Kim v. Progressive N. Ins. Co., C/A: 2:16-2561-RMG-BM

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Bristow Marchant United States Magistrate Judge
• Parties: Insun Kim, Plaintiff, v. Progressive Northern Insurance Company, Defendant.
• Docket Number: C/A: 2:16-2561-RMG-BM
• Decision Date: 06 September 2016

Insun Kim, Plaintiff,
v.
Progressive Northern Insurance Company, Defendant.

C/A: 2:16-2561-RMG-BM

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

September 6, 2016

REPORT AND RECOMMENDATION

This is a civil action filed by the Plaintiff, Insun Kim, pro se, and is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997)[pleadings by non-prisoners should also be screened]. Under established local procedure in this judicial district, a careful review has been made of the pro se complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995) (en banc); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B),

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a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319. Further, while this Court is also required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal court. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). Such is the case here.

Discussion

Plaintiff alleges that the Defendant, Progressive Northern Insurance Company (Progressive), breached a contract in bad faith. Plaintiff alleges that on September 7, 2014, she was involved in an automobile accident which resulted in her sustaining physical and mental injuries. The accident report appears to indicate that Plaintiff was insured by Allstate and the other driver was insured by Progressive. Plaintiff offered to settle her claims with Defendant for $50,000, but Defendant refused to do so. Information attached to the Complaint also appears to indicate that Progressive offered Plaintiff $1,500 to settle her claim, but the company refused her request for higher settlement amounts because Plaintiff allegedly failed to submit any medical bills or records to support her claim. See ECF No. 1-1 at 2, 3, 6, 10.

Plaintiff checked "No" in answer to a question on the Complaint form asking if she had filed other lawsuits in state or federal court dealing with the same facts involved in this action. However, she provided with her Complaint a handwritten note stating "Evidence of Denied by the 9^th JUDICIAL CIRCUIT", which was followed by a copy of a "Motion and Order Information Form and Coversheet" from case number 2016-CP-10-0674 filed in the Court of Common Pleas for the

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Ninth Judicial Circuit. The submitted form lists the Plaintiff here as the plaintiff in the state court action and lists the Defendant here as the defendant in the state court action, and indicates that the plaintiff's motion for a continuance was denied. ECF No. 1-1 at 23-25. Records from the Court of Common Pleas for Charleston County (Ninth Judicial Circuit) show that in Case Number 2016-CP-10-0674 on May 9, 2016, Progressive filed a motion to dismiss in which it argued that Plaintiff failed to state facts sufficient to constitute a cause of action against it as South Carolina law prohibits third-parties from bringing a direct action against an insurer for damages caused by the insured.¹ The state court heard Progressive's motion to dismiss and granted it, thereby ending Plaintiff's state court case. See Charleston County Public Index, http://jcmsweb.charlestoncounty.org/PublicIndex/CaseDetails.aspx?County=10&CourtAgency=10002&Casenum=2016CP1000674&CaseType=V (last visited Aug. 31, 2016).² Hence, if Plaintiff is now attempting to remove her state court case to this Court in an attempt to obtain a different result, she may not do so by filing a complaint, as "[a] complaint is not the appropriate vehicle for removing a case from state court to federal court."

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Barnard v. Plastics Reclaim Co., No. 8:08-714-HMH-BHH, 2008 WL 2076686, at *3 (D.S.C. May 9, 2008).³

Further, to the extent that Plaintiff is attempting to appeal the results of her state court case through the filing of this action, federal district courts do not hear "appeals" from state court actions. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983)[a federal district court lacks authority to review final determinations of state or local courts because such review can only be conducted by the Supreme Court of the United States under 28 U.S.C. § 1257]; Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). This Court may not overrule and reverse orders and rulings made in the state court, as such a result is prohibited under the Rooker-Feldman doctrine. Davani v....