Verhovec v. City of Trotwood

• Decision Date: 25 June 2015
• Docket Number: Case No. 3:14-cv-363
• Court: U.S. District Court — Southern District of Ohio
• Parties: EDWARD VERHOVEC, Plaintiff, v. CITY OF TROTWOOD, OHIO, et al., Defendants.

EDWARD VERHOVEC, Plaintiff, v. CITY OF TROTWOOD, OHIO, et al., Defendants.

Case No. 3:14-cv-363

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

June 25, 2015

District Judge Walter Herbert Rice

Magistrate Judge Michael R. Merz

SUBSTITUTED REPORT AND RECOMMENDATIONS ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

This case is before the Court on Defendants' Motion for Judgment on the Pleadings (Doc. No. 48). Plaintiff filed no opposition and the Court struck Counterclaim Defendant Walker's Response on grounds he had no standing to be heard on the Motion since he does not represent Verhovec in this case.¹ On April 21, 2015, the Magistrate Judge filed a Report and Recommendations recommending that the Motion be granted (the "Report," Doc. No. 75).

Although he had filed no response to the Motion, Plaintiff, with the assistance of new counsel, filed Objections on May 5, 2015 (Doc. No. 79) as did William Walker (Doc. No. 80). District Judge Rice recommitted the matter for reconsideration in light of the Objections (Doc. No. 81). Defendants filed Responses to the two sets of Objections (Doc. Nos. 83 & 84). Theparties presented oral arguments on the Motion on June 23, 2015, making it ripe for decision on recommittal. Because all argument opposing the Motion has been made in the objections and oral argument, the Magistrate Judge files this Substituted Report so that the reader need not advert to the original Report.

Legal Standard for Deciding the Motion

In ruling on a motion for judgment on the pleadings, the Court must accept all well-pleaded material allegations of the complaint as true. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6^th Cir. 2007); Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6^th Cir. 2001); Paskvan v. City of Cleveland Civil Serv. Comm'n., 946 F.2d 1233, 1235 (6^th Cir. 1991), citing Beal v. Missouri Pacific R.R., 312 U.S. 45, 51 (1941). The Court must then decide whether the moving party is entitled to judgment as a matter of law. Lavado v. Keohane, 992 F.2d 601, 605 (6^th Cir. 1993). This is the same standard applied in deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6^th Cir. 2008); EEOC v. J. H. Routh Packing Co., 246 F.3d 850, 851 (6^th Cir. 2001).

The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been re-stated by the Supreme Court:

Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)("Rule12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, "'this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'" 5 Wright & Miller § 1216, at 233-234 (quoting Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161 L. Ed. 2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc., 289 F. Supp. 2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation) ("[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase").

Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and specifically disapproving of the proposition from Conley that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"); see also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545 (6^th Cir. 2007).

In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made it clear that Twombly applies in all areas of federal law and not just in the antitrust context in which it was announced. "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286(1986)(on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation.")

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." [Twombly], at 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id., at 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (brackets omitted).

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not "show[n]" -- "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. 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.

Iqbal, 556 U.S. at 678; see also Lambert v. Hartman, 517 F.3d 433, 439 (6^th Cir. 2008), citing League of United Latin Am. Citizens. v. Bredesen, 500 F.3d 523, 527 (6^th Cir. 2007). Twombly expressly overruled Conley v. Gibson, supra, on which Verhovec relies. Twombly, 550 U.S. at 558.

Procedural Posture of the Motion:

The Motion is Properly Treated as a Motion for Judgment on the Pleadings

This case arises out of a prior public records action in the Montgomery County Common Pleas Court which Walker filed on behalf of Verhovec (State of Ohio ex rel Verhovec v. Trotwood, Case No. 2011 CV 04658, the "Public Records Action"). Defendants in that case, the City of Trotwood, Ohio, and its City Manager, Michael Lucking, had filed a motion for summary judgment which Magistrate David Fuchsman set for oral argument on March 23, 2012. The gathering morphed into a discussion of possible settlement of the case and Magistrate Fuchsman asked Walker to consult his then-client Verhovec about a possible settlement. After Walker left the room, the remaining participants in the conference, attorneys Stephen McHugh, Amelia Blankenship, and Kevin Lantz stayed in the room and Mr. Lantz asked if they could have sometime to caucus. Magistrate Fuchsman then left the room and the Trotwood attorneys spoke among themselves alone (the "Trotwood Caucus").

Without the knowledge or consent of any of the other participants, Walker surreptitiously recorded much of the conference, including the private Trotwood Caucus. The Report relies in part on the Magistrate Judge's review of the recording Walker made of the Trotwood Caucus (Notice, Doc. No. 55).

Verhovec objects that this is matter "outside the pleadings," and that Fed. R. Civ. P. 12(d) requires the Court to treat the Motion as one for summary judgment if it considers such matter (Doc. No. 79, PageID 587). Fed. R. Civ. P. 12(d) provides "[i]f, on a motion under Rule 12(b)(6) or 12(c),...