United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE
the Court is the defendant's Motion for Summary Judgment
(Doc. 42). Plaintiff, Karen Sue Sperling, filed multiple
documents in response. After she made several separate and
redundant filings, and after giving her multiple extensions,
the Court accepted her latest (and most complete) brief (Doc.
50) and all exhibits (Doc. 50-1, 50-2, 50-3, 51-1, 51-2) that
she had submitted in response. (See Doc. 52).
Defendant, CSAA Fire & Casualty Insurance Company (AAA),
insured plaintiff s Broken Arrow rental property under a
Policy that provided the following coverages: $240, 369 for
the dwelling (coverage A); $24, 037 for other structures
(coverage B); $12, 018 for personal property (coverage C);
$48, 074 for fair rental value (coverage D); $300, 000 for
personal liability each occurrence (coverage E); and $1, 000
medical payments to others (coverage F). (Doc. 42-1 at 3).
Plaintiff alleges that, on or about November 10, 2014, the
insured property sustained damage from vandalism, including
stolen wiring, damaged property, graffiti, and other losses.
(Doc. 2-2 at 2).
December 22, 2014, plaintiff contacted AAA to report the
loss, and AAA opened a claim for her. (Doc. 42-2 at 11). In
January, upon investigation, AAA concluded that the property
had been vacant for more than 60 days, in which there would
not be coverage under the Policy, which excluded coverage for
losses caused by vandalism "if the dwelling has been
vacant for more than 60 consecutive days immediately before
the loss." (Doc. 42-3; see also Doc. 42-1 at
22-23 of 65). AAA also noted that the Policy excluded
coverage for "neglect." (Doc. 42-1 at 30 of 65).
AAA thus informed plaintiff, by voicemail and letter, that
the damage was not covered by the Policy. (Doc. 42-3). The
agent's letter explained the basis for the decision and
stated, "[i]f you believe that any of the information we
relied upon in reaching our decision is inaccurate, if you
have any additional information you would like us to consider
as part of this claim, or if you have any further questions
or comments, I'm eager to help. Please do not hesitate to
contact me at the number below." (Doc. 42-3 at 3).
subsequently secured counsel, who contacted AAA about the
November 2014 claim in June of 2015 and provided utility
bills in an attempt to establish that the home was occupied.
(See Doc. 42 at 6, ¶¶ 11-12; Doc. 42-4 at
2-4). AAA reopened the claim and concluded that damage to the
rental property would cost $47, 622.36 to repair. (Doc.
42-5). Considering depreciation in the amount of $8, 697.21
and the policy's $500 deductible, AAA initially paid
plaintiff an amount of $38, 425.15 based on the actual cash
value of the property at the time of the loss. (Doc. 42-6).
AAA also paid plaintiff $2, 499 to replace a riding lawn
mower (Doc. 42-10) and $13, 200 for the fair rental value of
her property, for a total rental reimbursement for 12 months.
(Doc. 42-6, 42-11).
admitted in her deposition that she used part of the
insurance payments to cover her day-to-day living expenses.
(Doc. 42-7 at Dep. p. 74:1-7). She has also not disputed that
she did not complete repairs until shortly before her second
deposition in this case. After AAA was afforded an
opportunity to inspect the property, AAA then tendered the
depreciation hold back of $8, 697.21, in accordance with the
Policy. As a result, AAA has paid $47, 122.36 on the property
damage claim (under Coverage A), plus $2, 499 for the lawn
mower (under Coverage C), plus $13, 200 for a year's
rental value (under Coverage D).
II. Standards and Plaintiffs Pro Se Status
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). "[S]ummary judgment
will not lie if the dispute about a material fact is
'genuine, ' that is, if the evidence is such that a
reasonable jury could return a verdict for a nonmoving
party." Anderson, 477 U.S. at 248. The courts
thus determine "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Id. at 251-52. The
non-movant's evidence is taken as true, and all
justifiable and reasonable inferences are to be drawn in the
non-movant's favor. Id. at 255. The court may
not weigh the evidence and may not credit the evidence of the
party seeking summary judgment, while ignoring the evidence
offered by the non-movant. Tolan v. Cotton, 134
S.Ct. 1861, 1866-68 (2014) (per curiam).
case was initially filed by plaintiffs counsel. Her counsel
subsequently withdrew, and plaintiff entered pro se,
after the Court provided her ample time to enter an
appearance through new counsel. A pro se plaintiff
is not entitled to "directions from the district court
or from Defendants to assist [the plaintiff] in responding to
a motion for summary judgment under Fed.R.Civ.P. 56."
McDaniels v. McKinna, 96 F.App'x 575, 578 (10th
Cir. 2004). Thus, while the courts "construe pleadings
filed by a pro se litigant liberally, [they] do not
serve as the pro se litigant's advocate, "
and "pro se litigants are expected to follow
the Federal Rules of Civil Procedure, as all litigants
must." Id.; see also Ogden v. San Juan County,
32 F.3d 452, 455 (10th Cir. 1994) (pro se plaintiffs
are required to comply with the "fundamental
requirements of the Federal Rules of Civil and Appellate
Procedure" and substantive law, and the liberal
construction to be afforded does not transform "vague
and conclusory arguments" into valid claims for relief).
ample opportunities and time to respond, the plaintiff has
not provided coherent arguments or citations to the record
which dispute AAA's arguments, evidence, or statement of
undisputed facts. For example, many of plaintiff s responses
consist solely of unsupported denials: "This is not
true, " "Plaintiff is not aware, "
"Plaintiff does not recall, " "Why would
Defendants say that about me, " and "Unavailable
time to answer." (Doc. 50 at 7-8). Contrary to her
suggestions that she did not have sufficient time, she filed
multiple briefs, each time asking for more time, and the
Court gave her multiple extensions. (See Doc. 43,
45, 46, 47, 48, 49, 50, 52).
has not supported any of her contentions with citations to
evidence, as is required under Rule 56. "A party
asserting that a fact... is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials
in the record ... or (B) showing that the materials cited do
not establish the absence or presence of a genuine
dispute." Fed.R.Civ.P. 56(c)(1)(A)-(B). While plaintiff
has filed 160 exhibits, she has not provided any citations or
coherent argument as to which exhibits present disputed
factual issues. As AAA points out, numerous of plaintiff s
exhibits, including many documents that predate the plaintiff
s November 2014 vandalism claim, appear to have nothing to do
with this case. While the Court has examined plaintiffs
exhibits, it is not required to search her 160 exhibits in an
attempt make the plaintiffs arguments for her. See
Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th
Cir. 2000) ("The district court was not obligated to
comb the record in order to make [the plaintiffs] arguments
for him."); Cross v. Home Depot, 390 F.3d 1283,
1290 (10th Cir. 2004) ("[plaintiff] argues that. . .
evidence of these eight promotions was in the record on
summary judgment and the court should have considered it. But
on a motion for summary judgment, 'it is the responding
party's burden to ensure that the factual dispute is
portrayed with particularity, without. . . depending on the
trial court to conduct its own search of the
record.'") (quoting Dowries v. Beach, 587
F.2d 469, 472 (10th Cir.1978)).
Breach of ...