United States District Court, D. Kansas
ALPHONSE J. MENDY, Plaintiff,
AAA INSURANCE, et al., Defendants.
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
plaintiff Alphonse J. Mendy filed this lawsuit against
defendant Auto Club Family Insurance Company (misnamed by the
Complaint as AAA Insurance) and defendant ABC Insurance
Company. Plaintiff's Complaint asserts that
defendants failed to pay an insurance claim for water damage
to plaintiff's home and that defendants wrongfully
cancelled the insurance contract between plaintiff and
defendant Auto Club Family Insurance Company (hereinafter
“Auto Club Family”). Plaintiff's Complaint
asserts 10 separate claims for relief. Defendant Auto Club
Family has filed a Motion to Dismiss. Doc. 8. The motion
seeks dismissal of eight of the Complaint's claims. For
reasons explained below, the court grants in part and denies
in part defendant's motion.
following facts are taken from plaintiff's Complaint
(Doc. 1). The court accepts the facts asserted in the
Complaint as true and views them in the light most favorable
to plaintiff. Burnett v. Mortg. Elec. Registration Sys.,
Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)). The court also construes plaintiff's
allegations liberally because he proceeds pro se. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(holding that courts must construe pro se litigant's
pleadings liberally and hold them to a less stringent
standard than formal pleadings drafted by lawyers).
1, 2007, plaintiff purchased insurance coverage from Auto
Club Family to insure his residence-a three-bedroom
single-family home located in Johnson County, Kansas.
Consistent with the parties' insurance agreement,
plaintiff paid insurance premiums to Auto Club Family until
it cancelled the policy in 2016. Plaintiff contends that he
received no notice of cancellation from Auto Club Family.
Instead, in April 2016, Midwest Regional Credit Union
received a Notice of Cancellation from Auto Club Family. The
Notice was sent to the Credit Union around the same time that
plaintiff visited an Auto Club Family branch to renew the
insurance policy that was due to expire on May 31, 2016. Auto
Club Family cancelled the insurance policy about a month
after sending the Notice and eight days before the
policy's expiration. Auto Club Family collected a monthly
premium from plaintiff even after sending the Notice of
alleges that Auto Club Family cancelled the insurance policy
because plaintiff had a covered claim for water damage.
Plaintiff also alleges that Auto Club Family refused to cover
the water damage claim even though it was covered by the
insurance policy. After plaintiff filed the insurance claim
for water damage, an adjuster visited his home. The adjuster
filed a report with Auto Club Family concluding that the
damage resulted from a faulty design and prolonged water
seepage into the building. Based on the adjustor's
report, Auto Club Family denied plaintiff's insurance
claim. Auto Club Family also contended that the damage was
caused by pre-existing conditions, not covered under the
policy. Auto Club Family had inspected and photographed the
building before it entered into the insurance contract with
plaintiff. And, after that initial inspection, Auto Club
Family never noted any evidence of faulty design or prolonged
water seepage. Plaintiff (who is African-American) contends
that Auto Club Family's reasons for denying coverage are
a pretext for denying coverage to deserving insureds,
particularly African-Americans and other minority insureds.
has asserted 10 claims for relief: (1) unlawful race
discrimination (Count I); (2) discrimination based on
termination (Count II); (3) breach of contract (Count III);
(4) breach of contract for post-termination violations (Count
IV); (5) unjust enrichment (Count V); (6) civil conspiracy
(Count VI); (7) unfair trade practices (Count VII); (8)
breach of the duty of good faith and fair dealing (Count
VIII); (9) punitive damages (Count IX); and (10) expenses of
litigation and attorney's fees (Count X). Auto Club
Family moves to dismiss eight of these 10 claims- Counts I,
II, IV, V, VI, VII, VIII, and X-under Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failing to state a claim
for relief. The court considers the motion below.
Is Subject Matter Jurisdiction Properly Invoked?
turning to the substance of the Motion to Dismiss, the court
considers whether subject matter jurisdiction exists.
Plaintiff invokes this court's diversity jurisdiction
under 28 U.S.C. § 1332. Doc. 1 (Compl. ¶ 1).
Diversity jurisdiction requires: (1) complete diversity
between the parties, and (2) an amount in controversy
exceeding $75, 000. 28 U.S.C. § 1332. Here, plaintiff
alleges the requisite amount in controversy. Doc. 1 (Compl.
¶ 2). Plaintiff also alleges that the parties are
diverse but the citizenship facts he alleges do not
demonstrate that diversity exists.
alleges that he is a Kansas citizen. Id. (Compl.
¶ 7.A). Also, he alleges that defendant Auto Club Family
Insurance Company (misnamed AAA Insurance) is a Missouri
citizen. Id. (Compl. ¶ 8.A). And, he alleges
that defendant ABC Insurance Company is “a Kansas or
foreign insurance company licensed to do business and doing
business in Kansas . . . .” Id. (Compl. ¶
8.B). The ambiguity created by plaintiff's alternative
allegation about ABC Insurance Company prevents plaintiff
from discharging his burden to establish complete diversity.
