United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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.
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
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).
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).
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.
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.
Procedural History and Pending Motions
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
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.
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.
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.
Farmers and Mid-Century's Motion
Rule 12(b)(6) Standard of Review
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.
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,
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.
Statute of Limitations, Choice of Law
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 ...