Opinion
C/A No. 3:18-2618-MGL-PJG
02-07-2019
Charlie L. Jones, Plaintiff, v. Certain Interested Underwriters at Lloyd's of London; Tapco Underwriters, Inc.; Creech, Roddey & Watson; Crawford and Company, Inc., Defendants.
ORDER AND REPORT AND RECOMMENDATION
The plaintiff, Charlie L. Jones, proceeding pro se, brings this action pursuant to 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Previously, the court recommended that Plaintiff's Complaint be summarily dismissed for lack of subject matter jurisdiction. (ECF No. 10.) However, Plaintiff filed objections (ECF No. 16) and an Amended Complaint. The assigned district judge determined the Report and Recommendation to be moot and recommitted this matter to the assigned magistrate judge. (ECF No. 20.) Having reviewed the Amended Complaint in accordance with applicable law, the court concludes the action should be summarily dismissed without prejudice and issuance and service of process.
The Amended Complaint was docketed as a motion to amend. (ECF No. 17.) However, it appears that Plaintiff may file an Amended Complaint as a matter of course pursuant to Federal Rule of Civil Procedure 15(a)(1). Thus, the Clerk of Court is directed to redocket the motion to amend as an amended complaint.
I. Factual and Procedural Background
In the original Complaint, Plaintiff alleged Lloyd's of London canceled his insurance policy on December 1, 2015, eight months prior to the renewal date for filing a claim. (Compl., ECF No. 1 at 9.) He claimed Creech, Roddey, & Watson acted to prevent him from receiving payment on an insurance claim. (Id. at 8.) He also claimed Crawford and Company denied Plaintiff's insurance claim. (Id.) As to Tapco Underwriters, Inc., Plaintiff claimed it "bears some responsibility" as an underwriter to which Plaintiff paid premiums for several years. (Id. at 9.) Plaintiff indicated he sought damages for breach of contract, bad faith, and for the "cost of repairs." (Id.)
In the Amended Complaint, Plaintiff provides none of the information about the underlying insurance dispute. Instead, he claims that he filed a lawsuit in the Sumter County Court of Common Pleas on March 3, 2016 for breach of contract and bad faith arising out of the defendants' refusal to pay Plaintiff's insurance claim. (Am. Compl., ECF No. 17 at 3.) Plaintiff alleges the defendants gave false or misleading statements to the state circuit court for three years, and changed or altered facts and evidence. (Id.) Plaintiff indicates that he filed an appeal from the state circuit court in the South Carolina Court of Appeals that was dismissed. (Id.) Plaintiff claims the defendants and state court administrators acted unlawfully and violated his right to due process under the Fourteenth Amendment, and he seeks damages. (Id. at 2.)
See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) ("As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.") (internal quotation marks omitted); 6 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2682 (3d ed. 2018).
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint. The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. This statute allows a district court to dismiss the case upon a finding that the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for "all civil actions").
B. Analysis
In the court's first Report and Recommendation, it found Plaintiff Complaint was subject to summary dismissal because Plaintiff failed to demonstrate federal jurisdiction over his claim. See In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998); see also 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."). The court found Plaintiff pled only state law claims, and therefore, no federal question jurisdiction existed under 28 U.S.C. § 1331. The court also found no diversity jurisdiction existed under 28 U.S.C. § 1332(a) because Plaintiff asserted that he is a South Carolina resident, and that Defendant Creech, Roddey, & Watson is a South Carolina firm.
After reviewing the Amended Complaint, the court again concludes that Plaintiff' fails to meet his burden of affirmatively pleading that the court has subject matter jurisdiction in this matter. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) ("[P]laintiffs must affirmatively plead the jurisdiction of the federal court."). As to federal question jurisdiction, it appears Plaintiff attempts to avoid the court's previous ruling by asserting no state law claims in the Amended Complaint, and instead, adding an allegation that the defendants violated his right to due process under the Fourteenth Amendment. Generally, claims of federal constitutional violations are sufficient to invoke federal question jurisdiction, but empty claims with no basis in law or fact are clearly insufficient. See Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012) (finding that where the alleged federal claim is "so insubstantial, implausible, foreclosed by prior decisions of [the United States Supreme Court], or otherwise completely devoid of merit as not to involve a federal controversy," subject matter jurisdiction does not exist over that claim) (citing Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998)); Burgess v. Charlottesville Sav. & Loan Ass'n, 477 F.2d 40, 43-44 (4th Cir. 1973) ("[T]he mere assertion in a pleading that the case is one involving the construction or application of the federal laws does not authorize the District Court to entertain the suit[,] nor does federal jurisdiction attach on the bare assertion that a federal right or law has been infringed or violated or that the suit takes its origin in the laws of the United States.") (internal citations and quotation marks omitted). In other words, Plaintiff cannot plead his way into federal question jurisdiction by raising a frivolous federal claim.
As in the original complaint, Plaintiff again provides a citation to one federal district court case in the Amended Complaint, but it appears to be irrelevant to the issue at hand, and Plaintiff gives no indication as to why the case is cited. (Am. Compl., ECF No. 17 at 4-5.)
Here, Plaintiff attempts to do just that. No private cause of action for damages for constitutional violations exists against private entities where there is no state action. See Albright v. Oliver, 510 U.S. 266, 271 (1994) (providing that 42 U.S.C. § 1983 provides a cause of action against state actors to vindicate federal rights); West v. Atkins, 487 U.S. 42, 48-49 (1988) ("To constitute state action, 'the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,' and 'the party charged with the deprivation must be a person who may fairly be said to be a state actor.") (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 n.18 (1982)). Plaintiff's mere assertion that the defendants acted unlawfully in a legal proceeding does not meet the standard of state action because Plaintiff identifies no state right or privilege exercised by the defendants, nor does he identify any action by the defendants that could be attributable to the state. Because Plaintiff's sole federal claim is clearly meritless, lacking any basis in law or fact, Plaintiff's Amended Complaint also fails to establish federal question jurisdiction in this matter.
Plaintiff also claims "court administrators" violated his rights, but he names no such party as a defendant in this suit.
The court notes that because the only claim raised in the Amended Complaint is patently meritless, even assuming Plaintiff could properly plead that the court has subject matter jurisdiction over this matter, the Amended Complaint would be subject to summary dismissal for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
As to diversity jurisdiction, Plaintiff's Amended Complaint makes no allegations indicating the citizenship of any of the parties. Plaintiff's failure to plead the parties' citizenship alone is sufficient for the court to find that Plaintiff has failed to plead that the parties are diverse. Plaintiff cannot plead ignorance of the defendants' citizenship; rather, he must affirmatively plead facts that show that the court has jurisdiction. See Dracos, 762 F.2d at 350. And Plaintiff's failure to include the defendants' citizenship is especially fruitless because he previously provided South Carolina addresses in the original complaint for himself and one defendant, and he provides addresses for Creech, Roddey & Watson and Crawford and Company, Inc. on summonses filed with the Amended Complaint that indicate they are at least located in South Carolina. Consequently, Plaintiff fails to plead facts that would demonstrate that these parties are diverse.
As to corporate parties, "a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business." 28 U.S.C. § 1332(c)(1); see also Hoschar v. Appalachian Power Co., 739 F.3d 163, 170 (4th Cir. 2014).
III. Conclusion
There being no apparent basis of federal jurisdiction over this matter, the court recommends that the Amended Complaint be summarily dismissed without prejudice and without issuance and service of process for lack of subject matter jurisdiction. February 7, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).