]” Id. at PageID 19. Accordingly,
liberally construing pro se Plaintiff’s complaint, the undersigned concludes Plaintiff has pled a
breach of contract claim as well as a tort claim asserting bad faith. Id.
II.
In its motion, USAA moves to dismiss pro se Plaintiff’s complaint, arguing that the Court
lacks diversity jurisdiction over this dispute. Doc. 9. A motion to dismiss pursuant to Fed. R.
Notably, pro se Plaintiff does not allege that she is a citizen of Ohio. “It has been many times
decided that an averment that one is a resident of a particular state is not equivalent to an averment that he
is a citizen of that state.” Bd. of Trustees of Mohican Twp., Ashland Cty., v. Johnson, 133 F. 524, 524
(6th Cir. 1904).
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Civ. P. 12(b)(1) asserts that the court lacks subject-matter jurisdiction. Such a motion may
consist of a “facial attack,” under which the moving party asserts that the allegations of the
complaint are not sufficient to establish jurisdiction, or a “factual attack,” under which the court
may consider evidence to determine if jurisdiction does or does not exist. O’Bryan v. Holy See,
556 F.3d 361, 376–77 (6th Cir. 2009). Here, USAA sets forth a factual attack. See doc. 9. To
resolve a factual attack, the Court must “weigh the conflicting evidence to arrive at the factual
predicate that subject matter jurisdiction exists or does not exist” and, in so doing, “has wide
discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve
disputed jurisdictional facts.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th
Cir. 1990).
III.
In her pro se complaint, Plaintiff alleges that the Court has jurisdiction over this lawsuit
under 28 U.S.C. § 1332 because the parties are citizens of different states and $75,00 or more are
at issue. Doc. 3 at PageID 17. USAA argues that the Court lacks diversity jurisdiction over pro
se Plaintiff’s complaint because: (1) both Plaintiff and USAA are citizens of Ohio, thus
destroying complete diversity between the parties; and (2) Plaintiff’s maximum possible
recovery against USAA under the limits of Smith’s policy is $55,000 -- $50,000 in underinsured
motorist coverage and $5,000 in medical pay coverage. Doc. 9 at PageID 31-32.
Pursuant to 28 U.S.C. § 1332(a), district courts have jurisdiction over “all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between . . . citizens of different States[.]” Because federal courts are courts of
limited jurisdiction, courts must presume “that a cause lies outside this limited jurisdiction, and
the burden of establishing the contrary rests upon the party asserting jurisdiction.” Farmer v.
Fisher, 386 F. App’x 554, 556 (6th Cir. 2010) (citation omitted). Thus, “[a] plaintiff in federal
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court has the burden of pleading sufficient facts to support the existence of the court’s
jurisdiction.” Vaughn v. Holiday Inn Cleveland Coliseum, 56 F. App’x 249, 250 (6th Cir. 2003).
In a diversity action, “the plaintiff must state all parties’ citizenships such that the existence of
complete diversity can be confirmed.” Id.
Here, Plaintiff alleges that she “is a resident of Fairborn, Greene County, Ohio.” Doc. 3
at PageID 17. As noted supra, such allegation is insufficient to plead Plaintiff’s own citizenship.
Mohican Twp., 133 F. at 524. Nevertheless, assuming, arguendo, that Plaintiff is a citizen of
Ohio, she further fails to allege the state of USAA’s citizenship and, instead, simply avers that it
is “an insurance company licensed to do business in the state of Florida” with a registered agent
for service of process in San Antonio, Texas. Doc. 3 at PageID 17. The undersigned finds
Plaintiff’s allegations regarding USAA’s citizenship insufficient to demonstrate the existence of
diversity jurisdiction.
USAA is an unincorporated reciprocal interinsurance exchange association. Doc. 9 at
PageID 35. “Unincorporated associations . . . have no separate legal identity” and, for purposes
of diversity jurisdiction, are citizens of each state where its members maintain citizenship. See
U.S. Motors v. Gen. Motors Europe, 551 F.3d 420, 422 (6th Cir. 2008) (citing Certain Interested
Underwriters at Lloyd’s, London, Eng. v. Layne, 26 F.3d 39, 41 (6th Cir. 1994)); see also Brocki
v. Am. Exp. Co., 279 F.2d 785, 787 (6th Cir. 1960) (stating that “an unincorporated association
. . . cannot be deemed a citizen, apart from its members, for the purpose of diversity
jurisdiction”); Am. Fed’n of Musicians v. Stein, 213 F.2d 679, 685 (6th Cir. 1954) (stating that
“citizenship of an unincorporated association is that of its members” and, therefore, “diversity
does not exist if any of its members are citizens of the same state as is any adverse party to the
action”). With regard to USAA specifically, courts have concluded that, because USAA has
members in every state, it is a citizen of all 50 states for purposes of diversity jurisdiction. USAA
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Prop. & Cas. Ins. v. Briggs Plumbing Prod., Inc., No. 3:09-CV-232, 2009 WL 2876254, at *1
(S.D. Ohio Sept. 4, 2009).
Finding a lack of sufficient allegations in pro se Plaintiff’s complaint regarding diversity
of citizenship between the parties, the undersigned RECOMMENDS that: (1) USAA’s motion
to dismiss (doc. 9) be GRANTED; (2) pro se Plaintiff’s complaint be DISMISSED WITHOUT
PREJUDICE; (3) Plaintiffs’ motion for leave to file an amended complaint (doc. 9) be
DENIED;3 and (4) this case be TERMINATED on the Court’s docket.

Date:

December 11, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

Pro se Plaintiff’s motion for leave to file an amended complaint fails to set forth how Plaintiff
could or would amend her complaint to adequately assert diversity of citizenship. Accordingly, her
motion should be denied as futile.
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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
objected to, and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based, in whole or in part, upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

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