Dimick v. Allstate Corporation, The

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CHRISTOPHER RYAN DIMICK, et al.,
Plaintiffs,
vs.
ALLSTATE INSURANCE
CORPORATION, et al.
Defendants.
Case No. 3:19-cv-00262-RRB
ORDER REGARDING
MOTIONS TO DISMISS
(Dockets 14 & 35)
On April 29, 2019, Plaintiffs Christopher Ryan Dimick, Laura Kristine Dimick,
Drake William Dimick, J.R.D., and D.R.D., proceeding pro se, filed a civil complaint
in the U.S. District Court for the District of Colorado.1 On May 3, 2019, Magistrate
Judge Mix issued an order directing Plaintiffs to amend their complaint, because it
failed to state a claim.2 	Subsequently, Plaintiffs filed three separate amended
complaints.3 	On 	May 	14, 	2019, 	Defendants 	Allstate 	Corporation, 	Grover,
Poindexter, and Wilson (the “Allstate Defendants”) filed a Motion to Dismiss for
failing to establish personal jurisdiction, insufficient service, and failure to state a
claim.4 Without ruling on the pending motion, the District of Colorado transferred
the case to the District of Alaska on September 30, 2019.5 Shortly after the transfer
1 Docket 1.
2 Docket 6.
3 Dockets 8, 10, 15.
4 Docket 14.
5 The federal district court in Colorado found that it was the improper venue for this matter,
because the matter involved property in Alaska, and no defendant resided in Colorado.
Docket 32, citing 28 U.S.C. §1391(b).
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to the District to Alaska, the parties collectively referred to in the briefing as the
“State of Alaska Defendants,”6 filed a Motion to Dismiss for insufficient process
and insufficient service.7 This Court issued a Notice Regarding Motion to Dismiss
and directed Plaintiffs to respond to the motions.8 	The Motions to Dismiss at
Dockets 14 and 35 now are ripe for consideration.
I. 	FACTS
Plaintiffs allege that on April 28, 2017, they attempted to file an insurance
claim with Allstate Corporation regarding their property at 19165 Linda Lane,
Kasilof, Alaska.9 	Plaintiffs allege a multi-faceted disagreement with Allstate
Corporation regarding their policy, the claim filed, and the denial of that claim,10
including 	that 	their 	insurance 	policy 	covered 	the 	property 	losses 	and 	other
associated costs wrongly denied by Allstate Corporation.11
6 Commissioner Lori Wing-Heier, Division of Insurance, State of Alaska; Simon Ford,
Division of Insurance, State of Alaska; Alex Romero, Division of Insurance, State of Alaska;
Attorney General, Kevin G. Clarkson, Alaska Department of Law, State of Alaska; Scott Leaders,
Alaska Department of Law, State of Alaska; Erin Egan, Alaska Department of Law, State of Alaska;
Daniel Wilkerson, Alaska Department of Law; Ronny Simons, Alaska State Troopers, State of
Alaska; Brandon Elkins, Alaska State Troopers, State of Alaska; Commissioner, Amanda Price,
Department of Public Safety, Alaska State Troopers, State of Alaska; Commissioner, Adam Crum,
Alaska Department of Health and Social Services, State of Alaska; and Commissioner, Julie
Anderson, Division of Banking and Securities, State of Alaska.
7 Docket 35.
8 Docket 36.
9 Docket 15 at 33.
10 Id. at 30—45.
11 Based upon an exhibit filed by Plaintiffs, there is an insurance fraud investigation against
Plaintiffs related to the underlying claim. Docket 40 at 23.
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Specifically, Plaintiffs allege that their residence was contaminated by toxic
mold causing physical injuries and property damage.12 	Plaintiffs allege that they
required medical attention for their exposure to mold, suffered a loss of personal
property, and had to vacate the dwelling due to the mold. During the course of the
insurance claim, Plaintiffs left Alaska to reside in Colorado.13 	They argue that
although this left the property uninhabited, the property was not “abandoned.”
Rather, they allege that they continued to make payments on the property, that the
mortgage was paid off early, and that the property was fully insured.
