United States District Court, S.D. Ohio, Western Division
KEESYA D. ROSS, Plaintiff,
UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant.
H. Rice District Judge.
REPORT AND RECOMMENDATION  THAT: (1)
DEFENDANT'S MOTION TO DISMISS (DOC. 9) BE GRANTED; (2)
PRO SE PLAINTIFF'S COMPLAINT BE DISMISSED WITHOUT
PREJUDICE; (3) PRO SE PLAINTIFF'S MOTION FOR LEAVE TO
FILE AN AMENDED COMPLAINT (DOC. 12) BE DENIED; AND (4) THIS
CASE BE TERMINATED ON THE COURT'S DOCKET
Michael J. Newman United States Magistrate Judge.
case is presently before the Court on Defendant United
Services Automobile Association's (“USAA”)
motion to dismiss for lack of jurisdiction. Doc. 9. Pursuant
to the Local Rules of this Court, pro se
Plaintiff's memorandum in opposition was to be filed on
or before October 9, 2017. Pro se Plaintiff
originally failed to file a memorandum in opposition with the
Court and, on October 17, 2017, the undersigned issued an
Order to Show Cause directing Plaintiff to show cause, in
writing, as to why USAA's motion to dismiss should not be
granted for the reasons set forth therein. Thereafter,
pro se Plaintiff filed a response to the Court's
Order to Show Cause and requested leave to amend the
complaint. Doc. 12. USAA filed a reply memorandum in support
of its motion to dismiss. Doc. 11. The Court has carefully
considered all of the foregoing, and USAA's motion to
dismiss is now ripe.
case arises out of an automobile accident that occurred in
Daytona Beach, Florida on July 21, 2015. Doc. 3 at PageID
17-18. At the time of the accident, Plaintiff -- an Ohio
resident-- was a passenger in a vehicle owned and
driven by Curtis Smith. Id. at PageID 18. The
accident occurred when Smith's vehicle was rear-ended by
another vehicle driven by tortfeasor Dyrell Johnson -- a
non-party to this suit. Id.
time of the accident, Smith was insured through a policy
issued by USAA, and such policy provided uninsured and
underinsured motorist coverage. Id. Plaintiff
alleges that, because she was a passenger in Smith's
vehicle at the time of the accident, she was an insured under
the USAA policy. Id. Johnson was also insured at the
time of the accident, but the limit of Johnson's
liability insurance was only $10, 000.00. Id.
the accident, Johnson's liability insurer settled with
and paid Plaintiff the limits of Johnson's insurance
policy. Id. Plaintiff alleges, however, that the
limits of Johnson's insurance policy were insufficient to
compensate her in full for the injury and loss she sustained
in the automobile accident. Id. Plaintiff brings
this action against Defendant seeking underinsured motorist
coverage under Smith's USAA policy. Id. at
PageID 18-19. In addition, Plaintiff alleges that USAA has
failed “to act in good faith[.]” Id. at
PageID 19. Accordingly, liberally construing pro se
Plaintiff's complaint, the undersigned concludes
Plaintiff has pled a breach of contract claim as well as a
tort claim asserting bad faith. Id.
motion, USAA moves to dismiss pro se Plaintiff's
complaint, arguing that the Court lacks diversity
jurisdiction over this dispute. Doc. 9. A motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) asserts that the court
lacks subject-matter jurisdiction. Such a motion may consist
of a “facial attack, ” under which the moving
party asserts that the allegations of the complaint are not
sufficient to establish jurisdiction, or a “factual
attack, ” under which the court may consider evidence
to determine if jurisdiction does or does not exist.
O'Bryan v. Holy See, 556 F.3d 361, 376-77 (6th
Cir. 2009). Here, USAA sets forth a factual attack.
See doc. 9. To resolve a factual attack, the Court
must “weigh the conflicting evidence to arrive at the
factual predicate that subject matter jurisdiction exists or
does not exist” and, in so doing, “has wide
discretion to allow affidavits, documents and even a limited
evidentiary hearing to resolve disputed jurisdictional
facts.” Ohio Nat. Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990).
pro se complaint, Plaintiff alleges that the Court
has jurisdiction over this lawsuit under 28 U.S.C. §
1332 because the parties are citizens of different states and
$75, 00 or more are at issue. Doc. 3 at PageID 17. USAA
argues that the Court lacks diversity jurisdiction over
pro se Plaintiff's complaint because: (1) both
Plaintiff and USAA are citizens of Ohio, thus destroying
complete diversity between the parties; and (2)
Plaintiff's maximum possible recovery against USAA under
the limits of Smith's policy is $55, 000 -- $50, 000 in
underinsured motorist coverage and $5, 000 in medical pay
coverage. Doc. 9 at PageID 31-32.
to 28 U.S.C. § 1332(a), district courts have
jurisdiction over “all civil actions where the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between . . .
citizens of different States[.]” Because federal courts
are courts of limited jurisdiction, courts must presume
“that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the
party asserting jurisdiction.” Farmer v.
Fisher, 386 F. App'x 554, 556 (6th Cir. 2010)
(citation omitted). Thus, “[a] plaintiff in federal
court has the burden of pleading sufficient facts to support
the existence of the court's jurisdiction.”
Vaughn v. Holiday Inn Cleveland Coliseum, 56 F.
App'x 249, 250 (6th Cir. 2003). In a diversity action,
“the plaintiff must state all parties' citizenships
such that the existence of complete diversity can be
Plaintiff alleges that she “is a resident of Fairborn,
Greene County, Ohio.” Doc. 3 at PageID 17. As noted
supra, such allegation is insufficient to plead
Plaintiff's own citizenship. Mohican Twp., 133
F. at 524. Nevertheless, assuming, arguendo, that
Plaintiff is a citizen of Ohio, she further fails to allege
the state of USAA's citizenship and, instead, simply
avers that it is “an insurance company licensed to do
business in the state of Florida” with a registered
agent for service of process in San Antonio, Texas. Doc. 3 at
PageID 17. The undersigned finds Plaintiff's allegations
regarding USAA's citizenship insufficient to demonstrate
the existence of diversity jurisdiction.
an unincorporated reciprocal interinsurance exchange
association. Doc. 9 at PageID 35. “Unincorporated
associations . . . have no separate legal identity”
and, for purposes of diversity jurisdiction, are citizens of
each state where its members maintain citizenship. See
U.S. Motors v. Gen. Motors Europe, 551 F.3d 420, 422
(6th Cir. 2008) (citing Certain Interested Underwriters
at Lloyd's, London, Eng. v. Layne, 26 F.3d 39, 41
(6th Cir. 1994)); see also Brocki v. Am. Exp. Co.,
279 F.2d 785, 787 (6th Cir. 1960) (stating that “an
unincorporated association . . . cannot be deemed a citizen,
apart from its members, for the purpose of diversity
jurisdiction”); Am. Fed'n of Musicians v.
Stein, 213 F.2d 679, 685 (6th Cir. 1954) (stating that
“citizenship of an unincorporated association is that
of its members” and, therefore, “diversity does
not exist if any of its members are citizens of the same
state as is any adverse party to the action”). With
regard to USAA ...