Because he is the party invoking the court's
jurisdiction, plaintiff bears the burden to establish that he
and ABC Insurance Company are citizens of different states.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (explaining that “the burden of
establishing” federal jurisdiction “rest upon the
party asserting jurisdiction”). All plaintiff has done
is allege that ABC may or may not be a Kansas citizen. That
will not suffice.
the court concludes that it has federal question subject
matter jurisdiction under 28 U.S.C. § 1331. For a
federal court to have federal question jurisdiction over a
lawsuit, plaintiff must assert a “civil action[ ]
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. Here, plaintiff
asserts several claims arising under federal law. In the
first claim for unlawful race discrimination, Count I, the
Complaint asserts that “Plaintiff was wrongly
discriminated against in his contract because of his race in
violation of 42 U.S.C. Section 1981, The Civil Rights Act of
1866, as amended.” Doc. 1 (Compl. ¶ 53). Count II
asserts unlawful discrimination based on plaintiff's
“race, in violation of Plaintiff's Civil Rights,
including the Civil Rights Act of 1866, as amended.”
Id. (Compl. ¶ 58). And, Count VII asserts a
“violation of federal unfair trade practices
legislation in both Title 12 and Title 15 of the United
State[s] Code.” Id. (Compl. ¶ 111).
Because plaintiff alleges claims arising under federal law,
the court has subject matter jurisdiction here over these
federal claims. The court concludes that it also has
supplemental jurisdiction over plaintiff's state law
claims under 28 U.S.C. § 1367. The court thus is
satisfied that subject matter jurisdiction exists here.
Rule 12(b)(6) Standard
Rule of Civil Procedure 8(a)(2) provides that a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Although this Rule “does not require ‘detailed
factual allegations, '” it demands more than
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action'” which, as the
Supreme Court explained, “will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “Under this
standard, ‘the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.'” Carter v. United States, 667
F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red
Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
the court must assume that the factual allegations in the
complaint are true, it is “not bound to accept as true
a legal conclusion couched as a factual allegation.”
Id. at 1263 (quoting Iqbal, 556 U.S. at
678). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice” to state a claim for relief. Bixler v.
Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting
Iqbal, 556 U.S. at 678).
11, 2017, defendant filed its Motion to Dismiss. Under our
court's local rules, plaintiff's response to the
motion “must be filed or served within 21 days, ”
or by August 1, 2017. D. Kan. Rule 6.1(d)(2). Plaintiff
failed to file a timely response. Almost two months after the
deadline for responding had passed, plaintiff filed a
Memorandum in Opposition to defendant's motion. Doc. 11.
Plaintiff never asked for leave to file the response out of
time. And, he never explains why he failed to file the
response in a timely fashion.
court recognizes that plaintiff proceeds pro se here. But,
plaintiff's pro se status does not excuse him from
complying with federal and local rules. Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (“This
court has repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants.”
(citations and internal quotation marks omitted)). Under D.
Kan. Rule 7.4(b), a party “who fails to file a
responsive brief or memorandum within the time specified in
D. Kan. Rule 6.1(d) waives the right to later file such brief
or memorandum.” The rule also states that “if a
responsive brief or memorandum is not filed within the D.
Kan. Rule 6.1(d) time requirements, the court will consider
and decide the motion as an uncontested motion. Ordinarily,
the court will grant the motion without further
notice.” D. Kan. Rule 7.4(b).
plaintiff failed to file a timely response to defendant's
Motion to Dismiss, the court could consider the motion an
uncontested one. But, even though plaintiff filed his
response out of time, the court has considered its contents
when analyzing defendant's Motion to Dismiss in the
Count I (Unlawful Race Discrimination under §
first claim for relief asserts that Auto Club Family treated
him differently based on his race and national origin.
Specifically, plaintiff contends that Auto Club Family
treated him differently by: (1) the manner of its
correspondence with him, (2) denying an auto insurance claim,
(3) denying his water damage claim on two different
occasions, (4) cancelling his insurance policy without cause
and without notice, (5) giving the Notice of Cancellation to
his bank, and (6) refusing to negotiate with plaintiff in
good faith. Doc. 1 at 8-9 (Compl. ¶¶ 41- 42).
Plaintiff also alleges that Auto Club Family simply denied
his claims instead of “process[ing] [them] as it does
for white people.” Id. at 9 (Compl. ¶
43). And, he alleges that Auto Club Family subjects plaintiff
and “other like minorities” to greater and
stricter claim requirements than other policy holders.
Id. (Compl. ¶ 47). Plaintiff also asserts that
Auto Club Family agents subjected him ...