Plaintiffs allege that Allstate Corporation, first through its claims agents and
later its attorneys, falsified documents 	and reports related to their claims.14
Additionally, Plaintiffs allege that their private information was shared between a
government agent and Allstate Corporation.15 Plaintiffs further allege that Allstate
Corporation and its agents trespassed on the Plaintiffs’ property and invaded their
privacy.16
Plaintiffs 	allege 	a 	host 	of 	violations 	of 	state 	and 	federal 	privacy 	and
information request statutes by state and federal agencies.17 	They allege that
these agencies either did not comply with their requests or shared information
12 See Docket 15.
13 Id. at 33.
14 Id. at 30—45.
15 Id. at 36.
16 See Id. at 36—45.
17 Id. at 37—45.
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inappropriately. 	Additionally, they allege, without specificity, civil rights violations
by state and federal agencies, and twelve specific causes of action: (1) breach of
contract, (2) gross negligence, (3) invasion of privacy, (4) negligent and intentional
infliction 	of 	emotional 	distress, 	(5) 	fraudulent 	concealment, 	(6) 	trespass,
(7) conversion, (8) breach of the implied covenant of good faith and fair dealing,
(9) fraud, (10) civil theft, (11) products and strict liability, and (12) violations of the
Alaska Consumer Protection Act.
II. 	JURISDICTION
The United States Supreme Court has established that “the federal courts
are under an independent obligation to examine their own jurisdiction[.]”18 	In a
federal court proceeding, a jurisdictional defect may be raised at any time.19 The
Court requires either subject matter or diversity jurisdiction in order to go forward.20
A. 	Subject Matter Jurisdiction
Jurisdiction is “[a] court’s power to decide a case or issue a decree.”21 	A
court’s 	subject 	matter 	jurisdiction 	is 	its 	“statutory 	or 	constitutional 	power 	to
adjudicate a case.”22 	As a federal court, this Court has limited subject matter
jurisdiction. 	It possesses “only that power authorized by the Constitution and
18 United States v. Hays, 515 U.S. 737, 742 (1995).
19 Washington Environmental Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013).
20 This analysis is distinct from determining proper venue, which the Colorado District
Court determined was more appropriate in Alaska than in Colorado.
21 B LACK’S L AW DICTIONARY (9th ed. 2009) (definition of “jurisdiction”).
22 Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998).
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statute.”23 This means that the Court has the authority to hear only specified types
of cases.24 	“In civil cases, subject matter jurisdiction is generally conferred upon
federal district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or
federal question jurisdiction, 28 U.S.C. § 1331.”25
1. 	Federal Question
Federal question jurisdiction gives a federal court the authority to consider
cases brought under the United States Constitution or federal statutes.26 In order
for a plaintiff to establish federal question jurisdiction it must be (1) clear on the
face of the complaint an issue of federal law exists, and (2) that federal law created
a cause of action for the plaintiff to seek relief.27 Plaintiffs’ Complaint cites to four
amendments of the U.S. Constitution, eleven federal statutory provisions, the
Colorado Constitution, the Alaska Constitution, and Alaska statutes.28
State statute and state constitutional claims do not establish federal question
jurisdiction, because they are not federal law. Moreover, a majority of the statutes
cited do not provide a private cause of action giving a private citizen standing to
23 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted);
see also, e.g. A-Z Intern. v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003).
24 See, e.g., United States v. Marks, 530 F.3d 779, 810 (9th Cir. 2008) (citing
DaimlerChrysler v. Cuno, 547 U.S. 332, 342 (2006)); United States v. Sumner, 226 F.3d 1005,
1010 (9th Cir. 2000).
25 Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005).
26 28 U.S.C. § 1331.
27 See Louisville & N.R.R. v. Mottley, 219 U.S. 467 (1911); American Well Works Co. v.
Layne & Bowler Co., 241 U.S. 257, 260 (1916); Franchise Tax Board v. Construction Laborers
Vacation Trust, 463 U.S. 1, 27—28 (1983).
28 Docket 15 at 4.
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sue in federal court for damages.29 	However, because this Court finds that
diversity jurisdiction applies, it need not examine more closely whether it has
federal question jurisdiction.
2. 	Diversity Jurisdiction
Even in the absence of a federal question, federal district courts have
original jurisdiction over civil lawsuits where the amount in controversy exceeds
$75,000.00 and is between citizens of different states or foreign states.30 Diversity
jurisdiction requires that the plaintiff has “citizenship which is diverse from that of
every defendant.”31 This means that this Court could have jurisdiction over a case
(including one involving only state law issues) when the plaintiff demonstrates
citizenship of a different state than the citizenship of each of the defendants.32
The 	Fourth 	Amended 	Complaint 	alleges 	that 	the 	Plaintiffs 	reside 	in
Colorado.33 	Indeed, Plaintiffs resided in Colorado when they filed this lawsuit
regarding their property located in Alaska, and concede that they have not recently
lived in the Alaska property at issue here. 	For purposes of diversity jurisdiction,
29 For instance, a private citizen may sue a federal agency for denying a request under
the Freedom of Information Act, but if the citizen prevails the statute does not create a private
cause of action for money damages. See 5 U.S.C. § 552, et seq.
