Valoe v. Allstate Insurance Company et al

Filing 10

ORDER signed by Chief Judge Pamela Pepper on 11/14/2023. 2 9 Plaintiff's motions for leave to proceed without prepaying filing fee GRANTED. By end of day 1/12/2024, plaintiff to file amended complaint; failure to file by deadline will result in dismissal for failure to state claim. (cc: all counsel and mailed to Danielle Valoe-with blank amended complaint form)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DANIELLE M. VALOE,
Plaintiff,
Case No. 22-cv-182-pp
v.
ALLSTATE INSURANCE COMPANY,
JOHNATHAN PAUL, KRISTINA MALLEK
and THOMAS WILSON,
Defendants.

ORDER GRANTING PLAINTIFF’S MOTIONS TO PROCEED WITHOUT
PREPAYING FILING FEE (DKT. NOS. 2, 9), SCREENING COMPLAINT AND
REQUIRING PLAINTIFF TO FILE AN AMENDED COMPLAINT

On February 14, 2022, the plaintiff—who is representing herself—filed a
complaint, alleging that Allstate Insurance Company did not act in good faith
in resolving an insurance claim that involved a third-party lienholder. Dkt. No.
1.1 The same day, the plaintiff filed a motion for leave to proceed without
prepaying the filing fee. Dkt. No. 2. A little over two weeks later, on March 3,
2022, the court received a letter from the plaintiff. Dkt. No. 5. The letter stated
in pertinent part:
On February 22nd I made an attempt to come to gain the clerk of
courts signatures for the summons for the Plaintiffs2 involved and
The plaintiff has advised the court that the nature of her lawsuit is “contract
. . . insurance.” Dkt. No. 4.
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The court suspects that the plaintiff meant to use the word “defendants” here
and in the rest of the letter—the plaintiff is the party who files the lawsuit, and
the defendants are the parties that the plaintiff sues.
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to update the civil docket sheet. Valoe was reading the enclosed pro
se instructions given by the courts in order to properly serve the
plaintiff a copy of the complaint. I was informed at that time by the
clerk that I had to have a hearing to decide my indigence and
inability to pay and that updating the civil docket sheet was
unnecessary for individuals filing pro-se. Once an indigent hearing
is commenced I would either have to pay the courts to file and come
back for the signatures and serve the summons on my own or that
if found indigent the courts would assist the plaintiff in the above
case served.
Id. The plaintiff then asked the court to update the address for defendant
Allstate, “so that if the courts do find me indigent they will have the correct
address on file for the plaintiff.” Id.
On July 19, 2022, the court received a change-of-address letter from the
plaintiff, updating her address to a post office box in Milwaukee. Dkt. No. 6. On
the same day, the court received from the plaintiff a letter which appears to
state that she tried to serve “all 3 defendants” with a “request for a waiver
notification form,” but that Allstate was refusing to answer or reply; she asked
the court for help serving “all 3 defendants.” Id. at 1.
On December 19, 2022, the court received a letter from the plaintiff,
advising the court that her income had changed. Dkt. No. 8. She noted that
she had not yet received an “indigent hearing” and reiterated that she needed
help getting Allstate properly served. Id. The plaintiff attached to this letter a
notice from Wisconsin’s W-2 program, notifying her that she would receive a
payment of $60 on December 10, 2022, a payment of $304 on January 1, 2023
and a payment of $608 on January 30, 2023. Dkt. No. 8-1 at 1.

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Finally, on October 23, 2023—presumably because the court had not yet
ruled on her first motion to proceed without prepaying the filing fee—the
plaintiff filed a second motion seeking the same relief. Dkt. No. 9.
To allow a plaintiff to proceed without prepaying the civil case filing fee,
the court first must decide whether the plaintiff can pay the fee; if not, it must
screen the complaint to determine whether the lawsuit is frivolous, malicious
or fails to state a claim upon which relief can be granted. 28 U.S.C. §§1915(a)
and 1915(e)(2)(B)(i).
I.

