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Howard v. Farmers Insurance Company, Inc.

United States District Court, D. Kansas

July 23, 2019

DERRICK HOWARD, Plaintiff,
v.
FARMERS INSURANCE COMPANY, INC., MID-CENTURY INSURANCE COMPANY, INC., GREGORY SCHER, WOOLLS PEER DOLLINGER & SCHER, and KIMBERLY HASKINS, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         Before the court is defendants Farmers Insurance Company, Inc. (“Farmers”) and Mid-Century Insurance Company, Inc.'s (“Mid-Century”) Motion to Dismiss (Doc. 24). Also before the court is defendants Gregory Scher and Woolls Peer Dollinger & Scher's (“WPDS”) Motion to Dismiss Action (Doc. 26). Although the court has granted plaintiff Derrick Howard multiple extensions of time to file a response to the motions, Mr. Howard did not timely respond. Nor did Mr. Howard respond to the court's Notice and Order to Show Cause (Doc. 35) requiring him to explain why the court should not dismiss his claim against defendant Kimberly Haskins. Having reviewed the opening papers and the relevant legal authority, the court concludes (1) Mr. Howard's claims against Farmers and Mid-Century are barred by the applicable statutes of limitations or must be raised in the Central District of California; and (2) Mr. Howard has not advanced any allegations that support the court's personal jurisdiction over Mr. Scher and WPDS. The court also dismisses the action against Ms. Haskins for failure to complete service of process and failure to prosecute.

         I. Factual Allegations

         The court derives the following factual allegations from Mr. Howard's pro se Complaint (Doc. 1). And, the court construes Mr. Howard's Complaint liberally because he proceeds pro se. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”).

         In the early 2000s, Mr. Howard owned two properties in St. Louis, Missouri-4423 Kossuth Avenue and 4433 Kossuth Avenue. Doc. 1 at 5 (Compl. ¶¶ 5-7). Mr. Howard purchased insurance policies for both properties from Mid-Century, a subsidiary of Farmers. Id. Policy Numbers 92564-26-92 and 92838-63-11 covered 4423 Kossuth Avenue while Policy Number 92564-27-03 covered 4433 Kossuth Avenue. Id. at 6-7 (Compl. ¶¶ 12, 14). Mr. Howard rented both properties and Ms. Haskins was a tenant at one of the properties. Id. at 6 (Compl. ¶ 11). In 2006, Mr. Howard filed an insurance claim with Farmers and Mid-Century on Policy Number 92838-63-11 for vandalism and theft at 4423 Kossuth Avenue. Id. at 6-7 (Compl. ¶¶ 9, 12-13). On September 14, 2006, Farmers denied the claim, concluding 4423 Kossuth Avenue was vacant at the time of the alleged vandalism and theft. Id. at 7 (Compl. ¶ 13). A little over a year later, on December 1, 2007, Farmers and Mid-Century notified Mr. Howard that they had cancelled Policy Number 92564-27-03 for 4433 Kossuth Avenue because he failed to pay his premiums. Id. at 7 (Compl. ¶ 14). Mr. Howard alleges he maintained his premiums and that, but for Farmers and Mid-Century canceling Policy Number 92564-27-03, he would have filed an insurance claim for damage at 4433 Kossuth Avenue. Id. at 9 (Compl. ¶ 20).

         In February 2012, Mr. Howard, in the Central District of California, filed an action against Farmers, Mid-Century, and several individual defendants who are not parties to the action before this court. Id. at 8 (Compl. ¶ 17); see also Howard v. Farmers Ins. Co., No. 2:12-cv-01068-DDP-JC (C.D. Cal. Feb. 13, 2012). Mr. Howard's action in the Central District of California advances claims for breach of contract and vexatious refusal. Doc. 1 at 8 (Compl. ¶ 17). The California action remains pending on the date of this Order, with trial presently scheduled for September 17, 2019. See Howard, No. 2:12-cv-01068-DDP-JC (C.D. Cal. June 20, 2019) (order continuing trial from July 2, 2019, to September 17, 2019). And, in the California case, Farmers and Mid-Century are represented by WPDS, with Mr. Scher as counsel of record. See Id. (Docket Sheet); see also Doc. 1 at 15 (Compl. ¶ 45).

         In his action before this court, Mr. Howard alleges that WPDS hired a private investigator to locate Ms. Haskins. Id. And Mr. Howard contends that, at Mr. Scher's direction, the private investigator offered Ms. Haskins an all-expense paid vacation to Los Angeles, California, and provided her an upfront cash payment in exchange for testimony that she had vacated 4423 Kossuth Avenue before the vandalism and theft occurred. Id. at 15-18 (Compl. ¶¶ 45-48). Mr. Howard further alleges that Mr. Scher and WPDS solicited this testimony from Ms. Haskins to support Farmers's and Mid-Century's denial of coverage based on 4423 Kossuth Avenue being vacant, but they knew Ms. Haskins's proposed testimony was false. Id.

