Martinez v. Allstate Insurance Company ( 2023 )

Appellate Case: 21-1352 Document: 010110811839 Date Filed: 02/13/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 13, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
NANCY J. MARTINEZ,
Plaintiff - Appellant,
v. No. 21-1352
(D.C. No. 1:20-CV-00659-DDD-NRN)
ALLSTATE INSURANCE COMPANY, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Nancy J. Martinez appeals the district court’s order granting Allstate Insurance
Company’s motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 21-1352 Document: 010110811839 Date Filed: 02/13/2023 Page: 2
BACKGROUND1
Ms. Martinez has been disabled since 1999. On January 22, 2014, she
sustained serious injuries when she was hit by a car while crossing the street on her
electric scooter. The police ticketed the driver for driving without insurance.
Ms. Martinez filed a claim under her insurance policy with Allstate, which
included uninsured and underinsured motorist (UM) coverage for bodily injuries. On
July 24, 2014, Allstate’s representative, Alicia Reyes, told Ms. Martinez that Allstate
was denying her claim because she was not in an automobile when the accident
occurred. She did not hear from Allstate again. Despite multiple requests, Allstate
has not given Ms. Martinez her files on the accident. Ms. Martinez believes that her
former Allstate agent, Paul Novak, whom she accuses of fraud,2 may have destroyed
her files. She also believes that her own attorneys may have conspired with Allstate
to deny her benefits, but she cannot prove this allegation without having access to her
files.
1
We recite the facts as alleged in Ms. Martinez’s amended complaint, which is
the operative complaint.
2
Ms. Martinez alleges that in January 2011 Mr. Novak took advantage of her
disabilities and gave her misleading information to convince her to waive coverage
for certain medical payments and reduce her UM coverage from $250,000 to
$50,000. She also alleges that Mr. Novak falsely reported that her accident was a hit-
and-run with no injuries.
2
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Ms. Martinez received settlement funds from American Family Insurance, the
driver’s insurer. The check, which she never cashed, was dated October 23, 2017.
On October 18, 2019, Ms. Martinez filed a complaint in state court, which she
amended on December 23. Ms. Martinez did not articulate her claims clearly or
consistently. Allstate construed them broadly to include (1) breach of contract;
(2) common law bad faith; (3) statutory bad faith under Colo. Rev. Stat. §§ 10-3-
1115 and 10-3-1116; (4) negligence; (5) fraud; (6) civil conspiracy; and (7) breach of
fiduciary duty. The magistrate and district judges followed suit.
Allstate removed the case to federal court and ultimately filed a Rule 12(c)
motion for judgment on the pleadings. A magistrate judge recommended granting the
motion because Ms. Martinez did not file the breach-of-contract, bad faith, and fraud
claims within the applicable limitations periods, and she failed to state a claim for
fraud, negligence, civil conspiracy, and breach of fiduciary duty. After considering
Ms. Martinez’s objections, the district court adopted the magistrate judge’s report
and recommendation, granted the motion, and entered judgment in favor of Allstate.
Ms. Martinez filed this timely appeal.
DISCUSSION
We review a Rule 12(c) dismissal “under the standard of review applicable to a
[Fed. R. Civ. P.] 12(b)(6) motion to dismiss.” Tomlinson v. El Paso Corp., 653 F.3d
1281, 1285 (10th Cir. 2011) (internal quotation marks omitted). Our review is “de novo,
accepting factual allegations as true and considering them in the light most favorable to
the plaintiff.” Id. at 1286. Our role is “to assess whether the plaintiff’s complaint alone
3
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is legally sufficient to state a claim for which relief may be granted.” Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (internal quotation marks omitted)
(articulating the Rule 12(b)(6) standard).
We construe Ms. Martinez’s claims liberally because she is proceeding pro se.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For example, we make some
allowances for deficiencies such as unfamiliarity with pleading requirements, failure to
cite proper legal authority, and confusion of legal theories. Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we “cannot take on the
responsibility of serving as [her] attorney in constructing arguments and searching the
record.” Id.; see also Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997)
(“[W]e will not supply additional factual allegations to round out a plaintiff’s complaint
or construct a legal theory on a plaintiff’s behalf.”). Further, “pro se parties [must]
follow the same rules of procedure that govern other litigants.” Garrett, 425 F.3d at 840(internal quotation marks omitted).
In her appellate briefs, Ms. Martinez describes her accident and her current
disabilities. She asserts that both the magistrate judge and Allstate’s district-court
counsel committed fraud, suggests changes for the court’s docket,3 and expresses her
3
In her opening brief, Ms. Martinez asks the court to fix what she perceives to
be docketing errors relating to dates and related cases. We have confirmed that the
dates listed on the docket are correct. As for related cases, Ms. Martinez seems to be
asking the court to add her state-court cases to the list of “prior” and “current” cases.
But since this section of the docket is meant to reflect prior and current Tenth Circuit
cases, we decline her request.
4
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frustration with this court’s employees and the access restrictions imposed due to the
Covid-19 pandemic. And she takes issue with the admission procedure for attorneys
appearing before this court. As far as the substance of her claims, she makes only a few
conclusory statements that her filing was timely and that Allstate committed fraud. She
does not challenge the district court’s reasoning, nor does she include a single legal
citation except to identify the state statutes underlying her claims.
Even construed liberally, Ms. Martinez’s briefs do not contain any legal argument
as to why the district court erred in granting Allstate’s Rule 12(c) motion.
“[P]erfunctory” allegations of error that “fail[] to frame and develop an issue” are
insufficient “to invoke appellate review.” Kelley v. City of Albuquerque, 542 F.3d 802,
819 (10th Cir. 2008) (internal quotation marks omitted). It is insufficient to state on
appeal that the district court erred, without advancing “reasoned argument as to the
grounds for the appeal.” Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 n.6
(10th Cir. 2008) (internal quotation marks omitted); see also United States v. Banks,
451 F.3d 721, 728 (10th Cir. 2006) (refusing to consider an argument for which no
supporting legal authority was provided); Fed. R. App. P. 28(a)(8)(A) (“The appellant’s
brief must contain . . . appellant’s contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant relies[.]”). Issues that are
not adequately briefed are deemed waived. See Garrett, 425 F.3d at 841.
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CONCLUSION
We affirm the judgment of the district court, grant Ms. Martinez’s motion to
file a modified reply brief, and deny all other pending motions.
Entered for the Court
Joel M. Carson III
Circuit Judge
6