Motions to Proceed Without Prepaying the Filing Fee (Dkt. Nos. 2, 9)
A.

Legal Standard

An indigent federal plaintiff “may commence a civil action without
prepaying fees or paying certain expenses.” Coleman v. Tollefson, 575 U.S. 532,
534 (2015). To qualify to proceed without prepaying the filing fee, a plaintiff
must fully disclose her financial condition, and must do so truthfully under
penalty of perjury. See 28 U.S.C. §1915(a)(1) (requiring the person seeking to
proceed without prepayment to submit “an affidavit that includes a statement
of all assets [they] possess[]”). As the Seventh Circuit Court of Appeals has
explained, “[p]roceeding [without prepaying the filing fee] is a privilege, and
courts depend on the plaintiff’s honesty in assessing her ability to pay.” Lofton
v. SP Plus Corp., 578 F. App’x 603, 604 (7th Cir. 2014); see also Chung v.
Dushane, No. 03 C 5955, 2003 WL 22902561, at *2 (N.D. Ill. Dec. 9, 2003)
(“The opportunity to proceed [without prepaying the filing fee] is a privilege
provided for the benefit of indigent persons and the court system depends upon
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the honesty and forthrightness of applicants to ensure that the privilege is not
abused.”).
B.

The Plaintiffs’ Financial Status

The plaintiff’s first motion to proceed without prepaying the filing fee,
which the court received on February 14, 2022, listed $1,679 as her monthly
income. Dkt. No. 2 at 1. The plaintiff reported that this income came from longterm disability. Id. The plaintiff stated that she had $38.97 in cash or in a
checking/savings account. Id. at 2. She listed approximately $2,379 in
monthly expenses, which included her rent, utilities, insurance and car
payments. Id.
The plaintiff’s second motion to proceed without prepaying the filing fee,
which the court received on October 23, 2023, listed only $608 as her monthly
income. Dkt. No. 9 at 1. This matches the amount of the W-2 payment reflected
in Dkt. No. 8-1. The plaintiff represented that this income came from
government assistance and that she also receives $1,115 per month in
Foodshare benefits. Id. The plaintiff stated that she had $3.13 in cash or in a
checking/savings account. Id. at 2. Under expenses, the plaintiff wrote, “$1375
rent but we have been evicted since October,” “Geico Ins but this is now lapsed
$415” and “car note $3850 back pay due/$450 monthly but up for repo.” Id.
C.

Analysis

The court regrets that it took far too long in analyzing the plaintiff’s
motion to proceed without prepaying the filing fee. The plaintiff has been
waiting a long time for the court to make a decision, and for the court to
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provide her with the help she has requested in serving the summons and
complaint. The court apologizes to the plaintiff for this unwarranted delay.
There is no requirement that the court hold a hearing to determine
whether the plaintiff is indigent. The court can make that determination from
looking at the documents the plaintiff has filed. Even if the court had ruled on
the plaintiff’s first motion promptly, it would have concluded that she did not
have the ability to pre-pay the $402 civil filing fee. Certainly now that her
circumstances have changed, the plaintiff does not have the ability to pay that
fee. The court will grant the plaintiff’s motions to proceed without prepaying
the filing fee. Dkt. Nos. 2, 9.
The court advises the plaintiff, however that she is still responsible for
paying the filing fee over time. Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir.
1997); see also Rosas v. Roman Catholic Archdiocese of Chi., 748 F. App’x 64,
65 (7th Cir. 2019) (“Under 28 U.S.C. § 1915(a), a district court may allow a
litigant to proceed ‘without prepayment of fees,’ but not without ever paying
fees.”) (emphasis in original). When a court grants a motion allowing a plaintiff
to proceed without prepaying the filing fee, it means only that the person does
not have to pre-pay the full filing fee up front; the plaintiff still owes the filing
fee.
II.

Screening the Complaint
A.

