Miller v. Currie

• Citation: 50 F.3d 373
• Decision Date: 22 March 1995
• Docket Number: No. 93-4378,93-4378
• Parties: Barbara C. MILLER, Plaintiff-Appellant, v. Richard S. CURRIE; Doris Currie; Todd Hamilton Noll; Brad Towns; Health Care and Retirement Corporation of America; R. Gates; Terry Sloan; Perrysburg Township, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 373

50 F.3d 373

Barbara C. MILLER, Plaintiff-Appellant, v. Richard S. CURRIE; Doris Currie; Todd Hamilton Noll; Brad

Towns; Health Care and Retirement Corporation of

America; R. Gates; Terry Sloan;

Perrysburg Township,

Defendants-Appellees.

No. 93-4378.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 27, 1995.

Decided March 22, 1995.

Barbara C. Miller, Huntsville, AL (argued and briefed), for plaintiff-appellant Barbara C. Miller.

Glenn E. Wasielewski (briefed), Manahan, Pietrykowski, Bamman & Delaney, Toledo, OH, John J. McHugh, III, McHugh & Schuster, Sylvania, OH, for defendants-appellees Richard S. Currie, Doris Currie.

Peter R. Casey, III (briefed), Michael W. Regnier, Eastman & Smith, Toledo, OH, for defendant-appellee Todd Hamilton Noll.

Stephen M. Dane, Janis E.S. Foley (argued and briefed), Cooper, Straub, Walinski & Cramer, Toledo, OH, for defendants-appellees Brad Towns, Health Care & Retirement Corp.

Willis P. Jones, Jr., Keith J. Watkins (briefed), Jones & Bahret Co., L.P.A., Toledo, OH, for defendants-appellees R. Gates, Terry Sloan, Patrolmen, Perrysburg Township.

Before: JONES and MILBURN, Circuit Judges; COHN, District Judge. ^*

COHN, District Judge.

I.

This case arises out of alleged interference with visits by plaintiff, Barbara C. Miller (Miller), to her elderly mother, who resided at a nursing home. Miller appeals the district court's partial grant of defendants' motion to dismiss and its refusal to allow Miller to depose a witness. In her complaint, Miller alleged intentional infliction of emotional distress, defamation, interference with a family relationship, and malicious prosecution. On appeal, the issues are (1) whether the district court erred in granting defendants' motion to dismiss Miller's claim for intentional infliction of emotional distress pursuant to Federal Rules of Civil Procedure ("Fed.R.Civ.P.") 12(b)(6), (2) whether the district court erred in granting defendants' motion to dismiss Miller's claim for interference with a family relationship pursuant to Fed.R.Civ.P. 12(b)(6), and (3) whether the district court abused its discretion by denying Miller's request to depose a witness whom she alleged was publishing defamatory and slanderous statements about her. ¹

II.

A.

Miller is the daughter of Pearl H. Currie, a patient at the Heartland of Perrysburg (Ohio) nursing home, owned by defendant Health Care and Retirement Corporation (HCRC). Defendant Richard Currie is Miller's brother, and Doris Currie is his wife. Defendant Todd Noll is the Curries' attorney. Defendant Brad Towns is the administrator of the nursing home. Defendants R. Gates and Terry Sloan are Perrysburg police officers. Because this appeal is from the grant of a Fed.R.Civ.P. 12(b)(6) motion to dismiss, it is not necessary to review the facts as developed through discovery. Our review is confined to the sufficiency of the allegations in the complaint.

B.

Miller filed this lawsuit on August 14, 1992, asserting four causes of action: intentional infliction of emotional distress, interference with a family relationship, defamation, and malicious prosecution. On October 1, 1992, defendants filed a joint motion to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), as to the claims of defamation, intentional infliction of emotional distress, and interference with a family relationship. Miller filed an objection to the motion on November 9, 1992, to which defendants subsequently replied.

On December 7, 1992, the district court granted defendants' motion to dismiss the claims for intentional infliction of emotional distress and interference with a family relationship but denied the motion as to the defamation claim. With regard to the claim for intentional infliction of emotional distress, the district court found that even if Miller's allegations were true, the allegations did not rise to the level of "extreme and outrageous conduct" necessary to meet the onerous standard for such claims in Ohio. J.A. 87-88. The district court dismissed the interference with a family relationship claim, finding that Ohio courts had refused to recognize a cause of action for a child's loss of parental companionship, love, association, moral support, and guidance, and that Miller's claim therefore did not exist under Ohio law.

