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Kenneth Wayne Johnson v. Liberty Mutual Insurance

January 31, 2013


The opinion of the court was delivered by: Lucy H. Koh United States District Judge

For the Northern District of California


Plaintiff Kenneth W. Johnson ("Plaintiff"), proceeding pro se, brings this action against Liberty Mutual Insurance Company ("LMI") alleging fraud, misrepresentation, and negligence. 19

See Second Amended Complaint ("SAC"), ECF No. 12, at 3. Having considered the submissions 20 of the parties and the relevant law, the Court hereby GRANTS LMI's Motion to Dismiss Plaintiff's 21 SAC without leave to amend. 22


A.Factual Allegations

This diversity action arises from LMI's alleged false statements that were contained in certain financial and medical documents provided to the Santa Clara County Superior Court in 26 connection with a juvenile delinquency proceeding. See SAC at 5.

On February 18, 2010, Plaintiff's minor son was arrested at a local mall and charged with 2 assaulting a security guard, Shawn Johnson ("Johnson"), with a deadly weapon. SAC at 4. Due to 3 the attack, Johnson sustained injuries to his head and back, as well as damage to his iPhone. Id. 4 LMI-the insurance company for Johnson's employer-was responsible for providing Johnson 5 with worker's compensation, and therefore indemnifying Johnson for his losses. See id.; Motion to 6 Dismiss Pl.'s SAC ("Mot."), ECF No. 20, at 2 n.3. 7

On June 7, 2010, a Santa Clara County probation officer contacted Johnson to find out 8 whether he sought restitution for harm sustained as a result of the assault. SAC at 4. Johnson 9 expressed an interest in seeking restitution in the amount of $3,061.72 for personal replacement of 10 his iPhone and iPhone case, as well as reimbursement for a medical bill and for two days of lost wages. SAC at 4. That same day, Plaintiff learned that LMI intended to seek reimbursement for Johnson's claims. Id. 13

During the months thereafter, the probation officer contacted LMI to determine how much LMI paid for Johnson's medical expenses and other indemnity costs. See SAC at 4. LMI 15 subsequently faxed the probation officer documentation of medical payments, a list of physician's 16 names, and a schedule of indemnity payments, all of which LMI allegedly paid to Johnson. Id. 17

The purpose of providing this information was to enable the investigating probation officer to 18 "report accurate medical treatment and indemnity payments to the plaintiff and the court." SAC at 19 14 5. 20

Plaintiff alleges that LMI knowingly made false and misleading statements to the probation 21 officer regarding the amount of money LMI paid Johnson to cover his medical treatment and lost 22 wages. See SAC at 5. He contends that LMI's documentation was misleading because "there is no 23 verifiable description of treatments provided by those listed physicians to support the $9,785.80 24 claims for medical payments. And the indemnity payments only shows [sic] schedule payments in 25 the amount paid to [Johnson]." Id. at 4. As a result of LMI's representations to the probation 26 officer and the Superior Court, Plaintiff allegedly suffered emotional distress, inconvenience, and lost wages. SAC a 5. Plaintiff now seeks $1,500,000.00 in recovery losses, as well as 2 $3,500,000.00 in punitive damages. Id. 3

B.Procedural History

Plaintiff filed this action against LMI in the Superior Court of California for the County of Santa Clara on December 2, 2011. ECF No. 1. LMI removed the case to this Court on April 13, 6 2012, based on diversity jurisdiction. Id. 7

Plaintiff filed a First Amended Complaint ("FAC") on July 10, 2012, see ECF No. 11, and a 5 Second Amended Complaint on July 11, 2012, see ECF No. 12.*fn1 On August 20, 2012, LMI moved 9 to dismiss Plaintiff's SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Mot. 10 at 1. Plaintiff did not file an opposition during the time provided under Rule 7-3 of the Northern District of California's Civil Local Rules. See N.D. Cal. Local R. 7-3 (stating that an "opposition must be filed and served not more than 14 days after th[e] motion was filed."). Consequently, on 13 September 14, 2012, LMI filed a notice of non-opposition and a reply in support of its Motion to 14 Dismiss. See ECF No. 24. 15

On October 1, 2012, Plaintiff filed an untimely opposition, see ECF No. 27, as well as a "Factual Statement" that introduces a large amount of new facts that were not included in the SAC, 17 see Pl.'s Factual Statement Against Dismissal of SAC ("Factual Statement"), ECF No. 28. LMI 18 filed a reply on October 10, 2012. Df.'s Reply Supp. Mot. to Dismiss ("Reply"), ECF No. 30, at 1. 19 where it requested this Court to strike Plaintiff's late-filed opposition or, in the alternative, to grant 20 ...

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