Summary
stating that "Ohio courts have long-established that 'absolute privilege bars a defamation claim in connection with a judicial proceeding under certain circumstances'"
Summary of this case from Bailey v. RuehlmanOpinion
Case No. 1:11-cv-662
05-18-2012
JOHN W. FRYER, Plaintiff v. JOHN C. MIDDLETON, et al., Defendants.
Weber, J.
Litkovitz, M.J.
ORDER AND REPORT
AND RECOMMENDATION
This civil action is currently before the Court on defendants' motion to dismiss (Doc. 8), defendant John C. Middleton's motion for limited admission (Doc. 14), plaintiff's motion for default (Doc. 15), and defendant John C. Middleton's response to this Court's April 13, 2012 order to show cause. (Doc. 19).
I. Background
Plaintiff, John Fryer, proceeding pro se, brings this lawsuit against defendants John C. Middleton (Middleton) and Middleton & Middleton, LLP, (M&M) alleging state law claims of libel, slander, and defamation. (Doc. 6). Plaintiff alleges that Middleton was counsel for a third-party whom plaintiff was suing in the Hamilton County Court of Common Pleas for the State of Ohio. Id., ¶¶ 1-2. Plaintiff further alleges that Middleton, in the course of his representation in the state case, "recklessly disregard[ed] the good character of the [p]laintiff by maliciously libeling, slandering, and defaming the [p]laintiff, his name, his character, and his reputation by tarnishing it by accusations accusing the [p]laintiff of fraud in a public proceeding . . . ." Id., ¶ 3. Plaintiff's alleges that M&M is liable for the alleged tortious activity of Middleton under a respondeat superior theory. Id., ¶¶ 5-7. Plaintiff also alleges that Middleton and M&M violated his constitutional rights of due process and equal protection of the law under the Fourteenth Amendment to the United States Constitution. Id., ¶ 8. Plaintiff seeks damages in the amount of $100,000.00 from Middleton and $250,000.00 from M&M, including interest. Id., p. 3. This Court has jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332 as plaintiff is an Ohio citizen, defendants are citizens of Kentucky, and the amount in controversy exceeds $75,000.00. (Doc. 6).
In December 2011, defendants filed a motion to dismiss plaintiff's lawsuit for failure to state a claim (Doc. 8) and Middleton later filed a motion for pro hac vice admission to represent himself and M&M. (Doc. 14). Plaintiff failed to file a timely response to defendants' motion to dismiss and, on February 8, 2012, the undersigned entered an order for plaintiff to show cause why defendants' motion should not be construed as unopposed and granted for the reasons stated in the motion. (Doc. 11). To date, plaintiff has not filed a response to the February 2012 show cause order; however, on March 8, 2012, plaintiff filed a motion for default judgment against both defendants. (Doc. 15). On April 13, 2012, the undersigned issued an order to Middleton to show cause why his motion for pro hac vice admission should not be denied in light of procedural and substantive deficiencies and why plaintiff's motion for default should not be granted. (Doc. 16). On April 30, 2012, Todd V. McMurtry, Esq., filed a notice with the Court that he will be acting as trial counsel for defendants and that Middleton was withdrawing his pro se representation. (Doc. 18). Defendants filed their response to the April 13, 2012 show cause order, along with a renewal of their motion to dismiss, on April 30, 2012. (Docs. 19, 20).
II. Defendant John C. Middleton's Motion for Limited Admission (Doc. 14) and Response to the April 2012 Show Cause Order (Doc. 19)
In light of Mr. McMurtry's appearance as trial counsel for defendants and Middleton's representation that he no longer seeks to represent himself or defendant M&M, see Doc. 19, Middleton's motion for limited admission (Doc. 14) is denied as moot. Further, the undersigned finds that Middleton has shown good cause for the deficiencies in his motion for limited admission and has satisfied the Court's April 13, 2012 order.
III. Plaintiff's Motion for Default (Doc. 15)
Plaintiff filed his complaint on November 2, 2011. (Doc. 6). A review of the docket demonstrates that defendants were served with summons and copies of the complaint on November 18, 2011. (Doc. 10). Under the Federal Rules of Civil Procedure, a defendant must serve a responsive pleading "within 21 days of being served with the summons and complaint. . . ." Fed. R. Civ. P. 12(a)(l)(A)(i). Defendants filed their motion to dismiss on December 6, 2011, within the 21 days specified by the Federal Rules. (Doc. 8). The motion to dismiss includes a Certificate of Service that a copy of the motion was mailed to plaintiff. (Doc. 8, p. 4). Further, on December 7, 2011, the Court sent plaintiff a notice regarding defendants' motion to dismiss. (Doc. 9).
