Hooker v. Hooker

• Decision Date: 23 January 2015
• Docket Number: No. 11-cv-2252-JTF-tmp,11-cv-2252-JTF-tmp
• Court: U.S. District Court — Western District of Tennessee
• Parties: MICHAEL HOOKER, Plaintiff, v. MAL HOOKER, et al., Defendants.

MICHAEL HOOKER, Plaintiff, v. MAL HOOKER, et al., Defendants.

No. 11-cv-2252-JTF-tmp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

January 23, 2015

REPORT AND RECOMMENDATION

Before the court is the motion to dismiss filed by defendant Adriana Harrison ("Ms. Harrison") on July 23, 2014. (ECF No. 90.) Defendant Harrison's Funeral Home joined in Ms. Harrison's motion on September 23, 2014. (ECF No. 101.) Defendant Mal Hooker filed a motion to join the motion to dismiss on September 25, 2014.¹ (ECF No. 102.) Plaintiff Michael Hooker filed a response in opposition on September 29, 2014. (ECF No. 103.) For the reasons below, it is recommended that Ms. Harrison and Harrison's Funeral Home's motion begranted in part and denied in part, and that Mal Hooker's motion be denied.²

I. PROPOSED FINDINGS OF FACT

A. Background³

Plaintiff's complaint alleges that on June 28, 2007, and July 9, 2007, Plaintiff purchased two pre-need funeral contracts in the amount of $36,083 and $16,000 from FDLIC to pay for the funeral of Plaintiff's mother, Ella Mae Hooker. The contracts identified E.H. Ford Mortuary as the designated provider of funeral services and merchandise. (Compl. ¶¶ 12-15.) FDLIC allegedly failed to disclose that it would charge an "insurance handling fee" upon payment of the funds. (Compl. ¶ 16.) Plaintiff's mother died on October 11, 2009. At the time, Plaintiff was incarcerated in Texas and his wife, Reva Hooker, was his duly authorized attorney-in-fact pursuant to a durable power of attorney. (Compl. ¶ 17.) On October 12, 2009, Mal Hooker, Plaintiff's brother, had Ella Mae Hooker's body transferred to his place of employment, Harrison's Funeral Home. (Compl. ¶ 18.) That day, Mal Hooker telephoned Reva Hooker toinquire about insurance policies on the decedent. Reva Hooker disclosed the two policies issued by FDLIC. (Compl. ¶ 19.)

On October 13, 2009, Reva Hooker met with defendants Mal Hooker and Ms. Harrison at Harrison's Funeral Home. Ms. Harrison asked Reva Hooker to agree to assign a $6,800 bill for funeral services to Harrison's Funeral Home. Reva Hooker refused because the policies designated E.H. Ford Mortuary as the provider of funeral services. (Compl. ¶ 20.) Later that day, Mal Hooker telephoned Reva Hooker and, based upon his representation that he was simply checking the validity of the policies, she provided Mal Hooker with Plaintiff's social security number, date of birth, and all information pertaining to the policies. (Compl. ¶ 21.) Mal Hooker allegedly telephoned FDLIC and, posing as Plaintiff, obtained information about the insurance contracts, which he subsequently provided to Ms. Harrison. (Compl. ¶ 22.)

Plaintiff avers that Ms. Harrison, Mal Hooker, and Harrison's Funeral Home employees Michael Perie and Claudette Eldridge prepared an inflated and fraudulent death claim quote and forged Plaintiff's signature on an irrevocable assignment of the FDLIC policies to Mal Hooker and Ms. Harrison. (Compl. ¶ 23-26.) FDLIC contacted Reva Hooker to confirm the validity of the irrevocable assignment and, upon learning that Plaintiff had not made an assignment, refused to honor the assignment.(Compl. ¶ 27-28.) Over Plaintiff's objection, Harrison's Funeral Home provided funeral services and merchandise for the burial of Plaintiff's mother. (Compl. ¶ 30.) After his mother was buried, Plaintiff contacted FDLIC and requested that E.H. Ford Mortuary conduct a memorial and late funeral service, and that funding for those services be provided through the pre-need policies. (Compl. ¶ 31.) FDLIC refused to honor Plaintiff's request on the ground that Harrison's Funeral Home had to be paid for the services rendered. (Compl. ¶ 32.)

At some unspecified time, Mal Hooker visited the E.H. Ford Mortuary, where he allegedly made unspecified threats in an attempt to obtain payment for his mother's funeral. (Compl. ¶ 34.) Mal Hooker and Ms. Harrison also made unspecified threats to ruin Plaintiff's credit and to deprive Plaintiff of any permanent control over the outstanding balance of the policies. They also "threatened libel and slander." (Compl. ¶ 35.)