Legal Standard

Whenever a plaintiff asks the court to allow her to proceed without
prepaying the filing fee, the court must “screen” the complaint, and dismiss it if
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it is frivolous or malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §1915(e)(2). For a complaint to state a claim under the federal
notice pleading system, it must contain a “short and plain statement of the
claim” showing that the plaintiff is entitled to relief. Fed. R. Civ. P. 8(2)(a). A
plaintiff does not need to plead every fact supporting his claims; he needs only
to give the defendant fair notice of the claim and the grounds on which it rests.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). At the same time, the allegations “must be enough to
raise a right to relief above the speculative level.” Id. A document filed by a
person who is representing [herself] must be “liberally construed,” and a
complaint filed by someone representing herself, “‘however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
B.

The Plaintiff’s Allegations

The plaintiff alleges that the court has diversity jurisdiction under 28
U.S.C. §1332. Dkt. No. 1 at 1.
1.

The Defendant(s)

The complaint sends conflicting messages about whom the plaintiff
wishes to sue. On the first page of the form complaint, an instruction is preprinted in the caption section: “Write the full name of each defendant who is
being sued. If the names of all the defendants cannot fit in the space above,
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please write ‘see attached’ in the space and attach an additional page with the
full list of names.” Dkt. No. 1 at 1. In the space above that instruction, the
plaintiff identified one defendant: “All State Insurance Company.” Id. She did
not write “see attached.” It appears from the caption, therefore, that the
plaintiff is suing Allstate Insurance Company.
In Section I(B) of the form complaint, however, where the plaintiff was
asked to provide identifying information for each defendant, the plaintiff listed
three defendants. Id. at 2. She identified these defendants as “Allstate
Insurance Company (Johnathan Paul),” “Allstate Insurance Company (Kristina
Mallek)” and “Allstate Insurance Company (Thomas Wilson).” Id. She describes
Johnathan Paul as an insurance adjustor and provides an address in
Northbrook, Illinois. Id. She describes Kristina Mallek as a chief insurance
adjustor, and provides and address in Dallas, Texas. Id. She identifies Thomas
Wilson as “CEO” and provides an address in Wilmington, Delaware. Id. One
can infer from this section that the plaintiff wishes to sue three individual
employees of Allstate—Paul, Mallek and Wilson.
In Section II(B)(2), “Basis for Jurisdiction,” the form stated that if the
defendant is a corporation, the plaintiff must provide the state under whose
laws the corporation is incorporated and the state where its principal place of
business is located. Id. at 3. The plaintiff identified the defendant as “Allstate
Insurance Company,” stated that it was incorporated under the laws of the
state of Illinois and that it had its principal place of business in Illinois, but
also indicated (in the field for identifying the country of incorporation for
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corporations that are residents of foreign countries) that Allstate’s principal
place of business is “Wisconsin.” Id. Again, it appears from this section as if the
plaintiff seeks to sue Allstate Insurance Company.
Finally, in Section III, the “Statement of Claim” section of the complaint,
the plaintiff wrote that she had an oral contract with “Allstate Insurance
Company” dated March 5, 2021. Id. at 4. She began her statement of claim on
page 4 of the complaint, then continued it on page 6, where she typed the
name “JOHNATHON PAUL” in capital letters before alleging a series of facts. Id.
at 4, 6.
2.

