ORDER AND REPORT AND RECOMMENDATION

KAREN L. LITKOVITZ, Magistrate Judge.

This matter is before the Court on defendant State Auto Insurance Agency's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction (Doc. 11), plaintiff's response in opposition to defendant's motion (Doc. 21), and defendant's reply in support of the motion (Doc. 22). This matter is also before the Court on defendant's motion to strike plaintiff's response to its reply in support of the motion to dismiss (Doc. 25) and plaintiff's motion to file a memorandum in response to defendant's reply and plaintiff's proposed memorandum (Doc. 26).

I. Factual and procedural background

Plaintiff Catherine Poulos Kasidonis, an Ohio resident, filed her pro se complaint in this action against defendant State Auto Insurance Agency ("State Auto") on May 7, 2015. (Doc. 3). Plaintiff brings this action in her capacity as Executrix of the Estate of William Peter Basileios Theofano Poulos.1 Plaintiff indicates in the complaint that subject matter jurisdiction is premised on 28 U.S.C. § 1343(a)(3) and 28 U.S.C. § 1331. (Id. at 2).

Plaintiff makes the following allegations in the complaint: Prior to their deaths, William and Georgia Poulos (hereafter, "the Pouloses") filed a Chapter 13 bankruptcy proceeding, Case No. 94-14607, on December 12, 1994. (Id. at 4-5). In 1997, while the bankruptcy case was still pending, a fire loss occurred at a property owned by the Pouloses located at 6900 Cheviot Road, Cincinnati, Ohio 45247. (Id.). The property was a source of income for the Pouloses. (Id.). A tenant, Rick Wellinghoff, had signed a lease for the property in early October of 1997. (Id.). The lease term was to begin on November 1, 1997. (Id.).

The Pouloses filed an Adversary Proceeding in November 1998 in connection with the Chapter 13 reorganization, seeking damages for their fire losses under a property insurance policy issued by State Auto. William Poulos and Georgia Poulos v. State Auto Insurance Company, Richard Wellinghoff and Sycamore National Bank, No. 98-1235.2 (Id. at 3, 5; see also Doc. 10-1, Exh. 8). In that proceeding, the Pouloses' insurance agent gave deposition testimony that he had placed the Pouloses' business property insurance policy with State Auto and that their mortgage company, Sycamore National Bank, which paid the insurance premiums annually, paid the annual premium in March of 1997. (Id. at 5). The agent further testified that the Pouloses' tenant, Wellinghoff, also had a policy with defendant State Auto that was issued on October 30, 1997, which was 13 days after the fire on October 17, 1997, and which was to take effect on November 1, 1997. (Id. at 5, 6). The agent testified that Wellinghoff never made payments on the policy, and the policy was cancelled on March 8, 1998. (Id. at 5). The agent stated that defendant State Auto paid Wellinghoff $2,500.00 on November 12, 1997, for his losses in connection with the fire with a check that referenced the Pouloses' policy. (Id. at 6, 9). Defendant State Auto did not pay the Pouloses for real and personal property damage and business interruption coverage in connection with their fire losses. (Id. at 10).

The Pouloses completed their reorganization plan and were discharged from bankruptcy on December 21, 1998. (Id. at 6). Thereafter, the Pouloses and plaintiff as Executrix for the Estate of William Poulos instituted the following lawsuits in state and federal court in connection with the denial of insurance coverage to the Pouloses' for their claimed fire losses:

Defendant State Auto filed its motion to dismiss the complaint in this action on November 24, 2015. (Doc. 11).3 Defendant moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) on the ground federal subject matter jurisdiction over plaintiff's complaint is lacking under the Rooker-Feldman doctrine, which holds that lower federal courts lack subject matter jurisdiction to review the decisions of state courts. D.C. Ct. of App. v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923). Defendant alleges that plaintiff is seeking to reverse decisions issued by the Hamilton County, Ohio courts. Assuming, arguendo, that subject matter jurisdiction is not lacking under the Rooker-Feldman doctrine, defendant contends that this Court lacks subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).

