McCord v. Kentucky Education Association et al
MEMORANDUM OPINION & ORDER: (1) The defendants' renewed motions to dismiss 20 24 are GRANTED. This matter is dismissed, in it's entirety, with prejudice. (2) Defendant BMF's motions to strike 35 41 are GRANTED. (3) The plaintiff's motion for leave to amend 26 is DENIED. Signed by Judge Danny C. Reeves on 11/7/2017.(GLD)cc: COR, pro se plaintiff
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
ASSOCIATION, et al.,
Civil Action No. 5: 17-286-DCR
This matter is pending for consideration of the renewed motions to dismiss filed by
Defendants Brooks, McComb and Fields, LLP (“BMF”) and the Kentucky Education
Association (“KEA”), and the subsequent motion to amend filed by Plaintiff Minnie McCord.
[Record Nos. 20, 24, 26]1 For the reasons explained below, the defendants’ renewed motions
to dismiss will be granted, and the plaintiff’s motion to amend will be denied.
The plaintiff filed a response in opposition to the defendants’ renewed motions to dismiss,
and the defendants replied. [Record Nos. 31, 32, 34] The plaintiff then submitted two
supplemental responses containing thirty-six exhibits. [Record Nos. 36, 40]. BMF moved to
strike the supplemental responses because they were filed outside of the twenty-one day
response deadline imposed by Local Rule 7.1, without seeking leave of court. [Record Nos.
35, 41] The plaintiff argues that the untimely responses should be considered because she is
proceeding pro se without “the education to know or understand the rules,” and that her failure
to timely file her responses was excusable neglect in light of her medical diagnoses, including
bipolar disorder and ADHD. [Record Nos. 36, 40] Although the Court generally construes
pro se filings liberally, see, e.g., Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999), the Sixth
Circuit has noted that, “[when] a pro se litigant fails to comply with an easily understood courtimposed deadline, there is no basis for treating that party more generously than a represented
litigant.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951
F.2d 108, 110 (6th Cir. 1991)). The twenty-one day response deadline is easily understood,
and McCord has not shown good cause or excusable neglect to justify her failure to comply
with it. Fed. R. Civ. Pro. 6(b). Accordingly, BMF’s motions to strike [Record Nos. 35, 41]
FACTUAL AND PROCEDURAL BACKGROUND
Students accused former Fleming County High School teacher Minnie McCord of
various improprieties involving sex, drugs, and alcohol in February 2014. [Record No. 15 ¶¶
1, 2] The accusations led to criminal charges against McCord, and the Fleming County Board
of Education terminated her employment on April 15, 2014. [See id. ¶¶ 6-7, 9, 12, 17, 44]
McCord was ultimately acquitted of the criminal charges. [Id. ¶¶ 9, 12, 44]
McCord appealed the Fleming County Board of Education’s termination decision, and
sought legal assistance from the KEA under the Unified Legal Services Program. [See Record
No. 24, p. 1; Record No. 15 ¶¶ 3-4] The KEA referred McCord to BMF, and BMF represented
her in the administrative proceedings. [Record No. 24, p.1-2; Record No. 15 ¶¶ 3-4] The
Fleming County Board of Education was represented by Robert L. Chenoweth. [See Record
No. 15. ¶¶ 10, 19.] The parties ultimately settled the case, and McCord signed an Agreed
Order. [See Record No. 15 ¶¶ 18, 31, 35, 42-44.] Then, McCord participated in a hearing
before the Education Professional Standards Board (“EPSB”) to address the status of her
teaching license. [See Record No. 24, p. 1-2; Record No. 15 ¶¶ 3-4] McCord refused to sign
the agreement BMF reached on her behalf, and BMF withdrew from representation. [See
Record No. 15, ¶¶ 37, 39, 46, 48] McCord later voluntarily surrendered her teaching license.
[Id. ¶ 38]
In light of her criminal acquittal, McCord believes that the administrative proceedings
were an invasion of her privacy, and an abuse of administrative process. [Record No. 15 ¶¶
will be granted. In any event, the information provided in the supplemental filings would not
alter the legal conclusions reached in this opinion.
17, 23, 31, 34, 35, 36, 40, 42, 43, 45, 47, 48, 50] She filed a lawsuit in this Court against the
Fleming County Board of Education, various school officials, defense counsel Robert L.
