Bright v. Philadelphia Indemnity Insurance Company
Filing
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ENTRY ORDER denying 15 MOTION to Expedite Ruling on Pending Motions Before Commencement of Discovery; granting 9 MOTION to Dismiss 1 Complaint for Failure to State a Claim and Lack of Subject-Matter Jurisdiction; Amended Complaint due by 3/29/2024 (failure to file by this deadline shall result in dismissal of the case); should plaintiff timely file an Amended Complaint, proof of service must be filed no later than 5/3/2024 (failure to file proof service will result in dismissal). Signed by Judge Christina Reiss on 3/1/2024. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JAMIE BONNAR BRIGHT,
Plaintiff,
V.
PHILADELPHIA INDEMNITY
INSURANCE COMP ANY;
JAMES RIEBEN; KRISTINA CUI,
Defendants.
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202~ MAR - I PH 2: 12
CLERK
BY
lftyJ
DEPUTY CLERK
Case No. 2:23-cv-98
ENTRY ORDER GRANTING
DEFENDANTS' MOTION TO DISMISS
AND GRANTING PLAINTIFF LEAVE TO AMEND
(Docs. 9, 15)
Plaintiff Jamie Bonnar Bright, representing himself, has filed a Complaint against
the Philadelphia Indemnity Insurance Company ("Philadelphia Indemnity"). (Doc. 1.) On
September 21, 2023, Philadelphia Indemnity, together with its employees James Rieben
and Kristina Cui (collectively, "Defendants"), moved to dismiss the Complaint for
insufficient service of process, lack of subject matter jurisdiction, and failure to state a
claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b).
(Doc. 9.) Plaintiff responded to the motion on October 17, 2023, and Defendants replied
two days later at which time the court took the motion under advisement. 1
I.
Procedural Background.
On May 30, 2023, the court was in receipt of Plaintiffs filing fee and the
Complaint was filed. Plaintiff represents that after he received the court's Pro Se Guide
on June 29, 2023, he "awaited the issuing of service documents" pursuant to the Guide's
1
On January 5, 2024, Plaintiff filed a motion to expedite ruling on the pending motion before the
commencement of discovery. (Doc. 15.) Plaintiff did not comply with the requirements of this
court's Local Rules requiring consultation with the opposing party prior to filing a nondispositive motion and for this reason is DENIED. See D. Vt. L.R. 7(a)(7).
statement that "[u]pon receipt of the filing fee, the complaint will be filed and service
documents will be issued." (Doc. 11 at 13-14) (internal quotation marks omitted). As a
result, he was unaware until August 15, 2023, when he telephoned the clerk's office, that
he was responsible for requesting the issuance of summonses or waivers of service. 2
Upon Plaintiffs request, on August 18, 2023, the clerk's office issued summonses
for Philadelphia Indemnity and, on September 5, 2023, reissued the summonses. One
summons identified the defendant as "Philadelphia Indemnity Insurance Company c/o
Kristina Cui (Ttee)" (Doc. 6 at 1) and the other identified the defendant as "Philadelphia
Indemnity Insurance Company c/o Jim Rieben (Ttee)[.]" (Doc. 7 at 1.) In accordance
with Rule 4(b ), Plaintiff presented these summonses to the clerk for signature and seal.
Plaintiff states that, "on Saturday, August 19[], 2023, [he] labored to mail the proof of
service documents via the Postmaster of the United States, registered mail/restricted
delivery/return receipt to the defendants." (Doc. 11 at 14.) On September 8, 2023,
Plaintiff filed proofs of service with the court. The first proof states a summons for "c/o
Kristina Cui (Ttee)" was "served ... on the out-of-state defendant by Registered Mail[.]"
(Doc. 6 at 2.) The second proof states a summons for "c/o James Rieben (Ttee)" was
2
Although Plaintiff correctly quotes one sentence of the Pro Se Guide, in context, it states in
full:
If your application to proceed in forma pauperis is denied, the complaint
will NOT be filed, nor will summons(es) and/or waiver(s) be issued without
prepayment of the filing fee. An order will be issued by the assigned judge
requiring payment of the filing fee within a set period oftime. Upon receipt of the
filing fee, the complaint will be filed and service documents will be issued.
Failure to pay the filing fee within the specified time frame could result in
dismissal and the case will be closed.
Representing Yourself as a Pro Se Litigant Guide at 7, D. Vt. (Dec. 2015), available at
www.vtd.uscourts.gov/filing-wthout-attomey-l. When a litigant is granted in forma pauperis
("IFP") status, the Federal Rules require the court to "order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court." Fed. R. Civ.
