Cinseree JOHNSON, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants, 641 F. Supp. 2d 748

ORDER MICHAEL M. MIHM, District Judge. Before the Court is Defendant State Farm Mutual Automobile Insurance Company’s (“State Farm”) Motion to Dismiss Plaintiff Cinseree Johnson’s (“Johnson”) Amended Complaint [# 9]. For the reasons set forth below, this Court GRANTS State Farm’s Motion. BACKGROUND On March 24, 2009, Johnson filed a Complaint for Declaratory Judgment and Damages against State Farm and on April 8, 2009, she filed an Amended Complaint for Declaratory Judgment and Damages.

In her Amended Complaint, she asserts that she is the Administrator for the Estate of Matthew Norman (“Decedent”), an individual who had State Farm automobile insurance. Johnson alleges that on or about July 1, 2007, Decedent was involved in an automobile accident. As a result of this accident, a civil case, Michael Haut v. Matthew Norman, CV-08-667337 (“pending civil matter”), was commenced in the Cuyahoga County Court of Common Pleas in Ohio on or about August 7, 2008. State Farm informed Johnson that it had hired Attorney Terrence Kenneally (“Kenneally”) to represent Decedent in the pending civil matter.

Johnson maintains that on or about September 1, 2008, when she telephoned Kenneally and State Farm to inform them of Decedent’s death, Kenneally “seemed confused and unorganized.” On or about December 12, 2008, the pending civil matter was amended to name Johnson as a Defendant. From December 13, 2008, forward, Johnson has informed both State Farm and Kenneally that she disapproves of Kenneally’s performance and that she did not want him to represent her or Decedent in the pending civil matter.

Johnson states that State Farm informed her that, pursuant to the terms of the Decedent’s insurance contract, it had the right to employ a defense attorney in the pending civil matter. This current action arises because Johnson remains unhappy with Kenneally’s representation. She alleges that Kenneally’s continued representation amounts to a due process violation, a violation of a contractual agreement, and fraud. She asks this Court to enter an Order stating that:

(1) State Farm may not interfere with her rights to represent herself or that of the Estate to which she has been named Administrator;

(2) State Farm may not employ Kenneally on her behalf without her consent; and

(3) State Farm will honor the terms of the insurance policy with respect to any settlement, and that she has the right to participate in, or negotiate settlement on behalf of herself or Decedent and that State Farm will not interfere with her efforts to resolve and settle the pending civil matter. In addition, Johnson seeks damages in the amount of $145,000 for State Farm’s willful disregard for the terms of the insurance agreement, fraud, and violation of Plaintiffs due process rights as a legal representative for the Decedent.

On April 17, 2008, State Farm moved to dismiss Johnson’s Amended Complaint, arguing that its insurance policy language makes clear that State Farm has the right to select counsel, and Johnson has a concomitant duty to cooperate in the defense of the ease. State Farm also asserts that where, as here, neither the Decedent nor Johnson, as the Administrator of Decedent’s Estate, has any exposure beyond the insurer’s policy limits, no basis exists to interfere with the insurer’s conduct of the litigation, for which it has agreed to indemnify its insured.

DISCUSSION A complaint should not be dismissed unless it appears from the pleadings that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Gould v. Artisoft, Inc., 1 F.3d 544, 548 (7th Cir.1993). Rather, a complaint should be construed broadly and liberally in conformity with the mandate in Federal Rules of Civil Procedure 8(f).

For purposes of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff, its well-pleaded factual allegations are taken as true, and all reasonably-drawn inferences are drawn in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Lanigan v. Village of East Hazel Crest, 110 F.3d 467 (7th Cir.1997); M.C.M. Partners, Inc. v. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 969 (7th Cir.1995); Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir.1992).

Jurisdiction The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Johnson is a resident of Ohio and State Farm is an Illinois corporation, with its principle place of business in Illinois, and the alleged amount in controversy exceeds $75,000. Choice of Law Johnson objects to the actions taken by State Farm and Kenneally in the pending civil matter in Ohio. Therefore, as a federal court sitting in diversity, this Court will apply the substantive law of Ohio. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Schindler v.

