Johnson v. Sawyer, CASE NO. 1:15 CV 0730
| Decision Date | 11 August 2015 |
| Docket Number | CASE NO. 1:15 CV 0730 |
| Parties | MARVIN JOHNSON, Plaintiff, v. DOUGLAS SAWYER, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OF OPINION
Pro se Plaintiff Marvin Johnson filed the above-captioned action against Cuyahoga County Land Reutilization Corporation ("Land Bank") Attorney Douglas Sawyer, Cuyahoga County Prosecutor Timothy J. McGuinty, Cuyahoga County Assistant Prosecutor Adam D. Jutte, Attorney David M. Douglass, Attorney Sean F. Berney, Attorney Heidi L. Cole, Attorney Gregg D. Garfinkel, Attorney Thomas A. Marino, II, Cleveland Municipal Court Magistrate Michael A. Bednar and Cleveland Municipal Court Magistrate William F.B. Vodrey. In the Complaint, Plaintiff alleges the Defendants committed fraud, extortion, theft, conspiracy, racketeering, and violations of the Fair Debt Collection Practices Act by allowing a state foreclosure action to proceed against him to collect unpaid income and property taxes. He seeks an order enjoining the sale of the property at sheriff's sale, and monetary damages.
Plaintiff's Complaint, while verbose, contains very few factual allegations. It appears Plaintiff owed personal income taxes to the State of Ohio. The Ohio Department of Taxation,pursuant to Ohio Revised Code § 5747.13(C), filed a Precipe with the Cuyahoga County Court of Common Pleas on September 6, 2011 certifying the income tax assessment had become final by operation of law. Plaintiff had seven other such assessments filed with the Cuyahoga County Clerk of Courts. All of the assessments were consolidated for collection on October 4, 2012. David M Douglass was appointed to represent the Ohio Department of Taxation.
The judgment was transferred to the Cleveland Municipal Court for execution, and a judgment lien was filed. In February and March 2013, the Ohio Department of Taxation attempted to conduct a Long Aid Examination against Plaintiff. Plaintiff initially refused to cooperate but eventually answered questions.
Meanwhile, the Cuyahoga County Treasurer initiated a foreclosure action with the Cuyahoga County Board of Revision to collect unpaid real estate taxes for a vacant parcel of land on the corner of East 169th Street and Invermere Avenue, which Plaintiff purchases from Key Bank in 2008. Plaintiff was served with a copy of the Complaint and filed an Answer. The Ohio Department of Taxation was also named as a Defendant. The Board of Revision issued an "Adjudication of Foreclosure" on March 20, 2015. Plaintiff did not appeal that decision.
Instead, Plaintiff filed this action. He contends Cuyahoga County is confusing the permanent parcel numbers and ownership information for the vacant lot at the corner of East 169th Street and Invermere Avenue, Permanent Parcel Number 140-09-057, with his personal residence located on Invermere Avenue with a Permanent Parcel Number of 140-09-058. The vacant lot was originally owned by Sandra Johnson, who is no relation to Plaintiff Marvin Johnson or his wife Brenda Johnson. Key Bank purchased the property through a foreclosure action in August 2007. In 2008, Plaintiff and his wife purchased from Key Bank a residence on Invermere Avenue, Permanent ParcelNumber 140-09-058, as well as the adjacent vacant lot, Permanent Parcel Number 140-09-057. The warranty deed provided to them lists the legal description for both parcels but assigns both to Permanent Parcel Number 140-09-058.
The Delinquent Tax Certificate attached to the foreclosure, dated December 6, 2013, indicates the vacant lot, Permanent Parcel No. 140-09-057 is still in the name of Sandra Johnson and states property taxes on the lot have not been paid for over a year. Moreover, the Preliminary Judicial report on the vacant lot includes a statement from the General Title Insurance Company that states, "Note: The legal description at Schedule A is at variance with the legal description on the last instrument of title for the following reason: Legal description on last instrument of title conveys caption and more land." (ECF No. 3-1 at 76). The same Judicial Report attaches the Plaintiff's warranty deed for the property showing one Permanent Parcel Number, 140-09-058. The report also lists debts of both Marvin and Brenda Johnson for unpaid personal income taxes, as well as debts of Sandra Johnson for unpaid real estate taxes in the amount of $ 1,926.82. Its not clear whether Plaintiff had not been paying taxes for the vacant lot, or whether he was paying them for both lots and the County did not correct its records when the properties were purchased together. Plaintiff claims the sheriff's sale was ordered for his personal residence. The Adjudication of Foreclosure (Sheriff Sale); however, lists the address of the property as "Vacant Lot, Invermere Avenue, Cleveland, Ohio 44128."