Nevertheless, on March 8, 2012, plaintiff filed a motion for default judgment under Fed. R. Civ. P. 55 against the defendants. (Doc. 15). Rule 55 provides: "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). In his motion, plaintiff incorrectly asserts that the defendants failed to file a responsive pleading to his complaint. Id., ¶ 4. The record clearly demonstrates that defendants timely filed a responsive pleading by way of their December 6, 2011 motion to dismiss. Accordingly, plaintiff's motion for default should be denied.
IV. Defendants' Motion to Dismiss (Doc. 8)
As stated above, plaintiff's complaint raises state law claims of libel, defamation, and Slander, as well as claims of constitutional violations, against defendants resulting from statements made by Middleton during an Ohio state court proceeding. (Doc. 6). Defendants move to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) on the basis that plaintiff's complaint fails to state a claim upon which relief can be granted. Despite the undersigned issuing an order to plaintiff to show cause for his failure to timely respond to defendants' motion or risk dismissal, to date, plaintiff has filed no response. For the reasons that follow, the undersigned recommends that plaintiff's complaint be dismissed for lack of prosecution or, in the alternative, that defendants' motion to dismiss be granted pursuant to Fed. R. Civ. P. 12(b)(6) because plaintiff's complaint fails to state a cognizable claim for relief.
A. Plaintiff's complaint should be dismissed for lack of prosecution.
As recited above, defendants filed their motion to dismiss on December 6, 2011; the accompanying Certificate of Service identified that the motion was served upon plaintiff via regular U.S. mail. (Doc. 8). On December 7, 2011, the Court sent notification to plaintiff that he had 21 days from December 6, 2011 to file a response to defendants' motion. (Doc. 9). Pursuant to this Court's notification and the Local Rules of the United States District Court for the Southern District of Ohio, plaintiff's response was due on or before January 3, 2012. See Fed. R. Civ. P. 6; S. D. Ohio Civ. R. 7.2. Plaintiff failed to file a response to the motion to dismiss and, on February 8, 2012, the undersigned entered an order for plaintiff to show cause why the motion to dismiss should not be construed as unopposed and granted for the reasons stated in the motion. (Doc. 11). This Order was sent via certified mail to plaintiff and the docket of the Court indicates that it was delivered and signed for on February 10, 2012. (Doc. 13). To date, plaintiff has not filed a response to the Show Cause Order or to defendants' motion to dismiss.
Plaintiff's failure to prosecute this matter and to obey an Order of the Court warrants dismissal of this case pursuant to Fed. R. Civ. P. 41(b). See Jourdan v. Jabe, 951 F.2d 108, 109-10 (6th Cir. 1991). District courts have the power to sua sponte dismiss civil actions for want of prosecution to "manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962). See also Jourdan, 951 F.2d at 109. Though plaintiff is proceeding pro se, as stated by the Supreme Court, "we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel." McNeil v. United States, 508 U.S. 106, 113 (1993).
Accordingly, the undersigned recommends that plaintiff's case be dismissed for want of prosecution and for failure to obey a Court Order.
B. Alternatively, defendants' motion to dismiss (Doc. 8) should be granted.
Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, (1974). See also Erickson v. Pardus, 551 U.S. 89, 93 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
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). To avoid dismissal for failure to state a claim for relief, plaintiff's 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, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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. (citing Twombly, 550 U.S. at 556). While the Court must accept all well-pleaded factual allegations as true, it need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). The complaint need not contain "detailed factual allegations," yet must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557.
Although plaintiff need not plead specific facts, his statement must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (citations omitted). Plaintiff's factual allegations must be enough to raise the claimed right to relief above the speculative level and to create a reasonable expectation that discovery will reveal evidence to support the claim. Twombly, 550 U.S. at 556. This inquiry as to plausibility is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here 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.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). With these principles in mind, the Court reviews plaintiffs' complaint.
Here, plaintiff alleges that defendants are liable for libel, slander, and defamation for statements made by Middleton during an Ohio state court proceeding. (Doc. 6, ¶ 3). Plaintiff alleges that Middleton made these allegedly libelous, slanderous, and defamatory statements in the course of his representation of a third-party whom plaintiff was suing. Id., 1-2, 4. The complaint specifies that the allegedly tortious statements consisted of Middleton accusing plaintiff of fraud. Id.,¶3. Defendants seek dismissal of plaintiff's complaint on the basis that because the allegedly defamatory, libelous, and slanderous statements were made by Middleton in open court during the course of litigation and in his capacity as an attorney representing a client, he is entitled to absolute immunity under Ohio state law.
