United States District Court, District of Columbia
E. BOASBERG United States District Judge.
Solomon Upshaw filed this pro se action to recover
damages for the wrongful death of Alma Upshaw (presumably a
relative), who was killed in a car accident in Columbus,
Georgia, in 1993. Plaintiff seeks $8, 000, 000 in damages
from Progressive Insurance Co. and Progressive Corporation in
an opaque Complaint that mentions wrongful death, negligence,
and possible constitutional claims. The Progressive
Defendants now move to dismiss, arguing that the Court cannot
exercise personal jurisdiction over them and that all causes
of actions are barred by the relevant statutes of
limitations. The Court, finding that Plaintiff lacks standing
and that Defendants' arguments are sound, will grant the
the allegations are difficult to decipher, the Court, as it
must at this stage, sets out the facts as provided in the
Complaint and accompanying exhibits. Complaints filed by
pro se parties are “h[e]ld to less stringent
standards than those applied to formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520
19, 1993, a motor vehicle driven by Alexander Alarcon struck
Alma Upshaw's car at an intersection in Columbus,
Georgia. See ECF No. 1 (Complaint) at 1. She died
less than two hours after the crash in a local hospital.
See ECF No. 1, Exh. A (Upshaw Exhibit) at 9.
Plaintiff alleges that Alarcon, though not listed as a party
to this action, operated his vehicle negligently at the time
of the accident. See Compl. at 2. Although the
Complaint never explains Progressive's role or indicates
whether it insured either driver, Plaintiff's Opposition
does allege that the company insured Alma Upshaw.
See ECF No. 6 at 6. On May 26, 1995, Alarcon sued
Alma Upshaw's estate and Alma Rae Upshaw Doleman, as
executor of her mother's estate, alleging that the
decedent's negligence had directly caused his own
injuries. See Upshaw Exh. at 2-5. The Complaint does
not indicate the result of the Georgia tort action in
Muscogee County Superior Court, but Plaintiff nonetheless
included the pleading as part of the record. Id. at
years later, Upshaw has filed this action against
Progressive. He rests part of his claim for relief, however
ambiguous, on the Georgia wrongful-death statute.
See Compl. at 2. Construing the pro se
Complaint liberally, the Court also finds that Plaintiff
alleges a claim for negligence. See id. (seeking
recovery for the “death of a human being result[ing]
from a crime or from criminal or other negligence”).
Finally, the Complaint mentions violations of
equal-protection and due-process rights under the U.S.
Constitution. Id. Upshaw seeks to recover $8, 000,
000, id., and Progressive now moves to dismiss for
lack of personal jurisdiction and failure to state a claim.
The Court will also consider the question of standing.
Standard of Review
survive a motion to dismiss under Rule 12(b)(1), Plaintiff
bears the burden of proving that the Court has subject-matter
jurisdiction to hear his claims. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology,
Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24
(D.C. Cir. 2000). A court also has an “affirmative
obligation to ensure that it is acting within the scope of
its jurisdictional authority.” Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9,
13 (D.D.C. 2001). “For this reason, ‘the
[p]laintiff's factual allegations in the complaint . . .
will bear closer scrutiny in resolving a 12(b)(1) motion'
than in resolving a 12(b)(6) motion for failure to state a
claim.” Id. at 13-14 (quoting 5A Charles A.
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1350 (2d ed. 1987) (alteration in
original)). Additionally, unlike with a motion to dismiss
under Rule 12(b)(6), the Court “may consider materials
outside the pleadings in deciding whether to grant a motion
to dismiss for lack of jurisdiction.” Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005); see also Venetian Casino Resort, L.L.C. v.
EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005).
Federal Rule of Civil Procedure 12(b)(2), a defendant may
move to dismiss a suit if the court lacks personal
jurisdiction over it. The plaintiff bears the burden of
establishing personal jurisdiction. See FC Inv. Grp. LC
v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir.
2008). In deciding whether the plaintiff has shown a factual
basis for personal jurisdiction over a defendant, the court
resolves factual discrepancies in favor of the plaintiff.
See Crane v. N.Y. Zoological Soc'y, 894 F.2d
454, 456 (D.C. Cir. 1990). When personal jurisdiction is
challenged, “the district judge has considerable
procedural leeway in choosing a methodology for deciding the
motion.” 5B Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1351 (3d ed.
2004). The court may rest on the allegations in the
pleadings, collect affidavits and other evidence, or even
hold a hearing. Id.
Federal Rule of Civil Procedure 12(b)(6), the Court must
dismiss a claim for relief when the complaint “fail[s]
to state a claim upon which relief can be granted.” In
evaluating a motion to dismiss, the Court must “treat
the complaint's factual allegations as true and must
grant [the] plaintiff the benefit of all inferences that can
be derived from the facts alleged.” Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000) (citation and internal quotation marks omitted);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A court need not accept as true, however, “a
legal conclusion couched as a factual allegation, ” nor
an inference unsupported by the facts set forth in the
complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.
Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)). Although “detailed factual
allegations” are not necessary to withstand a Rule
12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007), “a complaint must contain
sufficient factual matter, [if] accepted as true, to state a
claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678 (internal quotation omitted).
A plaintiff may survive a Rule 12(b)(6) motion even if
“recovery is very remote and unlikely, ” but the
facts alleged in the complaint “must be enough to raise
a right to relief above the speculative level.”
Twombly, 550 U.S. at 555-56 (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).
jurisdictional issues take precedence, the Court will direct
its attention first to whether Plaintiff has standing to
bring this suit and whether personal jurisdiction over
Defendants exists. It will then consider the merits of
Plaintiff's state-law and constitutional claims.
never mentioned by Progressive, the standing of a party to
sue “can be raised at any point in a case proceeding
and, as a jurisdictional matter, may be raised, sua
sponte, by the court.” Cierco v. Mnuchin,
857 F.3d 407, 415 (D.C. Cir. 2017) (quoting Steffan v.
Perry, 41 F.3d 677, 697 n.20 (D.C. Cir. 1994)). In order
to file a claim on behalf of an individual not present in the
litigation, a plaintiff must allege a legally cognizable
relationship between that party and himself. See
Fed.R.Civ.P. 17(a). He is otherwise not a real party in
interest. Claims filed on behalf of an estate, for example,
must be brought by the designated personal representative.
Id. “The term personal representative is
strictly construed under D.C. law to mean only the
decedent's executor or administrator.” Estate
of Manook v. Research Triangle Inst., Int'l & Unity
Res. Grp., LLC, 693 F.Supp.2d 4, 17 (D.D.C. 2010)
(internal citation omitted). Alarcon's Complaint filed
with the Muscogee County Superior Court, which is included as
part of Plaintiff's exhibits, specifies that Alma Rae
Upshaw Doleman, not Plaintiff, served as executor of Alma
Upshaw's estate. See Upshaw Exh. at 2. Plaintiff
does not refute that ...