The Factual Allegations

The plaintiff provides the background facts that led to her claims in the
section of the complaint asking for the relief she is requesting. She explains
that on February 17, 2021, she and other passengers were involved in a motor
vehicle accident. Id. at 4. The plaintiff alleges that she “suffered greatly with
excruciating pain causing her blood pressure to get out of control causing her
to want to die due to the pain.” Id. The plaintiff asserts that she had take off
work for more than six weeks because of the accident. Id. She explains that she
was “top 5 for sales every month with her company,” but that since the
accident she lost commission income and “fell closer to the bottom when she
returned back to work.” Id. The various post-accident medications prescribed
to the plaintiff caused, among other symptoms, loss in bone density and liver
damage. Id. The plaintiff experienced pain for over six straight months
following the accident and was still experiencing symptoms at the time of filing
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her complaint. Id. The plaintiff describes in detail the treatment she had to
relieve the pain and the impact the treatment has had on her. Id. She explains
that she had plans to move in 2021, but that she couldn’t because of the drop
in income due to the accident; she says during that time, “she was served with
a 5 day eviction notice and almost became homeless due to not being able to
work.” Id. She also asserts that her family “expirenced [sic] significant trauma
on her block,” which would not have occurred if they had been able to move in
2021. Id.
Although the plaintiff explains that the accident occurred on February
17, 2021, she does not state when she filed her insurance claim. She mentions
a “prior claim #0554750281,” but does not explain if that claim related to the
February 17, 2021 auto accident. Id. at 7. She says that someone named Jason
Dain was the “previous adjuster” for claim #0554750281, and that Dain told
her that she “could not get the check sent out to her for negotiations” and that
“they could get sued if the lien was not paid in full.” Id. plaintiff alleged that on
March 5, 2021, she spoke with Johnathan Paul “to settler [sic] her claim
#0578600421.” Id. at 6.
The plaintiff alleges that on February 25, 2021—eight days after the auto
accident—she “made a complaint about how Mr. Paul was handling her claim.”
Id. She asserts that Paul was “vacillating on getting” her claim resolved; she felt
like Paul “was acting in bad faith towards her claim.” Id. The plaintiff says that
Kristina Mallek “assured that he [presumably Johnathan Paul] would receive a

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complaint against him on his permanent record and that Ms. Valoe’s claim
would be handled better going forward.” Id.
The plaintiff recounts that on March 5, 2021, the plaintiff spoke with
Paul” to settler [sic] her claim #0578600421.” Id. at 4. This claim number is
different from the claim number the plaintiff mentioned in relation to Jason
Dain; she does not explain whether this claim related to the February 17, 2021
auto accident. The plaintiff says that she “accepted the policy limit with the
understanding that she was in control of negotiating with the 3rd party
lienholder Benefit Recovery Group to give them a lower amount.” Id. The
plaintiff asserts that “[a]fter various questions from Ms. Valoe on March 5th,
2021,” Paul stated “that the check was for Ms. Valoe to negotiate a smaller
amount to give to the lienholder.” Id. The plaintiff says that Paul told her that
she could negotiate with the third-party lienholder “and they would send out a
new check to both parties.” Id. It appears that during the March 5, 2021 call
between the plaintiff and Paul, the plaintiff asked for a lawyer; she says that
“Mr. Paul assured after Ms. Valoe requested a lawyer during the call March
5th, 2021 to finish settling the case that Ms. Valoe would be in control of
negotiation and would send out different checks to both parties once the
negotiation was over.” Id. at 7. She asserts that Paul “informed her that no
lawyer was needed and that she was getting the entire amount of the check
sent out to her to negotiate.” Id. at 6. The plaintiff asserts that that Paul
“stressed that Ms. Valoe would have the check in her hand;” she says that
because she had had a prior claim with adjuster Jason Dain and he had
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informed her that “they could not send out the check directly for her to
negotiate,” she felt “safe by accepting the check knowing it was hers to
negotiate.” Id. at 7.
The plaintiff alleges that on March 15, 2021, “Mr. Paul gave information
to a 3rd party unaffiliated about Ms. Valoe’s claim # 0578600421 without Ms.
Valoe’s permission when they called asking about her claim.” Id. at 6. She
explains that she was surprised by this because she assumed that her claim
was private and was protected “under the consumer protection laws.” Id. The
plaintiff says that Paul “offered no good enough reason as to why he would give
out information to the unaffiliated 3rd party on March 15th, 2021.” Id.
The plaintiff says that on March 31, 2021, Darius Moore, “the lienholder
for Benefit Recovery Group,” told her that “they were willing to accept a lower
payment.” Id. at 6. She asserts that a fax was sent to the fax number provided
by Darius Moore—she does not say by whom—“from the lien request” and that
an email was sent to Darius Moore “as it was provided during the phone
conversation between Mr. Moore and Ms. Valoe on March 31st, 2021 for the
negotiation for a lower payment.” Id. She says that she mailed a copy of “the
letter of negotiation and payment certified mail on April 19th, 2021,” and says
that a copy of the payment and the letter of negotiation for Benefit Recovery
Group “was sent out certified directly to Mr. Paul.” Id.
The plaintiff next asserts that on April 12, 20211, Kristin Mallek “wrote a
letter confirming that it was Valoe’s right to negotiate and it was up to her to
resolve the line with the 3rd party lienholder Benefit Recovery Group and that
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policy limits were sent out settling the case on March 5th, 2021 when the
check was presented for policy limits.” Id. at 7. The plaintiff reiterates that on
April 19th, 2021, she sent a payment to the third-party lienholder “via certified
mail confirming Ms. Mallek’s letter saying that it was up to Ms. Valoe to work
with the lienholder to settle their lien.” Id.
The plaintiff asserts, however, that on April 28, 2021, Paul “confirmed in
an email to Ms. Valoe that he was taking the right to negotiate from Ms. Valoe
and was paying the entire lien against her as it was LAW.” Id. at 6. She
explains that “Mr. Paul stated it was the law via email to Ms. Valoe on April
28th, 2021 as to why he was taking Ms. Valoe’s right to negotiate and that by
law they have to pay the entire amount to the lienholder.” Id. at 7.
The plaintiff asserts that on June 3, 2021, Kristina Mallek emailed the
plaintiff “stating what the amount was going to be sent out to her after Mr.
Paul took Ms. Valoe’s right to negotiate.” Id. It appears that on June 3, Mallek
“confirm[ed] a smaller check be mailed out to her via Ms. Valoe’s email.” Id.
The plaintiff says that on June 9, 2021, she contacted Kristina Mallek via
email “asking where her check was since they voided out the original payment
in order to pay the full amount to the lienholder.” Id. at 6. She says that
“Allstate sent Ms. Valoe the portion of the check that was forced on her taking
her right to negotiate by paying the lienholder in full.” Id. She explains that
“Allstate has been paying Ms. Valoe a small amount of $26.62 every other week
instead of sending the entire amount owed to her in full since that filing.” Id.

