Espinosa v. Louisville Metro Government et al

Filing 34

MEMORANDUM OPINION & ORDER: IT IS ORDERED that the motions for reconsideration 14 19 are DENIED; IT IS FURTHER ORDERED that all remaining motions 10 11 28 are DENIED AS MOOT; IT IS FURTHER ORDERED as all claims against both dfts have been dismissed, that this action is DISMISSED AND STRICKEN from active docket. A judgment shall be filed separately. Signed by Judge Jennifer B Coffman on 7/31/2011.(GLD)cc: COR, Manuel E. Epinosa, pro se

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION

CIVIL ACTION NO. 10-354-JBC
MANUEL E. ESPINOSA
d/b/a Welsh Capital Thoroughbreds,
V.

PLAINTIFF,

MEMORANDUM OPINION AND ORDER

LOUISVILLE METRO GOVERNMENT, ET AL.,

DEFENDANTS.

***********
Following the dismissal of this action for failure to state a claim, the plaintiff,
Manuel Espinosa, has moved for reconsideration, judgment, and to simplify the issues.
R. 10, 11, 14, 19, 28. For the reasons below, the motions will be denied.
I.

Motion for Order for Review of Verdict
Espinosa argues that his motion for removal should not have been denied

because it was to remove a counterclaim from Jefferson County Court. While a plaintiff
opposing a counterclaim may be a defendant functionally, he is not a defendant under
the removal statute and thus may not remove an action to federal court. Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 105 (1941). Therefore, this court will deny the
motion to reconsider its order denying Espinosa’s motion for removal.
II.

Motion to Amend or Reconsider
Espinosa has failed to state a claim for relief because his pleading does not

show he is entitled to relief. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1950 (2009)
(citing Fed.R.Civ.P. 8(a)). Under Fed. R. Civ. Pro. 8(a)(2), Espinosa’s complaint is
required to contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief.” While Espinosa is not required to plead “detailed facts,” he is required
to plead at least “some facts” which “raise a right to relief above the speculative level.”
NicSand, Inc. v. 3M Co., 507 F.3d 442, 460 (6th Cir.2007) (en banc) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Espinosa’s complaint contains
very few factual assertions and, instead, relies on legal conclusions. Even taking
Espinosa’s assertions as true, the complaint is not sufficient to survive a motion to
dismiss. Espinosa’s motion for reconsideration adds no facts which would raise his
allegations above the speculative level.
Espinosa appears to argue that this court did not take sufficient judicial notice of
facts in the previous state case. Fed. R. Civ. Pro. 12(b); Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322-23 (2007) (a court must consider the complaint in its
entirety, as well as other sources courts ordinarily examine when ruling on such
motions, such as documents incorporated into the complaint by reference and matters
of which the court may take judicial notice). However, Espinosa does not explain what
facts in the state court record allow his pleading to survive a motion to dismiss. Indeed,
the Jefferson Circuit Court dismissed Espinosa’s suit for failure to state a claim, and the
Kentucky Court of Appeals affirmed. Espinosa v. Jefferson/Louisville Metro
Government, No. 2008-CA-944-MR, 2009 WL 277488 (Ky.App. 2009) (unpublished).
Finally, this court construed Espinosa’s claim under the Deceptive Trade
Practice Act as a claim under Kentucky law. In his motion for reconsideration, Espinosa
asserts that his claim is under federal law. As he does not state the statute under which
he makes his claim, this court construes his claim to be under the Federal Trade

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Commission Act (“FTCA”) 15 U.S.C. § 45 (1988)), which does not provide a private
cause of action. Morales v. Walker Motors Sales, Inc., 162 F.Supp.2d 786, 790
(S.D.Ohio 2000) (citing cases from the Second, Fifth, Ninth, Tenth, and D.C. Circuits,
as well as the Western District of Kentucky and Southern District of Ohio). Therefore,
Espinosa’s federal claim fails to state a cause of action. Accordingly,
IT IS ORDERED that the motions for reconsideration (R. 14, 19) are DENIED.
IT IS FURTHER ORDERED that all remaining motions (R. 10, 11, 28) are
DENIED AS MOOT.
IT IS FURTHER ORDERED, as all claims against both defendants have been
dismissed, that this action is DISMISSED and STRICKEN from the active docket. A
judgment shall be filed separately.

Signed on July 31, 2011

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