Tucker v. Allstate Insurance Company

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TERRI TUCKER,
Plaintiff,
v.
ALLSTATE INSURANCE COMPANY,
Defendant.
Case No. 25-1267-BGS
MEMORANDUM & ORDER ON DEFENDANT’S MOTION TO DISMISS
Plaintiff filed this breach of contract lawsuit pro se in Sedgwick County District Court. (Doc.
1-1.) The state court petition was sparse, consisting of only one page.
Defendant removed the lawsuit to federal court on the basis of diversity jurisdiction 1 (Doc. 1)
and subsequently filed a Motion to Dismiss (Doc. 7). 	The motion, which provides more factual
context for the Court, argues that Plaintiff’s lawsuit “is clearly untimely and barred by the terms and
conditions of her policy.” 	(Id., at 7.) 	For reasons discussed in the Court’s prior Memorandum &
1 The Court has an independent duty to “assure itself that it has subject matter jurisdiction” over all the claims
before it. Friends of Marolt Park v. U.S. Dep’t of Transp., 382 F.3d 1088, 1093 (10th Cir. 2004). Based on the
Notice of Removal and Corporate Disclosure Statement, Defendant Allstate Insurance Company, is a “Delaware
corporation with a principal place of business in Illinois,” and is therefore a citizen of Delaware and Illinois for
diversity purposes. (See Docs. 1 and 4.) As to Plaintiff, the Court directed Plaintiff to file a Rule 7.1 diversity
disclosure statement, but Plaintiff failed to do so. Accordingly, the Court’s citizenship analysis as to Plaintiff is
based on the available record. “For purposes of diversity jurisdiction, a person is a citizen of a state if the person is
domiciled in that state. And a person acquires domicile in a state when the person resides there and intends to remain
there indefinitely.” LS Carlson Law, PC v. Shain, No. 22-2070-JWL, 2022 WL 1471368, at *1 (D. Kan. May 10,
2022). The Notice of Removal alleges that “plaintiff is an individual, citizen and resident of Peabody,
Kansas.” (Docs. 4, 5.) This allegation is corroborated by filings from the state court proceedings, which reflect a
Peabody, Kansas address for Plaintiff – the same address used for correspondence in this matter. (See Docs 1-1 and
6-4.) Further, the Court notes that the insurance policy issued in 2019 lists a Wichita, Kansas address for
Plaintiff. (Doc. 7-1.) Based on the record before the Court, it is apparent that Plaintiff resides in Kansas. The Court
acknowledges that “residency is only one of several factors the court must consider in the totality of circumstances”
regarding diversity of citizenship. Saxena v. Kunze, 22-0573-DDD-SBP, 2023 WL 12096467 (D. Colo. Aug 16,
2023). Because Plaintiff’s residency is the only relevant information in the record before the Court relating to
Plaintiff’s citizenship, the Court finds that, for purposes of its diversity jurisdiction analysis, Plaintiff is a citizen of
Kansas.
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Order (Doc. 10), the undersigned was required to convert Defendant’s motion to dismiss into a
motion for summary judgment. That analysis will not be repeated herein, but is instead incorporated
by reference.
Having now considered Defendant’s unopposed dispositive motion on its substantive merits,
the Court GRANTS summary judgment to Defendant and dismisses Plaintiff’s claims in their entirety.
FACTUAL BACKGROUND
The underlying event, an alleged theft loss that resulted in Plaintiff filing a claim under her
renter’s policy, is alleged to have occurred on November 4, 2019. (Doc. 7-2, at 3.) The claim was
denied on September 30, 2020, on the basis of concealment or fraud on the part of Plaintiff. 	(Id.)
Plaintiff subsequently filed a complaint with the Kansas Department of Insurance regarding the denial
on October 25, 2020. (Id., at 6-8.)
Plaintiff filed the present lawsuit, pro se, on October 8, 2025. The state court petition contained
little factual context. 	(See Doc. 1-1 (hereinafter “operative pleading”).) 	Therein, Plaintiff merely
alleged that she and Defendant entered into a contract of “personal property/renters insurance” in
2016, that Defendant “has failed to perform [its] obligations and is in breach of contract,” and that
she has sustained damages as a result. (Id.) The case was removed to federal court by Defendant on
November 24, 2025 (Doc. 1).
In response to the operative pleading, Defendant filed a dispositive motion. (Doc. 7.)