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The plaintiff alleges that on October 28, 2021, Paul “emailed Ms. Valoe
from a demand letter she sent to Allstate to stop sending out the small $26.52
[sic] checks and send out the entire amount leftover from small payments that
have been sent out from Allstate since June of 2021.” Id. The plaintiff says that
Paul told her that her case had been closed since June 9, 2021, that the case
had been settled and that “no more funds will be sent.” Id.
The first sentence of section III, “Statement of Claim,” alleges that “[t]he
plaintiff, (name) Danielle Marie Valoe, and the defendant, (name) Allstate
Insurance Company, made an agreement or contract on (date) March 5th 2021.
The agreement or contract was (oral or written) Oral.” Dkt. No. 1 at 4. But in
the area provided for the plaintiff to describe what the parties were required to
do under that contract, the plaintiff appears to state that her oral agreement
was with Johnathan Paul:
On March 5th 2021 Ms. Valoe spoke with Mr. Paul to settler [sic] her
claim for policy limit. Mr. Paul stated the check was for Ms. Valoe to
negotiate with the 3rd party lein [sic] holder. Mr. Paul told Ms. Valoe
that she could negotiate with the 3rd party lein [sic] holder and they
would send out a new check to both parties. On April 28th 2021
Allstate voided the check for policy limits and stated to Ms. Valoe
that they would be paying the full amount of the lein [sic] as ordered
by law. This happened after Ms. Valoe already negotiated with the
leinholder [sic] and sent them the negotiated payment. This was an
oral agreement between herself and Mr. Paul from March 5th, 2021
settling[.]
Id.
In the section of the complaint provided for the plaintiff to describe how
the defendant failed to comply with the contractual agreement, the plaintiff
mentioned both Kristina Mallek and Johnathan Paul:
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On April 12th 2021 Kristina Mallek wrote a letter on behalf of Ms.
Valoe saying that Allstate settled the claim for policy limits on March
5th 2021 and it was up to Ms. Valoe to satisy [sic] the lein [sic]. Ms.
Valoe asserts that she was already in contact with the 3rd party
leinholder [sic] who stated they would be willing to accept a lower
amount via telephone conversation. Ms. Valoe sent out the payment
to settle the lein [sic] before Allstate breached that oral agreement
and voided the payment. Ms. Valoe is entitled to compensation for
her wage losses as well as pain and suffering. Mr. Paul ordered that
check be voided and sent out a full payment to the 3rd party
leinholder [sic]. The plaintiff has complied with the plaintiff’s
obligations under the contract.
Id.
In the statement of claim, the plaintiff says that “Ms. Mallek played dirty
in this game as she wrote a letter on April 12th, 2021 giving Valoe the right to
negotiate then on June 3rd, 2021 confirming a smaller check be mailed out to
her via Ms. Valoe’s email.” Id. at 7. As for Thomas Wilson, the plaintiff asserts
that he “taught” these “tactics” to Allstate adjusters” to “take away civil rights
of the company paying consumers to negotiate their own liens.” Id. at 6-7. She
asks the “higher courts to hold the CEO of Allstate Thomas Wilson accountable
for teaching these dirty unfair tactics lying to their consumers for the better
gain.” Id. at 7.
The complaint alleges that the plaintiff has suffered several injuries as a
consequence of the above-described incidents: “[d]ue to Allstate reneging on
her right to negotiate Ms. Valoe and the circumstances leading up to it has
gotten her diagnosed with PTSD.” Id. at 4. The plaintiff says she has been
“unable to work and has been considered disabled” and that she’s been off
work since April 2021, and that she “feared jail time for negotiating her own
claim due to Mr. Paul’s revenge.” Id. She says that Allstate “did this to her
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mental health has made her disabled and now is unable to work,” that she has
lost “a lot,” has been humiliated, that her income decreased and she has
“found her foundation falling apart.” Id. at 7. She asserts that she was “trapped
in this cycle where one adjuster in two different cases told her something
conflicting.” Id. She seeks $300 million in damages, and asks the court to
“have Allstate send the entire full amount instead of the $26.62 biweekly
payments.” Id.
C.