P. 4(c)(3). In this case, Plaintiff did not apply to proceed IFP. Thus, the quoted section of the Pro
Se Guide is inapplicable, and Fed. R. Civ. P. 4(b) governs. See Fed. R. Civ. P. 4(b) (providing a
"plaintiff may present a summons to the clerk for signature and seal. If the summons is properly
completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant").
The Federal Rules further provide that the "plaintiff is responsible for having the summons and
complaint served[.]" Id. 4(c)( 1).
2
"served ... on the out-of-state defendant by Registered Mail[.]" (Doc. 6 at 2.) Plaintiff
also filed return receipts. The name of the person who received the deliveries is illegible.
See Doc. 6-1 at l; Doc. 7-1 at 1.
II.
Allegations of Plaintiff's Complaint.
Plaintiffs typed, three-page, single spaced "Notice of Conflict or Variance of
Law" includes a table of authorities and "[m]axims of [e]quity[.]" (Doc. 1 at 2.) In full,
Plaintiff alleges five "facts":
1. I, Jamie Bonnar Bright (Krishna), an a de jure private national of
Vermont and private American citizen presenting and preserving all
right, title and interest for the estate of JAMIE BONNAR BRIGHT as
Attorney in Fact as an authorized representative for said Estate.
2. As a peaceful private citizen acting under the covenants of my religious
practices and maintaining my right to life, liberty and the pursuit of
happiness, I can only be subject and bound to the exclusive jurisdiction
of civilian due process within the exclusive jurisdiction of equity, and
my unenumerated rights protected by the spirit, intent and
unenumerated fundamental rights and privileges of [t]he Constitution of
the United States of America and its equity jurisprudence. To seek a
remedy under any other style or mode of proceeding would be a trespass
against my religious covenants to practice non-harming and nonviolence for which I can not violate.
3. As the only real party in interest being harmed, the mode and
proceeding involving private civilian Krishna: of Vermont, and trust
property shall be of a purely civilian nature in accordance with the soul,
intent and spirit of the original and exclusive equity jurisdiction and
shall be clothed with judicial power secured by Article III, §2, subd. 1
of the perfected trust res Constitution for the United States of America;
Private Civilian, in keeping with good reason and good conscience, does
declare any "legal" proceeding must be without the modes and usages
of, and to the express exclusion of military, commercial, municipal or
foreign modes of proceeding, due process and acquiring jurisdiction
over private civilian[']s property.
4. A trust arose with notice of acceptance to Philadelphia Indemnity
Insurance Companies (PHL Y) expressing that if a speedy and adequate
remedy was not received within 30 days of the accident that a fee
schedule would attach and time would begin tolling. Further emails and
a phone conversation with Jim Rieben continued expression of
acceptance of Claim Reference #1528386 as a matter of trust relations
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to Jim Rieben and Kristina Cui as Trustee[]s. Notice of Fee schedule
was understood by Jim Rieben during our phone conversation and
followed up by emails where they expressed that they would not be
honoring the fee schedule due to myself having insurance coverage (See
Exhibit A).
5. I am now coming to seek redemption of the time, energy, lost labor and
materials (paper, ink, mailers, costs of mailing) lost in order to recover
said los[s]es/harms. It has now taken an enormous amount of time and
energy that could have been simply avoided by the speedy and adequate
remedy required at the beginning of these relations arising. It is my
opinion that due to the fact that this is a large foreign corporate entity
that they felt they had no need in honoring the trust that arose to the
beneficiary of this claim. I come now to continue to see that complete
justice is done and not by halves. As equity abhors a forfeiture, I am
remaining vigilant to see that as done which ought to have been done.
The order respectfully demanded has come with prior filings with the
court.
(Doc. 1 at 3.) In his response to Defendants' motion to dismiss, Plaintiff explains:
[A] trust arose upon [Plaintiffs] acceptance of claim number 1528386 and
... due to a lack of good conscience and good faith actions by James
Rieben and Kristina Cui, as the living persons and implied trustees to said
trust arising, in service of corporate person(s) Philadelphia Indemnity
Insurance Company, with obligations to [Plaintiff], have breached the trust
to fulfill an obligation to fix damaged trust property within a time frame
consistent with reasonable expectation and causing excessive laboring by
[Plaintiff].
(Doc. 11 at 3-4) (footnote omitted).
III.
Conclusions of Law and Analysis.
A.
Whether There Was Valid Service of Process on Defendants.
