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Albert v. GEICO General Insurance Co.

United States District Court, D. Minnesota

March 5, 2019

Kallys Albert Sr., Plaintiff,
GEICO General Insurance Company and John Doe, Defendants.

          Kallys Albert Sr., pro se.

          Michael C. Lindberg & Peter M. Lindberg, Cousineau Van Bergen McNee & Malone, P.A., for Defendant.



         This matter comes before the Court on the objections (“Objections”) [Doc. No. 46] of Plaintiff Kallys Albert Sr. to Magistrate Judge Elizabeth Cowan Wright's Report and Recommendation (“R&R”) [Doc. No. 45] recommending that this Court grant Defendant GEICO General Insurance Company's Motion to Dismiss [Doc. No. 16] and deny Albert's Motion to Strike [Doc. No. 33]. The Court overrules Albert's objections, adopts the R&R in full, grants GEICO's Motion to Dismiss and denies Albert's Motion to Strike.

         I. Background

         A. Albert I

         On May 22, 2017, Albert filed a complaint against GEICO alleging that GEICO had improperly modified its automobile insurance coverage on his family's vehicles, failed to refund or applied over-payments, and failed to properly handle his claims. Kallys Albert Sr. v. GEICO, GEICO General Insurance Company, John Doe, No. 17-cv-1697 (DWF/BRT) (D. Minn. May 22, 2017) (“Albert I”). On October 10, 2017, Magistrate Judge Thorson issued an R&R recommending that Albert I be dismissed for lack of subject matter jurisdiction. Id. On December 5, 2017, Judge Frank adopted the R&R and dismissed Albert I without prejudice for lack of subject matter jurisdiction. Id. Albert did not appeal the dismissal.

         B. Albert II

         On January 16, 2018, Albert filed his Complaint in this action, naming GEICO and John Doe as Defendants. (See generally Compl. [Doc. No. 1].) It contains essentially identical claims to those presented in Albert I. (Id.) Albert's current Complaint contains two new claims under 42 U.S.C. § 1981 (Counts I and II), a claim for common law breach of contract and breach of the implied duty to deal with the insured in good faith (Count III), a claim for unlawful conversion of funds and declaratory judgment (Count IV), a claim for invasion of privacy by false light publicity (Count VI), and a claim for tortious interference with a contractual relationship with third parties (Count VII).[1] (Id.)

         GEICO moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim. (See generally Def's Mot. to Dismiss.) GEICO argues that this Court lacks subject matter jurisdiction because: 1) Albert has pleaded insufficient facts to establish that he has suffered damages that exceed $75, 000, and hence, there is no diversity jurisdiction; and 2) as Albert has not sufficiently pleaded his § 1981 claim, there is no federal question jurisdiction. (Def.'s Mem. in Supp. of Mot. to Dismiss [Doc. No. 18] at 16, 20.) In the alternative, GEICO asserts that Albert's Complaint should be dismissed because it fails to state a claim for which relief can be granted. (Id. at 21.)

         Albert filed a Motion to Strike GEICO's Motion to Dismiss under Federal Rule of Civil Procedure 12(f). Albert contends that GEICO improperly engaged in an ex parte consultation with Court staff, impermissibly referenced a previous report and recommendation from another case, abused the litigation process, and made misrepresentations in support of its Motion to Dismiss. (See generally Pl's Mot. to Strike; Pl's Mem. in Supp. of Mot. to Strike [Doc. No. 35].)

         On January 16, 2019, Magistrate Judge Wright recommended that the Court grant GEICO's Motion to Dismiss, deny Albert's Motion to Strike, and dismiss Albert's Complaint in its entirety without prejudice. (R&R at 29.) On February 4, 2019, Albert filed timely Objections to Magistrate Judge Wright's R&R.

         I. Discussion

         A. Standard of Review

         Upon issuance of an R&R, a party may “serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2) (emphasis added). “The objections should specify the portion of the magistrate judge's [R&R] to which objections are made and provide a basis for those objections.” Mayer v. Walvatne, No. 07-cv-1958 (JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which are not specific but merely parrot arguments already presented to and considered by the magistrate judge are not entitled to de novo review. Dunnigan v. Fed. Home Loan Mortg. Corp., No. 15-cv-2626 (SRN/JSM), 2017 WL 825200, at *3 (D. Minn. Mar. 2, 2017) (citing Mashak v. Minnesota, No. 11-cv-473 (JRT/JSM), 2012 WL 928251, at *2 (D. Minn. Mar. 19, 2012)). Furthermore, when presenting arguments to a magistrate judge, parties must put forth “not only their ‘best shot' but all of their shots.” Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067 (8th Cir. 2012) (quotations and citations omitted). Thus, a party cannot, in his objections to an R&R, raise arguments that were not clearly presented to the magistrate judge. Hammann v. 1-800, Inc., 455 F.Supp.2d 942, 947-48 (D. Minn. 2006).

         B. GEICO's Motion to Dismiss for Lack of Subject Matter Jurisdiction

         1. Legal Standard

         Subject matter jurisdiction “is a threshold requirement which must be assured in every federal case.” Turner v. Armontrout, 922 F.2d 492, 493 (8th Cir. 1991). A court may consider matters outside the pleadings when it considers a Rule 12(b)(1) motion. Satz v. ITT Fin. Corp., 619 F.2d 738, 742 (8th Cir. 1980). When deciding a Rule 12(b)(1) motion, the Court must first distinguish between a “facial attack” and a “factual attack.” Osborn v. United States, 918 F.2d 724, 729, n.6 (8th Cir. 1990). In a factual attack, as we have here, “no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Id. at 730.

         Federal district courts have subject matter jurisdiction over civil actions that involve a federal question or diversity of citizenship. See 28 U.S.C. §§ 1331-1332. Federal question jurisdiction exists when the action arises “under the Constitution, laws, or treaties of the United States.” Id. § 1331. Diversity jurisdiction exists when the case is between citizens of different states and the amount in controversy exceeds $75, 000. Id. § 1332(a).

         “[A] complaint that alleges the jurisdictional amount in good faith will suffice to confer jurisdiction, but the complaint will be dismissed if it appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.” Larkin v. Brown, 41 F.3d 387, 388 (8th Cir. 1994). “If the defendant challenges the plaintiff's allegations of the amount in controversy, then the plaintiff must establish jurisdiction by a preponderance of the evidence.” Scottsdale Ins. Co. v. Universal Crop Prot. All., LLC, 620 F.3d 926, 931 (8th Cir. 2010).

         2. ...

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