Gates, Sloan, and Perrysburg Township filed a motion for summary judgment on the claim of malicious prosecution on December 7, 1992; the magistrate recommended that the motion be granted on April 13, 1993. Towns and HCRC filed a similar motion on both the malicious prosecution and the defamation claims on January 27, 1993; the magistrate recommended that the motion be granted on April 13, 1993. Noll also moved for summary judgment, on March 9, 1993, on the claims of malicious prosecution and defamation; on July 22, 1993, the magistrate recommended that his motion be granted. Finally, Richard and Doris Currie filed a motion for summary judgment on the remaining claims on April 19, 1993; thereafter, on September 29, 1993, the magistrate recommended that their motion be granted.

In the meantime, on January 19, 1993, Miller attempted to secure access to the nursing home records pertaining to her mother. HCRC objected to Miller's discovery request on February 9, 1993. Subsequently, on April 30, 1993, Miller served a subpoena duces tecum on her mother, requiring her mother to submit to a deposition and bring with her all of her nursing home records. In response, Noll filed his own affidavit along with a motion for a protective order claiming that Miller's mother did not wish to be deposed or to produce her records. Miller objected to Noll's representation of her mother, alleging that he faced a conflict of interest in representing her mother while at the same time defending himself in the action at issue. Miller's mother was then ninety-eight years old.

On May 18, 1993, the district court quashed Miller's subpoena without prejudice to her ability to renew her motion. Noll's motion for a protective order was dismissed on June 3, 1993. The district court ordered HCRC's attorney to search the nursing home records for any information pertaining to Miller, but only a nurse's note was eventually produced. Miller filed a motion for reconsideration of her deposition request on June 15, 1993, two weeks after the already-extended discovery deadline had passed. The district court denied the motion on July 9, 1993, without prejudice to a renewal that was specific as to the deposition topics and their relevance to the subject matter of the litigation.

On November 15, 1993, the district court judge issued a memorandum opinion and order adopting the recommendations of the magistrate that each of defendants' motions for summary judgment be granted, thereby dismissing the case. This timely appeal followed.

III.

A.

Miller argues that the district court erred in granting defendants' motion to dismiss the claim of intentional infliction of emotional distress pursuant to Fed.R.Civ.P. 12(b)(6). In dismissing the claim, the district court found that even if Miller could prove all of her allegations about defendants' conduct, the actions did not rise to the level of "extreme and outrageous" behavior required to successfully assert an intentional infliction of emotional distress claim in Ohio. J.A. 87-88. Miller argues, though, that her complaint included allegations sufficient to establish every element of her claim and that the question of whether defendants' actions were extreme and outrageous should have been a question for the jury.

Whether the district court properly granted defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is a question of law that we review de novo. Mertik v. Blalock, 983 F.2d 1353, 1356 (6th Cir.1993) (citing Dugan v. Brooks, 818 F.2d 513, 516 (6th Cir.1987)). On a Fed.R.Civ.P. 12(b)(6) motion, all of the allegations contained in the plaintiff's complaint are accepted as true, and the complaint is construed liberally in favor of the party opposing the motion. Mertik, 983 F.2d at 1356; Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). In Scheuer v. Rhodes, the Supreme Court explained:

When a federal court reviews the sufficiency of a complaint, before the reception of any evidence ... its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.

Scheuer, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). It is not the function of the court to weigh evidence or evaluate the credibility of witnesses, Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994); instead, the court should deny the motion unless it is clear that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Cameron, 38 F.3d at 270 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

Because this action comes to us as a diversity action, we must apply Ohio law in determining if Miller's allegations are sufficient. The Ohio Supreme Court recognized the tort of intentional infliction of emotional distress in Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of America, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983). In Yeager, the court articulated the requirements for a successful claim, saying that "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Yeager, 453 N.E.2d at 671. Thus, in order to state a claim for intentional infliction of emotional distress in Ohio, a plaintiff must allege that (1) defendants intended to cause emotional distress, or knew or should have known...