Defendants assert that Plaintiffs service of process was insufficient because
neither Mr. Rieben nor Ms. Cui is a proper agent for service of process on Philadelphia
Indemnity and because neither Mr. Rieben nor Ms. Cui was personally served. Instead,
Plaintiff mailed the summonses via registered mail. Plaintiff responds that Defendants'
motion to dismiss, filed on September 21, 2023, was filed out of time because the
summonses were "accepted on August 29[], 2023." (Doc. 11 at 5.)
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Fed. R. Civ. P. 12(b)(5) provides for dismissal of a complaint ifit has not been
properly served. On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the burden of
establishing that service was sufficient. See Dickerson v. Napolitano, 604 F.3d 732, 752
(2d Cir. 2010) ("[W]hen a defendant moves to dismiss [for insufficient service of
process] under Rule 12(b)(5), the plaintiff bears the burden of proving adequate service.")
(internal quotation marks omitted) (brackets in original). "In deciding a Rule 12(b)(5)
motion, a [c]ourt must look to Rule 4, which governs the content, issuance, and service of
a summons." Felton v. Monroe Cmty. Coll., 528 F. Supp. 3d 122, 132 (W.D.N.Y. 2021)
(internal quotation marks omitted). If the court finds that service of process was
insufficient, it "has discretion to dismiss the action, but dismissal is not mandatory."
Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y.
2002).
A summons is required to provide notice to an individual or entity of a filed civil
action. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999)
(noting that a defendant is "not obliged to engage in litigation unless notified of the
action, and brought under a court's authority, by formal process"). "The plaintiff is
responsible for having the summons and complaint served within the time allowed by
Rule 4(m) and must furnish the necessary copies to the person who makes service." Fed.
R. Civ. P. 4(c)(l).
Under Rule 4(e)(2)(A) and (B), an individual may be served by "delivering a copy
of the summons and of the complaint to the individual personally[]" or "leaving a copy of
each at the individual's dwelling or usual place of abode with someone of suitable age
and discretion who resides there[.]" Rule 4(h) allows for service on a corporation "in the
manner prescribed by Rule 4( e)( 1) for serving an individual" or "by delivering a copy of
the summons and of the complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive service of process and ... by
also mailing a copy of each to the defendant[.]" Fed. R. Civ. P. 4(h)(l)(A)-(B).
Plaintiff has not demonstrated valid service on any Defendant. Service of process
on an individual by registered or certified mail is not authorized by Rule 4( e)(2). See
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Green v. Jacobsen, 2004 WL 487323, at* 1 (S.D.N.Y. Mar. 12, 2004) ("[S]ending a
summons and complaint to a party's work address via certified mail does not satisfy
[Rule] 4(e)."); see also Thorpe v. Dumas, 788 F. App'x 644,648 (11th Cir. 2019)
("Service by certified mail generally does not constitute 'delivery' under subsections of
Rule 4."). Plaintiff has not established that either Mr. Rieben or Ms. Cui are officers of,
managing or general agents of, or authorized by appointment or by law to receive service
of process on behalf of Defendant Philadelphia Indemnity.
B.
Whether the Court has Subject Matter Jurisdiction.
Defendants move to dismiss Plaintiffs Complaint under Fed. R. Civ. P. 12(b)(l)
contending the court lacks subject matter jurisdiction. Specifically, they argue that
Plaintiff has failed to establish the amount in controversy or identified the residence or
citizenship of any Defendant. In response to Defendants' motion, Plaintiff explains the
time spent and the work he missed as a result of his dispute with Defendants.
A case is properly dismissed for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(l) "if the court 'lacks the statutory or
constitutional power to adjudicate it[.]"' Cortlandt St. Recovery Corp. v. Hellas
Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)). If the court lacks subject matter jurisdiction
over the case, it must be dismissed. See Fed. R. Civ. P. 12(h)(3) ("If the court determines
at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.");
see also Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000)
("[S]ubject matter jurisdiction is not waivable[.]"). As a result, even if Defendants had
been properly served with process, if subject matter jurisdiction is not established, the
court may not adjudicate Plaintiffs case. See Fed. R. Civ. P. 8(a)(l) ("A pleading ...
must contain[] a short and plain statement of the grounds for the court's jurisdiction[.]").
Generally, "federal courts have subject matter jurisdiction either on the basis of
substance, where there is a federal question, or on the basis of citizenship, where the
requirements for diversity jurisdiction are satisfied." Gottlieb v. Carnival Corp.,
436 F.3d 335,337 n.3 (2d Cir. 2006). "[T]he party asserting federal jurisdiction bears the
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burden of establishing jurisdiction" exists. Blockbuster, Inc. v. Galena, 472 F.3d 53, 57
(2d Cir. 2006).
