Smith v. Tipsord

• Decision Date: 15 September 2021
• Docket Number: Civ. 20-852-LPS
• Parties: DENNIS SMITH, Plaintiff, v. MICHAEL L. TIPSORD, Individually and as Incumbent C.E.O. of State Farm Insurance, et al., Defendants.
• Court: U.S. District Court — District of Delaware

DENNIS SMITH, Plaintiff, v. MICHAEL L. TIPSORD, Individually and as Incumbent C.E.O. of State Farm Insurance, et al., Defendants.

Civ. No. 20-852-LPS

United States District Court, D. Delaware

September 15, 2021

Dennis L. Smith, Dagsboro, Delaware, Pro Se Plaintiff.

Joseph J. Bellew, Esquire, White and Williams LLP, Wilmington Delaware. Counsel for Defendants.

MEMORANDUM OPINION

STARK U.S. District Judge

I. INTRODUCTION

Plaintiff Dennis L. Smith ("Plaintiff), who proceeds pro se, commenced this action on June 25, 2020. He asserts jurisdiction pursuant to 28 U.S.C. §1331 and §1343. (D.I.1) Plaintiff filed an Amended Complaint on October 7, 2020. (D.I. 4) Before the court is Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6). (D.I. 13) Briefing is complete.

II. BACKGROUND

Plaintiff brings this action pursuant to 42 U.S.C. § 1981(b) and asserts a supplemental claim under Delaware law. On June 25, 2018, Plaintiff was involved in an automobile accident when his car was rear-ended by Janelle T. Boyer ("Boyer").^[1] (D.I. 4 at 2) Plaintiff was injured and received medical treatment. (Id. at 3)

Plaintiff alleges State Farm Insurance Claim Specialist Ericka Beard ("Beard") made an implied promise when Plaintiff mutually agreed with a September 12, 2019 letter that stated in part, "upon receipt of this signed authorization we will be able to obtain records to assist us in the evaluation of your claim." (D.I. 4 at 1-2) Plaintiff telephoned Beard and asked for a written agreement to extend the time for Beard to receive all of Plaintiff s medical records. (Id. at 2) Beard would not agree to an extension of time and told Plaintiff that to protect his claim he should file a lawsuit on or before June 25, 2020, after which Plaintiff and Beard could begin negotiations and settlement. (Id.) Plaintiff alleges that he was offered a settlement without Defendants first reviewing his medical records as agreed upon, in violation of 42 U.S.C. § 2000h-2.^[2] (Id. at 4) Plaintiff alleges that Defendants State Fatm Insurance ("State Farm") and State Farm Chief Executive Officer Michael L. Tipsord ("Tipsord") (together "Defendants") are vicariously liable for his injuries. Plaintiff seeks $1.5 million in compensatory damages as well as punitive damages.

Defendants move for dismissal for lack of subject mater jurisdiction, lack of diversity jurisdiction, lack of federal question jurisdiction, lack of personal jurisdiction over Tipsord, and failure to state a claim. Plaintiff opposes on the grounds that this court's February 12, 2021 and August 11, 2021 Orders are void judgments and deprived him of his "due process of law, constitutional civil rights (Federal criminal code 18 U.S.C. § 242)." (D.I. 23)

III. LEGAL STANDARDS

A. Rule 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the dismissal of an action for "lack of subject matter jurisdiction." A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack contests the sufficiency of the pleadings, whereas a factual attack contests the sufficiency of jurisdictional facts. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). When considering a facial attack, the court accepts a plaintiffs well-pleaded factual allegations as true and draws all reasonable inferences from those allegations in the plaintiffs favor. See In re Horizon Healthcare Services Inc. Data Breach Litigation, 846 F.3d 625, 633 (3d Cir. 2017). When reviewing a factual attack, the court may weigh and consider evidence outside the pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).

B. Rule 12(b)(2)

Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, the court may dismiss a suit for lack of jurisdiction over the person. When a defendant challenges a court's exercise of personal jurisdiction under Rule 12(b)(2), "the plaintiff bears the burden of establishing personal jurisdiction by a preponderance of the evidence and must do so by 'establishing with reasonable particularity sufficient contacts between the defendant and the forum state.'" Turner v. Prince Georges Cty. Pub. Sck, 694 Fed.Appx. 64, 66 (3d Cir. 2017) (quoting Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)). "To meet this burden, the plaintiff must produce 'sworn affidavits or other competent evidence,' since a Rule 12(b)(2) motion 'requires resolution of factual issues outside of the pleadings.'" Brasure 's Pest Control, Inc. v. Air Cleaning Equip., Inc., 2018 WL 337747, at *l (D. Del. Jan. 9, 2018) (quoting Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67 n.9 (3d Cir. 1984)). "[W]hen the court does not hold an evidentiary hearing on the motion to dismiss, [however], the plaintiff need only establish a prima facie case of personal jurisdiction and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its favor." Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004) (citation omitted).

To establish personal jurisdiction, a plaintiff must produce facts sufficient to satisfy two requirements by a preponderance of the evidence, one statutory and one constitutional. See Time Share, 735 F.2d at 66; Reach & Assocs. v. Dencer, 269 F.Supp.2d 497, 502 (D. Del. 2003). With respect to the statutory requirement, the court must determine whether there is a statutory basis for jurisdiction under the forum state's long-arm statute. See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998); Reach & Assocs., 269 F.Supp.2d at 502. With respect to the Constitution, the court must determine whether the exercise of jurisdiction comports with the defendant's right to due process. See id.; International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

Under Delaware's long-arm statute, 10 Del. C. § 3104(c)(1)-(4), a court may exercise personal jurisdiction over a defendant when the defendant or its agent:

(1) Transacts any business or performs any character of work or service in the State;

(2) Contracts to supply services or things in this State;

(3) Causes tortious injury in the State by an act or omission in this State;

(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State.

With the exception of (c)(4), the long-arm statute requires a showing of specific jurisdiction. See Shoemaker v. McConnell, 556 F.Supp.2d 351, 354-55 (D. Del. 2008). Subsection (c)(4) confers general jurisdiction, which requires a greater extent of contacts, but allows the exercise of personal jurisdiction even when the claim is unrelated to the forum contacts. See Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F.Supp. 1458, 1466 (D. Del. 1991).

If a defendant is found to be within the reach of the long-arm statute, the court must then analyze whether the exercise of personal jurisdiction comports with due process by determining whether the plaintiff has demonstrated that the defendant "purposefully avail[ed] itself of the privilege of conducting activities within the forum State," such that it should "reasonably anticipate being haled into court there." World-Wide Volkswagen Cop. v. Woodson, 444 U.S. 286, 297 (1980) (citations omitted). The court may exercise specific jurisdiction consistent with due process when the plaintiffs cause of action arises from the defendant's activities in the forum state. See Burger King Cop. v. Rudzewicz, 471 U.S. 462, 472 (1985). The court may exercise general jurisdiction consistent with due process when the plaintiffs cause of action is unrelated to the defendant's activities in the forum state, so long as the defendant has "continuous and systematic contacts with the forum state." Applied Biosystems, Inc., 772 F.Supp. at 1470.

C. Rule 12(b)(6)

Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the court to accept as true all material allegations of the complaint. See Spruill v. Gittis, 372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).

A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, 574 U.S. 10 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See Id. at 10. "In evaluating a motion to dismiss," the court "may consider documents that are attached to or submitted with the complaint. . . 'matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'" Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

"To survive a motion to...