Seiler, 474 F.3d 1008, 1010 (7th Cir.2007); Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir.2009). A. State Farm’s Duty to Defend Under Ohio law, whether an insurer has a duty to defend an action against an insured is initially determined by the scope of the pleadings. M/G Transport Services, Inc. v. Water Quality Ins. Syndicate, 234 F.3d 974 (6th Cir.2000). The duty to defend involves a substantial right to both the insured and the insurer. General Accident Ins. Co. v. Ins. Co. of North America, 44 Ohio St.3d 17, 21-22, 540 N.E.2d 266 (1989). State Farm attached the affidavit of Michael S.

Doll (“Doll”), the claims manager for the pending civil matter, to its Motion to Dismiss. Doll states that State Farm is providing both defense and indemnification for the pending civil matter, without any reservation of rights. Doll further states that it is his understanding that neither the Decedent, nor his estate, nor the representative of his estate, is exposed to financial liability in the pending civil matter, because the plaintiffs claim in the pending civil matter is limited to the $100,000 liability limit of Decedent’s insurance policy. An insurance policy is a contract whose

interpretation is a matter of law. Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 875 N.E.2d 31 (2007), citing Sharonville v. Am. Emps. Ins. Co., 109 Ohio St.3d 186, 846 N.E.2d 833 (2006). Where the language of the written contract is clear, a court may look no further than the writing itself to find the intent of the parties. Id. State Farm also attached the insurance policy that was in effect for Decedent at the time of the accident. The policy states: We will: (1)pay damages which an insured becomes legally liable to pay because of (

a) bodily injury to others, and (

b) damage to or destruction of property including loss of its use; caused by accident resulting from the ownership, maintenance or use of your car; and (2)defend any suit against an insured for such damages with attorneys hired and paid by us. We will not defend any suit after we have paid the applicable limit of our liability for the accident which is the basis of the lawsuit. We have the right to investigate, negotiate, and settle any claim or suit. The policy also states: Insured’s Duty to Cooperate With Us: (

a) The insured shall cooperate with us and, when asked, assist us in: (1) making settlements; (2) securing and giving evidence; (3) attending, and getting witnesses to attend, hearings and trials. (

b) the insured shall not, except at his or her own cost, voluntarily: (1) make any payment or assume any obligation to others; or (2) incur any expense, other than for first aid to others. The Court finds that Decedent’s insurance policy makes clear that State Farm will pay damages for which the Decedent would be legally liable and that State Farm will hire and pay for the attorney representing him. In addition, as the Decedent would have a duty to cooperate with this defense, so too would Johnson, his representative.

The Court finds that because State Farm has hired (and apparently paid for) counsel in the pending civil matter, it is honoring its policy; therefore, there is no basis for Johnson to interfere with State Farm’s conduct in the pending civil matter. The Court further finds that Johnson, as Decedent’s Administrator, has a duty to cooperate with State Farm in the pending civil matter. Accordingly, Johnson fails to state a claim for which relief can be granted. B. Supplement to Motion to Dismiss State Farm filed a supplement to its Motion to Dismiss on May 22, 2009.

In this supplement, it states that six weeks after Johnson filed her original Complaint in this case, she filed suit against Kenneally in the United States District Court for the Northern District of Ohio, 09-CV-992. In this suit, she alleges that Kenneally is representing her without her consent in the above-referenced pending civil matter (the same allegation that is before this Court). On May 13, 2009, District Judge Donald C. Nugent dismissed this action, finding that the action lacked an arguable basis in law.

State Farm argues that this current matter should be dismissed because Johnson is barred from relitigating the same issues. Further, State Farm refers this Court to a September 17, 2008, Order, from Judge Michael Ward, Athens County Court of Common Pleas, Athens, Ohio. This Order declared Johnson a vexatious litigator as defined in Ohio Revised Code § 2323.52. The Order further stated: 2) Cindy Johnson a.k.a. Cyndi Johnson a.k.a.

Cinseree Johnson is prohibited from, directly or indirectly, instituting a legal proceeding, continuing a legal proceeding or making any application for relief or filing any motions in a legal proceeding in a court of common pleas, municipal court or county court, court of appellate jurisdiction or any federal court without first obtaining leave of that court to proceed. The Court finds that it is not necessary to address these additional reasons for dismissing Johnson’s action, as it has already found that she has failed to state a claim upon which relief can be granted.