In response, plaintiff asserts that State Auto was a party to the Adversary Proceeding which the Bankruptcy Court transferred to the District Court.4 (Doc. 21 at 2). Plaintiff then realleges facts asserted in the complaint related to the Pouloses' fire loss and the denial of insurance coverage for their losses. (Id. at 2-3). Plaintiff alleges that in the Adversary Proceeding, the Pouloses' tenant Wellinghoff denied that an insurance policy was issued to him for coverage on the subject property. (Id. at 2, citing Doc. 10-12). She alleges that State Auto discriminated against the Pouloses, who were in their 70s and 80s and had disabilities, by not covering them for the fire loss and instead issuing payment to their tenant, Wellinghoff. (Id. at 3). Plaintiff further states that the Pouloses' fire and property losses occurred during the bankruptcy proceedings. (Id. at 4).

In reply, defendant contends that plaintiff has not raised any arguments in opposition to application of the Rooker-Feldman doctrine. (Doc. 22). Defendant further alleges that plaintiff has not asserted a cause of action for deprivation of a right created by a federal statute nor shown that State Auto was acting under color of state law so as to establish jurisdiction under 28 U.S.C. § 1331 or § 1343(a)(3).

II. Defendant's motion to strike plaintiff's sur-reply

Defendant moves the Court to strike plaintiff's response, or sur-reply, to defendant's reply in support of the motion to dismiss. (Doc. 25). Defendant contends that plaintiff's response (Doc. 24) should be stricken pursuant to Fed. R. Civ. P. 12(f) because it is repetitive and redundant. Defendant further argues that the Court should strike the sur-reply from the record because plaintiff filed it without first obtaining leave of court as required under S.D. Ohio Civ. R. 7.2. Plaintiff has filed a motion seeking leave of court to file a memorandum in response to defendant's reply and a proposed memorandum (Doc. 26), which defendant opposes. (Doc. 27).

Plaintiff's motion for leave to file a sur-reply is not well-taken. Plaintiff did not obtain leave of Court to file the sur-reply as required under Local Rule 7.2, which authorizes the filing of memoranda beyond an opposing memorandum and a reply memorandum in connection with a motion only "upon leave of court for good cause shown." S.D. Ohio Civ. R. 7.2. Plaintiff has not shown "good cause" for filing a sur-reply. Defendant did not raise any new matters in its reply memorandum to which plaintiff has not had an opportunity to respond. Further, the sur-reply memorandum plaintiff has submitted simply repeats factual allegations related to the denial of insurance coverage for the Pouloses' fire losses and the lack of notice in the state court, which she has previously presented in this case and in prior filings. The Court will therefore deny plaintiff's motion for leave to file the sur-reply (Doc. 26); decline to consider the memorandum plaintiff submitted without first obtaining leave of Court (Doc. 24); and deny defendant's motion to strike the memorandum (Doc. 25) as moot.

III. Defendant State Auto's motion to dismiss

Defendant moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) on the ground federal subject matter jurisdiction over plaintiff's complaint is lacking under the Rooker-Feldman doctrine. Defendant alleges that plaintiff is seeking to reverse decisions issued by the Hamilton County, Ohio courts. Assuming, arguendo, that subject matter jurisdiction is not barred under the Rooker-Feldman doctrine, defendant contends that the Court lacks subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).

Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. Uzielli v. Frank, 137 F. App'x 795, 798 (6th Cir. 2005) (citing Moir v. Greater Cleveland Reg'l Trans. Auth., 895 F.2d 266, 269 (6th Cir. 1990)). A Rule 12(b)(1) motion to dismiss may constitute either a facial attack or a factual attack. FieldTurf USA, Inc. v. Sports Const. Grp., LLC, 507 F.Supp.2d 801, 803 (N.D. Ohio 2007) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). Facial attacks challenge the sufficiency of the jurisdictional allegations in the complaint, such that those allegations must be taken as true and construed in the light most favorable to the nonmoving party. Id. (citing Ritchie, 15 F.3d at 598).

