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Riese v. Geico

United States District Court, D. Utah, Central Division

July 16, 2018

KATHLEEN M. RIESE, Plaintiff,
v.
GEICO, Defendant.

          Dee Benson District Judge.

          REPORT AND RECOMMENDATION: GEICO'S MOTION TO DISMISS (ECF NO. 17) AND COMPLAINT (ECF NO. 3)

          EVELYN J. FURSE UNITED STATES MAGISTRATE JUDGE.

         Pro se 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[1] 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 prejudice.

         FACTUAL BACKGROUND

         On June 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 Appearances.”
• 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 the Plaintiff.”

(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.)

         On June 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.

         On June 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.)

         On July 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 & 16.)

         JURISDICTION

         As an 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 ...


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