The Court notes that because this matter is in federal court on the basis of diversity of the parties pursuant to 28 U.S.C. § 1332, the substantive law of the state of Ohio applies to plaintiff's state law tort claims. See Klaxon Co. v. Stentor Elec. Mfg., Co., 313 U.S. 487, 496 (1941). Ohio courts have long-established that "absolute privilege bars a defamation claim in connection with a judicial proceeding under certain circumstances. The privilege originally developed to protect statements made in 'legislative proceedings, judicial proceedings, official acts of the executive offices of state or nation and acts done in the exercise of military or naval authority.'" Michaels v. Berliner, 694 N.E.2d 519, 522 (Ohio App. 9 Dist. 1997) (quoting McChesney v. Firedoor Corp., 361 N.E.2d 552, 553 (Ohio 1976) (citing Bigelow v. Brumley, 37 N.E.2d 584, 588-589 (Ohio 1941))). The policy behind the privilege is to protect "the integrity and reputation of the justice system by allowing persons involved injudicial proceedings to speak freely without fear of defamation suits against them." Id. (citing Erie Cty. Farmers' Ins. Co. v. Crecelius, 171N.E. 97 (Ohio 1930)). Accordingly, attorneys are entitled to absolute immunity from defamation claims for statements made in open court so long as the statement "has some reasonable relation to the judicial proceeding in which it appears." Id.
Taking as true the allegations in plaintiff's complaint, the allegedly defamatory, libelous, and slanderous statements were made by Middleton during a public proceeding in Ohio state court during the course of his representation of a client. (Doc. 6, ¶¶1-4). The specific statement complained of is that Middleton accused "[p]laintiff of fraud in a public proceeding . . . ." Id., ¶3. Thus, plaintiff's claims relate solely to Middleton's conduct in the referenced Hamilton County Court of Common Pleas litigation where Middleton represented an individual sued by plaintiff.
The great weight of authority is that attorneys conducting judicial proceedings are privileged from prosecution for libel and slander in respect to words or writings used in the course of such proceedings when the words and writings are material and pertinent to the question involved, regardless of how false, malicious, or injurious they may be. In determining whether the words and writings are relevant to the subject of inquiry, great liberality is to be used, as otherwise a party or his attorney may be deterred from prosecuting an action vigorously by fear of personal liability for libel and slander. All of the allegations herein, applying the liberal rule of relevance, fall within the range of privileged matter. Although the result may be harsh in some instances and a party to a lawsuit may possibly be harmed without legal recourse, on balance, a liberal rule of absolute immunity is the better policy, as it prevents endless lawsuits because of alleged defamatory statements in prior proceedings. Sufficient protection from gross abuse of the privilege is provided by the fact that an objective judge conducts the judicial proceedings and that the judge may hold an attorney in contempt if his conduct exceeds the bound of legal propriety or may strike irrelevant, slanderous or libelous matter.Justice v. Mowery, 430 N.E.2d 960, 961-62 (Ohio App. 10 Dist. 1980). In light of plaintiff s allegations, Ohio state law, and Ohio public policy, the undersigned finds that defendant Middleton is entitled to absolute immunity for the statements giving rise to plaintiff's tort claims. Accordingly, plaintiff's claims of defamation, libel, and slander should be dismissed.
The Court further recommends that to the extent plaintiff seeks to establish liability under 42 U.S.C. § 1983 for claims of constitutional violations of his rights to due process and equal protection under the law, these claims be dismissed. Pursuant to plaintiff's complaint, Middleton is a private-sector attorney and M&M is his employing law firm. (Doc. 6, ¶¶ 2, 5-6). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under the color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996). A private actor acts under color of state law when his conduct is "fairly attributable to the state." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Plaintiff's complaint contains no facts from which the the Court can reasonably infer that Middleton was acting under the color of state law. As an attorney, Middleton was not a state actor subject to liability under § 1983. See Catz v. Chalker, 142F.3d 279, 289 (6th Cir. 1998). Accordingly, plaintiff's constitutional claims should be dismissed.
IT IS HEREBY ORDERED THAT Middleton's motion for limited admission (Doc. 14) is DENIED as moot.
Further, IT IS RECOMMENDED THAT:
(1) Plaintiff's motion for default (Doc. 15) be DENIED;
(2) Plaintiff's case be DISMISSED for want of prosecution and for failure to obey an Order of the Court or, alternatively, defendants' motion to dismiss (Doc. 8) be GRANTED; and
(3) This matter be DISMISSED on the docket of the Court.
__________________
Karen L. Litkovitz
United States Magistrate Judge
JOHN W. FRYER, Plaintiff
v.
JOHN C. MIDDLETON, et al, Defendants.
Case No. 1:11-cv-662
Weber, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Am, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).