IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

AVA SOLOMON,

Plaintiff, 

vs. 

ALLSTATE INSURANCE IDEMNITY 

POLICY 000000886169059, ALLSTATE 

INSURANCE COMPANY, and ETHAN 

CHAVEZ,

Defendants.

8:23CV207

MEMORANDUM AND ORDER

This matter is before the Court on Defendant Allstate Fire & Casualty Insurance 

Company’s (“Allstate”) Motion to Dismiss Plaintiff Ava Solomon’s (“Plaintiff”) Second 

Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion to 

Dismiss”),1 Filing No. 43, as well as on initial review of Plaintiff’s pro se Second Amended 

1 The Court notes that Allstate seeks dismissal of Plaintiff’s initial complaint (the “Initial Complaint”), Filing 

No. 1, as well as her amended complaint (the “First Amended Complaint”), Filing No. 17, and her second 

amended complaint (the “Second Amended Complaint”), Filing No. 26. Filing No. 43 at 1. However, as the 

Second Amended Complaint supersedes all earlier complaints, see In re Wireless Tel. Fed. Cost Recovery 

Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005) (“It is well-established that an amended complaint supercedes 

an original complaint and renders the original complaint without legal effect”) (citing In re Atlas Van Lines, 

Inc., 209 F.3d 1064, 1067 (8th Cir. 2000) (citations omitted)), only the Second Amended Complaint shall be 

addressed here.

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Complaint as Plaintiff is proceeding in forma pauperis,2to determine whether summary 

dismissal is appropriate under 28 U.S.C. § 1915(e)(2)(B).

3

In its Motion to Dismiss, Allstate argues that dismissal of the case is appropriate 

as Plaintiff seeks to bring a direct action against Allstate as a liability insurer for a tort 

committed by their alleged insured which is forbidden under applicable law in the State of 

Nebraska (and in the State of Nevada where the subject occurrence took place). Filing 

No. 43. Allstate also argues that even if such an action were cognizable here, Plaintiff 

does not have standing to bring this suit as she is not authorized as a personal 

representative to pursue a wrongful death action as is required by Nebraska law.

For the reasons discussed below, the Court finds dismissal of the matter 

appropriate pursuant to 28 U.S.C. § 1915(e)(2)(B) and for the reasons set forth in the 

Motion to Dismiss.

I. FACTUAL AND RELEVANT PROCEDURAL BACKGROUND

Plaintiff filed her Initial Complaint on May 22, 2023, alleging the matter should 

proceed here under both federal question and diversity jurisdiction, and naming 

“ALLSATE INSURANCE IDEMNITY POLICY 000000886169059” (the “Allstate Policy”), 

Allstate Insurance Company (“Allstate”), and Ethan Chavez (“Chavez”) as defendants. 

Filing No. 1 at 1–3. The totality of the allegations set forth in the Complaint were as 

follows:

INTENTIONAL INSURANCE TORT VIOLATIONS, DISCRIMINATORY 

POLICE THAT ABRIDGED THE CVIL LIBERTIES OF ALLA AMERICANS, 

2 See Filing No. 6 (granting Plaintiff leave to proceed in formal pauperis).

3 Although the Court previously performed an initial review of the Initial Complaint, the Court reserved the 

right to conduct further review of Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2) after Plaintiff amended 

her Initial Complaint. See Filing No. 15 at 8 (informing Plaintiff that the Court reserved the right to perform 

an initial review of her amended complaint).

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THE DEATH THREATS AND MISUSE OF POLICTICAL OFFICE, 

RECORDS, AND SETTLEMENT POLICY, BLACK MAIL, WHITE 

COLLARD PRINCIPLE BEHAVED INCONVENIENCE, THAT 

DISRIMINATORY PRACTICES, AND THE MISUSE OF INSURANCE IS 

NOT AN ACT OF GOD BUT GREED AND THE FINEST 

DISINFRINGEMENT TO ANY RESPECTABLE COMPANY AND OR 

COMPANY THE MISUSE OF THE UNITED STATES VIA ALLSTATE 

VIOLATES THE UNITED PRINICIPLES THAT ARE FOREFATHERS 

TRIED TO PROTECT CIVIL RIGHT, EQUAL RIGHT AND [illegible as cut 

off]4

Id. at 4 (spelling as in original).

As relief, Plaintiff sought $200,000 for “ALL LOST WAGES AND EXPENSES 

PUNITIVE DAMAGES AND PAIN AND SUFFERING AND SECURITY FOR FUTURE 

YEARS.” Id. at 4.