30 28 U.S.C. § 1332.
31 Id.; see Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 722 (9th Cir. 2008) (quoting
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996) (diversity jurisdiction requires “complete diversity
of citizenship”)).
32 Id. (quoting Kokkonen, 511 U.S. at 377). However, if any defendant is a citizen of the
same state as the plaintiff, then no diversity jurisdiction exists. Id.
33 See Docket 15.
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Plaintiffs are citizens of the state of Colorado. By their own admission, they moved
to Colorado prior to the filing of this lawsuit, and have not recently lived on the
Alaska property at issue here. 	None of the Defendants appear to have Colorado
citizenship,34 and the amount in controversy exceeds the statutory threshold.
Accordingly, until this Court is informed otherwise, it assumes diversity jurisdiction
over the matter.
III. 	MOTIONS TO DISMISS
Defendants identified collectively as “the Allstate Defendants”35 and “the
State 	of 	Alaska 	Defendants” 	have 	filed 	separate 	motions 	to 	dismiss. 	The
remaining 17 named defendants have not appeared, and presumably have not
been served.
The Allstate Defendants move for dismissal pursuant to Federal Rules of
Civil Procedure 12(b)(4) and 12(b)(6),36 arguing that Plaintiffs’ Fourth Amended
Complaint was never properly served and does not state a claim.37 Plaintiffs have
had the opportunity to oppose, and the Allstate Defendants have replied.38
34 Defendant Allstate Insurance Company is incorporated under the laws of the State of
Illinois. Docket 15 at 4.
35 The Allstate Corporation, including Thomas Wilson (Allstate CEO) and Edward S.
Grover (Allstate employee). Although the motion at Docket 14 also was filed on behalf of Julie
Poindexter, Ms. Poindexter was not named as a defendant in the subsequent fourth Amended
Complaint at Docket 15.
36 The Allstate Defendants abandoned the argument under Rule 12(b)(2) that the Court
lacked personal jurisdiction after the matter was moved to the District of Alaska. Docket 44.
37 Docket 14. Supplement at Docket 17.
38 See Docket 40 & 44.
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Similarly, the State of Alaska Defendants move for dismissal pursuant to Fed. R.
Civ. P. 12(b)(4) and 12(b)(5), arguing that they have not been issued summons
and have not been properly served pursuant to Fed. R. Civ. P. 4(j)(2).39 Plaintiffs
have responded, and the State of Alaska Defendants have replied.40
A. 	Insufficient Service—Fed. R. Civ. P. 12(b)(4) & 12(b)(5)
The Court first considers the matter of service. 	Fed. R. Civ. P. 12(b)(4)
allows a defendant to move for dismissal due to insufficient process, and 12(b)(5)
allows for dismissal in the event of insufficient service of process. 	The Alaska
Defendants and the Allstate Defendants complain generally that: (1) Plaintiffs did
not provide any written notice of this lawsuit prior to the 90 day deadline to serve
after filing the complaint;41 (2) Plaintiffs have not attempted to serve most of the
State of Alaska Defendants;42 (3) Plaintiffs have attempted to request “waiver of
service,” which is inadequate service for State of Alaska officers and employees
who must be served by summons;43 (4) the summons which were served were
defective for lack of date, signature, and Clerk seal;44 and (5) even after this matter
was transferred to Alaska, Plaintiffs still have not properly served the Defendants.45
39 Docket 35.
40 Dockets 45 & 46.
41 Docket 35 at 2.
42 Id.
43 Id.
44 Docket 14 at 3.
45 Docket 35 at 2.
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Plaintiffs maintain that service was adequate under various provisions of
Rule 4, such as subsections (d), (e), (f), or (h).46 But Plaintiffs fail to recognize that
it is Rule 4(j) that dictates service of state and local governments, who are not
subject to waiver of service under Rule 4(d).
Moreover, although service of a corporation such as Allstate allows for a
waiver under Rule 4(d), Allstate alleges that it has only been “served” via defective
summons,47 a flaw that has not been cured by the filing of a Fourth Amended
Complaint or transfer of this case to the District of Alaska.48 Plaintiffs do not allege
that they sought a waiver from Allstate.
Finally, as noted above, there is no indication that Plaintiffs have served any
of the other 17 defendants.
