United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
C. Dodge, Sr. and A.E. Oberhaus, Inc.
(“Oberhaus”), both Defendants in this lawsuit,
move to dismiss the Complaint of Nusrat Rizvi and Eileen
Rizvi (“Rizvis” or, collectively,
“Plaintiffs”) under Fed.R.Civ.P. 12(b)(4) for
insufficient process, Fed.R.Civ.P. 12(b)(5) for insufficient
service of process, and Fed.R.Civ.P. 10(b) for failing to
separate each cause of action against them. Motion to
Dismiss, ECF. No. 10 at 1 (Dec. 19, 2018) (“Oberhaus
Mot.”); Memorandum of Law in Support of Motion to
Dismiss, ECF No. 11 at 1 (Dec. 19, 2018) (“Oberhaus
Mem.”). Additionally, they have moved to dismiss the
Rizvi’s Civil Racketeer Influenced and Corrupt
Organizations Act (“RICO”) claim for violating
the statute of limitations, and all four counts of the
Complaint under Fed.R.Civ.P. 12(b)(6). Oberhaus Mem. at 1.
Rizvis have objected.
Corporation (“Allstate”), another Defendant, also
moves to dismiss the Rizvis’s Complaint in its
entirety, Motion to Dismiss, ECF No. 26 (Feb. 25, 2019)
(“Allstate Mot.”), raising similar grounds for
dismissal. Memorandum of Law In Support of Motion to Dismiss,
ECF No. 27 (Feb. 25, 2019) (“Allstate Mem.”).
Rizvis have not filed anything in response to the Allstate
motion to dismiss. See Docket Entries.
reasons explained below, the Court GRANTS
the motions to dismiss.
sole federal claim in this lawsuit is dismissed and the Court
declines to exercise supplemental jurisdiction over the
remaining state law claims.
FACTUAL AND PROCEDURAL BACKGROUND
about January 6, 2004, allegedly after extensive water damage
to their home, the Rizvis filed an insurance claim with the
Allstate Corporation to pay for allegedly damaged furniture,
which consisted of a Mastercraft dining set with a table and
six chairs, as well as a Mastercraft china cabinet.
Id. ¶¶ 11-12. The dining table allegedly
is handmade in Italy with inlaid rosewood, gold leaf, and
antique brass. Id. ¶ 14.
allegedly employed Adam Colagrossi to appraise the damage to
the dining table, and he did so, in consultation with Richard
D. Orsi, an antiques and fine furniture restorer.
Id. ¶¶ 16-17. On October 24, 2005, Mr.
Orsi allegedly stated that he could not restore “the
existing sheen exactly because of the finishing technique
used by the manufacturer.” Id. ¶ 19. On
October 26, 2005, Mr. Orsi also allegedly admitted that
“it cannot be guaranteed that the main part of the
table will exactly match the undamaged leaves” of the
table.” Id. ¶ 20.
October 27, 2005, Mr. Dallas Dodge, Sr., was selected as an
umpire to oversee the appraisal dispute. Id. ¶
21. Mr. Dodge allegedly acknowledged that the dining table
sustained some water damage, but “opined that the
matter had been ‘blown out of proportion.’”
Id. ¶ 22 (citing Exhibit E, which is not found
anywhere in the materials filed by Plaintiff to the Court).
Mr. Dodge allegedly awarded the Rizvis $3, 709.68, “an
amount substantially less than the cost it would take to
repair and/or replace their dining table.” Id.
Rizvis allege that it would cost $150, 000 to restore the
table to its original condition, far more than the amount
awarded by Mr. Dodge and Allstate. Id. ¶ 25.
November 27, 2018, the Rizvis sued the Allstate Corporation
(“Allstate”), Dallas C. Dodge, Sr. (“Mr.
Dodge” or “Dodge”), and A.E. Oberhaus, Inc.
“Defendants”) in this Court. See
Complaint ¶ 1.
Rizvis alleged one federal claim and three common law claims:
violation of the Civil RICO Act, 18 U.S.C. § 1961 (Count
One), id. ¶¶ 26-31; fraudulent concealment
(Count Two), id. ¶¶ 32-40; fraudulent
misrepresentation (Count Three), id. ¶¶
41-29; and negligent misrepresentation (Count Four),
id. ¶¶ 50-55.
support of their first cause of action under the Civil
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), the Rizvis allege that a “special
relationship” existed over many years between the
defendants, such that “[Mr. Dodge] and [Oberhaus] were
used by [Allstate] to act as umpire for claims” between
Allstate and its claimants, “which were in dispute
because claimants believed they were severely [underpaid] for
their insurance claims.” Id. ¶ 27.
exchange for “a steady stream of clients, ” Mr.