Attached thereto, Defendant submitted two exhibits (Docs. 7-1, 7-2), along with a copy of the
operative pleading (Doc. 7-3). The policy includes the following language:
12. Suit Against Us
No suit or action may be brought against us unless there has been full
compliance with all the policy terms. Any suit or action must be
brought within five years after the inception of loss or damage.
(Doc. 7-1, at 11 (emphasis added).)
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Defendant also attached a sworn declaration from Kevin McMahon, Defendant’s claims
adjuster assigned to investigate Plaintiff’s theft claim. (Doc. 7-2.) McMahon declared that the date of
Plaintiff’s alleged loss was November 4, 2019. 	(Id., at ¶3.) 	He issued a written denial of claim on
September 30, 2020, which was mailed to Plaintiff that day. (Id., at ¶4 and pg. 3.) McMahon continues
that Plaintiff “not only acknowledged receipt of the coverage denial letter, but she also instituted a
complaint with the Kansas Dept. of Insurance on October 15, 2020 (Case No. 85686).” (Id., at ¶5
and pg. 6-8.)
Because Defendant’s motion relied on information outside the pleadings in this case, it was
necessary for the Court to convert Defendant’s Rule 12 motion to dismiss into a Rule 56 motion for
summary judgment. (See Doc. 10.) Plaintiff received notice of this and was given ‘the opportunity to
present to the court all material made pertinent to such motion by Rule 56.’” United States ex rel. Reed
v. KeyPoint Gov’t Sol’ns., 923 F.3d 729, 753 (10th Cir. 2019) (citation omitted). The Clerk mailed Plaintiff
a copy of the “Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment” pursuant
to D. Kan. Rule 56.1(d), with a copy of the Court’s prior Order. (See Doc. 10.)
Also, Plaintiff was advised that her deadline to respond to the Motion for Summary Judgment
was 21 days from receipt of the undersigned Magistrate Judge’s Order converting Defendant’s Motion
to Dismiss to a Motion for Summary Judgment. (See Doc. 10.) The Court has since received notice,
via return receipt, that the certified mailing was delivered to Plaintiff on February 4, 2026. (Doc. 13.)
Thus, Plaintiff’s deadline to respond to the dispositive motion was February 25, 2026. To date, no
response to the dispositive motion has been filed by Plaintiff. As discussed below, the legal effect of
this is for “[a]ll material facts set forth in the [factual] statement of [Defendant] will be deemed
admitted for the purpose of summary judgment … .” D. Kan. Rule 56.1(a).
LEGAL ANALYSIS
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Defendant asks the Court to dismiss Plaintiff’s pro se lawsuit for failure to state a timely claim
under Federal Rule of Civil Procedure 12(b)(6). 2 Defendant also acknowledges, however, that a
12(b)(6) motion to dismiss is converted into a motion for summary judgment when “matters outside
the pleading are presented to and not excluded by the court” so that “all parties ... [are] given
reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed. R.
Civ. P. 12(b). See also Marble Voip Partners LLC v. Zoom Video Commun., 670 F. Supp. 3d 1213, 1219
(D. Kan. 2023); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
The underlying Magistrate Judge previously determined that Defendant’s Rule 12 motion to
dismiss (Doc. 7) had to be converted into a Rule 56 motion for summary judgment because it relied
on information outside the pleadings in this case. (See Doc. 10, at 4.) The Court indicated that the
parties would each be allowed an additional opportunity to present all material pertinent to this
motion. (Id.) Plaintiff was provided with the Court’s form “Notice to Pro Se Litigant Who
Opposes a Motion for Summary Judgment” to Plaintiff pursuant to D. Kan. Rule 56.1(d) and she
was informed that she would be allowed to file a response to the dispositive motion and submit any
evidentiary support within twenty-one days from receipt of the Court’s Order. (Id.) As discussed
above, that deadline has passed and no response or additional evidentiary support was received from
Plaintiff.
Pursuant to D. Kan. Rule 7.1(c), the Court may typically grant a motion as uncontested
when no response is filed thereto. This standard does not, however, apply to a motion for summary
judgment. Rather, “it is improper to grant a motion for a summary judgment simply because it is
unopposed.” Thomas v. Bruce, 428 F. Supp. 2d 1161, 1163 (D. Kan. 2006) (quoting EEOC v. Lady
Baltimore Foods, Inc., 643 F. Supp. 406, 407 (D. Kan. 1986)).
2 A federal district court may grant a motion to dismiss for “failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6).
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District of Kansas Local Rule 56.1(a), however, provides that “[a]ll material facts set forth in
the statement of the movant will be deemed admitted for the purpose of summary judgment unless
specifically controverted by the statement of the opposing party.” Further, “under Fed. R. Civ. P.