Plaintiff's Complaint does not clearly set forth the legal claims he intends to pursue in this case. He states the Defendants violated the Fair Debt Collection Practices Act, but does not specify any particular provision of the statute they violated. He alleges he sent certified letters and notices to Timothy McGinty requesting that he validate the debt the County claims he owes but did not getthe documentation he was requesting. He mentions the use of "fictitious straw man" as Plaintiffs in the state court cases, and contends the Defendants conspired to steal property and money from him. He contends only the attorneys submitted evidence in court and they have no personal knowledge of actual facts of a debt, thereby depriving the court of jurisdiction. He mentions fraud, extortion, and racketeering offenses were committed in the course of the foreclosure litigation.
The Defendants have all filed Motions to Dismiss. (ECF Nos. 3, 7, 10, 11, and 13). They assert that the Rooker-Feldman Doctrine applies and this Court lacks subject matter jurisdiction to conduct what would be appellate review of a state court judgment. (ECF No. 3 at 63, No. 7 at 172, No. 11 at 212). They also assert that the Fair Debt Collection Practices Act does not apply to this case because this situation does not qualify as a commercial transaction, and the Prosecutors do not qualify as debt collectors. They further assert that with respect to the personal income tax debt, the statute of limitations for a Fair Debt Collection Practices Act claim expired. (ECF No. 3 at 63, No. 7 at 181, No. 13 at 253). Defendants assert that even if the action is not barred by the Rooker-Feldman Doctrine, this Court is barred by the Doctrine of Res Judicata from reconsidering issues which were decided by the state. (ECF No. 7 at 187). Defendant Sawyer claims he is not mentioned at all in the body of the Complaint. His only connection to this case appears to be that he signed an Affidavit on behalf of the Land Bank indicating the Land Bank did not have an interest in acquiring the vacant lot. (ECF No. 11 at 210). Finally, Defendants Bednar and Vodrey claim they are entitled to immunity under Ohio Revised Code § 2744. (ECF No. 13 at 253).
In this case, the Defendants ask this Court to dismiss the Complaint pursuant to Federal Civil Procedure Rule 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state aclaim. Where the Defendant asks the Court to dismiss the Plaintiff's claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the Court need only determine whether it has jurisdiction over the Plaintiff's claims. The Sixth Circuit has adopted two standards of dismissal under Rule 12(b)(1), depending upon whether the movant makes a facial or factual attack on the Plaintiff's Complaint. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). A facial attack merely questions the sufficiency of the pleadings. In reviewing a facial attack, the Court must apply the same standard applicable to Rule 12(b)(6) motions. On the other hand, where a District Court reviews a Plaintiff's Complaint under a factual attack, the Court does not presume that the Plaintiff's allegations are true. In such cases, the Court has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts. See Id.; see also Tennessee Protection & Advocacy, Inc. v. Board of Educ., 24 F.Supp.2d 808, 812-13 (M.D. Tenn.1998). The case at bar involves a factual attack on the sufficiency of Plaintiff's pleadings. Thus, the Court may review evidence beyond the pleadings in order to determine whether it has jurisdiction to hear the instant case.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows a Defendant to test the legal sufficiency of Complaint without being subject to discovery. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003). In evaluating a Motion to Dismiss, the Court must construe the Complaint in the light most favorable to the Plaintiff, accept its factual allegations as true, and draw reasonable inferences in favorable of the Plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The Court will not, however, accept conclusions of law or unwarranted inferences cast in the form of factual allegations. See Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir.2000).
In order to survive a Motion to Dismiss, a Complaint must provide the grounds of the entitlement to relief, which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). That is,"[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citation omitted); see Association of Cleveland Fire Fighters v. City of Cleveland, No. 06-3823, 2007 WL 2768285, at *2 (6th Cir. Sept.25, 2007) (...
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