Dodge and Oberhaus allegedly would help to ensure that
Allstate would pay far less than they should in the event of
a loss. Id. ¶ 28. The Rizvis allege that
Allstate’s home office in Illinois gave specific
instructions to Mr. Dodge and Oberhaus, thus conducting the
enterprise across state lines, and that, over the course of
many years, the Defendants corresponded about their special
relationship by mail, e-mail, and telephone. Id.
support of their second cause of action under fraudulent
concealment, the Rizvis further allege that, in July of 2018,
Mr. Rizvi discovered through conversations with a few former
Allstate employees “that a business relationship
existed between” the Defendants, “whereby the
parties conspired to defraud policyholders and significantly
lessen the amounts which would be paid to them in the event
of a loss.” Id. ¶ 33. Mr. Dodge and
Oberhaus would serve as an umpire for disputed insurance
claims and award “substantially lower than that which
was needed to cover the losses of
policyholders.” Id. ¶ 35.
Rizvis allege that this business relationship was never
disclosed to them, and had they been aware of the special
relationship that allegedly existed, they would not have
entered into a contract with Allstate on December 23, 2003.
Id. ¶ 37. “But for the similarity
discovered amongst other policyholders, Mr. Rizvi never would
have been aware of the fraud not to mention being reasonably
able to discover this fraudulent activity.”
Id. ¶ 39.
support of their third cause of action under fraudulent
misrepresentation, the Rizvis allege that an Allstate agent
assured them in December 2017 that “high-quality items
within [their] home” would be protected under
Allstate’s homeowner’s insurance policy.
Id. ¶¶ 42-45. The Rizvis allegedly relied
on these representations when they entered into a
homeowner’s insurance contract with Allstate on
December 23, 2017. Id. ¶ 46. The Rizvis allege
Allstate and its agents knew these statements were false due
to their “long-standing relationship with [Mr. Dodge]
and [Oberhaus], which guaranteed that they would not have to
honor their contractual commitments, ” id.
¶¶ 47-48, and that they did not honor the
Rizvis’s policy in light of the loss suffered on
January 6, 2004, instead offering “a mere $3,
709.68” for a policy with coverage up to $249, 000.
Id. ¶¶ 46, 49.
in support of their fourth cause of action under negligent
misrepresentation, the Rizvis allege that, on December 23,
2003, they were misled by the Allstate agent’s
representations “that their home would be covered in
the event of damage to the structure as well as providing
protection of the items inside the home.” Id.
¶ 51. The Rizvis allege that the business relationship
between the Defendants was intentionally concealed from them
and others “with the specific intention to deceive
otherwise [Allstate] would have disclosed their relationship
prior to luring [the Rizvis] into a homeowner’s
insurance contract.” Id. ¶ 54.
Rizvis allege that they suffered harm because their
possessions were not protected. They seek compensatory
damages in the amount of $150, 00 for the replacement of
insured personal property, interests and costs, common law
punitive damages, and any other relief that the Court deems
December 12, 2018, Mr. Dodge and Oberhaus submitted a motion
to dismiss along with a supporting memorandum. See
Oberhaus Mot.; Oberhaus Mem.
argue that the Rizvis failed to comply with Federal Rules of
Civil Procedure 4 and 10(b), and the Complaint therefore
should be dismissed. See Oberhaus Mot. at 1. These
two Defendants also argue that Plaintiffs’s RICO claim
is barred by the statute of limitations and should be
dismissed. See Id . Finally, Defendants argue that
the Rizvis’s Complaint should be dismissed for failure
to state a claim under Rule 12(b)(6). See id.
January 2, 2019, the Rizvis filed a motion to disqualify
Judge Victor A. Bolden from hearing this case. See
Motion to Disqualify Judge, ECF No.12 (Jan. 2, 2019).
Treating the Rizvis’s motion to disqualify as a motion
for recusal, the Court denied the motion on January 10, 2019.
See Ruling and Order on Motion for Recusal, ECF No.
13 (Jan. 10, 2019).
February 1, 2019, the Rizvis submitted an objection to
Defendants’s motion to dismiss. See Objection
to Motion to Dismiss, ECF No. 22 (Feb. 1, 2019) (“Rizvi
February 15, 2019, these two Defendants filed a reply to
Plaintiffs’s objection. to the motion. See
Reply, ECF No. 23 (Feb. 15, 2019) (“Oberhaus
February 25, 2019, Allstate filed a motion to dismiss the
Rizvis’s complaint. See Allstate Mot.;
Rizvis have not responded to this motion.
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(4) requires that a
defendant establish insufficient process under Rule 4 of the
Federal Rules of Civil Procedure. “A 12(b)(4) motion is
proper only to challenge noncompliance with the provisions of
Rule 4(b) or any applicable provision incorporated by Rule
4(b) that deals specifically with the content of the
summons.” 5B C. Wright & A. Miller, Federal
Practice and Procedure: Civil 3d § 1353; Green
v. Wright, 389 F.Supp.2d 416, 426 (D. Conn. 2005).
Federal Rule of Civil Procedure 12(b)(5), a party may file a
motion to dismiss due to “insufficient service of
process.” Fed.R.Civ.P. 12(b)(5). “A motion to
dismiss pursuant to Rule 12(b)(5) must be granted if the
plaintiff fails to serve a copy of the summons and complaint
on the defendants pursuant to Rule 4 of the Federal Rules,
which sets forth the federal requirements for service.”
Rzayeva v. United States, 492 F.Supp.2d 60, 74 (D.
Conn. 2007). Once a defendant challenges validity of service,
“it becomes ...