State Farm also requests the Court to award it its costs. The Court declines to award costs to State Farm at this time. However, if Johnson continues to try to litigate this frivolous matter, the Court would consider awarding future costs in favor of State Farm. CONCLUSION For the reasons set forth above, the Court GRANTS State Farm’s Motion to Dismiss [# 9]. ORDER ON RECONSIDERATION Before the Court is Plaintiff Cinseree Johnson’s (“Johnson”) “Objection to Court Order and Motion to Vacate” [# 27 and # 28], which the Court will construe as a Motion for Reconsideration under Fed. R.Civ.P. 60(b).

For the reasons set forth below, this Court DENIES Johnson’s Motion. BACKGROUND Johnson filed an Amended Complaint for Declaratory Judgment and Damages against Defendant State Farm Mutual Automobile Insurance Company (“State Farm”), asserting that she is the Administrator for the Estate of Matthew Norman (“Decedent”), an individual who had State Farm automobile insurance. Johnson’s allegations arose over how Defendant State Farm chose to litigate Decedent’s claim, particularly their choice of counsel, Terrence Kenneally.

This Court granted State Farm’s Motion to Dismiss, finding that Decedent’s insurance policy made clear that State Farm would pay damages for which the Decedent would be legally liable and that State Farm would hire and pay for the attorney representing Decedent. Accordingly, the Court found that because State Farm hired (and apparently paid for) counsel in the pending civil matter, it was honoring its policy and therefore, there was no basis for Johnson to interfere with State Farm’s actions. The Court concluded that Johnson failed to state a claim for which relief could be granted.

The Court denied State Farm’s request for attorney fees, but stated that if Johnson continued to litigate the matter, it would consider awarding future costs in favor of State Farm.

In her Motion to Reconsider, Johnson states that State Farm “had no right to interfere with the handling of the underlying matter once obvious ‘problems’ arose between [herjself and Terrence Kenneally. [She] had a right to discharge Kenneally, and no state law supports otherwise.” Johnson also noted that this Court made reference to the other actions that she had filed in Ohio courts and argued that those actions are separate and apart from this action. Finally, Johnson stated that she did not “appreciate the court[’s] threat concerning this matter.

The court says costs for this action will be billed to [her] if [she] continue (sic) to pursue it. Plaintiff responds by saying, get your calculator out Judge, as no big name corporation is going to violate my rights.” DISCUSSION Rule 60(

b) of the Federal Rules of Civil Procedure allows a party to request reconsideration of a judgment. See Rule 60(

b) of the Federal Rules of Civil Procedure; Hicks v. Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir.2008). Relief pursuant to Rule 60 is extraordinary. Tolano v. Northwestern Medical Faculty Foundation, Inc., 273 F.3d 757, 762 (7th Cir.2008). The rule specifies the relief that is available and must be adhered to strictly. In re Mann, 229 F.3d 657, 659 (7th Cir.2000).

In relevant part, a court may relieve a party from a final judgment or order based upon, among other reasons: (1)mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.... See Rule 60(

b) of the Federal Rules of Civil Procedure. “Motions for reconsideration serve a limited function; to correct manifest errors of law or fact or to present newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.1987) (internal citation omitted). A motion to reconsider brought pursuant to Rule 60(

b) is not a substitute for filing an appeal. Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th Cir.2008). The Court finds that Johnson merely rehashes the merits of her Amended Complaint.

Johnson fails to cite to authority that supports her proposition that State Farm “had no right to interfere with the handling of the underlying matter once obvious ‘problems’ arose between [herjself and Terrence Kenneally.” In addition, the Court notes that while it referenced the similar actions that Johnson had filed in Ohio, it did not base its ruling on these actions, as it had already found that Johnson failed to state a claim upon which relief could be granted.

Finally, while it did not award State Farm its costs, the Court finds it was correct in stating that it would consider awarding future costs if Johnson continued to litigate her frivolous action. While a court should be more lenient in assessing sanctions against a pro se litigant, when she persists in a hopeless cause long after it should have been clear to her that her cause was indeed hopeless, sanctions should be imposed. Bacon v. American Federation of State, County, and Mun. Employees Council, No. 13, 795 F.2d 33, 34-35 (7th Cir.1986).

While Johnson may disagree with the Court and file a timely appeal, the Court finds her motion to reconsider has no merit. Accordingly, Johnson’s motion to reconsider is denied. CONCLUSION The Court DENIES Johnson’s Motion to Reconsider [# 27 and # 28].