Bond v. State Farm Ins. Co.

PAMELA BOND, Plaintiff v. STATE FARM INSURANCE COMPANY, Defendants

Case No. 1:18-cv-00176 (Erie)

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

April 4, 2019

RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS

[ECF No. 21]

I. Introduction

Defendant State Farm Insurance Company (State Farm) has filed a Motion to Dismiss Plaintiff's Amended Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and, alternatively, for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 19, ECF No. 20. If the Court declines to dismiss the Amended Complaint, State Farm moves to strike several exhibits to Bond's Amended Complaint pursuant to Fed. R. Civ. P. 12(f). Id. For the reasons set for below, the Court will deny State Farm's Motion to Dismiss the Amended Complaint pursuant to Rule 12(b)(1), grant in part and deny in part its Motion to Dismiss pursuant to Rule 12(b)(6), and grant its Motion to Strike.¹

II. Procedural History

Plaintiff Pamela Bond, acting pro se, commenced this action against State Farm on June, 12, 2018, by filing a motion for leave to proceed in forma pauperis. ECF No. 1. MagistrateJudge Robert C. Mitchell granted Plaintiff's motion on June 18, 2018 [ECF No. 2], and her Complaint was docketed on that same date. ECF No. 3. Upon reviewing Bond's Complaint, Judge Mitchell noted that it failed to state a basis for federal subject matter jurisdiction, and on June 18, 2018, he entered an order [ECF No. 4] directing Bond to file an Amended Complaint by July 9, 2018 to correct this jurisdictional deficiency. On July 23, 2018, after Bond failed to file an Amended Complaint as ordered, Judge Mitchell filed a Report and Recommendation recommending that the Court dismiss this action based upon lack of subject matter jurisdiction. ECF No. 6. On August 2, 2018, Bond filed objections [ECF No. 7] to the Report and Recommendation in which she alleged that the she transmitted an Amended Complaint for filing via certified mail. She attached a certified mail receipt indicating that a package had been received by the Court on July 5, 2018. Based upon Bond's objections, Judge Mitchell entered an order vacating the Report and Recommendation on August 9, 2018. ECF No. 8. Bond's Amended Complaint [ECF No. 10] was ultimately filed on August 29, 2018, and is the operative Complaint in this litigation. Thereafter, State Farm waived service of the summons and, on November 5, 2018, it filed the instant motion. ECF Nos. 19, 20.

III. Allegations of the Amended Complaint

Construed generously, Bond's Amended Complaint alleges that State Farm has breached a homeowner's insurance policy by failing to pay a property damage claim. ECF No. 3 ¶1. According to the Amended Complaint, Bond purchased a home located at 316 Dawson Street in Kane, Pennsylvania in July² for $41,000.00. An exhibit to her Amended Complaint indicates that the property was insured by State Farm under a homeowner's insurance policy designated as policy no. 38-EB-W853-3 (the "Policy"). ECF No. 3-1. The loss or losses for which Bond soughtinsurance coverage are confusing, to say the least. The Amended Complaint alleges that "over a period of several months," unknown "vandal(s)" or "assailants" destroyed "[f]ifteen walls of varying sizes" within the property and that each time Bond "left her home, it was clear upon her return that things had been stolen, destroyed, and moved about." ECF No. 3 ¶2. Apparently referring to the handiwork of the perpetrators of the vandalism, Bond alleges that "[n]one of the changes made to the property were requested, purchased, or contractually agreed to by the owner and Plaintiff," and that "[s]everal lock smiths (sic) have been retained to try and keep out encroachers, but none of these efforts were successful." ECF No. 3, ¶¶ 3, 4. The Amended Complaint also includes allegations that the unknown vandals have made extensive physical changes to the property:

5. The bathtub has been changed twice. Two doors have been removed altogether, four doors have been changed. Old molding has been nailed into the knotty pine estimated to have been worth $164,000.00 in the State Farm Insurance binder. A beetle infestation has resulted. It is also believed that much of the good wood was removed because the boards left behind are not long enough to result in the finished look of uninterrupted Pennsylvania planks of highly polished undamaged wood.

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7 The period appropriate molding was all removed and replaced with trash lumber. Estimated cost of replacing the molding runs into the thousands of dollars.

8 When the cheap wood was removed it was noted that excessive damages along with newly placed wires were being hidden by the new "molding". New flowers and shrubs were doused with wine. Floors became scratched and actual holes appeared in the floor boards. Some of the holes in the upstairs bedroom walls are two and three inches wide.

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10. It is very sad to think that hatred, racism, sexual harassment, and lack of respect for personal property has sunk to this level of contemptuous practices. Photographs are herewith included to attempt to depict the actual situation (Exhibits B,C,D,E,F).

11. Exterminators do not ordinarily expect beetles to accomplish so much damage to wood and so very quickly. The vandal who leaves his name as genius on the computers ad phones he or she left hacked understood how to manipulate natural forces and engage in biological warfare (Exhibit G).

ECF No. 3 ¶¶5, 7-8, 10-11.

Plaintiff filed her Amended Complaint using the Pro Se Complaint form (Rev 12/16) Complaint for a Civil Case. Under Section II of the form, which directs a plaintiff to designate all bases upon which she is asserting federal court jurisdiction, Bond checked "diversity of citizenship" only. She did not check the box asserting "federal question" jurisdiction. However, under subsection 11(A) of the form, which directs that filers claiming federal question jurisdiction designate the federal statutes or other federal laws that are at issue in the case, she listed the following:

• The McCarran-Ferguson Act, 15 U.S.C. §1011

• The Sherman Act

• The Clayton Act

• Federal Trade Commission Act

Bond's Amended Complaint also indicated that she is seeking to invoke diversity of citizenship as a basis for federal court jurisdiction. The Amended Complaint reports that Plaintiff is a citizen of the Commonwealth of Pennsylvania and that State Farm isincorporated under the laws of the State of Illinois, and has its principal place of business in the State of Illinois. ECF No. 9.

State Farm's motion seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(1) based upon lack of subject matter jurisdiction, and pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. In the alternative, State Farm requests that several exhibits to Bond's Amended Complaint be stricken pursuant to Fed. R. Civ. P. 12(f) because they are immaterial, impertinent, and scandalous.

IV. Standard of Review

A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)

When the Court considers a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), it must first determine whether the defendant is making a facial or factual jurisdictional challenge. Zhuo Zhang v. Chertoff, No. 06CV1140, 2006 WL 3254531, at *1 (W.D. Pa. Nov. 9, 2006). "In a facial jurisdictional attack, where the defendant asserts that the allegations of the complaint are insufficient to establish jurisdiction, the Court must consider the allegations of the complaint as true and draw all reasonable inferences in favor of the non-moving party." Id. (citing Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977)). Because Bond proceeds pro se, her pleading is liberally construed and her complaint, "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) (citations omitted).

In a factual jurisdictional attack, where the defendant argues that the Court lacks jurisdiction based on evidence outside of the pleadings, the Court may consider that evidence and need only accept the plaintiff's uncontroverted allegations as true. Id. (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993) (internal citations omitted)). Whether thechallenge is facial or factual, the plaintiff bears the burden of establishing that jurisdiction is proper.³ Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

In the present case, State Farm presents a facial challenge to subject matter jurisdiction. It contends that Bond's Amended Complaint fails to allege the necessary prerequisites of federal question or diversity jurisdiction.

B. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S....