Ross ex rel. DR v. Rakes, Case No.: 3:18-cv-00537

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtCheryl A. Eifert United States Magistrate Judge
Docket NumberCase No.: 3:18-cv-00537
PartiesEMANUEL ROSS, individually and on behalf of DR, a minor child, Plaintiff, v. DANIELLE RAKES, Defendant.
Decision Date30 October 2018

individually and on behalf of DR, a minor child, Plaintiff,

Case No.: 3:18-cv-00537


October 30, 2018


On February 12, 2018, Plaintiff Emanuel Ross ("Ross") filed a pro se Complaint in the United States District Court for the Eastern District of New York seeking money damages from the defendant, who is the mother of Ross's minor child, for alleged malicious interference in his father-child relationship. (ECF No. 1). On April 9, 2018, the New York District Court transferred the case to this Court pursuant to 28 U.S.C. § 1406(a). (ECF No. 14). Currently pending are Defendant's Answer and Counterclaims, (ECF No. 10), and Plaintiff's Motion to Dismiss Defendant's Counterclaims and Strike Defendant's Answer. (ECF No. 13). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by Standing Order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

It is well settled that United States District Courts have an independent obligation at the commencement of a civil action to determine whether subject matter jurisdiction

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exists; therefore, the undersigned has considered sua sponte whether this Court has jurisdiction over the issues raised in the pleadings. Having thoroughly considered the matter, and for the reasons set forth herein, the undersigned respectfully RECOMMENDS that Plaintiff's Complaint be DISMISSED for lack of subject matter jurisdiction; Plaintiff's pending motions be DENIED, as moot; Defendant's counterclaims be DISMISSED for failure to state a cognizable claim; and this action be REMOVED from the docket of the court.

I. Relevant History

Ross met Defendant Danielle Rakes ("Rakes") at Marshall University in Huntington, West Virginia in 2006, and she became pregnant with Ross's child. (ECF No. 1 at 2). Ross describes Rakes's pregnancy as the result of an ongoing relationship between him and Rakes, while she denies that they had a relationship and characterizes their involvement as a "one night stand." (ECF No. 1 at 2; ECF No. 10 at 2). Either way, the interactions between Rakes and Ross were strained from the beginning and deteriorated over time. After their child, DR, was born on October 16, 2007, Rakes moved with DR to Columbus, Ohio, where she claims Ross failed to maintain consistent contact with DR. (ECF No. 10 at 3). Ross in turn accuses Rakes of relocating to keep DR away from him. (ECF No. 1 at 3). In 2008, after months of bickering over DR, an action to determine child custody and visitation was filed in the Family Court of Cabell County, West Virginia, having Civil Action No. 08-D-790. (ECF No. 10 at 13-20, 22). Since the inception of the case, Ross and Rakes have returned to the Cabell County Family Court on multiple occasions to litigate disagreements over visitation and support. Nevertheless, according to Rakes, she is and always has been the primary caretaker and custodial parent of DR. (Id. at 2). Ross is required to make monthly child support payments and is allowed to

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have periodic supervised Skype calls with DR.

In February 2018, Ross, then a resident of Brooklyn, New York, sued Rakes, a resident of Huntington, West Virginia, in the Federal District Court in New York. Ross alleged that Rakes had perpetrated a "malicious scheme to destroy [Ross's] constitutionally-protected fundamental interest in the nurture, upbringing, companionship, care, and custody of his child." (Id. at 1). The Complaint detailed Ross's ongoing battle to obtain custody over, and visitation rights with, his biological child, DR.

In her answer to the Complaint, Rakes included a number of filings from the Cabell County Family Court. These included an October 2014 Temporary Order in which Family Court Judge Patricia Keller ordered Ross to pay child support and arranged for weekly Skype calls between Ross and DR. (ECF No. 10 at 65). Judge Keller noted that Ross had gone a significant amount of time without exercising parenting contacts; thus, she felt that a phase-in relationship between the child and Ross would be best. (Id. at 65). Judge Keller planned to revisit the issue at the next hearing, which was set in January 2015. (Id. at 65-66).

In January 2015, Judge Keller entered a Second Temporary Order, noting that Ross and Rakes had been arguing during the Skype calls and admonishing them not to engage in any discussion other than that necessary to initiate the sessions. (ECF No. 10 at 40). Judge Keller continued the calls and indicated an intention to revisit custody and child support issues at the next hearing in April 2015. (Id. at 41). In April 2015, Judge Keller awarded "parenting time" to Ross. (Id. at 48).