Over the course of the next two months Plaintiff filed multiple documents, see Filing 

No. 9 (docketed as “PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW”), 

Filing No. 10 (docketed as “DISCLAIMER regarding SUPPLEMENTAL MOTION to 

Intervene”), and Filing No. 11 (docketed as “Certificate regarding SUPPLEMENTAL 

MOTION to Intervene”), with various attachments containing recitations of legal 

principles, and what appeared to be letters to Allstate referencing an insurance policy 

denial, which may have been intended to supplement the Complaint. Specifically, one of 

the attachments references “VEHICULAR MURDER IN THE 1ST DEGREED [sic],” and 

states that “ETHAN CHAVEZ HAS AN INSURANCE POLICY THAT WAS VALID AT TIME 

HE KILLED MY SON ALLSTATE 000000886169059.” Filing No. 9-2 at 1.

On initial review, the Initial Complaint was found to be “woefully deficient” as there 

were issues both with the jurisdictional allegations and factual pleading deficiencies. 

4 The Court notes it appears the cut off potion of the allegation may read “AMERICAN LIBERTIES.” Filing 

No. 1 at 4.

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Filing No. 15. When addressing Plaintiff’s federal question jurisdictional allegations this 

Court found that although Plaintiff alleged that her claims arose under the “civil rights, fair 

housing, and equal opportunity acts,” (which for the purposes of review the Court 

presumed to reference federal acts), no factual allegations were contained in her Initial 

Complaint to support such claims. Id. at 4 (citing Filing No. 1 at 3). In addressing diversity 

jurisdiction, this Court noted that while it was plausible her case could proceed in diversity, 

her allegations against Allstate were incomplete, and she had omitted any citizenship 

allegations for defendant Chavez. Id. at 5. In relation to the factual pleading deficiencies, 

this Court found that Plaintiff’s Initial Complaint contained “no allegations of who did what 

to whom, nevertheless when the alleged wrongful conduct took place” and little indication 

of the nature of the suit aside from Plaintiff selecting the check boxes for “insurance” and 

“car accident” on the civil cover sheet form. Id. at 6–7. Plaintiff was instructed to file an 

amended complaint that clearly states a claim upon which relief may be granted and that 

a failure to do so would result in dismissal of her claims against Defendants without further 

notice. Id. at 8.

On August 17, 2023, Plaintiff filed her First Amended Complaint which appeared 

to be largely identical to the Initial Complaint, containing identical narrative and signature 

pages. Compare Filing No. 1 with Filing No. 17. Along with her First Amended Complaint 

she attached what appeared to be a draft complaint that differed from the First Amended 

Complaint (the “Attachment”). See Filing No. 17-1. 

Several days later on August 31, 2023, Plaintiff filed her Second Amended 

Complaint,5 alleging her case may proceed via this Court’s diversity jurisdiction and 

5 Plaintiff indicated the Second Amended Complaint was a hard copy of the Attachment which she 

prematurely filed on August 17. Filing No. 25 at 1. Plaintiff also simultaneously filed a duplicate of the 

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naming Allstate Insurance and Chavez as defendants. Filing No. 25 at 2–4. Specifically, 

Plaintiff alleges she is a citizen of Nebraska, Chavez is a citizen of Nevada, and Allstate 

is a Texas Corporation with is principal place of business also in Texas. Filing No. 25 at 

4–5. The totality of Plaintiff’s claim in the Second Amended Complaint is stated as 

follows: “Allstate Insurance, insuree Ethan Chavez the insured has be charged with 

vehicular homicide. In Clark County Detention Center his charged has been upgraded. 

2X. The homicide has cost the family over $48,000 in funeral and medical expenses 

alone.” Filing No. 25 at 5 (spelling in original, capitalization omitted).

On the same date the Second Amended Complaint was filed, counsel for 

defendant Allstate entered an appearance into the case, Filing No. 21, and sought 

additional time to file a responsive pleading, Filing No. 22, which was granted, Filing No. 

24 (text order). Allstate was allowed through and until October 20, 2023, to file a 

responsive pleading. Id. (text order).

During August and September of 2023, Plaintiff filed three motions on state court 

forms titled “Ex Parte Motion for Deny Defendant Case Dismissal Motion Under rule 

34.31,” Filing No. 27, Filing No. 28, and Filing No. 29, six filings docketed as “joint” notices 

and motions filed “in the matter of the estate of Armani Stephen Williams,” on forms for 

the County Court of Douglas County, Nebraska, titled “Demand for Notice,” Filing No. 32, 

“Statement of Claim,” Filing No. 33, “Release of Claim,” Filing No. 34 and Filing No. 37, 

and “Demand for Notice,” Filing No. 35 and Filing No. 36. All of the motions were denied 

without prejudice as either premature, or because they were found not to be motions but 

Second Amended Complaint, Filing No. 26, which was docketed as a motion and subsequently denied 

without prejudice by the Court on October 6, 2023, Filing No. 40.

