United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief District Judge.
On June 7, 2013, plaintiff John Reints, appearing pro se, filed a multiple count complaint against the defendants. (Docket 1). On October 17, 2013, defendant Travelers Insurance Companies, Inc., ("Travelers Insurance"), filed a motion to dismiss because no company by that name exists. (Docket 12). The Travelers Companies, Inc., ("The Travelers Companies"), which has not been served with the summons and complaint and which is not a defendant, joined in the motion on the basis the complaint fails to state a claim upon which relief can be granted. Id . Mr. Reints opposes The Travelers Companies' motion to dismiss. (Docket 25).
On October 24, 2013, defendant City of Rapid City ("City") and a number of defendants designated as the "Specially Appearing Defendants" filed a motion to dismiss for insufficiency of service of process. (Dockets 15 & 17). Mr. Reints opposes the motions. (Dockets 28 & 30). The same day, a number of defendants designated as "Official Capacity Defendants" filed a motion to dismiss the claims against them in their official capacity. (Docket 20). Mr. Reints filed a response agreeing to dismiss claims against all defendants in their official capacity, while preserving claims against certain defendants in their individual capacity. (Docket 29).
On November 5, 2013, Mr. Reints filed a motion for an extension of time to perfect service of process on a number of defendants. (Docket 23). Those defendants are designated as the "Individual Capacity Defendants, " the City, and Jane Doe, a/k/a Christine O'Brien ("Ms. O'Brien"). (Docket 23 at p. 2). The Travelers Companies, City, and Individual Capacity Defendants oppose the motion. (Dockets 32 & 33).
On December 1, 2013, Mr. Reints filed a motion for leave to correct misnomer. (Docket 34). The Travelers Companies oppose the motion. (Docket 38).
On January 14, 2014, while the above motions were pending, Mr. Reints filed a motion for leave to file an amended complaint. (Docket 42). The proposed amended complaint accompanied the motion. (Docket 42-1). The Travelers Companies, City, and Specially Appearing Defendants oppose the motion. (Dockets 43 & 45). Mr. Reints also filed a motion for a hearing on all pending motions. (Docket 40).
For the reasons stated below, The Travelers Companies' motion to dismiss (Docket 12) is granted; the City's motion to dismiss on the basis of insufficiency of service of process (Docket 15) is denied; the Specially Appearing Defendants' motion to dismiss for insufficiency of service of process (Docket 17) is denied; the Official Capacity Defendants' motion to dismiss claims against these defendants in their official capacity (Docket 20) is granted; plaintiff's motion for an extension of time to perfect service of process (Dockets 23) is granted in part and denied in part; plaintiff's motion for leave to correct misnomer (Docket 34) is denied as moot; plaintiff's motion for leave to file an amended complaint (Docket 42) is granted in part and denied in part; and plaintiff's motion for a hearing (Docket 40) is denied as moot.
STANDARD OF REVIEW
A pro se complaint must be liberally construed. "[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleading drafted by lawyers and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble , 429 U.S. 97, 106 (1976) (internal citations and quotation marks omitted). Pro se pleadings are to be construed liberally, but pro se litigants are still expected to comply with procedural and substantive law. Burgs v. Sissel , 745 F.2d 526, 528 (8th Cir. 1984). "While a court generally affords pro se filings a liberal construction, a litigant's pro se status does not excuse him from reading the Federal Rules of Civil Procedure." Jiricko v. Moser & Marsalek, P.C. , 184 F.R.D. 611, 615 (E.D. Mo. 1999), aff'd, 187 F.3d 641 (8th Cir. 1999) (referencing McNeil v. United States , 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.").
"[P]ro se litigants must set [a claim] forth in a manner which, taking the pleaded facts as true, states a claim as a matter of law." Stringer v. St. James R-1 Sch. Dist. , 446 F.3d 799, 802 (8th Cir. 2006). "A pro se [complaint] should be interpreted liberally and... should be construed to encompass any allegation stating federal relief.'" Bracken v. Dormire , 247 F.3d 699, 704 (8th Cir. 2001) (citing White v. Wyrick , 530 F.2d 818, 819 (8th Cir.1976)). "A remedial interpretation of this kind often involves supplying legal or factual statements that the [complaint] should contain, or relaxing the rule that requires such statements, where it reasonably appears that they were omitted merely for lack of legal know-how." Id.
"(A) complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Fusco v. Xerox Corp. , 676 F.2d 332, 334 (8th Cir. 1982) (quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957) (footnote omitted)). "Where the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v. Merrill Lynch & Co., Inc. , 524 F.3d 866, 870 (8th Cir. 2008).
Plaintiff's complaint is forty-four pages in length, contains numerous conclusory statements of law, and far exceeds the boundaries contemplated by Fed.R.Civ.P. 8(a)(2). (Docket 1). From the complaint, the court identifies the following claims:
1. The City has an unconstitutional abatement public nuisance ordinance which its employees carry out in an unconstitutional manner;
2. The City and its employees carried out the public nuisance ordinance in an unequal and unfair manner when comparing plaintiff to other members of the community;
3. The City unconstitutionally and unlawfully removed a tree, vehicle, weeds, snow and ice, and other items of plaintiff's personal property;
4. Joel Landeen of the City Attorney's Office unconstitutionally brought criminal proceedings against plaintiff for failure to abate a public nuisance;
5. The City unconstitutionally and unlawfully placed assessments against plaintiff's real property under its public nuisance ordinance; and
6. The City, through its employees, engaged in a civil conspiracy with Ms. O'Brien of Travelers Insurance to obstruct plaintiff's rights of free speech and access to redress of his complaints against the City and its employees.
(Docket 1). Mr. Reints alleges the defendants violated his rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, the corresponding sections of the South Dakota Constitution, and state law. Id . Mr. Reints seeks compensatory damages, punitive damages, and equitable relief. Id. at p. 44.
THE TRAVELERS COMPANIES
The Travelers Companies filed a motion to dismiss the complaint on two grounds:
1. No company by the name of "Travelers Insurance Companies, Inc., " exists; and
2. Even if the claim is against The Travelers Companies, the complaint fails to state a claim upon which relief can be granted.
(Docket 12). The motion is supported by defense counsel's corporate disclosure statement under Fed.R.Civ.P. 7.1(a)(2). (Docket 22). In an affidavit in support of the motion to dismiss, the Deputy Corporate Secretary of The Travelers Companies states:
1. The Travelers Companies... is a holding company organized under the laws of the state of Minnesota. (Docket 14 at ¶ 3);
2. The Travelers Companies... does not underwrite, sell or provide insurance, nor does it adjust insurance claims. Id. at ¶ 4;
3. St. Paul Fire and Marine Insurance Company ("St. Paul") is a subsidiary of The Travelers Companies.... Id. at ¶ 7;
4. St. Paul issued the policy [to the City, Exhibit A (Docket 14-1)].... Id. at ¶ 8;
5. Any investigation on the part of claim adjusters with respect to any claim under said policy was made on behalf of St. Paul. Id. at ¶ 9; and
6. St. Paul remains liable for any claims determined to be due on any policy issued... as a result of litigation arising out of such policies, and can satisfy any obligations under the subject policy, if required by this Court. Id. at ¶ 10.
The Travelers Companies moves to dismiss plaintiff's complaint under Fed.R.Civ.P. 12(b). (Docket 12 at p. 2). Rule 12 provides in part:
(b)... a party may assert the following defenses by motion:
(1) lack of subject-matter ...