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McKinney v. Nationwide Affinity Insurance Co.

United States District Court, D. Kansas

October 25, 2019

BEVERLY ANN McKINNEY, Plaintiff,
v.
NATIONWIDE AFFINITY INSURANCE COMPANY, ERIC GOETTLING, and DARWIN SCHILTZ, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         This matter is before the court on two motions to dismiss: one joint motion by defendants Goettling and Schiltz (“individual defendants”), and one by defendant Nationwide Affinity Insurance Company (“Nationwide”). (Docs. 10; 12.) Individual defendants move to dismiss plaintiff's claim for improper service and under Rule 12(b)(6), while defendant Nationwide moves to dismiss plaintiff's claim only under Rule 12(b)(6). Plaintiff has not responded to defendants' motions despite the court providing additional time for her to file a response.

         I.FACTUAL BACKGROUND

         Pro se plaintiff Beverly Ann McKinney filed this housing discrimination action on March 28, 2019. On June 25, 2019, all defendants moved to dismiss. Plaintiff did not timely file a memorandum in opposition. The court ordered plaintiff to show cause or respond on or by October 18, 2019. Plaintiff has not responded, so the court will now rule on defendants' motions.

         Plaintiff alleges damages resulting from delay in resolving her insurance claim for loss due to basement water damage on or about May 4, 2016. Plaintiff alleges: $100, 000 for medical bills and $40, 000 for purchase of a vehicle to sleep in, due to mold; $152, 000 for heating bills, to prevent her house's pipes from freezing; and $8, 000 to complete her basement. (Doc. 1, at 5.)

         Plaintiff provides the factual basis of her claim in the “Relief” section of the court's Civil Complaint form. (Id. at 3-4.) Plaintiff's recitation of facts shows that defendant Goettling denied coverage before reassigning her claim to defendant Schiltz. (Id.) Plaintiff alleges defendant Schiltz refused to perform a detailed inspection of the damage and offered plaintiff a check for $5, 000 and additional payment of $150 for plumbing services. (Id. at 4.) Plaintiff states her claim was assigned to Michael Clay on August 23, 2016, and “[t]otal claim was covered made paid.” (Id.)

         II. LEGAL STANDARDS

         Individual defendants move for dismissal under Rules 12(b)(4), 12(b)(5), and 12(b)(6). Because individual defendants allege improper delivery of service, the court will address their jurisdictional arguments under Rule 12(b)(5).

         A. 12(b)(5)

         In evaluating challenges to personal jurisdiction, the court assumes true all well-pleaded (plausible, non-conclusory, and non-speculative) facts alleged in plaintiff's complaint. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citation omitted). A Rule 12(b)(4) motion constitutes “an objection to the form of process or the content of the summons, ” while a motion made under Rule 12(b)(5) “challenges the mode or lack of delivery of a summons and complaint.” Oltremari by McDaniel v. Kan. Soc. & Rehab. Serv., 871 F.Supp. 1331, 1349 (D. Kan. 1994) (citations omitted). A plaintiff must validly serve the defendant with process before the court can exercise personal jurisdiction over that defendant. See Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of service is a precondition to suit . . . .”). When a defendant challenges service of process, the plaintiff has the burden of proving the sufficiency of service. Ammon v. Kaplow, 468 F.Supp. 1304, 1309 (D. Kan. 1979).

         B. 12(b)(6)

         On a motion to dismiss under Rule 12(b)(6), the court assumes true all well-pleaded facts in the complaint, disregards all legal conclusions worded as factual allegations, and grants the plaintiff all reasonable inferences from the pleadings. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012). To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” not merely possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Co. v. Twombly, 550 U.S. 544, 570 (2007)) (quotation marks omitted); see Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). When a plaintiff proceeds pro se, the court construes his or her filings liberally, but does not assume the role of an advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         III. DISCUSSION

         A. Individual ...


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