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to be notices and acknowledgements, or because they were not properly before this Court 

as they were filed on state court forms. Filing No. 40. 

On October 19, 2023, Allstate filed its Motion to Dismiss currently before this Court, 

Filing No. 43, and a brief in support, Filing No. 44. The following day this Court entered 

an order, Filing No. 45, responding to additional motions Plaintiff filed on October 11, Filing 

No. 41 and Filing No. 42, which this Court construed as motions for status. In addressing 

the status motions the Court informed Plaintiff that she had through and until November 

9, 2023, to file a brief in response to the Motion to Dismiss or file a motion to extend time 

to respond. Filing No. 45 at 2. To date, Plaintiff has not filed a response in opposition to 

the Motion to Dismiss nor has she participated in the case since filing her motions for 

status on October 11, 2023.

II. DISCUSSION

While the nature of Plaintiff’s claims remains unclear from the allegations in her 

Second Amended Complaint, it appears from the allegations in the various complaints 

previously filed and narrative contained in other filings made by Plaintiff in this action that 

Plaintiff’s son Armani Stephen Williams (“Williams”) was involved in an incident with a 

motor vehicle driven by defendant Chavez resulting in William’s death and criminal 

charges being brought against Chavez in Clark County, Nevada. And, as a result of the 

incident involving Williams, Plaintiff, as Williams’ mother, now brings what appears to be 

a wrongful death action against Allstate and Chavez under the policy of insurance 

allegedly issued by Allstate providing coverage to Chavez, and seeking damages under 

that same policy. See Filing No. 1, Filing No. 7-1, Filing No. 7-2, Filing No. 8, Filing No. 

8-1, Filing No. 9 at 2, Filing No. 9-2, Filing No. 9-4, Filing No. 9-5, Filing No. 10-5, Filing 

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No. 11-1, Filing No. 11-2, Filing No. 12, Filing No. 16, Filing No. 17, Filing No. 25, Filing 

No. 26, Filing No. 38, and Filing No. 39.

The Court now performs its initial review pursuant to 28 U.S.C. § 1915(e) and 

considers the arguments set forth in the unopposed Motion to Dismiss.

A. Initial Review

The Court is required to review in forma pauperis complaints to determine whether 

summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The Court must dismiss a 

complaint or any portion of it that states a frivolous or malicious claim, that fails to state a 

claim upon which relief may be granted, or that seeks monetary relief from a defendant 

who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 

“The essential function of a complaint under the Federal Rules of Civil Procedure 

is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, 

and a general indication of the type of litigation involved.’” Topchian v. JPMorgan Chase 

Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 

968, 973 (8th Cir. 1999)). While “[a] pro se complaint must be liberally construed, and 

pro se litigants are held to a lesser pleading standard than other parties,” Topchian, 760 

F.3d at 849 (internal quotation marks and citations omitted), pro se plaintiffs must set forth 

enough factual allegations to “nudge[] their claims across the line from conceivable to 

plausible,” or their complaint shall be dismissed. Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has 

facial plausibility when the plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.”). 

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Upon review, Plaintiff’s Second Amended Complaint still fails to meet this minimal 

pleading standard. Specifically, while Plaintiff’s Second Amended Complaint contains a 

more detailed damages request than her prior complaints, it still contains no allegations 

of who did what to whom or when any of the alleged violations occurred. See Filing No. 

25. Instead, as discussed supra, in an effort to understand that nature of the allegations 

this Court has had to scour multitudes of filings by Plaintiff and consider the facts as stated 

by Allstate in its Motion to Dismiss to determine how the named parties are involved and 

the claims at issue. Plaintiff continues to make only vague and factually unsupported 

references to Chavez having been charged with vehicular homicide, a reference to 

something happening in Clark County, Nevada, and funeral costs apparently paid for by 

Plaintiff, see id. at 5, but provides no additional detail about the nature of her claims or 

any factual support for them. Put another way, aside from clarifying her jurisdictional 

allegations, Plaintiff’s Second Amended Complaint is as woefully deficient as the Initial 

Complaint as it contains no allegations of who did what to whom, nor even when the 

alleged wrongful conduct took place or why Plaintiff is entitled to relief. 

While this Court can allow Plaintiff to again amend to correct these deficiencies, 

for the reasons provided in the next section of this Order addressing the Motion to 

Dismiss, allowing Plaintiff additional time to correct these deficiencies or otherwise amend 

would be futile. 

