Marsilio v. Vigluicci, Case No. 5:11cv1974.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Citation924 F.Supp.2d 837
Docket NumberCase No. 5:11cv1974.
PartiesTommie Jo MARSILIO, Plaintiff, v. Victor VIGLUICCI, Defendant.
Decision Date14 February 2013

924 F.Supp.2d 837

Tommie Jo MARSILIO, Plaintiff,
Victor VIGLUICCI, Defendant.

Case No. 5:11cv1974.

United States District Court,
N.D. Ohio,
Eastern Division.

Feb. 14, 2013.

[924 F.Supp.2d 843]

Christy B. Bishop, Dennis R. Thompson, Thompson & Bishop, Akron, OH, for Plaintiff.

[924 F.Supp.2d 844]

Kimberly Vanover Riley, Montgomery, Rennie & Jonson, Cleveland, OH, Linda L. Woeber, Montgomery, Rennie & Jonson, Cincinnati, OH, for Defendant.


SARA LIOI, District Judge.

Before the Court is defendant's motion for partial judgment on the pleadings. (Doc. No. 14.) Plaintiff filed an opposition to the motion (Doc. No. 20), to which defendant replied (Doc. No. 21). Pursuant to the Court's January 25, 2010 order of reference (Doc. No. 6), the magistrate judge issued a report and recommendation (“R & R”) (Doc. No. 29), recommending that the Court grant defendant's motion. Plaintiff filed objections to the R & R (Doc. No. 34) and, with leave of the Court, plaintiff supplemented her objections (Doc. No. 38). In conjunction with her objections, plaintiff also filed a motion to convert defendant's motion to a motion for summary judgment. (Doc. No. 39.) Defendant filed opposition briefs to plaintiff's objections (Doc. No. 49) and to plaintiff's motion to convert (Doc. No. 48).

For the reasons that follow, defendant's motion for partial judgment on the pleadings is GRANTED.


The factual allegations in this case, as drawn from the plaintiff's complaint and from the documents referred to therein, are largely undisputed and are outlined thoroughly within the magistrate judge's R & R. Plaintiff does not object to the magistrate judge's recitation of the factual allegations, but only to her analysis thereof and her legal conclusions. Accordingly, the Court will ADOPT the factual and procedural background set forth in the R & R (Doc. No. 29 at 162–64) without alteration or addition. In order to provide context for the discussion herein, however, the Court will briefly relate the basic factual background and procedural events that give rise to the Court's ruling.

Defendant seeks judgment on the pleadings as to Count I of the complaint, which alleges that defendant, who was the elected Portage County Prosecutor, violated 42 U.S.C. § 1983 when he terminated plaintiff from her position as an assistant county prosecutor for exercising her First Amendment right to freedom of speech.1 Specifically, on September 14, 2009, defendant told plaintiff, then a candidate for the elected public office of county municipal judge, to stop circulation of a proposed campaign advertisement that she had distributed among her campaign committee and her political party's central committee, and to apologize to her political opponent or face termination. The advertisement stated, “The ‘Good Old Boys' Say elect Kevin Poland ... Real People Say Elect Tommie Jo Marsilio ... She is not a member of the Ravenna ‘Good Old Boys' corruption club.” (Doc. No. 14–2) (emphasis and ellipses in original).

On September 14, 2009, plaintiff responded to defendant by memo, advising him that the speech at issue was protected political speech. (Doc. No. 14–3.) The memo indicated that plaintiff would cease distribution of the advertisement, but that she would not apologize to Kevin Poland

[924 F.Supp.2d 845]

because she had done nothing wrong. ( Id.)

On September 15, 2009, defendant replied to plaintiff by letter, reiterating his demand that she no longer circulate the proposed advertisement and that she apologize to her opponent or face termination at the end of the workweek. (Doc. No. 14–4.) When plaintiff did not comply with defendant's directions, he terminated her employment on September 18, 2009.

Defendant moves for partial judgment on the pleadings as to Count I on the grounds that plaintiff has not asserted a cognizable First Amendment claim. He also asserts that he is entitled to qualified immunity. In support of his motion, defendant submitted plaintiff's proposed advertisement, as well as the correspondence between himself and plaintiff. He asserts that the Court can properly consider these documents as part of the pleadings without converting his motion to one for summary judgment because plaintiff referred to those documents in her complaint and they are central to her claims. (Doc. No. 14–1 at 90.)

In opposition, plaintiff argues that issues of fact exist that preclude partial judgment for defendant on the pleadings. Further, plaintiff indicates in her opposition brief that she does not challenge defendant's assertion that the Court can consider the attachments to defendant's motion without converting his motion to one for summary judgment. (Doc. No. 20 at 118.) Indeed, she attached to her opposition brief an additional memo that she purportedly sent to defendant in response to his September 15, 2009 letter of termination. (Doc. No. 20–2.)

Upon consideration of the pleadings and the documents submitted by the parties, the R & R recommends that the Court grant defendant's motion because, under well-established case law, plaintiff's former position as an assistant county prosecutor was a confidential/policymaking position and, therefore, she did not enjoy protection from being terminated for speech related to her political or policy views. (Doc. No. 29 at 161–62.) Further, the magistrate judge found that defendant is entitled to qualified immunity in his individual capacity. Plaintiff raises several objections to the R & R.

II. DISCUSSIONA. Standard of Review

Under Fed.R.Civ.P. 72(b)(3), “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” After review, the District Judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also28 U.S.C. § 636(b)(1)(C).

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[,]” Fed.R.Civ.P. 8(a)(2), in order to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although this pleading standard does not require great detail, the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing authorities). In other words, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Id. at 556, n. 3, 127 S.Ct. 1955 (criticizing the Twombly dissent's assertion that the pleading standard of Rule 8 “does not require, or even invite, the pleading of facts”).

Under Rule 12(c), a party may move for judgment on the pleadings any

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time after the pleadings are closed but early enough not to delay trial. Fed.R.Civ.P. 12(c). The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998)).

“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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).Rule 8 does not “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79, 127 S.Ct. 1955. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 127 S.Ct. 1955. The district court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.1999) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)). “The motion is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir.1991) (citation omitted).

B. Review of Matters Outside the Pleadings

Despite her previous agreement that the Court could properly consider the parties' attachments without converting defendant's motion to one for summary judgment, plaintiff now objects to the magistrate judge's consideration of those documents and contends that the magistrate judge should have converted defendant's motion. To this end, plaintiff has also filed a motion to convert defendant's motion to one for summary judgment, urging that the Court's resolution of the issues presented in defendant's motion requires reliance upon matters outside the pleadings and evidence uncovered to date in discovery, but not previously presented to the magistrate judge.

Ordinarily, “[m]atters outside of the pleadings are not to be considered by a court in ruling on a 12(b)(6) motion to dismiss,” Weiner v. Klais & Co., Inc., 108 F.3d 86, 88 (6th Cir.1997) (citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989)), and a court considering such matters typically will convert a Rule 12 motion to a motion for summary judgment. Fed.R.Civ.P. 12(d). However, the Sixth Circuit has adopted the Seventh Circuit's view that “documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [her] claim.” Weiner, 108 F.3d at 88 (quoting Venture Assoc. v. Zenith Data Sys., 987 F.2d 429, 431 (7th...

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