United States District Court, E.D. Arkansas, Pine Bluff Division
DONALD R. FRAZIER PLAINTIFF
MDOW INSURANCE COMPANY; and MARK S. BREEDING DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
an insurance coverage dispute. According to the complaint,
the plaintiff, Donald R. Frazier, purchased a homeowner's
insurance policy from MDOW Insurance Company in February of
2016. In March of 2016, a fire destroyed Frazier's
residence, and Frazier submitted a claim under the policy.
MDOW hired Mark S. Breeding, an attorney, to examine Frazier
under oath. Frazier complied with the request for an
examination under oath. Nevertheless, after that examination,
MDOW denied coverage, claiming that Frazier had made material
misrepresentations on the application for the policy and
during the examination under oath and that he submitted an
inventory of items destroyed that was inaccurate and
inflated. Frazier alleges that MDOW has breached its contract
and has committed the tort of bad faith. He alleges that
Breeding owed him a fiduciary duty and did not uphold his
duty of care in the manner in which he conducted the
examination under oath.
invokes this Court's jurisdiction by alleging federal
causes of action against the defendants under 42 U.S.C.
§ 1983 for violations of the first, fourth, eighth, and
fourteenth amendments of the United States constitution, 42
U.S.C. § 1981, the Rehabilitation Act of 1973, the
Americans with Disabilities Act, and the Civil Rights Acts of
1964 and 1965. The defendants have filed a motion to dismiss,
arguing that (1) this Court lacks subject-matter
jurisdiction, Fed.R.Civ.P. 12(b)(1), or alternatively (2)
Frazier's complaint fails to state a claim upon which
relief can be granted, Fed.R.Civ.P. 12(b)(6). In his response
to the defendants' motion to dismiss, Frazier moves to
amend the complaint, seeking only to add additional
defendants. For the reasons explained below, the
defendants' motion to dismiss is granted, and
Frazier's motion to amend is denied.
United States constitution extends the federal judicial power
to “Cases” and “Controversies”
“arising under” the constitution, laws, or
treaties of the United States and to disputes between parties
of different states. U.S. Const. art. III, § 2, cl. 1.
By statute, the United States District Courts “shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Whether a district
court has federal question jurisdiction is determined by the
“well-pleaded complaint rule, ” which provides
that a district court has jurisdiction “when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96
L.Ed.2d 318 (1987) (citation omitted). Alternatively, a
United States District Court may have jurisdiction in a civil
action in which the amount in controversy exceeds $75, 000
and the dispute is between citizens of different states. 28
U.S.C. § 1332(a). The Supreme Court has held that this
statute requires “complete diversity of citizenship,
” which means that the citizenship of each plaintiff
must be diverse from the citizenship of each defendant.
See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117
S.Ct. 467, 472, 136 L.Ed.2d 437 (1996).
and Breeding are both citizens of Arkansas, which means that
complete diversity of citizenship is lacking, so this Court
does not have jurisdiction under 28 U.S.C. § 1332.
Therefore, if this Court has jurisdiction, it must be because
Frazier's claims arise under the constitution or laws of
the United States. The defendants argue that Frazier's
complaint is facially defective because it does not allege
facts that would support federal-question jurisdiction.
Specifically, the defendants argue that the causes of action
Frazier's complaint alleges require either a state actor
or employer-employee relationship. With neither present, the
defendants contend that Frazier's complaint must be
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8(a)(2) does
not require a complaint to contain detailed factual
allegations, it does require a plaintiff to state the grounds
of his entitlement to relief, which requires more than labels
and conclusions. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929
(2007). In ruling on a motion to dismiss, the Court must
accept as true all factual allegations in the complaint and
review the complaint to determine whether its allegations
show that the pleader is entitled to relief. Gorog v.
Best Buy Co., Inc., 760 F.3d 787, 792 (8th Cir. 2014).
All reasonable inferences from the complaint must be drawn in
favor of the nonmoving party. Id. The Court need
not, however, accept as true legal conclusions, even those
stated as though they are factual allegations. Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949-50,
173 L.Ed.2d 868 (2009). A pro se complaint must be
liberally construed, however inartfully pleaded, and held to
less stringent standards than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
2200, 167 L.Ed.2d 1081 (2007); Jackson v. Nixon, 747
F.3d 537, 541 (8th Cir. 2014).
defendant has made a facial challenge under Rule 12(b)(1),
“all of the factual allegations concerning jurisdiction
are presumed to be true and the motion is successful if the
plaintiff fails to allege an element necessary for subject
matter jurisdiction.” Titus v. Sullivan, 4
F.3d 590, 593 (8th Cir. 1993) (citation omitted). Here, the
complaint contains no allegations that the defendants, MDOW
and Breeding, are state actors. Indeed, it is apparent from
the complaint that they are not. MDOW is an insurance
company; Breeding is an attorney in private practice. A cause
of action brought pursuant to section 1983 requires that the
conduct in question be attributable to a state actor. See
Adams ex rel. Harris v. Boy Scouts of America-Chickasaw
Council, 271 F.3d 769, 778 (8th Cir. 2001).
