United States District Court, D. Utah, Central Division
KATHLEEN M. RIESE, Plaintiff,
Benson District Judge.
REPORT AND RECOMMENDATION: GEICO'S MOTION TO
DISMISS (ECF NO. 17) AND COMPLAINT (ECF NO. 3)
J. FURSE UNITED STATES MAGISTRATE JUDGE.
Plaintiff Kathleen M. Riese, proceeding in forma
pauperis, filed the Complaint in this matter in June
2015. Defendant GEICO Indemnity Company (named in the lawsuit
as GEICO and referred to as “GEICO” in this
Report & Recommendation) moves the Court to dismiss Ms.
Riese's Complaint pursuant to Rules 8 and 12 of the
Federal Rules of Civil Procedure. (Mot. to Dismiss
(“Mot.”), ECF No. 17.) The Court also reviewed
the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
For the reasons addressed below, the undersigned RECOMMENDS
the Court dismiss Ms. Riese's Complaint without
9, 2015, the assigned magistrate judge granted Ms.
Riese's request to proceed in forma pauperis in
this matter. (ECF No. 2.) Ms. Riese's Complaint asserts
the following causes of action against GEICO: (1) “A
misrepresented fraudulent undisclosed Arbitration
filing;” (2) “Did not seek and obtain all
Documents prior to and upon an unbiased; undisclosed
arbitration;” and (3) “GEICO paid out to the
Driver that almost took my life and totalled [sic] my car,
The Copper Nubian Butterfly. An icon.'” (Compl.
4-5, ECF No. 3.) Ms. Riese states the following as supporting
facts for her causes of action:
• First cause of action: “A misrepresented
fraudulent Arbitration filing without full submittal of all
prior documents and documentation's [sic] pending.”
• Second cause of action: “1. Incomplete →
Police Report; (only one statement). Driver, I, Plaintiff,
taken away by ambulance before statements could be taken by
both parties. 2. Citations were later dropped against the
Plaintiff by the District Attorney during two following Court
• Third cause of action: “This was a Criminal
Case. My Personal Injury Attorney dropped his Representation
due to this fact. Under Subpoena both driver and officer were
a no appearance under a Bench Trial Court Date. All citation
charges at both of two later Court Dates were dropped against
(Id.) The Complaint further adds that “[t]hey
initially said their [sic] would be no Arbitration
Date” but “[t]hen proceed with an unknown,
unstated Arbitration prior to the Second Court Date Bench
Trial [w]ithout submitted photos from the Police Tow Lot
Received and Sent By Me [s]howing clearly it was an
Assault.” (Id. at 6.) Ms. Riese seeks a total
$115, 300.00 in damages for replacement costs, loss of
income, and artistic repair. (Id.)
18, 2016, the Court issued an order requiring Ms. Riese to
provide GEICO's address so that the Complaint could be
served. (Mem. Decision & Order on Service of Process, ECF
No. 6.) Ms. Riese provided GEICO's address (ECF No. 8)
and the U.S. Marshals Service subsequently served the
Complaint on GEICO. (ECF No. 11.) On September 16, 2016,
GEICO moved to dismiss the Complaint. (ECF No. 12.) GEICO
argued that Ms. Riese failed to allege facts to support civil
rights violations under 42 U.S.C. § 1983 and failed to
name the correct party. (See id.) Ms. Riese did not
respond to GEICO's motion to dismiss.
26, 2017, the Court issued a Report and Recommendation
recommending that the District Court deny GEICO's motion
to dismiss. (R. & R. re GEICO's Mot. to Dismiss, ECF
No. 14.) The Court found that GIECO sought to dismiss a claim
Ms. Riese did not bring. (Id. 3-4.) Specifically,
the Court noted that although Ms. Riese used a preformatted
complaint form bearing the title “Civil Rights
Complaint, ” she checked neither of the boxes that
would indicate she wishes to pursue a claim pursuant to 42
U.S.C. § 1985 or 42 U.S.C. § 1983. (Id.)
Further, the Court found that GEICO provided no legal
authority explaining why the Court should dismiss Ms.
Riese's Complaint for naming GEICO as a party as opposed
to GEICO Indemnity Company. (Id. at 4-5.) The Court
also acknowledged that it could not dismiss Ms. Riese's
Complaint solely because Ms. Riese did not oppose GEICO's
motion to dismiss but urged her “to respond to all
future briefings to avoid dismissal of her action.”
(Id. at 4.)
13, 2017, GEICO withdrew its motion to dismiss, (ECF No. 15),
and filed a new motion to dismiss on September 25, 2017 (ECF
No. 17)-the motion to dismiss currently pending before the
Court. Ms. Riese did not respond to this motion to dismiss
either. Moreover, Ms. Riese has not submitted anything to the
Court in this case since August 2016, (see ECF No.
8), and the post office returned several items mailed to Ms.
Riese to the Court as undeliverable. (See ECF Nos. 7
initial matter, the Court considers whether it has subject
matter jurisdiction to decide this case. Ms. Riese does not
specify the basis for the Court's subject matter
jurisdiction in her Complaint. (Compl. 1, ECF No. 3.) On the
Civil Cover Sheet, she marked the box indicating that the
Court has federal question jurisdiction. (Civil Cover Sheet,
ECF No. 3-1.) Federal courts have original jurisdiction over
“civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
Ms. Riese's Complaint does not ...