The Plaintiffs must follow the Federal Rules of Civil Procedure and the Local
Civil Rules for the District of Alaska in serving the Defendants. Under the Federal
Rules, “[i]f a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time.”49
46 Docket 45 at 3.
47 Docket 14.
48 Docket 17.
49 Fed. R. Civ. P. 4(m).
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Plaintiffs previously have been warned by the District of Colorado, and now
the District of Alaska, of the possibility of dismissal for failure to serve.50 Because
Plaintiffs are pro se litigants, the Court will grant Plaintiffs one final opportunity to
complete service on the Defendants. The Court will issue a separate order which
will direct Plaintiffs how to properly serve the defendants, which will include a 90
day deadline from the date of that order. 	Plaintiffs will need to follow the specific
instructions provided by the Court, serve the Defendants, and file proof of service
with the Court.51 Otherwise, this action will be dismissed without further notice.
B. 	Failure to State a Claim—Fed. R. Civ. P. 12(b)(6)
The Allstate Defendants take their Motion to Dismiss an additional step,
seeking dismissal for failure to state a claim upon which relief can be granted:
Despite being fifty-five pages in length, the Complaint does not allege
facts demonstrating that Plaintiffs are entitled to any relief. 	(ECF
No. 14. 	at 	5-6.) 	Plaintiffs 	allege 	violations 	of 	“civil 	rights,”
“constitutional 	rights 	state 	and 	federal,” 	“conspiracy 	to 	obstruct
justice,” and other vague charges. 	(ECF No. 15. at ¶ 1.) 	Allstate is
in 	particular 	alleged 	to 	have 	committed 	“insurance 	fraud” 	and
“violations of criminal law,” including “child endangerment” and “pet
abuse.” 	(Id. ¶ 5.) 	Plaintiffs appear to complain that Allstate denied
their claim for mold-related damages at their previous residence in
Alaska (id. ¶ 35), but they do not allege any facts indicating that they
were entitled to coverage for these alleged damages. Plaintiffs also
allege that Allstate hired lawyers in Alaska who allegedly reported
“inaccurate 	and 	false 	facts 	during 	the 	course 	of 	ongoing
investigations” (id. at ¶ 36), but the nature of the “investigations” and
50 See Docket 19.
51 Due to the COVID-19 pandemic, all civil cases have been stayed in the U.S. District
Court for the District of Alaska. 	Instructions regarding the progression of this case and court
operations are included at the end of this order.
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the alleged misrepresentations are not stated. . . . [C]ourts routinely
dismiss complaints that are obscure, confusing, and vague. 	(ECF
No. 14 at 6.) Plaintiffs Complaint should also be dismissed here.52
The District of Colorado provided Plaintiffs with three opportunities to amend
their Complaint to state a colorable claim.53 The District of Colorado instructed as
follows:
Plaintiffs were instructed that their complaint must contain (1) a short and
plain statement of the grounds for the courts [sic] jurisdiction...; (2) a short
and plain statement of the claim showing that the pleader is entitled to relief;
and (3) a demand for the relief sought. Fed.R.Civ.P. 8. 	Plaintiffs original
complaint (ECF #1) is devoid of these basic requirements of pleading and
thus subject to dismissal as stated by Magistrate Judge Mix. 	See Order
directing Plaintiffs to file an amended complaint (ECF #6). On May 7, 2019
and May 9, 2019, Plaintiffs filed documents titled complaint. 	(ECF #8 and
ECF #10). 	Other than some changes to the list of Defendants, these
complaints are substantially similar to the original complaint and also fail to
meet the pleading requirements of Rule 8 for the same reasons as set forth
in Magistrate Judge Mixs Order. 	As it is incumbent upon the Court to
liberally construe Plaintiffs [sic] pro se pleadings, see Haines v. Kerner, 404
U.S. 519, 520-21 (1972), the Court will afford Plaintiffs one final opportunity
to file an amended complaint complying with Rule 8 as outlined in Magistrate
Judge Mixs Order . . . Plaintiffs are again encouraged to seek the guidance
of the Federal Pro Se Clinic [and] will not be charged any fee for the lawyers
[sic] time and assistance.54
This Court now reviews the Fourth Amended Complaint at Docket 15. 	In
contrast 	with 	the 	single 	page 	“Statement 	of 	Claim” 	in 	the 	Third 	Amended
