United States District Court, E.D. Arkansas, Jonesboro Division
FINDINGS AND RECOMMENDATION INSTRUCTIONS
following proposed Findings and Recommendation have been sent
to United States District Judge James M. Moody, Jr. You may
file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection, and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
Lyndon Southern Insurance Company (“Lyndon
Southern”) has filed the pending motion for summary
judgment. See Docket Entry 9.Plaintiff David
Erwin (“Erwin”) has filed a document that has
been construed as an objection to the stipulation for
dismissal with prejudice he entered into with defendant
Santander Consumer USA (“Santander”).
See Docket Entry 27. For the reasons that follow,
the undersigned recommends that Lyndon Southern's motion
for summary judgment be granted. The undersigned also
recommends that Erwin's objection to the stipulation be
overruled. This case should be dismissed without prejudice,
and judgment should be entered for Lyndon Southern and
began this case by filing a pro se complaint
pursuant to 28 U.S.C. 1332 and joining Lyndon Southern and
Santander. Erwin alleged in the complaint that he purchased
an automobile on March 23, 2017, an automobile that he later
identified as a Kia Optima. The following day, the automobile
was stolen. When it was eventually located, it was on
fire. He filed a claim for insurance proceeds with Lyndon
Southern, but the claim was denied. Santander's
involvement in the events giving rise to his complaint was
not clear. The complaint did not contain a prayer for relief;
instead, that portion of his complaint was left blank.
thereafter filed a motion for preliminary injunction. The
undersigned recommended that it be denied. He objected to the
recommended disposition, and his objections are noteworthy
for the following representations: “I did file for
punitive damages and time involved and my $18, 500 in
paperwork, and I ask for the full amount of $75, 000.00, plus
my car.” See Docket Entry 17 at CM/ECF 1.
United States District Judge James M. Moody, Jr., adopted the
recommended disposition and denied the motion for preliminary
Southern and Santander subsequently filed separate motions to
dismiss and joined their motions with several exhibits.
See Docket Entry 9, 11. In the motions, they
maintained that Erwin's complaint should be dismissed for
lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1). They so maintained because the
amount in controversy did not exceed $75, 000.00. They also
maintained that the complaint should be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(6) because it failed to
state a claim upon which relief can be granted. Lyndon
Southern so maintained because the stolen Kia Optima was not
an automobile covered by an insurance policy with Lyndon
Southern on the date of the loss and, even if it were,
coverage for the automobile was excluded because the keys
were left in the automobile at the time of the theft.
undersigned briefly reviewed the motions to dismiss and could
not determine at that time whether the exhibits would be
considered in resolving the motions. Out of an abundance of
caution, the undersigned elected to treat the motions as ones
for summary judgment. The parties were accorded an
opportunity to file all materials in support of, and in
opposition to, the motions.
and Santander then filed a joint stipulation for dismissal
with prejudice. The stipulation provided the following:
IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff
David Erwin and Defendant Santander Consumer USA Inc. that
Plaintiff's claims against Defendant Santander Consumer
USA Inc. may be, and hereby are, dismissed on their merits
with prejudice and without the award of costs, fees, or any
other amount to any party. Plaintiff's claims against
Defendant Lyndon Southern Insurance remain pending.
Docket Entry 21. On the basis of the stipulation, United
States District Judge James M. Moody, Jr., deemed
Santander's motion to be moot.
thereafter, Erwin filed a one page document that the Clerk of
the Court construed as an objection to the joint stipulation
for dismissal with prejudice. In the document, Erwin
represented the following: “I David Erwin contest
Document #21 [i.e., the joint stipulation for
dismissal with prejudice], reason being [that
Santander's] lawyer did not hold up to [their] agreement.
We did not settle as they said they would do the things, and
they did not do it.” See Docket Entry 27.
filed a response to Erwin's submission. In the response,
Santander represented the following:
Plaintiff and [Santander] agreed to mutually beneficial
settlement terms pursuant to a mutually executed confidential
settlement agreement (“Settlement Agreement”).
Following completion of certain obligations under the
Settlement Agreement, Plaintiff and [Santander] agreed to,
and filed, the mutually executed Joint Stipulation of
Dismissal with Prejudice on February 8, 2018
(“Stipulation”) (Doc. 21).
As a result of the Stipulation, Plaintiff's claims
against [Santander] were fully and finally dismissed. On
February 13, 2019, the Court noted the finality of the
Stipulation, holding in a subsequent Docket Order that
[Santander's] Motion to Dismiss was “moot in light
of the parties' joint stipulation of dismissal.”
Therefore, Plaintiff's “Objection” to Joint
Stipulation for Dismissal with Prejudice, filed nearly a
month after the Stipulation, is untimely, without merit, and
without any legal force or effect.
See Docket Entry 28 at CM/ECF 1-2.
Erwin's submission was not a model of clarity, he was
asked to clarify it. Because the submission was also bereft
of facts, he was also asked to provide some factual support
for it. He was cautioned that his obligation to clarify his
submission and provide facts to support it did not relieve
him of his obligation to file all materials pertinent to
Lyndon Southern's motion for summary judgment.
then filed a one page document that the Clerk of the Court
construed as a notice to the court. In the document, Erwin
represented the following:
I, David Erwin, would like to ask the court to help with
enforcing the settlement with Santander Consumer USA in
Dallas, Texas. Fulbright and Nicholson out of Dallas, TX, was
the lawyer, but I talked with a lawyer out of St. Louis, MO.
We agreed on a settlement. They were to give me $3500.00 and
restore my credit and let me trade in this car that is on the