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B. The Motion to Dismiss

Allstate filed its Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules 

of Civil Procedure alleging dismissal of Plaintiff’s case is appropriate as Plaintiff failed to 

state a claim upon which relief can be granted. Filing No. 43. 

“Dismissal under Fed. R. Civ. P. 12(b)(6) serves to eliminate actions which are 

fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the 

burden of unnecessary pretrial and trial activity.” Cronin v. Peterson, 288 F. Supp. 3d 970, 

981 (D. Neb. 2018) (internal quotations omitted). Motions to dismiss under Rule 12(b)(6)

allow parties to “test the legal sufficiency of the pleadings.” In re Am. River Transp. Co., 

728 F.3d 839, 848 (8th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009)).

“The standard for a district court to employ in ruling on a motion to dismiss is clear.” 

Crumpley–Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004). “A 

district court must accept the allegations contained in the complaint as true, and all 

reasonable inferences from the complaint must be drawn in favor of the nonmoving party.” 

Id. (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hafley v. Lohman, 90 F.3d 

264, 266 (8th Cir. 1996)). 

“A motion to dismiss should be granted ‘as a practical matter . . . only in the 

unusual case in which there is some insuperable bar to relief.’” Strand v. Diversified 

Collection Service, Inc., 380 F.3d 316, 317 (8th Cir. 2004) (citing Frey v. Herculaneum, 44 

F.3d 667, 671 (8th Cir. 1995) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.

1974))). Indeed, “dismissal is inappropriate ‘unless it appears beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” 

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McCormack v. Citibank, N.A., 979 F.2d 643, 646 (8th Cir. 1992) (quoting Conley v. Gibson, 

355 U.S. 41, 45–46 (1957)). 

Here, Allstate argues that two separate grounds exist which require dismissal of 

this suit in its entirety: (1) Plaintiff lacks standing to bring suit, and (2) Both Nebraska and 

Nevada state law forbid Plaintiff from bringing a “direct action” suit against a liability 

insurance carrier such as Allstate based on the negligence of the insured. Filing No. 43. 

Upon review this Court finds Allstate is correct on both bases.

a. Plaintiff lacks standing to pursue a wrongful death suit where she is not 

formally named the personal representative of the decedent.

As previously discussed, it appears from a review of the pleadings and papers filed 

by Plaintiff in this matter that Plaintiff seeks to bring a wrongful death suit against Allstate 

and its insured, defendant Chavez, for the death of Plaintiff’s son in a vehicular incident 

which took place in Clark County Nevada. 

“[B]efore a federal court can consider the merits of a legal claim, the person 

seeking to invoke the jurisdiction of the court must establish the requisite standing to sue.” 

Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). In this instance the Court therefore 

must first determine whether Plaintiff, as the decedent's mother, has standing to allege a 

wrongful death claim. Anderson v. Nguyen, No. 8:18CV248, 2018 WL 3553355, at *2 (D. 

Neb. July 24, 2018).

“A cause of action based on damages stemming from the death itself of a human 

being ‘inures solely to the next of kin, and exists only by virtue of the wrongful death 

statutes.’” Id. (quoting Corona de Camargo v. Schon, 776 N.W.2d 1, 9 (Neb. 2009)); see 

also Mader v. United States, 654 F.3d 794, 808 (8th Cir. 2011) (holding that under 

Nebraska law, only a personal representative may file a wrongful death action). Nebraska 

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Revised Statute § 30-809 authorizes actions for wrongful death in Nebraska. Pursuant 

to Nebraska Revised Statute § 30-810, every action described in § 30-809 shall be 

“brought by and in the name of [the decedent’s] personal representative for the exclusive 

benefit of the widow or widower and next of kin.” Under Nebraska law “to acquire the 

powers and undertake the duties and liabilities of a personal representative of a decedent, 

a person must be appointed by order of the court or registrar, qualify and be issued 

letters.” Neb. Rev. Stat. § 30-2403. 

Therefore, when a plaintiff brings a wrongful death action in Nebraska he or she 

must first obtain personal representative status via court order. When such status is not 

obtained or when a party fails to present evidence that he or she is appointed as personal 

representative of the decedent (and that the appointment is valid), and that same party 

attempts to file a wrongful death suit, the Eighth Circuit has held that party “does not have 

standing to assert the wrongful death claim at issue.”6 Mader, 654 F.3d at 808.