Frazier's complaint fails to allege an element necessary
for a cause of action under section 1983.
42 of the United States Code section 1981 provides that all
persons within the United States shall have the same right to
make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all of the
laws and proceedings for the security of persons and property
as is enjoyed by white citizens. The Courts have recognized
this provision as having a contract clause and an equal
benefits clause. Adams ex rel. Harris v. Boy Scouts of
America, 271 F.3d 769, 777 (8th Cir. 2001). A claim
under the equal benefits clause requires state action, but a
claim under the contracts clause does not. Id.
Frazier, presumably, is proceeding under the contracts clause
of section 1981. To state a claim under the contracts clause
of section 1981, a plaintiff must allege that he is a member
of a protected class, the defendants intentionally
discriminated against him, he sought to exercise his right to
make and enforce contracts with the defendants, and the
defendants interfered with that exercise. Gregory v.
Dillards, Inc., 565 F.3d 464, 469 (8th Cir. 2009). The
difficulty here is with the third element. While Frazier
claims that the defendants discriminated against him based on
his race, his allegations are purely conclusory and do not
meet the Twombly standard.
also attempts to invoke the Civil Rights Acts of 1964 and
1965, the Americans with Disabilities Act and the
Rehabilitation Act of 1973. The Rehabilitation Act has a
number of provisions, but Frazier does not specify which of
those provisions authorizes his claim. It is not apparent
from his complaint, even when the complaint is construed
liberally, that any of the provisions of the Rehabilitation
Act apply here. The same is true of the Civil Rights Acts:
Frazier does not specify under which provision his claim is
brought, nor is it apparent that any provisions of the Civil
Rights Acts apply.
alleges that he is a person with a “certified
disability” and is covered by Titles I through V of the
Americans with Disabilities Act, but other than saying that
he has a “mental disability, ” he does not
specify the nature of his disability. Document #1 at 5,
¶ 24 and 7, ¶ 38. After alleging that he has a
“certified disability, ” he alleges that the
defendants violated Title V of the ADA. Title V of the ADA is
another way of referring to 42 U.S.C. § 12201-12213.
See Rickmyer v. Browne, No. 13-CV-559 (SRN/LIB),
2014 WL 1607590, at *12 n.32 (D. Minn. April 18, 2014). The
only provision in Title V that appears to give rise to a
cause of action is section 12203. That provision prohibits
discrimination against an individual who has opposed an act
or practice made unlawful by that chapter or has testified or
participated in a proceeding under that chapter and makes it
unlawful to coerce, intimidate, threaten, or interfere with
any individual in the exercise or enjoyment of any right
granted by that chapter. 42 U.S.C. § 12203. Nothing in
Frazier's complaint alleges a claim under this provision.
complaint makes reference to numerous provisions in the laws
and the constitution of the United States, including the
first, fourth, fifth, eighth and fourteenth amendments to the
constitution, 42 U.S.C. §§ 1981 and 1983, Titles I
through V of the Americans with Disabilities Act, the
entirety of the Rehabilitation Act of 1973, and the Civil
Rights Acts of 1964 and 1965. It appears that he is
attempting to invoke every civil rights statute in the United
States Code. He alleges that he has been subject to
discrimination based on his race, color, sex, national
origin, and disability, which pretty well exhausts the
possibilities for a discrimination claim. While it is
theoretically possible that the defendants could have
discriminated against him on all of these grounds, it is not
plausible. Frazier's complaint never really specifies
what federal law he claims that the defendants have violated
nor how they have violated it. Rather, he invokes every
federal civil rights statute and claims to have been the
victim of every form of discrimination prohibited by federal
law, which leaves the Court and the defendants to guess as to
the nature of and basis for his federal claims.
the allegations in his complaint are true, Frazier may have
claims for breach of contract and the tort of bad faith.
Those, however, are claims that arise under state law, not
federal law. Even construing Frazier's complaint
liberally, the Court cannot find allegations sufficient to
show that he has a claim that arises under the constitution
or laws of the United States.
brings the Court to Frazier's motion to amend the
complaint. Frazier's proposed amended complaint would add
as defendants another insurance company and the law firm with
which Breeding practices but would not correct any of the
complaint's deficiencies. A district court may deny an
motion for leave to amend if the proposed amendment would be
futile. Reuter v. Jax, Ltd., 711 F.3d 918, 922 (8th
Cir. 2013). Because the proposed ...