Complaint,55 Plaintiffs’ Fourth Amended Complaint contains a 15-page Statement
of Facts and identifies 12 specific causes of action: 	(1) breach of contract,
52 Docket 17 at 5.
53 Dockets 6, 9, and 11, with Amended Complaints at Dockets 8, 10, and 15.
54 Docket 11.
55 See Docket 10 at 21.
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(2) gross negligence, (3) invasion of privacy, (4) negligent and intentional infliction
of emotional distress, (5) fraudulent concealment, (6) trespass, (7) conversion,
(8) 	breach of the implied covenant of good faith and fair dealing, (9) fraud, (10)
civil theft, (11) products and strict liability, and (12) violations of the Alaska
Consumer Protection Act.56
Federal courts are instructed to “liberally construe the inartful pleading of pro
se litigants.”57 	This principle of interpretation relaxes the general standards of a
court and allows pro se plaintiffs leeway when attempting to explain or establish a
legal claim. 	For example, liberal construction may be applied where a pro se
plaintiff misstates or miscites the law, misapplies a legal standard or procedure, or
has a complaint riddled with drafting errors.
Liberal construction does not override Fed. R. Civ. P. 8 which requires “a
short and plain statement of the claim showing that the pleading is entitled to relief.”
Neither can the Court fully disregard the standards from Twombly or Iqbal, where
the United States Supreme Court established that pleadings must “state a claim
that is plausible on its face”58 and that courts must “consider the factual allegations
in [a] complaint to determine if they plausibly suggest an entitlement to relief.”59
The Ninth Circuit Court of Appeals has held that courts must balance these
56 Docket 15 at 30—54.
57 Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).
58 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
59 Ashcroft v. Iqbal, 556 U.S. 662, 679-80 (2009).
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principles and that “[w]hile the standard is higher [under Iqbal], our obligation
remains, where the petitioner is pro se, particularly in civil rights cases, to construe
the pleadings liberally and to afford the petitioner the benefit of any doubt.”60
Liberal construction means that pro se litigants are “relieved from the strict
application of procedural rules and demands that courts not hold missing or
inaccurate legal terminology or muddled draftsmanship against them.”61 	Liberal
construction does not mean that the court is required to supply essential elements
of the claim that were not initially plead.62
Although a pro se litigant “may be entitled to great leeway when the court
construes his pleadings, those pleadings nonetheless must meet some minimum
threshold in providing a defendant with notice of what it is that it allegedly did
wrong.”63 	Though inartful, the core of 	Plaintiffs’ causes 	of action reflect a
disagreement between the Plaintiffs and the Allstate Defendants over an insurance
policy. Under this light of liberal construction, at present, the Court finds sufficient
factual 	pleading 	to 	give 	notice 	to 	the 	Allstate 	Defendants 	of 	their 	alleged
wrongdoing.
Accordingly, the Court DENIES the Allstate Defendants’ Motion to Dismiss
at Docket 14 WITHOUT PREJUDICE.
60 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
61 Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013).
62 See Byrd v. Maricopa Cty. Sheriff’s Dep’t., 629 F.3d 1135, 1140 (9th Cir. 2011) (citing
Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)).
63 Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
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IT IS THEREFORE ORDERED:
1. This Court has diversity jurisdiction to hear this matter.
2. The Motions to Dismiss at Docket nos. 14 and 35 are DENIED
WITHOUT PREJUDICE.
3. Plaintiff 	is 	advised 	that 	on 	March 	30, 	2020, 	the 	Court 	issued
Miscellaneous General Order 20-11 (“MGO 20-11”) in response to the
current coronavirus disease (COVID-19) pandemic.64 In MGO 20-11,
the 	Court 	found 	that 	national, 	state, 	and 	municipal 	emergency
declarations, in addition to public health and safety guidance, have
caused significant disruption to government agencies, businesses,
and individual litigants. 	In order to avoid default or prejudice to any
parties, the Court imposed a stay in all civil proceedings, including this
case. 	A stay is a “postponement or halting of a proceeding [or]
judgment[.]”65 	This 	means 	that 	all 	current 	filing 	deadlines 	are
suspended, and no further action will be taken in this case at this time.
The stay will remain in place until May 1, 2020, unless the Court
orders the stay end on a different date.
4. The Court shall issue an Order Directing Service and Response upon
the lifting of the stay. 	Upon the issuance of that order, the Plaintiffs
will have ninety (90) days to follow the directions on how to complete
service upon each Defendant.
IT IS SO ORDERED.
IT IS SO ORDERED this 10th day of April, 2020, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
64 Miscellaneous General Order 20-11 (available at: https://www.akd.uscourts.gov/sites/
akd/files/20-11_MGO_Suspension_of_Proceedings.pdf).
65 B LACK’S L AW DICTIONARY (11th ed. 2019).
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