"A plaintiff properly invokes [28 U.S.C.] § 1331 [federal question] jurisdiction
when [he] pleads a colorable claim 'arising under' the Constitution or laws of the United
States." Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006). Construed liberally,
Plaintiffs Complaint does not state a claim under federal law. As a result, § 1331 does
not provide a basis for the court to exercise subject matter jurisdiction.
To raise a claim under diversity jurisdiction, 28 U.S.C. § 1332 requires that the
amount in controversy in the case exceeds $75,000, exclusive of interest and costs, and
that the matter is "between ... citizens of different States[.]" 28 U.S.C. § 1332(a)(l). In
other words, the plaintiff must be a citizen of a different state than all defendants. See
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); Pa. Pub. Sch. Emps. 'Ret. Sys. v.
Morgan Stanley & Co., 772 F.3d 111, 118 (2d Cir. 2014) (explaining complete diversity
requires that "all plaintiffs ... be citizens of states diverse from those of all defendants").
Although it appears that Plaintiff and Defendants may be diverse, Plaintiffs Complaint is
silent as to the amount of damages he seeks and as a result does not provide a basis for
the court to exercise diversity subject matter jurisdiction under § 1332. See Palm Beach
Mar. Museum, Inc. v. Hapoalim Sec. USA, Inc., 810 F. App'x 17, 20 (2d Cir. 2020)
(explaining a plaintiff may not amend his or her pleading through a brief).
In the absence subject matter jurisdiction, the court must dismiss the case.
Defendants' motion to dismiss for lack of subject matter jurisdiction under Rule 12(b )( 1)
(Doc. 9) is GRANTED. See Koeller v. Numrich Gun Parts Corp., 2023 WL 3591176,
at *2 (N.D.N.Y. May 23, 2023) ("When a defendant seeks dismissal under Rule 12(b)(l)
as well as on other grounds, the court should consider the Rule 12(b)( 1) challenge
first[.]") (internal quotation marks omitted).
C.
Leave to Amend.
The Second Circuit has cautioned that a court "should not dismiss a pro se
complaint without granting leave to amend at least once, unless amendment would be
futile." Garcia v. Superintendent of Great Meadow Corr. Facility, 841 F.3d 581,583
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(2d Cir. 2016) (per curiam) (internal quotation marks omitted). "Amendment is futile
where the problems with the complaint's claims are substantive and not the result of
inartful pleading." Biswas v. Rouen, 808 F. App'x 53, 55 (2d Cir. 2020) (internal
quotation marks and alterations omitted).
In light of Plaintiffs self-represented status and the Second Circuit's guidance, the
court will grant Plaintiff leave to amend his Complaint. Plaintiff is advised that a
proposed Amended Complaint, if filed, will supersede and completely replace the
original Complaint. See Hancockv. Cnty. ofRensselaer, 882 F.3d 58, 63 (2d Cir. 2018)
(noting "it is well settled that an amended pleading ordinarily supersedes the original and
renders it of no legal effect") (brackets and internal quotation marks omitted). An
Amended Complaint must set forth a legal and factual basis for this court's subject matter
jurisdiction, including the amount in controversy, include Plaintiffs factual allegations in
their entirety, and set forth the claims he alleges against each defendant and all the relief
he seeks. It must comply with the Federal Rules of Civil Procedure, including setting
forth a short and plain statement of the grounds for the court's subject matter jurisdiction
as well as a short and plain statement of each claim as required by Rule 8, in
consecutively numbered paragraphs as required by Rule 10, and Plaintiffs original
signature as required by Rule 11.
For further reference, Plaintiff may consult a sample Complaint, available on the
court's website at www.vtd.uscourts.gov/filing-without-attorney-1. Should Plaintiff avail
himself of the opportunity to file an Amended Complaint, he must also have a summons
served on or a waiver sent to, together with a copy of the Amended Complaint, each
Defendant in accordance with Federal Rule of Civil Procedure 4 so that the court may
exercise personal jurisdiction.
CONCLUSION
For the reasons stated above, Defendants' motion to dismiss (Doc. 9) is
GRANTED because the court lacks subject matter jurisdiction. Plaintiff may file an
Amended Complaint on or before March 29, 2024. Failure to file an Amended
Complaint by this deadline shall result in dismissal of the case.
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Should Plaintiff timely file an Amended Complaint, waivers of service and/or
proof of service of process by server's affidavit must be filed no later than May 3, 2024.
Failure to file a waiver or proof of service will result in dismissal of the claims
against any Defendant who has not waived service of a summons or received proper
service of process.
SO ORDERED.
~//
Dated at Burlington, in the District of Vermont, this
_l_ day of March, 2024.
Christina Reiss, District Judge
United States District Court
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