Reuter v. Noridian Mutual Insurance Company

Filing 19

ORDER: Granting Motion to Dismiss 5 . Plaintiff is allowed 30 days to file an amended complaint. Signed on 1/12/2017 by Judge Michael J. McShane. (Copy mailed to plaintiff) (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ERNST REUTER,
Plaintiff,

Civ. No. 6:16-cv-02243-MC

v.

ORDER

NORIDIAN MUTUAL INSURANCE
COMPANY,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff pro se filed his original complaint in state small claims court.1 Plaintiff used and
filled out the standard one-page form from the small claims department and alleged defendant
Noridian Mutual Insurance owed him the sum of $2,000 plus interest and fees. Notice of
Removal Ex. A, ECF No. 1. In the two empty lines provided to “briefly describe reason for the
claim” plaintiff wrote “Noridian issued a check that bounced then issued another over a year
later and that bounced.” Id.
Rather than resolving expeditiously and cheaply what appears to be a simple matter in
small claims court, defendant has brought in pro hoc vice counsel who has removed the matter to
1

Reuter v. Noridian Mutual Insurance, 16SC42839, Lane County Circuit Court, State of Oregon

1 – ORDER

federal court and now moves to dismiss. The small claims court was certainly a more accessible
forum to a pro se plaintiff and this court fears that the removal to federal court may act as an
intimidating roadblock to the resolution the plaintiff’s claim. I hope that this is not the case and
that the plaintiff feels comfortable responding to this matter despite the more formal nature of
our rules. Nonetheless, the Court agrees with defendant’s assessment of the complaint, that it
contains limited information and only a generic allegation that Noridian Mutual Insurance owes
plaintiff a sum of money plus interest and fees. Notice of Removal 3, ECF No. 1
The allegations, appreciating that the plaintiff filed them in small claims court using a
standardized form, do not state a claim for which relief is plausible pursuant to Fed. R. Civ. P.
12(b)(6). The claim is only that money is owed by the named defendant and does not allege facts
behind the existence of the alleged debt. A defendant in reading the complaint can only speculate
as to the circumstances of the debt and is prejudiced in their ability to answer or raise adequate
defenses. Defendant has appropriately filed a motion to dismiss on those grounds. Def.’s Mot. 89, ECF No. 5.
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a
complaint must contain more than a “formulaic recitation of the elements of a cause of action”;
specifically, it must contain factual allegations sufficient to “raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To raise a right to
relief above the speculative levels the plaintiff must plead affirmative factual content, as opposed
to any merely conclusory recitation, and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.” Ashcroft v. Iqbal, 556 U.S. 662
(2009); Moss v. United States Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009). Because the

2 – ORDER

complaint does not contain factual allegations sufficient to “raise a right of relief above the
speculative level” plaintiff’s complaint is dismissed but with leave to amend.
Defendant’s Motion to Dismiss, ECF No. 5, is GRANTED. Plaintiff’s claims are
DISMISSED. Plaintiff is allowed 30 days from the date of this order to file an amended
complaint curing the deficiencies identified above, otherwise this action with be dismissed
with prejudice. If the plaintiff wishes to consult with an attorney to determine how best to
proceed, this court will make efforts to appoint pro bono counsel for such a consultation. If
plaintiff wishes the court to appoint pro bono counsel for this limited purpose, plaintiff
should contact Judge McShane’s courtroom deputy, Charlene Pew, at 541-431-4105.
IT IS SO ORDERED.
Dated this 12th day of January, 2017.
____/s/Michael J. McShane_____
Michael J. McShane
United States District Judge

3 – ORDER