Defendant State Auto's Rule 12(b)(1) challenge constitutes a facial attack on the sufficiency of the jurisdictional allegations of the complaint. See Tolliver v. Liberty Mut. Fire Ins. Co., 506 F.Supp.2d 260, 264-65 (S.D. Ohio 2007) (motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) pursuant to the Rooker-Feldman doctrine was a facial attack on the Court's subject matter jurisdiction). The Court will therefore accept the allegations of the complaint as true for purposes of ruling on defendant's motion to dismiss.

i. The Rooker-Feldman doctrine

The Rooker-Feldman doctrine precludes "lower federal courts . . . from exercising appellate jurisdiction over final state-court judgments." Skyway Inv. Corp. v. Tushman, 541 F. App'x 536, 538 (6th Cir. 2013) (quoting Lance v. Dennis, 546 U.S. 459, 463 (2006)). The doctrine is "confined to cases . . . brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). Subject matter jurisdiction is lacking under the Rooker-Feldman doctrine if: (1) the plaintiff is "the losing party in state court," Id. (quoting Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 1297 (2011)); (2) the plaintiff is asking the district court to "`review and reject [ ]' those judgments, which were `rendered before the district court proceedings commenced,'" Id. (quoting Exxon Mobil Corp., 544 U.S. at 284); and (3) the plaintiff's "injuries were `caused[]' by the state-court judgment at issue." Id. (quoting Exxon Mobil Corp., 544 U.S. at 284). "The pertinent inquiry . . . is whether the `source of the injury' upon which [the] plaintiff bases his federal claim is the state court judgment, not simply whether the injury complained of is `inextricably intertwined' with the state-court judgment." Id. (quoting Kovacic v. Cuyahoga Cnty. Dep't of Children and Family Servs., 606 F.3d 301, 309 (6th Cir. 2010) (quoting McCormick v. Braverman, 451 F.3d 382, 394 (6th Cir. 2006)).

Plaintiff's allegations in the complaint and in response to the motion to dismiss show that she is complaining of injuries caused by a state court judgment rendered against William Poulos, on behalf of whose estate she brings this lawsuit. William Poulos was the losing party in the Hamilton County Court of Common Pleas, the state appellate court, and the Ohio Supreme Court, having lost his claim to recover for fire losses under a State Auto insurance policy. See Skyway Inv. Corp., 541 F. App'x at 538 (citing Skinner, 562 U.S. 521, 131 S.Ct. at 1297). By bringing this lawsuit against State Auto to recover for William Poulos' alleged fire losses, plaintiff asks the District Court to review and reject the judgments issued by the Ohio courts. Id. (citing Exxon Mobil Corp., 544 U.S. at 284). Further, it is clear that the injury plaintiff alleges was "caused" by the state court judgment. Id. (citing Exxon Mobil Corp., 544 U.S. at 284). Plaintiff claims that the adverse judgment in the lawsuit William Poulos and Georgia Poulos filed in the Hamilton County Common Pleas Court seeking payment under the State Auto policy for their fire losses is invalid because the Pouloses did not receive notice due to an error by state court personnel. The Pouloses challenged the decision denying coverage under the policy on this ground in the state courts, but their attempts to have the dismissal vacated by the Common Pleas Court or overturned on appeal were unsuccessful. (Doc. 3; Doc. 11-1). It is clear that the source of the injury alleged in this lawsuit is the trial court's adverse judgment in the Pouloses' state court lawsuit seeking to recover for their fire losses under the State Auto policy and the refusal of the Ohio Appellate and Supreme Courts to disturb that adverse judgment on appeal. Judges in this District have reached the same conclusion in the three federal cases previously brought by William Poulos and by plaintiff as his Executrix alleging violations of Poulos' rights to due process and equal access to the courts as a result of the clerical error committed in the Common Pleas Court. See William Poulos v. Hamilton County Common Pleas Court, Case No. 1:03-cv-932 (S.D. Ohio, Dlott, J.); William Poulos v. Hamilton County Common Pleas Court, Case No. 1:05-cv-333 (S.D. Ohio, Dlott, J.); Kasidonis v. Hamilton County, Case No. 1:08-cv-084 (S.D. Ohio, Dlott, J.).5 Because subject matter jurisdiction over plaintiff's claims is lacking under the Rooker-Feldman doctrine, the motion to dismiss should be granted on this ground. The dismissal should be without prejudice. Revere v. Wilmington Fin., 406 F. App'x 936, 937 (6th Cir. 2011) (a dismissal for lack of subject matter jurisdiction should normally be without prejudice since the Court lacks power to reach the merits of the case) (citing Ernst v. Rising, 427 F.3d 351, 366 (6th Cir. 2005)).