Here, Plaintiff does not allege or provide any evidence she has been appointed as 

personal representative for her deceased son. Therefore, Plaintiff lacks standing to 

proceed on her wrongful death claim and this matter should be dismissed without 

prejudice for failure to state a claim upon which relief may be granted. Wells v. Norfolk 

Reg'l Ctr., No. 8:10CV301, 2010 WL 5018588, at *2 (D. Neb. Dec. 2, 2010) (authorizing 

dismissal of claim where plaintiff had not submitted any evidence that the plaintiff was the 

personal representative of his son's estate). While Plaintiff could cure this deficiency by 

providing evidence that she has been appointed her son’s personal representative or by 

6 The Mader court noted that while the dissent’s argument that the cause of action, not a plaintiff’s standing, 

is undermined when a plaintiff brings a wrongful death suit but is not a valid personal representative, “the 

result is the same,” as dismissal is still allowed under any basis supported by the record. Mader, 654 at 

808, n. 12 (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)).

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substituting the personal representative of her son’s estate as the plaintiff in this case, the 

suit Plaintiff brings is a non-cognizable “direct action” suit, as discussed in the next 

section, and, thus, amendment of the Second Amended Complaint is futile.

b. Plaintiff’s “direct action” claim against Allstate cannot proceed under 

both Nebraska and Nevada law.

It is well-established that Nevada law does not permit an unfettered, direct cause 

of action against an insurance provider by a third party.7 Nebraska law similarly provides 

as follows: “[A]s a general rule, there is no privity between an insured person and the 

tortfeasor's liability insurer. For this reason, direct actions against liability insurance 

carriers based on the negligence of the insured are not permitted in Nebraska.” German 

Mut. Ins. Co. of Dodge County v. Federated Mut. Ins. Co., 606 N.W.2d 856, 859 (Neb. 

App. 2000) (citing Medical Protective Co. v. Schrein, 582 N.W.2d 286, 290 (Neb. 1998)).8

As previously noted, this Court's exercise of jurisdiction over this dispute is 

predicated upon the parties’ diversity of citizenship pursuant to 28 U.S.C. § 1332. It is 

well-established that in diversity of citizenship cases, the district court must apply the 

choice of laws rules of the state in which it sits. Perkins v. Clark Equip. Co., 823 F.2d 207, 

7 Recently the Nevada Court of Appeals reiterated that Nevada “is not a direct action state” and therefore 

a third party plaintiff seeking to maintain claims directly against a liability insurer could not proceed. Law v.

Progressive Direct Ins. Co., 533 P.3d 746 (Nev. App. 2023) (citing Hall v. Enterprise Leasing Co.-W., 137 

P.3d 1104, 1109 (2006) (internal quotation marks omitted)). Even when a complaint can be read as alleging 

that a liability insurer acted in bad faith in the handling of an insurance claim for their insured, resulting in 

alleged injury to a third party, Nevada courts have found such a claim constitutes a direct action and is “not 

permitted under Nevada law, without first having successfully brought an action against [the liability 

insurer’s] insured and then receiving an assignment from the insured to bring such a claim.” Id. (citing 

Gallegos v. Malco Enters., of Nev., Inc., 255 P.3d 1287, 1289 (2011) (citing Wilson v. Bristol West Ins. 

Group, 2009 WL 3105602, at *2 (D. Nev. Sept. 21, 2009))). As such, the Nevada appellate court recognized 

that “although Nevada does not recognize a private right of action by a third-party claimant against an 

insurance company for bad faith, a third-party claimant may bring a claim for bad faith with a proper 

assignment of rights.” Id. 

8 While Nebraska law does allow direct actions where an insurer is insolvent or bankrupt, see Molina v. Am. 

Alternative Ins. Corp., 270 Neb. 218, 699 N.W.2d 415, 419 (2005) (citing Neb. Rev. Stat. § 44–508), this 

exception does not apply here. 

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208 (8th Cir. 1987). However, in this instance this Court need not determine whether 

Nebraska or Nevada law applies as both Nebraska and Nevada law forbid Plaintiff’s 

direct-action suit in an instance such as this where Plaintiff, as a third party, seeks to sue 

a liability insurance provider.

As such, even if Plaintiff had standing to bring suit as personal representative for 

her deceased son, there are no circumstances present which would allow her to bring suit 

to obtain damages under an insurance policy her son was not a party to in either Nevada 

or Nebraska. As her direct action claim cannot proceed, her suit must be dismissed. 

IT IS THEREFORE ORDERED that: 

1. The Motion to Dismiss, Filing No. 43, is granted. This case shall be dismissed 

without prejudice for failure to state a claim on which relief may be granted.

2. A separate judgment will be entered in accordance with this Memorandum and 

Order.

Dated this 2nd day of August, 2024.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Judge

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