Diamond v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 11 May 2011 |
| Docket Number | No. CIV S-09-1110 MCE DAD PS,CIV S-09-1110 MCE DAD PS |
| Court | U.S. District Court — Eastern District of California |
| Parties | ARTHUR DIAMOND, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants. |
This matter came before the court for hearing of defendant State Farm Mutual Automobile Insurance Company's amended motion for summary judgment (Doc. No. 80), defendant Mediterranean Shipping Company's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction, or in the alternative for partial summary judgment, (Doc. No. 104), and defendant CSE Insurance Group's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction, or in the alternative for summary judgment. (Doc. No. 113.)
Attorney Stephen M. Hayes appeared on behalf of defendant State Farm Mutual Automobile Insurance Company ("State Farm") at the October 25, 2010 hearing on State Farm's motion for summary judgment. Attorney Mark de Langis appeared on behalf of defendant Mediterranean Shipping Company ("MSC") at the February 11, 2011 hearing on MSC's motionto dismiss, or in the alternative for partial summary judgment. Attorney Devera Petak appeared on behalf of defendant CSE Insurance Group ("CSE") at the April 1, 2011 hearing on CSE's motion to dismiss, or in the alternative motion for summary judgment. Plaintiff Arthur Diamond, proceeding pro se, appeared on his own behalf at each hearing. Oral argument was heard, and defendants' motions were thereafter taken under submission.
Plaintiff originally commenced this action by filing a complaint in the Sacramento County Superior Court on January 12, 2009. (Doc. No. 2 at 4.) On April 21, 2009, defendant MSC removed the action to this court pursuant to 28 U.S.C. § 1441(a). (Doc. No. 1.) On April 27, 2009, defendant MSC filed an answer, (Doc. No. 9), and on April 29, 2009, the undersigned issued a scheduling order. (Doc. No. 10.)
On May 7, 2009, defendant State Farm filed a motion to dismiss plaintiff's second cause of action. (Doc. No. 14.) On May 15, 2009, plaintiff filed a motion to remand this matter back to state court pursuant to 28 U.S.C. § 1446. (Doc. No. 18.) On June 5, 2009, defendant MSC filed an opposition to plaintiff's motion to remand. (Doc. No. 20.)
On March 31, 2010, the undersigned issued findings and recommendations recommending that plaintiff's motion to remand this action to state court be granted. (Doc. No. 58.) On April 14, 2010, defendant MSC filed objections to those findings and recommendations, raising new arguments not originally presented in opposition to the motion. (Doc. No. 60.) On April 29, 2010, defendant State Farm filed a motion for summary judgment. (Doc. No. 62.) On July 26, 2010, the undersigned vacated the March 31, 2010 findings and recommendations, and issued new findings and recommendations, recommending that plaintiff's May 15, 2009 motion for remand be denied and that defendant State Farm's May 7, 2009 motion to dismiss plaintiff's second cause of action be granted. (Doc. No. 75.) Those findings and recommendations were adopted by the assigned District Judge on August 26, 2010. (Doc. No. 78.)
On August 30, 2010, the court issued a second amended pretrial scheduling order. (Doc. No. 79.) On September 14, 2010, defendant State Farm filed an amended motion for summary judgement which is now pending before the court. ("State Farm MSJ" (Doc. Nos. 63 and 80.))1 Plaintiff filed a belated opposition to that motion on October 27, 2010. ("Pl's Opp.'n. to State Farm" (Doc. No. 93.)) Defendant State Farm filed a reply on November 5, 2010. ("State Farm Reply" (Doc. No. 95.)) Plaintiff filed an unauthorized response to defendant State Farm's reply on November 29, 2010.2 (Doc. No. 101.)
On January 10, 2011, defendant MSC filed a motion to dismiss for lack of subject matter jurisdiction, or alternatively for partial summary judgement. ("MSC MTD" (Doc. No. 104.)) That motion is also now pending before the court. Plaintiff filed an opposition to that motion on February 10, 2011. ("Pl's Opp'n. to MSC" (Doc. No. 111.)) MSC did not file a reply.