Analysis

Under Wisconsin law, a plaintiff seeking to state a claim for breach of
contract must assert facts showing three elements: “(1) the existence of a
contract; (2) a breach of the contract; and (3) damages from the breach.” Gallo
v. Mayo Clinic Health System-Franciscan Med. Ctr., Inc., 907 F.3d 961, 965
(7th Cir. 2018). “A valid contract requires an offer and acceptance, meeting of
the minds between the parties with respect to the essential terms of the
agreement and an intention by the parties to be bound by the agreement, and
payment of consideration.” Joe Panos, Inc. v. Panagiotopoulus, Case No. 22CV-656, 2022 WL 20690783, at *4 (E.D. Wis. Dec. 21, 2022) (citations
omitted). The same is true for an enforceable oral contract—“there must be an
offer, an acceptance, and consideration to support the formation of a legally
enforceable agreement.” Id. (citing Taylor v. Gordon Flesch Co., 793 F.2d 858,
862 (7th Cir. 1986)).
The plaintiff alleges that she had an oral contract to allow her to perform
her own negotiations with the third-party lienholder. But she has not alleged
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the requirements for an oral contract—an offer, acceptance, a meeting of the
minds or consideration. Rather, she alleges that Johnathan Paul made a
representation to her that he later (apparently with the help of Kristina
Malleck) went back on, or retracted. The plaintiff has not alleged sufficient facts
to support a claim that she had an oral contract with Paul, Mallek or Allstate.
And the plaintiff has alleged no facts regarding a contractual relationship with
CEO Thomas Wilson. She makes only the unsupported, conclusory allegation
that Wilson teaches Allstate adjusters to use improper tactics. Although courts
accept the well-pleaded facts of a complaint as true, “legal conclusions and
conclusory allegations merely reciting the elements of the claim are not entitled
to this presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616
(7th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)).
The plaintiff’s claims sound more like claims of fraud than they do claims
of breach of contract. Fraud claims are difficult to allege in federal court; they
are subject to the heightened pleading standard of Federal Rule of Civil
Procedure 9(b), which requires a plaintiff to “describe the ‘who, what, when,
where, and how’ of the fraud.” Pullins v. Reuters News & Media, Inc., No. 221711, 2023 WL 1514414, at *1 (7th Cir. Feb. 3, 2023). The plaintiff has
provided a lot of detail in her complaint; perhaps she will be able to state a
claim for fraud against one or more of the four people or entities she has
named in the complaint—Allstate, Paul, Mallek and Wilson. The court will give
the plaintiff the opportunity to amend her complaint to try to do so.

