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Brown v. Certain Underwriters Mendes & Mount

United States District Court, S.D. Alabama, Southern Division

July 15, 2019

EMOGENE RICHARDSON BROWN, Plaintiff,
v.
CERTAIN UNDERWRITERS MENDES & MOUNT, et al., Defendants.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Emogene Richardson Brown, who is proceeding pro se, filed a complaint and a motion to proceed without prepayment of fees. (Docs. 1, 2). At the Court's directive, Plaintiff filed an amended complaint; thus, it is the operative pleading. (See Docs. 3, 4). This matter is now before the undersigned Magistrate Judge for review pursuant to 28 U.S.C. § 636(b)(1)(A) and S.D. Ala. GenLR 72(b).[1] Because Plaintiff is proceeding in forma pauperis, her amended complaint is subject to screening under 28 U.S.C. § 1915(e)(2)(B).[2] See Taliaferro v. United States, 677 Fed.Appx. 536, 537 (11th Cir. 2017) (“[U]nder § 1915(e), district courts have the power to screen complaints filed by all IFP litigants, prisoners and non-prisoners alike.”), cert. denied, 138 S.Ct. 338 (2017). Having screened Plaintiff's complaint, the Court finds that federal jurisdiction is lacking. Accordingly, it is recommended that this action be dismissed without prejudice, prior to service of process, for lack of subject matter jurisdiction.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On February 13, 2019, Plaintiff Emogene Richardson Brown (“Plaintiff”) filed a complaint (Doc. 1), along with a motion to proceed without prepayment of fees. (Doc. 2). In her initial complaint, Plaintiff listed the grounds for jurisdiction as “Breach of promise” and asserted that “Mendes & Mount Insurance Company” of New York City refused to pay her claim for damage to her roof as a result of “Hurricane Nat, ” which occurred on October 8, 2017. (Doc. 1 at 1-2). According to Plaintiff, when the insurance adjuster came to her home, she had buckets catching water from the roof, yet he denied her claim. (Id. at 2). For relief, Plaintiff requested that her roof be repaired. (Id.).

         Plaintiff attached to her complaint various documents from small claims case number SM-2018-000166.00 in the District Court of Mobile County, Alabama, including a statement of claim (complaint), an application and affidavit for entry of default judgment, and a court order. (Id. at 5-8). In the state court complaint, Plaintiff named as Defendants Raphael and Associates and Mendes & Mount, and she claimed that the defendants owed her $6, 000 because “they didn't fix my roof, and my home has mildew and I've lose clothes and furniture and, I smell the mildew in my home every day.” (Id. at 5). In an application and affidavit for entry of default judgment, Plaintiff again claimed that she was owed $6, 000, plus $306 in court costs. (Id. at 6). The state court, in an order dated December 19, 2018, found as follows:

At the trial of this case, a preliminary issue was the identity of the Defendant or Defendants sued by Plaintiff. To clear up any confusion, any claims stated against Defendants Raphael and Associates or Mendes & Mount are hereby dismissed, with prejudice. The Defendant in this case for trial is Certain Underwriters at Lloyds, London.[3]
The case arises from an insurance claim made by Plaintiff for damage to her property located at [Mobile, Alabama]. Plaintiff claims that her property was damaged during Hurricane Nate, which struck the area in October, 2017. The trial Defendant provided property insurance coverage for Plaintiff's residence. The value of the policy of insurance was $143, 000.00, but there was a general deductible under the policy of $2, 500. This general deductible was increased to $4, 290.00 in the event of damage caused by wind or hail.
Plaintiff reported the damage following the hurricane. Within a few days, Mr. Brett Pastor appeared at Plaintiff's residence, to inspect the property and to prepare an estimate of the cost of repairs. He did this work acting in an agency capacity for Defendant Certain Underwriters at Lloyd's London. Mr. Pastor determined that the total cost to repair damage at Plaintiff's property, caused by wind driven rain, was in the amount of $1, 005.16. This amount was well below the policy deductible as set out above. Accordingly, coverage was not denied. The claim simply fell below the policy deductible.
At trial, there was no credible evidence from Plaintiff to dispute the damage calculation prepared by Mr. Pastor. Accordingly, Judgment is entered for Defendant, pursuant to the terms of the contract of insurance between the parties. Costs are taxed as paid.

(Id. at 7).

         On June 7, 2019, the undersigned entered an order granting Plaintiff's motion to proceed without fees and screening Plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). (Doc. 3). In the order, the undersigned observed that Plaintiff's complaint failed to indicate the states of citizenship of the Defendants, failed to allege the amount in controversy, and did not assert any basis for federal jurisdiction. (Id. at 4). Accordingly, Plaintiff was ordered to file an amended complaint which set forth the basis for this Court's jurisdiction no later than June 28, 2019. (Id.). The undersigned also noted in the order that, based on a preliminary review of Plaintiff's complaint and the documents attached thereto, it appeared that Plaintiff had litigated the same claims she raises in the instant case against the same Defendants in state court, that Plaintiff's claims against Mendes & Mount were dismissed with prejudice, and that the state court rendered judgment in favor of Certain Underwriters at Lloyds, London. (Id. at 5). Plaintiff was placed on notice that res judicata precludes claims which a plaintiff actually raised or could have raised in a prior suit when (1) there is a final judgment in a prior suit on the merits; (2) the decision in the prior suit is rendered by a court of competent jurisdiction; (3) the parties in both suits are identical; and (4) both suits involve the same cause of action, and she was ordered to show cause, by June 28, 2019, why her claims against Defendants are not barred by res judicata. (Id. at 4-5).

         On June 24, 2019, apparently in response to the Court's order, Plaintiff filed a handwritten document, which the Court is treating as her amended complaint. (Doc. 4). On the first page of the document, Plaintiff listed her name and address, the name and address of Defendant Certain Underwriters Mendes & Mount, and listed the grounds for jurisdiction as “Denying my insurance claim[.]” (Id. at 1). On the third page of the document, Plaintiff stated: “My roof need repairing which is still damaged, from Hurricane Nate. This insurance company refuse to pay, me for my damages. I am asking the court to grant me payment for my damages.” (Id. at 3). Plaintiff did not address the issue of res judicata. (See id.).

         II. STANDARDS OF REVIEW UNDER 28 U.S.C. § 1915(e)(2)(B)

         Because Plaintiff filed a motion to proceed in forma pauperis (Doc. 2), the Court is reviewing her complaint and amended complaint (Doc. 1, 4) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as “frivolous where it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, or when the claim seeks to enforce a right that clearly does not exist. Id. at 327. In addition, a complaint may be dismissed under ...


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