On October 27, 2015, Judge Keller entered a "Final Order" indicating that Ross had failed to meaningfully participate in telephone calls with DR and adding that the child's guardian ad litem had recommended that the call schedule be suspended. (Id. at 22).

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Judge Keller noted that Ross was not present at the hearing, despite being informed in advance of the proceeding. Judge Keller ruled that Rakes no longer had "an ongoing duty to make the child available for telephone calls with Mr. Ross." (Id. at 23). Judge Keller also advised the parties that as the order was a final order, it could be appealed to either the Circuit Court of Cabell County, or the Supreme Court of Appeals of West Virginia. (ECF No. 10 at 24).

In July 2016, Ross filed a Petition for Modification of the October 2015 Final Order in the Family Court of Cabell County, West Virginia. (ECF No. 1-2 at 2-5). In his petition, Ross claimed that he did not receive notice of the hearing that led to the final order and stated that he now resided in Brooklyn, New York. (Id. at 3). He asserted that Rakes had repeatedly opposed his efforts to spend time with DR and had taken actions designed to "alienate" him from DR. He listed a number of allegations against Rakes in support of his petition. (Id. at 3-4). Ross argued that Rakes's conduct entitled him to modification of the October Final Order. (Id. at 4). Ross requested that he be given liberal parenting time, that Rakes be "compelled to cooperate" with him in establishing a relationship with DR, and that he be granted attorney fees and court costs. (Id.). This petition for modification was apparently unsuccessful, as the record included a later appeal by Ross to the Circuit Court of Cabell County in which he argued that an October 2016 Final Order issued by the Cabell County Family Court violated his due process rights because he was not permitted to testify and present evidence in support of his petition for modification. (ECF No. 10 at 60). In January 2017, the Circuit Court declined to overrule the Family Court's Final Order denying Ross's petition for modification. (Id.).

In the present action, Ross complains that Rakes has employed "numerous tactics, schemes, allegations and even the court system itself" to keep him away from DR. (ECF

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No. 1 at 3). He contends that Rakes acted deliberately to keep him separated from DR by avoiding calls and relocating without notice. (Id.). Ross asserts that as "a direct result of [Rakes's] malicious actions and false representations, Ross has been deprived of the love and companionship of his child." (Id. at 9).

Rakes filed an Answer to the Complaint in March 2018, asking the Court to dismiss all of the claims against her and asserting a variety of counterclaims against Ross. (ECF No. 10). Rakes contends that the true impediment to Ross's relationship with DR is his sporadic presence in DR's life. (Id. at 1). Rakes asserts that she has been in conformance with the final court order from the Family Court of Cabell County, West Virginia since its issuance in October 2015, and that Ross's Complaint is thus groundless. (Id. at 3). Rakes demands $750,000 in compensation for the "unfounded" portrayal of her in Ross's Complaint and for the emotional distress she has experienced due to this lawsuit. (Id. at 1).

Ross filed a motion on March 27, 2018 requesting the Court to enter a default judgment pursuant to Federal Rule of Civil Procedure 55(a), to dismiss and strike Rakes's answer and counterclaims, and to award damages for the time and effort associated with preparing his motion. (ECF No. 13). In April 2018, the Eastern District of New York determined that the case was improperly filed in New York as it "concerns a West Virginia family court matter" and transferred the case to this Court pursuant to 28 U.S.C. § 1406(a). (ECF No. 14).

II. Discussion

Ross asserts six counts against Rakes: intentional infliction of emotional distress (Count One); defamation (Count Two); violation of fundamental rights under New York law and the New York and United States Constitutions (Count Three); breach of fiduciary

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duty (Count Four); negligence and negligent infliction of emotional distress (Count Five); and fraud in the inducement (Count Six). Ross asks for $175,000 in compensatory damages; $100,000 in damages for DR; additional punitive damages; attorney fees and costs; other damages sufficient to compensate Ross and DR for Rakes's conduct; and "any other and further relief deemed just and proper." (ECF No. 1 at 9-15).

Subject matter jurisdiction in the United States District Courts exists when a "federal question" is presented, or when there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332. "Federal courts are courts of limited subject matter jurisdiction, and as such there is no presumption that the court has jurisdiction." Pinkley, Inc. v. City of Frederick, MD., 191 F.3d 394, 399 (4th Cir. 1999). Accordingly, "[a] district court has...

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