On February 28, 2011, defendant CSE filed a motion to dismiss or alternatively for partial summary judgement which is also now pending before the court. ("CSE MSJ" (Doc. No. 113.)) Plaintiff filed an opposition to CSE's motion on March 21, 2011. ("Pl's Opp'n. to CSE" (Doc. Nos. 115 and 116.)) Defendant CSE filed a reply on March 22, 2011. ("CSE Reply" (Doc. No. 114.))
In his complaint plaintiff alleges as follows. In 2006 plaintiff contacted Charles Boateng, who had claimed to be a shipping agent for Transglobal International Shipping ("Transglobal"). Plaintiff sought the services of Transglobal to ship plaintiff's 1999 Mercedes Benz ML320, loaded with plaintiff's personal property, to Kampala, Uganda. On September 3, 2006, plaintiff turned his vehicle and its contents over to Boateng for shipment. The following day plaintiff attempted to contact Boateng by telephone but received no response. At some point, plaintiff reported to defendant State Farm, the issuer of plaintiff's automobile insurance policy, and defendant CSE, the issuer of plaintiff's homeowners insurance policy, that Boateng had stolen plaintiff's vehicle and its contents. Plaintiff also filed a loss report with the Elk Grove Police Department, in Elk Grove, California.
In October of 2006, the Elk Grove Police Department informed plaintiff and defendant State Farm that they had reliable information that a vehicle fitting the description of plaintiff's vehicle was located at the Houston office of defendant MSC. Defendant MSC provides international shipping services. When contacted by the police, defendant MSC refused to cooperate with the investigation by the Elk Grove Police Department.
Eventually, Mr. Herve Torlotting, a deputy office manager at MSC's office in Houston, Texas, acknowledged that his records reflected that MSC had a container that apparently contained plaintiff's vehicle, although Torlotting could not be certain, since the shipping containers are delivered to MSC sealed and are not opened or inspected. Torlotting. however, refused to release the container to anyone other then the possessor of the original bill of lading, which was given to Boateng. Torlotting eventually allowed the container to be shipped to Dar Es Salaam, Tanzania.
In the meantime, defendant State Farm notified plaintiff that State Farm would not pay a claim based on the loss of his vehicle because the vehicle was shipped overseas and vehicles located outside the United States are excluded from coverage under plaintiff'sautomobile insurance policy. Similarly, defendant CSE notified plaintiff that they were refusing to pay his claim based upon the loss of his personal property loaded inside the vehicle, because plaintiff's homeowners insurance policy did not cover items stolen from inside a vehicle and because plaintiff's initial loss report to the Elk Grove Police Department did not mention any personal property inside the vehicle. Edmond Wade, a private attorney retained by State Farm, later contacted plaintiff and informed him that an investigator for State Farm had located his vehicle in a shipping container in Dar Es Salaam at a shipping yard operated by MSC. Plaintiff thereafter contacted the International Criminal Police Organization ("INTERPOL").
INTERPOL contacted the manager of MSC's Dar Es Salaam shipping yard, but the manager refused to release the shipping container without authorization from MSC's headquarters, located in Geneva, Switzerland. Plaintiff's repeated attempts to obtain his possessions from MSC were unsuccessful. Plaintiff expended considerable effort and costs in attempting to recover his possessions and suffered over $186,000 in property loss.
Based on these factual allegations, plaintiff raises claims for breach of contract, professional negligence, breach of the implied covenant of good faith and fair dealing3, and the intentional infliction of emotional distress. Plaintiff seeks compensatory and punitive damages in excess of $276,000. (Notice of Removal, 4
Defendants MSC and CSE have brought motions to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendants MSC, CSE and State Farm have also moved for summary judgment in their favor. The court will first address motions to dismissbrought pursuant to Rule 12(b)(1) by defendants MSC and CSE before turning to the defendants' motions for summary judgment.
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise by motion the defense that the court lacks jurisdiction over the subject matter of an entire action or over specific claims. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When a party brings a facial attack to subject matter jurisdiction, the issue is whether the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003...
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