Chisholm v. United of Omaha Life Ins. Co.

• Decision Date: 28 September 2007
• Docket Number: No. 3:06 CV 1958(MRK).,3:06 CV 1958(MRK).
• Court: U.S. District Court — District of Connecticut
• Parties: Mabel E. CHISHOLM, Plaintiff, v. UNITED OF OMAHA LIFE INSURANCE COMPANY, et al., Defendants.

514 F.Supp.2d 318

Mabel E. CHISHOLM, Plaintiff, v. UNITED OF OMAHA LIFE INSURANCE COMPANY, et al., Defendants.

No. 3:06 CV 1958(MRK).

United States District Court, D. Connecticut.

September 28, 2007.

COPYRIGHT MATERIAL OMITTED

Michael A. D'Onofrio, Jr., Fairfield, CT, for Plaintiff.

Joseph G. Fortner, Jr., Michael S. Wrong, Halloran & Sage LLP, Jacqueline S. Hoell, Office of the Attorney General, Hartford, CT, for Defendants.

MEMORANDUM OF DECISION

MARK R. KRAVITZ, District Judge.

Plaintiff Mabel Chisholm filed this action pro se on December 5, 2006. Her Complaint names as defendants the United of Omaha Life Insurance Company ("United"), Compl. [doe. # 1-2]¹ and the State of Connecticut, Department of Social Services ("DSS"), which administers Connecticut's Medicaid program, Compl. [doe. # 1-3], as required by Connecticut General Statutes § 17b-2. As against United, Ms. Chisholm asserts various tort claims including conspiracy, and invasion of privacy, as well as insurance, health care, mail and wire fraud. She also alleges "racketeering," which the Court will construe as a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c). See Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) (holding that courts- should, liberally construe pro se pleadings). Finally, Ms. Chisholm alleges that United violated her federal constitutional rights and the Freedom of Information Act (FOIA). Although Ms. Chisholm does not say so, this Court construes her constitutional claims as having been brought under 42 U.S.C. § 1983, and her FOIA claims as arising under the Connecticut Freedom and Information Act, Conn. Gen.Stat. § 1-200 et seq., since the federal Freedom of Information Act, 5 U.S.C. § 552, applies only to federal agencies. See Grand Cent P'ship v. Cuomo, 166 F.3d 473; 484 (2d Cir.1999). As against DSS, Ms. Chisholm asserts similar tort claims — specifically, abuse, neglect, cruelty, reckless endangerment, and conspiracy, as well as insurance, health care, mail and wire fraud. She also alleges violations of her federal constitutional rights, the Civil Rights Act of 1964, the Americans with Disabilities Act ("ADA"), and Connecticut's FOIA.² Ms. Chisholm seeks money damages from both defendants. Compl. [doc. # 1-2] at 14; [doc. # 1-3] at 20.³

On February 2, 2007, United and DSS moved to dismiss Ms. Chisholm's Complaint. See Motions to Dismiss [does. ## 22, 23]. Following briefing, on May 10, 2007, this Court granted Ms. Chisholm's Motion to Appoint Counsel, see Order [doc. # 50], and her appointed counsel filed a Notice of Appearance [doc. # 55] on May 29, 2007. On June 7, 2007, the Court denied without prejudice Defendants' Motions to Dismiss [does. ## 22, 23] to allow Ms. Chisholm an opportunity to file an amended complaint in response to the motions to dismiss. Ms. Chisholm did not file an amended complaint. As a consequence, on July 23 and 24, 2007, Defendants filed Renewed Motions to Dismiss [does. ## 59, 61] incorporating their earlier Motions to Dismiss [does. ## 22, 23].⁴ For the following reasons, the Court GRANTS Defendants' Motions to Dismiss.

I.

As a preliminary matter, although the parties do not address the jurisdictional basis for Ms. Chisholm's lawsuit, the Court must do so. Perhaps understandably, Ms. Chisholm's pro se Complaint does not specify whether subject matter jurisdiction exists under the diversity statute, 28 U.S.C. § 1332, because United is an out-of-state corporation, or whether she bases jurisdiction on the presence of a federal question under 28 U.S.C. § 1331. Diversity jurisdiction is not available in this case, because DSS, a state agency, is not a "person" for purposes of diversity jurisdiction, and the presence of DSS therefore destroys complete diversity. See Postal Tel. Cable Co. v. Alabama, 155 U.S. 482, 487, 15 S.Ct. 192, 39 L.Ed. 231 (1894) ("Mt is well settled that a suit between a state and a citizen.... of another state is not between citizens of different states.... "); Wilkerson v. Mo. Dep't of Mental Health, 279 F.Supp.2d 1079, 1080 (E.D.Mo.2003) ("The inclusion of a Missouri state agency as a defendant ... destroys the required diversity of citizenship."); Batton v. Ga. Gulf, 261 F.Supp.2d 575, 581 (M.D.La.2003) (holding that presence of State of Louisiana destroyed complete diversity in lawsuit brought by citizens of Louisiana against Louisiana Department of Health and Hospitals, a non-independent state agency, and various out-of-state manufacturers); accord Tomback v. UnumProvident Corp., No. C 05-3157 CW, 2005 WL 2596449, at *3 (N.D.Cal.2003); Jakoubek v. Fortis Benefits Ins. Co., 301 F.Supp.2d 1045, 1049 (D.Neb.2003). See also Long v. District of Columbia, 820 F.2d 409, 416 (D.C.Cir.1987) (holding that absent dismissal of District of Columbia as a "noncitizen" and therefore nondiverse defendant, federal diversity jurisdiction would be lacking in suit against a diverse co-defendant); Ogden Dunes v. Bethlehem Steel Corp., 996 F.Supp. 850, 853 (N.D.Ind.1998) (holding that no federal jurisdiction existed over co-defendant steel companies where joinder of state agency as defendant destroyed complete diversity). However, Ms. Chisholm does assert federal question claims against each Defendant. Therefore, 28 U.S.C. § 1331 provides the Court with subject matter jurisdiction to consider her federal claims, and 28 U.S.C. § 1367 permits the Court to exercise supplemental jurisdiction over her related state law claims. See Phillips v. Audio Active Ltd., 494 F.3d 378, 392 (2d Cir.2007).⁵