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III.

Miscellaneous
If the plaintiff decides to try to amend her complaint, there are several

things she should keep in mind. First, an amended complaint takes the place
of, or “supersedes,” the original complaint. Flanner v. Recording Indus. Ass’n of
Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). That means that the plaintiff must
include in the amended complaint all of the facts supporting her claims; she
cannot simply tell the court to go back and look at what she alleged in her
original complaint.
Second, the plaintiff should clearly identify the corporations or people
whom she believes defrauded her. She must list each corporation or person she
wishes to sue in the caption of the amended complaint (at the top of the first
page). Simply discussing a corporation or person in the statement of claim does
not suffice to identify a defendant.
Third, if the plaintiff files an amended complaint by the deadline the
court sets below, the court will “screen” it. The plaintiff is not required to do
anything until the court has screened the complaint and decided whether it
states any claims, and against which defendants. The plaintiff need not—in
fact, must not—try to serve the defendants herself. She must wait until the
court has issued a “screening order” identifying which claims may proceed and
against which defendants.
Fourth, because the court has granted the plaintiff’s motion to proceed
without prepaying the filing fee, the plaintiff is not required to serve any
defendants against whom the court allows her to proceed. She will not need to
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obtain summonses or figure out how to serve defendants. The court will
arrange for service on any defendants against whom the court allows the
plaintiff to proceed.
Finally, if the plaintiff needs more time to amend her complaint, she
must file a motion with the court before the amendment deadline expires,
asking for an extension of time. If the court does not receive either an amended
complaint or a motion for an extension of time by the deadline the court sets
below, the court will dismiss the original complaint—and the case—for failure
to state a claim upon which relief may be granted.
The court is sending with this order a blank amended complaint form.
The plaintiff must use this form in preparing her amended complaint. She
must put the case number for this case—Case No. 22-cv-182—in the space
provided for a case number. The plaintiff should use the spaces on pages 3 and
4 to recite the facts of her claims; if that is not enough space, she may use up
to three additional, double-spaced pages. Again, the amended complaint must
be complete in itself. It may not refer the court back to allegations in the
original complaint.
IV.

Conclusion
The court GRANTS the plaintiff’s motions for leave to proceed without

prepaying the filing fee. Dkt. Nos. 2, 9.
The court ORDERS that if the plaintiff wishes to proceed with this case,
she must file an amended complaint that complies with the instructions in this
order no later than the end of the day on January 12, 2024. The plaintiff must
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file the amended complaint in time for the court to receive it by the end of the
day on January 12, 2024. If the court does not receive an amended complaint,
or a motion asking for additional time to file one, by the end of the day on
January 12, 2024, the court will dismiss this case for failure to state a claim
upon which this federal court can grant relief.
Dated in Milwaukee, Wisconsin this 14th day of November, 2023.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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