ii. Title 28 U.S.C. §§ 1331 and 1343(a)(3)

Defendant contends that assuming, arguendo, jurisdiction is not barred under the Rooker-Feldman doctrine, plaintiff's complaint should be dismissed for lack of subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). (Doc. 11). Section 1331 vests the district courts with "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Section 1343(a)(3) gives the district court original jurisdiction of a civil action to redress the deprivation by a defendant, acting under color of State law, of "any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States[.]" 28 U.S.C. § 1343(a)(3). Section 1343(a)(3) is the jurisdictional counterpart to 42 U.S.C. § 1983. See Lynch v. Household Fin. Corp., 405 U.S. 538, 540 (1972). Section 1983 establishes a cause of action for deprivations of rights by a defendant acting under color of state law. 42 U.S.C. § 1983. To state a claim for relief under § 1983, a plaintiff must allege: (1) that she was deprived of a right secured by the Constitution or laws of the United States; and (2) that the deprivation was caused by a person acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). There is no constitutional right to be free from harm inflicted by private actors. Krukemyer v. Forcum, 475 F. App'x 563, 566 (6th Cir. 2012). Private actors can only be held liable under § 1983 if their "actions so approximate state action that they may be fairly attributed to the State." Riester v. Riverside Cmty. Sch., 257 F.Supp.2d 968, 971 (S.D. Ohio 2002) (quoting Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000)).

Plaintiff has not carried her burden to show that the Court has subject matter jurisdiction over her claims brought pursuant to §§ 1331 and 1343(a)(3). Plaintiff vaguely alleges in the complaint that "Williams and Georgia Poulos were discriminated against as they were not paid for their losses." (Doc. 3 at 10). Plaintiff further questions whether a conspiracy claim is warranted. (Id.). However, plaintiff makes no factual allegations to support a discrimination or conspiracy claim under a federal statute or constitutional provision. Nor has plaintiff made any allegations to show that defendant State Auto was acting under color of state law when deciding entitlement to payment under its insurance policies. Plaintiff's claims brought under 28 U.S.C. §§ 1331 and 1343(a)(3) should therefore be dismissed for lack of subject matter jurisdiction.

IT IS THEREFORE ORDERED THAT:

1. Plaintiff's "Motion and Memorandum to Respond to Defendant State Auto Insurance's Reply to Plaintiff's Response to Defendant's Motion to Dismiss for Lack of Jurisdiction" (Doc. 26) is DENIED.

2. Defendant's motion to strike plaintiff's response to defendant's reply in support of the motion to dismiss (Doc. 25) is DENIED as moot.

IT IS THEREFORE RECOMMENDED THAT:

1. Defendant's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction (Doc. 11) be GRANTED and the complaint be DISMISSED without prejudice.

2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277 (6th Cir. 1997).