II.

On a motion to dismiss, the Court "accept[s] as true all factual statements alleged in the complaint and draw[s] all reasonable inferences in favor of Ms. Chisholm. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); see Desiano v. Warner-Lambert Co., 326 F.3d 339, 347 (2d Cir.2003). The Court will briefly recite the facts here and discuss them further in the course of assessing each of Ms. Chisholm's claims.

Until 2001, Ms. Chisholm was a recipient of Medicaid benefits, a program administered by DSS; she also had a life insurance policy with United. Ms. Chisholm alleges that on March 14, 2001, two unnamed employees of the State of Connecticut came to her home to discuss her Medicaid benefits. Compl. [doe. 1-2] at 6. These individuals informed Ms. Chisholm that her benefits would be terminated if she did not liquidate and spend her United life insurance policy. Id. In response to this conversation, Ms. Chisholm `contacted United and asked the Company to liquidate her policy. Soon thereafter, Ms. Chisholm received a check for $6,816.81, which according to her was approximately one-half the $11,845.00 value of her policy. Id. at 6-7. Upon receiving the check for $6,816.81, Ms. Chisholm attempted, but failed, to get an explanation from United regarding what she believed was a shortfall in the amounts owed her. Id. at 6-7. Ms. Chisholm says that she asked a private attorney to call United and the Company supposedly informed her attorney that United had sent Ms. Chisholm a check in the amount of $12,250.50. Id. Ms. Chisholm complains that United refuses to talk to her and has yet to pay the balance of her life insurance policy. Id. In addition, she alleges that United denied her all policy benefits from a separate disability policy she had with the company. Id.

Ms. Chisholm also complains that on March 24, 2001, DSS terminated her Medicaid benefits, leaving her without medical care or assistance with paying her medical bills. Compl. [doe. # 1-3] at 10. She states that she is sick and disabled and requires the assistance of a nurse. Nonetheless, she alleges, DSS refuses to give her a nurse or a social worker. Id. at 6-7. She asserts that because she is unable to pay for and use medication, she is susceptible to infections that are related to her medical conditions. Id. at 7. Ms. Chisholm also alleges that DSS failed to provide her with information regarding her policy, including a copy of her health insurance policy. She states that DSS provided her with a card (presumably, prior to 2001), but the card is of no use and is rejected whenever she attempts to make use of it. Id. at 6-7.⁶

III.

The Court sympathizes with Ms. Chisholm's difficulties and concerns, which is why the Court appointed counsel for her in the hope that she might get help in obtaining the medical assistance she apparently needs. Unfortunately, however, virtually all of Ms. Chisholm's claims against United and DSS are barred by the relevant statutes of limitations. Accordingly, the Court need not and does not reach the many other asserted grounds for dismissal, including sovereign immunity,⁷ advanced by Defendants.

Statutes of limitations "are often intended to foreclose the potential for inaccuracy and unfairness that stale evidence and dull memories may occasion. ..." Kruelski v. Conn.Super. Ct., 316 F.3d 103, 111 (2d Cir.2003) (quotation marks omitted). They "protect interests in reliance and repose, guard against stale demands, and limit the circumstances in which a reviewing court can grant relief. ..." In re Enter. Mortgage Acceptance Co., LLC Sec. Litig., 391 F.3d 401, 409 (2d Cir.2004) (internal citations and quotation marks omitted). While a statute of limitations defense is most often pleaded as an affirmative defense and may require a factual inquiry beyond the face of the complaint, a defendant may raise the statute of limitations in a Rule 12(b)(6) motion "[w]here the dates, in a complaint show that an action is barred by a statute of limitations...." Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989), cited favorably in McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004); see McCarty v. Derivium Capital, LIC, No. Civ. 303CV651 (MRK), 2006 WL 413258, at *2 (D.Conn. Feb. 21, 2006). That is the case here. The events Ms. Chisholm describes in her complaint occurred in 2001, five years prior to the filing of her Complaint on December 5,...