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Wallace v. State Farm Mutual Automobile Insurance Co.

United States District Court, Third Circuit

December 19, 2013



LAWRENCE F. STENGEL, District Judge.

William. Wallace, plaintiff, brings this lawsuit to recover damages for injuries sustained from a June 8, 2008 automobile accident. Mr. Wallace has sued State Farm Mutual Automobile Insurance Company (Mr. Wallace's insurer), Marjorie Cloman (the driver who hit Mr. Wallace), Britt, Hankins, & Moughan (State Farm's counsel in a previous lawsuit), Joseph Hankins, Esq. and Lise Luborsky, Esq. (Attorneys at Britt, Hankins &Moughan), Leonard Brody, M.D. (State Farm's Medical expert from prior litigation) Suburban Orthopedic Specialists (Dr. Brody's practice), Melanie Duncan, Craig Clifford and Robert Mundy (State Farm employees). The complaint alleges that defendants conspired to reduce the claim paid by State Farm to Mr. Wallace as a result of his injuries. Defendants have removed the case on the basis of federal question jurisdiction. Plaintiff filed a motion to remand, and defendants have moved to dismiss the complaint.


On June 8, 2008, Mr. Wallace was a pedestrian on Woodsview Drive in Bensalem, Pennsylvania when he was struck by a motor vehicle driven by Marjorie Cloman. Am. Compl. ¶ 14. At the time of the accident, State Farm insured Mr. Wallace under a motor vehicle insurance policy which included underinsured and uninsured motorist coverage. Id . ¶ 17. Mr. Wallace submitted a claim for his injuries to State Farm.[1] see Id . ¶ 19. State Farm denied coverage, Id . ¶ 19; however, plaintiff alleges that some minimal payment was made. Id . ¶ 28. According to plaintiff, State Farm had a long practice of conspiring with defense attorney's and medical experts to reduce or eliminate the amount paid on claims submitted by their insureds. Id . ¶¶ 5-13, 19-25.

This is plaintiff's fifth lawsuit arising from the June 8, 2008 accident.[2] Mr. Wallace filed the current action pro se in Philadelphia Court of Common Pleas. Defendants removed the case on the basis of federal question jurisdiction and filed motions to dismiss shortly thereafter. At defendants' request, I scheduled a hearing in chambers on October 16, 2013 to determine if Mr. Wallace was truly proceeding pro se. Attorney Elliott Tollan entered his appearance on behalf of plaintiff on October 15, thereby, resolving the dispute.[3]

Defendants' suspicion that Mr. Wallace was receiving assistance from counsel was well founded and is relevant to my consideration of both motions. Defendants directed my attention to the complaint in Fiengold v. Tesone, CIV.A. 12-4695, 2012 WL 3956662 (E.D. Pa. filed Sept. 7, 2012). Tesone complaint was a pro se action filed by Allan Fiengold, a disbarred attorney, and alleges an identical conspiracy engaged in by Erie Insurance Company to fraudulently reduce payments to its insureds. Not only does Mr. Wallace plead the same conspiracy, he copied the language from the Tesone complaint verbatim.[4] Furthermore, the plaintiff has attempted to destroy diversity with a tactic once employed by Mr. Fiengold and soundly rejected by our Court of Appeals.


A complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This statement must "give the defendant fair notice of what the.. claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). A complaint need not contain detailed factual allegations, but a plaintiff must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to show entitlement to relief as prescribed by Rule 8(a)(2). Id. at 1965; Evancho v. Fisher , 423 F.3d 347, 350 (3d Cir. 2005). A defendant may attack a his files which Mr. Wallace used to draft his pro se complaint. Recognizing he was in over his head, Mr. Wallace has enlisted Mr. Tollan's help going forward. complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus , 551 U.S. 89 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp. , 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff. Kanter v. Barella , 489 F.3d 170, 177 (3d Cir. 2007). The court is not, however, "compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation." Baraka v. McGreevey , 481 F.3d 187, 195 (3d Cir. 2007) (quotations and citations omitted). The court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 n. 2 (3d Cir.1994) (citations omitted). If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiffs' claim is "plausible on its face, " a complaint will survive a motion to dismiss. Twombly, 127 S.Ct. at 1965, 1974; Victaulic Co. v. Tieman , 499 F.3d 227, 234-35 (3d Cir. 2007). The plausibility determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009))

When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg , 321 F.3d 365, 369 (3d Cir. 2003). Such a complaint "must be held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble , 429 U.S. 97, 106 (1976). "[A] district court should not dismiss a pro se complaint without allowing the plaintiff leave to amend unless amendment would be inequitable or futile." Hill v. Rozum, 447 F.App'x 289, 290 (3d Cir. 2011) (citing Alston v. Parker , 363 F.3d 229, 235 (3d Cir.2004); Grayson v. Mayview State Hosp. , 293 F.3d 103, 108 (3d Cir.2002)).


A. Jurisdiction

Since plaintiff's motion to remand has raised the issue of this court's jurisdiction, I will address plaintiff's motion first. Defendants removed this case pursuant to 28 U.S.C. § 1331 because the complaint included a reference to federal wire and mail fraud statutes in paragraph 66.[5] Upon removal, plaintiff filed an amended complaint which was a photocopy of the original complaint with references to the federal statutes redacted with white out. Plaintiff claims that by removing the reference to the federal statutes this court no longer has jurisdiction to resolve the motions to dismiss.

Removal is proper when a federal law is an essential element of plaintiff's cause of action or the complaint requires the construction of a federal statute. See U.S. Express Lines Ltd. v. Higgins , 281 F.3d 383, 389 (3d Cir. 2002)(citations omitted); Lindy v. Lynn , 501 F.2d 1367, 1369 (3d Cir. 1974) (citations omitted) ("An action arises under the laws of the United States if and only if... it requires the construction of a federal statute...."). The district court may exercise jurisdiction if the federal question is apparent from the face of the complaint. U.S. Express Lines Ltd. , 281 F.3d at 389. "A subsequent amendment to the complaint after removal designed to eliminate the federal claim will not defeat federal ...

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