56(e), the Court may deem a fact undisputed where the nonmoving party fails to address it.” United
States v. Davison, 768 F.Supp.3d 1324, 1329 (D. Kan. 2025). Federal Rule 56 also allows the Court to
grant summary judgment “if the motion and supporting materials – including the facts considered
undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3); see also Sperry v.
Wildermuth, No. 16-3222-JAR-TJJ, 2023 WL 4930275, *2 (D. Kan. Aug. 2, 2023) (citing Fed. R. Civ.
P. 56(e)(3)).
Plaintiff’s “pro se status does not excuse [her] noncompliance, especially because [Defendant]
complied with D. Kan. Rule 56.1(d) and … [Plaintiff was sent] the required Notice to Pro Se
Litigant Who Opposes a Motion for Summary Judgment.” Davison, 768 F. Supp. 3d at 1329 (citing
Lynn v. Cline, No. 19-3003-EFM, 2021 WL 2104981, at *4 (D. Kan. May 25, 2021), aff’d sub nom. Lynn
v. Kelly, No. 21-3094, 2022 WL 1043752 (10th Cir. Apr. 7, 2022)). Therefore, pursuant to Rule
56(e)(2), the Court deems the facts presented in Defendant’s summary judgment motion to be
undisputed, “to the extent they are supported by the record … .” Id.
As indicated above, there was a scarcity of factual background contained in Plaintiff’s state
court petition. (Doc. 1-1.) Plaintiff’s state court petition references her insurance policy. (Doc. 1-
1.) The petition does not, however, mention – or incorporate by reference – her theft claim.
Instead, the petition simply states that Defendant “failed to perform” its duties under the policy.
(Id.) The petition also makes no reference to the October 2020 complaint Plaintiff filed with the
Kansas Department of Insurance, upon which Defendant’s motion relies. (Doc. 7, at 2.) Thus,
Defendant provided additional (and necessary) relevant factual context in the form of the relevant
insurance policy (Doc. 7-1), Defendants’ written denial of Plaintiff’s claim (Doc. 7-2, at 3), and
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documentation “proving that the Plaintiff was well aware of [Defendant’s] denial of her claim
shortly after it was issued (namely, the Plaintiff’s Kansas Dept. of Insurance complaint, [Doc. 7-2, at
6-8]).” (Doc. 7, at 3.) These facts are now deemed admitted because they have been
uncontroverted by Plaintiff. D. Kan. Rule 56.1(a) and Fed. R. Civ. P. 56(e). See also Davison, 768
F.Supp.3d at 1329.
In the undisputed facts before the Court, the date of Plaintiff’s claimed loss for which she
seeks coverage is November 4, 2019. Under the undisputed terms of the subject insurance policy,
any suit against Allstate had to be filed within five years of that date, which sets the deadline to file
suit as November 4, 2024. Plaintiff did not file the present lawsuit for policy coverage until October
8, 2025 – almost a year beyond the deadline. (Doc. 1-1.) Thus, Plaintiff’s lawsuit is clearly barred as
untimely by the policy terms.
“Kansas courts have long recognized that parties to an insurance contract may agree to the
appropriate time in which to bring an action, regardless of the applicable statute of limitations.”
Ernst v. Nationwide Mutual Insurance Co., 2022 WL 1193886, at *3 (D. Kan. April 21, 2022). (citing
McElroy v. Cont’l Ins. Co., 29 P. 478, 479 (Kan. 1892)). Further, “the Kansas Supreme Court
recognized that the Kansas statute of limitations does not prevent parties from contractually
restricting their limitations periods and that freedom-of-contract principles strongly favor enforcing
such agreements.” Id. (citing Pfeifer v. Fed. Express Corp., 304 P.3d 1226, 1230-31 (Kan. 2013)). Thus,
the limitations period in the subject insurance policy is enforceable. 3 Id. (citation omitted).
Defendant’s Motion (Doc. 7) is GRANTED and Plaintiff’s lawsuit is thus DISMISSED as
untimely.
IT IS SO ORDERED.
Dated this 11th day of March, 2026, at Wichita, Kansas.
3 Pursuant to K.S.A. § 60-511, the statute of limitations for a breach of contract claim is generally 5 years for written
contracts. Thus, Plaintiff’s lawsuit would also be barred by the relevant statute of limitations.
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/S /BROOKS G. S EVERSON
Brooks G. Severson
U.S. Magistrate Judge
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