Opinion
1:23-CV-01274-RP
04-16-2024
JAMES GREEN, Plaintiff v. LUMICO LIFE INSURANCE, NIELS KEUKER, Defendants
AMENDED REPORT AND RECOMMENDATON AND ORDER
DUSTIN M. HOWELL, UNITED STATES MAGISTRATE JUDGE.
Before the Court is Plaintiff James Green's Complaint, Dkt. 1, and Application to Proceed In Forma Pauperis, Dkt. 2. The District Court referred the above motions to the undersigned for a determination pursuant to 28 U.S.C. § 636(b) and Rule 1(c) of Appendix C of the Local Rules. The undersigned granted Green's Application to Proceed In Forma Pauperis after finding that he is indigent. Dkt. 5, at 1. However, the undersigned ordered that service should be withheld pending the Court's review under 28 U.S.C. § 1915(e). Id. at 2.
Green brings suit against Lumico Life Insurance and Niels Keuker who is presumably CEO of Lumico. Dkt. 1, at 1. Green states that as an authorized representative of the Insured, he sent Keuker a letter instructing him to add $420,000 to the face value of the Insured's policy. Id. at 2. He states he “gave [Keuker] (5) business days and he failed to respond to [the] letter and didn't do his obligations.” Id. at 2. Green followed up with a “certified opportunity to cure letter” again, demanding Keuker add $420,000 to the face value of the policy. Id. at 3. Green states he gave Keuker five days and again, Keuker “refused to answer [his] letter and didn't do his obligations.” Id. Green's final correspondence to Keuker was a “certified Default Judgment letter claiming the titles, rights, interest, and equity owed to the principal and explained that the contract was in default because [Keuker] didn't do his obligations.” Id.
Green claims that Keuker's alleged omissions constitute a breach of contract and “was not a promise of good faith and fair dealing.” Id. Green states he was caused financial pressure and emotional distress and requests that Defendants add $420,000 to the policy's face value “or face civil money penalty of a million dollars a day which is $15,000,000 for the 15 days [he] gave the Defendant for knowingly breaching the contract which is a violation of Federal Reserve Act section 29 third tier.” Id.
After conducting a § 1915(e) review of the Complaint, the undersigned determined that Green's claim for damages pursuant to the Federal Reserve Act should be dismissed because it lacked an arguable basis in law and is therefore frivolous. Dkt. 5, at 3. As to Green's common law breach of contract claim, the undersigned found Green's pleadings insufficient to complete a frivolousness review. Id. at 4. Accordingly, the undersigned ordered Green to file a more definite statement that, at a minimum, answered the following questions:
(1) Subject Matter Jurisdiction: Green's complaint states the basis for subject matter jurisdiction is diversity. Id. at 2. He claims he is a resident of Austin, TX, Lumico and Keuker are residents of Lincoln, Nebraska, and he pleads the amount in controversy is $15,000,00. Id. Given that the undersigned has recommended that Green's claim for damages of $15,000,000 pursuant to the Federal Reserve Act should be
dismissed, Green's complaint is without an amount in controversy. The diversity jurisdiction statute, 28 U.S.C. § 1332(a), “instructs that a suit between diverse parties may be adjudicated in a federal forum only if ‘the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.'” Garcia v. Koch Oil Co. of Texas Inc., 351 F.3d 636, 638 (5th Cir.2003) (quoting 28 U.S.C. § 1332(a)). “The party seeking to invoke federal diversity jurisdiction bears the burden of establishing both that the parties are diverse and that the amount in controversy exceeds $75,000.” Id. (citing St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998)). Please describe the amount in controversy at issue in this suit.
(2) Personal Jurisdiction: Green pleads insufficient facts for the basis of this Court's exercise of personal jurisdiction over either Defendant, particularly because he is the beneficiary of the subject policy, not the Insured, and he does not claim to have personally contracted with Defendants. What are the factual allegations supporting this Court's exercise of personal jurisdiction over Defendants, if any? What are Defendants' alleged contacts with the State of Texas or residents of the State of Texas?
(3) Breach of Contract Claim: The elements in a breach of contract claim are as follows: “(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach.” Smith Int'l, Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th Cir. 2007). When suing for breach of contract, the plaintiff must point to a specific provision in the contract that was breached by the defendant. King v. Wells Fargo Bank, N.A., No. 3-11-CV-0945-M-BD, 2012 WL 1205163, at *2 (N.D. Tex. Mar. 20, 2012); see Coleman v. Bank of Am., N.A., No. 3-11-CV-0430-G-BD, 2011 WL 2516169, at *1 (N.D. Tex. May 27, 2011) (dismissing claim for breach of contract because “plaintiff points to no specific provision in the Deed of Trust that was breached by defendant.”); see also BAPA Brooklyn 2004, LLC v. Guild Mortg. Co., No. 3:20-CV-254-X-BN, 2020 WL 4341126, at *4 (N.D. Tex. July 13, 2020) (“In general, a plaintiff that sues for breach of contract ‘must point to a specific provision in the contract that was breached by the defendant.'”). Please provide specific factual statements concerning the contract that was allegedly breached. Who were the parties to the contract? Was it a valid, enforceable contract? Which provisions of the contract did Defendants allegedly breach?
(4) What is the source of Green's alleged entitlement to a response from Defendants within five days of receipt of Green's letters?
(5) What are the specific allegations against Defendant Lumico?Id. at 4-6.
Green was warned that, pursuant Federal Rule of Civil Procedure 12(e), failure to comply with the order to file a more definite statement within the time allotted would result in the undersigned's recommendation that his breach of contract claim be dismissed. Id. at 6. Green filed his response and more definite statement on February 15, 2024. Dkt. 8. However, Green's response does not address the amount in controversy, does not plead facts demonstrating the Court's exercise of personal jurisdiction over Defendants, does not plead the existence of a contract that is the basis of his breach of contract claim, and does not cite provisions that were allegedly breached. Neither did Green explain the source of his alleged entitlement to a response from Defendants within five days of receipt of his letters demanding that Defendants “add the principal's interest to the principal account.” Green also did not plead specific facts as to Defendant Lumico as requested.
To the extent Green's filing, Dkt. 8, is not responsive to the undersigned's order requesting a more definite statement, Green's complaint should be dismissed. Further, based on the filings at hand, Green's Complaint, Dkt. 1, and Response to Order for More Definite Statement, Dkt. 8. the undersigned finds that Green's breach of contract claim should be dismissed for failure to state a claim for which relief may be granted. 28 U.S.C. § 1915(e)(2).
I. RECOMMENDATION AND ORDER
In accordance with the foregoing discussion, the Court HEREBY GRANTS Green in forma pauperis status. Service upon Defendant should be withheld pending the District Court's review under 28 U.S.C. § 1915. To the extent Green asserts claims or damages pursuant to the Federal Reserve Act, the undersigned RECOMMENDS those be DISMISSED, pursuant to 28 U.S.C. § 1915(e)(2) as the Federal Reserve Act does not confer on private citizens the right to sue. Further Green's claim for breach of contract should be DISMISSED for failure to state a claim for which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2). The referral of this case is CANCELED.