United States District Court, D. Minnesota
Albert Sr., pro se.
Michael C. Lindberg & Peter M. Lindberg, Cousineau Van
Bergen McNee & Malone, P.A., for Defendant.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
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.
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
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). (Id.)
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.)
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].)
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.
Standard of Review
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 Ideas.com, Inc., 455 F.Supp.2d 942, 947-48 (D.
GEICO's Motion to Dismiss for Lack of Subject Matter
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.
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).
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).