United States District Court, E.D. Virginia, Richmond Division
United States District Judge
matter comes before the Court on what amounts to six motions:
(I)pro se Plaintiff Gregory Perry's Motion for
Default Judgment, (ECF No. 1-3); (2) Perry's Motion for
Judicial Estoppel or Issue Preclusion, (ECF No. 1-3); (3)
Perry's Motion to Strike, (ECF Nos. 1-3,
4);(4) Perry's Motion Craving Oyer, (ECF
No. 1-3); (5) Perry's Motion to Remand, (ECF No. 5); and,
(6) Safeco's Demurrer (the "Partial Motion to
Dismiss"),  (ECF No. 1-2).
the pending motions-the Motion for Default Judgment, the
Motion for Judicial Estoppel or Issue Preclusion, the Motion
Craving Oyer, and the Partial Motion to Dismiss-were filed in
the State Court. The other two motions were filed in this
Court. Safeco has responded to the Motion to Remand, (ECF No.
6), and the Motion to Strike, (ECF No. 7). Perry has not
replied to those responses, and the time to do so has
expired. Perry has responded to the Partial Motion to
Dismiss. (ECF No. 3.) Safeco has not replied to Perry's
response to the Partial Motion to Dismiss, and the time to do
so has expired. Accordingly, the matters are ripe for
disposition. The Court dispenses with oral argument because
the materials before it adequately present the facts and
legal contentions, and argument would not aid the decisional
reasons that follow, the Court will deny the Motion for
Default Judgment, the Motion for Judicial Estoppel or Issue
Preclusion, the Motion to Strike, the Motion Craving Oyer,
and the Motion to Remand. The Court will grant the Partial
Motion to Dismiss.
Factual and Procedural Background
filed his Complaint in the State Court, alleging three counts
against Safeco: (1) Breach of Implied Covenant of Good Faith
and Fair Dealing; (2) Tortious Interference with Contract
Relations and Business Expectancies; and, (3) Breach of
Contract and Bad Faith Claims Settlement. (Compl., ECF No.
1-1.) Safeco removed the case to this Court pursuant to 28
U.S.C. §§ 1441 and 1446. Safeco asserts diversity
jurisdiction under 28 U.S.C. § 1332 as its basis for
to removal, Safeco filed a Demurrer, on behalf of itself
and General Insurance Company of America
("General"), seeking to dismiss Perry's Count
II with prejudice. (Demurrer, ECF No. 1-2.) Safeco contends
that General is the proper defendant in this case.
(Id. at 1.) Perry then filed three motions
contemporaneously: his Motion for Default Judgment; his
Motion for Judicial Estoppel or Issue Preclusion; and, his
Motion to Strike (collectively, the "Failure to Respond
Motions"). Each of Perry's filings rests on the
contention that Safeco, as the defendant in the case, cannot
rely on the responsive pleadings of General, a non-party.
Perry also filed his Motion for Craving Oyer.
removal, Perry filed a "Response to and Motion to Strike
Demurrer, " again suggesting that the Partial Motion to
Dismiss was filed, not by Safeco, but by a non-party to the
action. (ECF No. 4.) Perry also contends that the Complaint
sufficiently states a claim for tortious interference with
contract relations and business expectancies. Safeco
responded to the Motion to Strike, asserting that Perry
cannot meet the high burden needed for striking a pleading.
(Opp'n to PL's Mot. Strike, ECF No. 7.) That same
day, Perry filed a Motion to Remand pursuant to 28 U.S.C.
§ 1447, arguing that Safeco cannot remove a case in
order to "escape a default judgment." (Mot. Remand
2, ECF No. 5.) Safeco opposed the Motion to Remand,
indicating that it filed the Partial Motion to Dismiss
"on behalf of both entities." (Opp'n to
PL's Mot. Remand 2, ECF No. 6.)
Summary of Allegations in the
brings this action against Safeco, his former automobile
insurer, for claims arising from a 2011 house fire in the
County of Hanover, Virginia.
about December 14, 2011, Perry's residence caught fire in
the garage area, where Perry had parked his 2010 Honda Pilot
Touring Edition (the "Sport Utility Vehicle" or
"SUV"). The fire caused significant damage to the
SUV. At the time, the SUV was fully covered by Perry's
automobile insurance policy with Safeco. Perry submitted a
claim to Safeco for the damage.
about December 15, 2011, Safeco dispatched a towing company
to Perry's then-condemned residence and removed the SUV
to an unknown location. Without Perry's consent, a repair
company "irrigate[ed] the interior of the [SUV] with
ozone, in an attempt at remedying the smoke damage done to
the [SUV] which had sat in the epicenter of the fire for over
an hour period of time." (Compl. ¶ 9.) That company
also used aftermarket parts to fix the SUV and painted the
front of it "to conceal the warping and discoloration
from the fire." (Id. ¶ 10.) While the SUV
was being repaired, Safeco provided Perry with a rental car.
But when Perry asked the repair shop about the status of his
SUV, Safeco canceled his rental car benefits.
eventually returned the SUV to Perry. Perry, however, refused
to accept it because Safeco had sent his car to its preferred
repair shop without his consent, and he otherwise had no
input in the repair process. The repairs did not restore the
SUV to its pre-flre condition. The interior of the SUV
smelled of smoke, the exterior of the SUV had mismatched
paint, the vendor had used aftermarket parts, and the engine
bay still had corrosion and rust caused by the fire.
Nonetheless, Safeco refused to honor any replacement value
claim. Perry then filed a claim with his homeowner's
insurance carrier, Main Street America Group, which refused
to open a claim for damages to Perry's vehicle. Safeco
subsequently refused Perry's request to initiate
subrogation proceedings against Main Street America Group.
ultimately paid for an independent inspection of the SUV,
which revealed "a diminished value appraisal based upon
the shoddy workmanship exhibited by the repairs."
(Id. ¶ 18.) Perry submitted the diminished
value appraisal to Safeco for consideration, but Safeco again
refused to pay Perry's claims. After a few weeks, Safeco
presented Perry with a partial payment that covered the
payoff value of the SUV's outstanding loan balance.
Safeco also required Perry to sign over the SUV's title.
alleges that, as a result, he: (1) lost his SUV, upgrades
made to the SUV, and equity accrued in the SUV; (2) could not
resume his profession and business; (3) suffered irreparable
damage to his credit after defaulting on his financial