Opinion
3:24-cv-00695-YY
06-04-2024
ANTHONY GABRY, Plaintiff, v. HOMESITE INSURANCE COMPANY OF THE MIDWEST, Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Pro se plaintiff Anthony Gabry has brought this action against defendant Homesite Insurance Company of the Midwest alleging a claim for “breach of [a] rental insurance contract” arising from “a theft/disappearance loss that occurred in Tualatin, Oregon on February 29th, 2024.” Compl. ¶ 3, ECF 1-1. Plaintiff alleges that he “provided Defendant a recorded statement, police report, supporting documentation, and evidence of ownership” and defendant “fail[ed] to settle the claim in a prompt and reasonable fashion, when all requests and obligations were complied with.” Id. ¶¶ 6-7. As part of his breach of contract claim, plaintiff alleges that defendant violated “ORS 746.230 (a) (b) (c) (d) (e) (f) and (g), for intentional efforts to try and deny a valid claim, and pressure Plaintiff into litigating the matter to recover damages, when the claim was corroborated.” Id. ¶ 8. Plaintiff asserts an additional claim for “negligence per se” against defendant “for knowingly seeking to deny a valid and corroborated claim, and in violation of ORS 746.230.” Id. ¶ 9.
Approximately one month after the “theft/disappearance” occurred on February 29, 2024, plaintiff filed his initial complaint in Clackamas County Circuit Court on March 27, 2024. Defendant thereafter timely removed the matter to this court based on diversity jurisdiction. Notice Removal, ECF 1.
Defendant has filed a Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(B)(6). ECF 5. Plaintiff has filed no response. Plaintiff's failure to respond to the motion may be viewed as a concession on the merits. See Yentz v. Nat'l Credit Adjusters, LLC, No. 3:20-CV-01364-AC, 2021 WL 1277961, at *4 (D. Or. Feb. 15, 2021), report and recommendation adopted, (D. Or. Apr. 6, 2021) (“There are many cases in this district . . . holding that a plaintiff's failure to respond to a defendant's motion is a concession on the merits. These are in accord with other district's rulings in this circuit.”) (citing cases). Indeed, when defendant's attorney attempted to confer with plaintiff about the motion to dismiss pursuant to Local Rule 7-1, plaintiff responded that he intended to voluntarily dismiss the case himself. Mot. Dismiss 2, ECF 5.
But even if this court looks to the merits of defendant's motion, plaintiff's complaint fails to state a claim for relief for the reasons defendant contends. Pursuant to Federal Rule of Civil Procedure 8(a), “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the grounds for the court's jurisdiction; . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may include in the alternative or different types of relief.” Rule 8 does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2006) (citations omitted). “A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Federal courts hold a Pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (holding a document filed Pro se “is to be liberally construed”; a plaintiff need only give the defendant fair notice of the claim and the grounds on which it rests) (citation omitted). Pro se “pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
With respect to the breach of contract claim, plaintiff fails to allege which provisions of the insurance contract defendant purportedly breached. “In an action for breach of a written contract, a plaintiff must allege the specific provisions in the contract creating the obligation the defendant is said to have breached.” Young v. Facebook, Inc., 790 F.Supp.2d 1110, 1117 (N.D. Cal. 2011); see also Lansdown v. Bayview Loan Servicing, LLC, No. 22-CV-00763-TSH, 2023 WL 411348, at *8 (N.D. Cal. Jan. 25, 2023) (“Without any allegations as to BANA's conduct or the relevant contract provision, BANA cannot plausibly defend against the breach of contract claim.”). Plaintiff also has failed to allege any facts showing how O.R.S. 746.230 was violated.
Similarly, plaintiff's negligence per se claim lacks sufficient allegations to support a cause of action. Negligence per se is a “‘shorthand descriptor' of a negligence claim that otherwise exists, where the standard of care is expressed by statute or rule and a violation of the statute or rule establishes a presumption of negligence[.]” Moody v. Oregon Cmty. Credit Union, 371 Or. 772, 782 (2023). “Thus, . . . to make out a claim of negligence per se and take advantage of a presumption of negligence arising from a statutory violation, a plaintiff must show not only that the statute sets out an applicable standard of care, but also that the plaintiff has an existing negligence claim.” Id. Under Oregon law, “‘[a] negligence complaint, to survive a motion to dismiss, must allege facts from which a factfinder could determine (1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.'” Id. at 784 (quoting Solberg v. Johnson, 306 Or. 484, 49091 (1988)).
Here, plaintiff alleges only that defendant was “negligent in their acts for knowingly seeking to deny a valid and corroborated claim, and in violation of ORS 746.230” and “[a]s a result of this negligence, Plaintiff has sustained and continues to suffer from emotional distress including physical manifestation of chronic illness and other related symptoms.” This type of “unadorned, the-defendant-unlawfully-harmed-me accusation” is insufficient to establish a plausible claim for negligence per se. See Iqbal, 556 U.S. at 678.
Because plaintiff has failed to allege plausible claims for breach of contract and negligence per se, his case should be dismissed. Defendant seeks dismissal with prejudice and without leave to amend. However, the Ninth Circuit has explained that the “rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant” because they are “unskilled in the law” and “far more prone to making errors in pleading than the person who benefits from the representation of counsel.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Moreover, “[t]he law is clear that before a district court may dismiss a Pro se complaint for failure to state a claim, the court must provide the Pro se litigant with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal.” McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Here, plaintiff has not responded to the motion to dismiss; therefore, dismissal is appropriate. However, it cannot be said that plaintiff will never be able to cure the deficiencies in the complaint, particularly after they have been explained to him. Thus, at this juncture, it would be an abuse of discretion to dismiss the case with prejudice.
RECOMMENDATIONS
Because plaintiff has failed to allege plausible claims for relief, defendant's Motion to Dismiss (ECF 5) should be granted to the extent that the case should be dismissed. However, given the law pertaining to Pro se litigants and the rule favoring liberality in amendments, the dismissal should be without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, June 25, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.