UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 2:22-cv-14303-KMM

LOVEY LOVE, 

Petitioner, 

v. 

ALLSTATE INSURANCE COMPANY, 

Respondent. 

 / 

ORDER ON REPORT AND RECOMMENDATION

THIS CAUSE came before the Court upon pro se Plaintiff Lovey Love’s Application to 

Proceed In Forma Pauperis (“Motion”) (ECF No. 3). The Court referred the matter to the 

Honorable Ryon M. McCabe, United States Magistrate Judge, who issued a Report and 

Recommendation recommending that the Motion be DENIED, and that Plaintiff’s Complaint 

(“Complaint” or “Compl.”) (ECF No. 1) be DISMISSED WITHOUT PREJUDICE pursuant to 28

U.S.C. § 1915(e)(2)(B). (“R&R”) (ECF No. 9). Plaintiff did not file objections and the time to 

do so has passed. The matter is now ripe for review. As set forth below, the Court ADOPTS the 

R&R. 

The Court may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 

Plaintiff brings this negligence action based on a December 24, 2020, automobile accident 

involving Plaintiff and another driver, Dawn K. Stellatto. Compl. ¶¶ 5–8. The Complaint does 

not name Stellato as a defendant in this case. Instead, the Complaint names Allstate Insurance 

Company (“Allstate”), who allegedly insured Stellato, as the sole defendant. Compl. ¶10. 

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Pursuant to § 1915(e), the court is permitted to dismiss a case at any time if the court 

determines that the action (i) is frivolous or malicious; (ii) fails to state a claim on which relief 

may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 

§ 1915(e)(2)(B). A pro se litigant is entitled to the court’s liberal construction of the complaint. 

See Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However, even under the liberal construction 

afforded to pro se litigants, the complaint must establish a valid cause of action. See Petersen v. 

Smith, 762 F. App’x 585, 593 (11th Cir. 2019). Section 1915(e)(2)(B)(ii) mirrors the language of 

Rule 12(b)(6) of the Federal Rules of Civil Procedure, and courts apply the same standard in both 

contexts. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). 

A pleading in a civil action must contain “a short and plain statement of the claim showing 

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a complaint “does not need 

detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s 

pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). 

“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 

that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).

Section 1915 represents a balance between “facilitating an indigent person’s access to the 

courts and curbing the potentially vast number of suits by such persons, who, unlike those who 

must pay in order to litigate their claims, have no economic disincentives to filing frivolous or 

malicious suits once in forma pauperis status is granted.” Herrick v. Collins, 914 F.2d 228, 229 

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(11th Cir. 1990) (citation omitted). Thus, § 1915 provides a court “not only the authority to dismiss 

a claim based on an indisputably meritless theory, but also the unusual power to pierce the veil of 

the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly 

baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Factual allegations that are “fanciful,” 

“fantastic” and “delusional” are considered clearly baseless. See Denton v. Hernandez, 504 U.S. 

25, 32–33 (1992). 

As set forth in the R&R, Magistrate Judge McCabe finds that the Complaint must be 

dismissed because Plaintiff failed to state a viable claim against Allstate. R&R at 3. Specifically,

Magistrate Judge McCabe finds that Plaintiff failed to state a claim against Allstate because, under 

Florida law, an injured plaintiff can sue the wrongdoer’s insurance company directly only if the 

injured plaintiff first obtains a settlement or verdict against the wrongdoer. Id. at 4 (citing Morales 

v. Zenith Ins. Co., 714 F.3d 1220 (11th Cir. 2013). Here, Plaintiff has not yet obtained a settlement 

or verdict against Stellato, and therefore the Complaint fails to allege any facts that would allow 

Plaintiff to sue Allstate directly for the actions of Stellato. This Court agrees. 

Magistrate Judge McCabe also finds that the Complaint lacks sufficient allegations to show 

subject matter jurisdiction. R&R at 3. Here Plaintiff alleges subject matter jurisdiction based on 

diversity. See Compl. Where a party invoking the court’s jurisdiction fails to adequately do so, 

the complaint must be dismissed. Id. at 5 (citing Latite Roofing & Sheet Metal, LLC v. Am. Home 

Assurance Co., No. 22 Civ. 61578, 2022 WL 3656969, at *2 (S.D. Fla. Aug. 25, 2022). Here, 

while Plaintiff alleges she is a citizen of Florida and Allstate’s “principal office” is in Illinois, she 

also alleges that Allstate’s “place of business is in Florida.” Magistrate Judge McCabe finds that 

Plaintiff failed to allege diversity jurisdiction. R&R at 5. This Court agrees. 

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Accordingly, UPON CONSIDERATION of the Motion, the Complaint, the pertinent 

portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED 

AND ADJUDGED that the Complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE and 

the Motion to Proceed In Forma Pauperis (ECF No. 3) is DENIED AS MOOT. The Clerk of the 

Court is instructed to CLOSE this case. All pending motions, if any, are denied as MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of October, 2022. 

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE

c: All counsel of record

7th

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