On December 23, 2009, FDLIC advised Plaintiff that it had made a payment of $12,872.76 to Harrison's Funeral Home and that it had issued a check in the amount of $25,618.88, representing excess funds, to Plaintiff. (Compl. ¶ 36-38.) On December 11, 2009, Plaintiff filed a complaint with the Tennessee Department of Commerce and Insurance. (Compl. ¶ 39.) In his response, defendant Perie used the phrases "preneed disaster," "feud between the family," and "constant harassment by familymembers," in describing the situation to the Tennessee Department of Commerce and Insurance. (Compl. ¶ 40.)

On September 15, 2010, Reva Hooker (on behalf of herself and Plaintiff) swore out a civil warrant in Shelby County General Sessions Court, naming Adrianna Harrison, Harrison's Funeral Home, Michael Perie, and Claudette Eldridge as defendants. (ECF No. 91-1, Shelby County General Sessions Civil Warrant 1448503.) The stated cause of action on the civil warrant was for "life insurance policy." (Id.) The civil warrant was subsequently dismissed by voluntary nonsuit on October 19, 2010. (Id.)

Plaintiff filed suit against FDLIC, Harrison's Funeral Home, Ms. Harrison, Harrison's Funeral Home employees Claudette Eldridge and Michael Perie, and Mal Hooker on April 1, 2011. (ECF No. 1.) The court has since dismissed all claims against FDLIC and all claims against Mal Hooker except a common law fraud claim. (ECF Nos. 81, 106.) Ms. Harrison and Harrison's Funeral Home now move to dismiss all claims against them. Mal Hooker, by joining the motion to dismiss, seeks dismissal of the remaining fraud claim against him.

II. PROPOSED CONCLUSIONS OF LAW

A. Standard of Review

Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must contain a short and plain statement showing thatthe pleader is entitled to relief. Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for failure to state a claim upon which relief may be granted. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Merely pleading facts that are consistent with a defendant's liability or that permit the court to infer misconduct is insufficient to constitute a plausible claim." HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012) (citing Iqbal, 556 U.S. at 678).

In considering a motion to dismiss under Rule 12(b)(6), the court views the complaint in the light most favorable to the plaintiff, accepts the allegations as true, and draws all reasonable inferences in favor of the plaintiff. KSR Int'l Co. v. Delphi Auto. Sys., No. 12-2063, 2013 WL 1749336, at *1 (6th Cir. Apr. 23, 2013) (citing Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008)). "A legal conclusion couched as a factual allegation need not be accepted as true on a motion to dismiss, nor are recitations of the elements of a cause of action sufficient." Handy-Clay v. City of Memphis, No. 10-2927-STA-tmp, 2013 WL 2948442, at *4 (W.D. Tenn. June 14, 2013) (quoting Hensley Mfg. v. ProPride, Inc., 579 F. 3d 603,609 (6th Cir. 2009)) (internal quotation marks omitted); see also Infection Prevention Techs. v. UVAS, LLC, No. 10-cv-12371, 2011 WL 4360007, at *24 (E.D. Mich. July 25, 2011), report and recommendation adopted, No. 10-12371, 2011 WL 4360091 (E.D. Mich. Sept. 19, 2011) ("[Plaintiff] asserts that Defendants' 'actions were in bad faith, willful, wanton.' But these statements are pure legal conclusions insufficient to state a claim upon which relief may be granted.") (internal citations omitted).

"Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed." Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (internal quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App'x 608, 613 (6th Cir. 2011) ("[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading") (internal quotation marks omitted); Payne v. Sec'y of Treas., 73 F. App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation toact as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir. 2011) ("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.").

B. Claims Under 18 U.S.C. §§ 2, 241, 1343, 1951, 1952, 1961, and 1962

The court has previously dismissed claims against defendants Mal Hooker and FDLIC under 18 U.S.C. §§ 2, 241, 1343, 1951, 1952, 1961, and 1962, for failure to state a claim. (ECF Nos. 81, 106.) Sections 2, 241, and 1343 are criminal statutes with no private right of action. See Anderson v. Ballou, Civil No. 12-70-GFVT, 2012 WL 3027679 (E.D. Ky. July 24, 2012) ("18 U.S.C. § 2 does not define a crime; rather it makes punishable as a principal one who aids or abets the commission of a substantive crime. Being there is no...