         Mr. Howard initiated this five-count action in February 2018. At the time, Mr. Howard resided in Florida. Id. at 4. Count One advances a fraudulent misrepresentation claim against Farmers and Mid-Century based on their statement to Mr. Howard that Policy Number 92564-27-03, covering 4433 Kossuth Avenue, lapsed for non-payment of premiums. Id. at 8-10 (Compl. ¶¶ 18-21). Count Two raises a claim for fraudulent misrepresentation, alleging that Farmers and Mid-Century, in the course of defending the California action, denied the existence of Policy Number 92564-26-92. Id. at 10-12 (Compl. ¶¶ 22-31). Count Three makes a breach of contract claim against Farmers and Mid-Century for denying coverage for vandalism and theft at 4423 Kossuth Avenue. Id. at 12-13 (Compl. ¶¶ 32-37). And, Count Four seeks damages for vexatious refusal of insurance coverage, contending that Farmers and Mid-Century did not properly investigate whether 4423 Kossuth Avenue was vacant at the time of the vandalism and theft and that the property was not “vacant” under Missouri law. Id. at 14-15 (Compl. ¶¶ 38- 42). Finally, Count Five advances a claim for civil conspiracy against all defendants based on their coordinated effort to deceive the Central District of California through the purchased and perjured testimony of Ms. Haskins. Id. at 15-19 (Compl. ¶¶ 43-50). Mr. Howard alleges damages “in excess of $250, 000.00” on each of his five claims for relief. Id. at 19.

         II. Procedural History and Pending Motions

         The court granted Mr. Howard's motion to proceed in forma pauperis. Doc. 9. Mr. Howard sought waivers of service of process for all defendants. Docket Entry dated June 8, 2018. The waiver for Ms. Haskins was returned unexecuted. Doc. 11. In August 2018, the court ordered Mr. Howard to provide a physical address for service of process for each defendant. Doc. 12. After receiving an extension of time to comply with the court's Order and to complete service of process, Mr. Howard provided addresses for each defendant. Docs. 13- 16. On October 3, 2018, summonses were issued for each defendant. Docket Entry dated October 3, 2018. Summonses were returned executed for Farmers, Mid-Century, Mr. Scher and WPDS. Docs. 17-19, 29. But, on February 11, 2019, the summons for Ms. Haskins was returned unexecuted. Doc. 34. And, on February 28, 2019, the court ordered Mr. Howard to show cause why the court should not dismiss his claim against Ms. Haskins for failure to prosecute. Doc. 35. The March 29, 2019, deadline for Mr. Howard to respond to the Notice and Order to Show Cause passed without Mr. Howard filing a response or moving for an extension of time. As of the date of this Order, Mr. Howard has not responded to the Notice and Order to Show Cause.

         On November 2, 2018, Farmers and Mid-Century moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Doc. 24. Farmers and Mid-Century make three arguments in support of their motion. First, they contend Counts One and Two are restyled versions of Count Three and must be raised as breach of contract claims rather than tort claims for fraudulent misrepresentation. Doc. 25 at 4-7. Second, they argue that all the claims are barred by applicable Missouri statutes of limitations-a 10-year statute of limitations governing claims for breach of written contracts and a five-year statute of limitations governing claims for fraudulent misrepresentation. Id. at 7-11 (citing Mo. Rev. Stat. §§ 516.100, 516.110, 516.120). Third, they assert the case should be dismissed under the prior pending action rule because Mr. Howard's action in the Central District of California remains pending and the claims in this action are duplicative of those raised in the California action. Id. at 11-15.

         On November 6, 2018, Mr. Scher and WPDS filed their motion to dismiss, relying on Federal Rules of Civil Procedure 12(b)(2) and (b)(3). Doc. 26. They argue the court lacks personal jurisdiction over them because they have no contacts with Kansas and none of the events underlying the action are alleged to have occurred in Kansas. Doc. 27 at 7-10. In the alternative, they argue venue is improper in Kansas and the court either should dismiss the action or transfer the action to the Central District of California under 28 U.S.C. §§ 1404(a), 1406(a). Id. at 10-14.

         Mr. Howard successfully moved for two extensions of time to file his responses to the motions to dismiss. See Docs. 30, 32 (motions for extensions of time); Docs. 31, 33 (orders granting motions for extensions of time). The second Order granting the motion for extension set a March 27, 2019, deadline for Mr. Howard to respond and warned Mr. Howard that the court did not anticipate granting a third extension of time. Doc. 37. In April 2019-approximately five months after Farmers, Mid-Century, Mr. Scher, and WPDS had filed their motions to dismiss and after the twice-extended response deadline had passed-Mr. Howard moved for another extension of time to file his responses. Doc. 39. The court denied Mr. Howard's April 2019 motion for an extension of time and took the two motions to dismiss under advisement on the opening papers filed by Farmers, Mid-Century, Mr. Scher, and WPDS. Doc. 41. This Order addresses the two motions to dismiss, as well as Mr. Howard's claim against Ms. Haskins.

         III. Discussion

         A. Farmers and Mid-Century's Motion

         1. Rule 12(b)(6) Standard of Review

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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 Cir. 2007)). On a motion to dismiss like this one, the court assumes that a complaint's factual allegations are true, but need not accept mere legal conclusions as true. Id. at 1263.

         The court also will grant a motion to dismiss if an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). And “if as a matter of law ‘it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,' a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one.” Id. at 327 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

         2. Analysis

         Because different theories justify dismissing different claims for relief, the court discusses some threshold issues about the statute of limitations issue and the prior pending action rule. Then, the court applies controlling authority to a given claim for relief.

         i. Statute of Limitations, Choice of Law

         Before the court can conclude if a given claim is time-barred, it must determine which statute of limitations applies. This determination involves a choice of law issue because the court sits in Kansas ...


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