Chenoweth, and others on March 4, 2016, alleging constitutional violations under 42 U.S.C. §
1983. See McCord v. Bd. of Educ. of Fleming Cty., 5: 16-cv-75-JMH, 2017 WL 1217170
(E.D. Ky. March, 31, 2017).2 McCord filed a motion to amend her complaint in the course of
that proceeding to add BMF, the KEA, and others as defendants, and to assert various
constitutional and state law claims against them. Record No. 78, McCord v. Bd. of Educ. of
Fleming Cty., 5: 16-cv-75-JMH, 2017 WL 1217170 (E.D. Ky. March, 31, 2017). However,
the Court dismissed the case for failure to state a claim, reasoning, in part, that McCord’s §
1983 claims were barred by the applicable statute of limitations. McCord, 2017 WL 1217170
at *5. The Court then denied the motion to amend, concluding that amendment would be futile
because McCord’s only federal claims against BMF, the KEA, and the other defendants she
sought to add arose under § 1983, and would similarly be time-barred. Id. at *6.
After her motion to amend was denied and her case was dismissed, McCord filed this
action, asserting the claims she was unable to bring in the earlier proceeding, and dropping her
explicit constitutional claims against BMF and the KEA. [Record No. 1] The defendants
moved to dismiss the Complaint. [Record Nos. 8-9] However, McCord was permitted to
amend her Complaint, and the motions to dismiss the original Complaint were dismissed as
moot. [See Record Nos. 14-15.] The Amended Complaint asserts five claims against the
When a party seeks to enforce a prior court decision, as the defendants seek to do here, taking
judicial notice of the opinion “is not only proper, it is required.” Godbolo v. Cty. of Wayne,
686 F. App’x 335, 340 (6th Cir. 2017) (citing Getty Petroleum Mktg., Inc. v. Capital Terminal
Co., 391 F.3d 312, 322 (1st Cir. 2004) (Lipez, J., concurring)).
defendants: (i) abuse of administrative process, (ii) negligence, (iii) breach of contract, (iv)
tortious interference with a contract, and (v) intentional infliction of emotional distress.3
[Record No. 15, p. 16-23] The defendants have filed renewed motions to dismiss the Amended
Complaint. [Record Nos. 20, 24]
STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
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 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations must raise the plaintiff’s
right to relief above the speculative level, Twombly, 550 U.S. at 555, and permit the Court to
“draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. While a complaint need not contain detailed factual allegations, it must
contain more than an “unadorned, the defendant-unlawfully-harmed-me accusation.” Id. “A
pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a
cause of action’” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).
Although pro se plaintiffs are generally held to less stringent standards than represented
parties, “[p]ro se pleadings are still subject to the plausibility standard of Twombly and Iqbal.”
Holland v. Cty. of Macomb, No. 16-2103, 2017 WL 3391653 (6th Cir. Mar. 17, 2017) (citing
Gunther v. Castineta, 561 F. App’x 497, 499 (6th Cir. 2014)).
The Amended Complaint also seeks punitive damages. [Record No. 15, p. 22] The Court
construes this as a request for relief rather than an attempt to add a sixth cause of action.
McCord alleges that this Court has jurisdiction over her claims for abuse of
administrative process, negligence, breach of contract, tortious interference with a contract,
and intentional infliction of emotional distress under 28 U.S.C. § 1332. [Record No. 15, p. 2,
16-23] However, 28 U.S.C. § 1332 only provides for jurisdiction when a suit is between
“citizens of different states.” The Amended Complaint does not allege that either defendant is
diverse from McCord. BMF is a citizen of Kentucky. [Record No. 20, p. 7] Likewise, the
KEA is a citizen of Kentucky. See Wiek v. Bd. of Trustees of the Kentucky Teachers’
Retirement Sys., 3: 15-cv-692-CRS, 2016 WL 7366097, *3 (W.D. Ky. Dec. 16, 2016). And it
appears that McCord is also citizen of Kentucky. [Record No. 15, p. 1] As a result, diversity
jurisdiction is not proper, and the Court does not have original jurisdiction over McCord’s state
However, the Court may exercise supplemental jurisdiction over McCord’s state law
claims if the Amended Complaint contains at least one related claim that properly invokes this
Court’s original jurisdiction. See 28 U.S.C. § 1367(a). But the only claim that might plausibly
do this is McCord’s claim for abuse of administrative process, which alleges that BMF and the
KEA “improperly used an administrative process” that resulted in her teaching certificates
being “revoked under a 5th amendment right violation and Invasion of Privacy,” and that BMF
and the KEA intentionally delayed the proceedings to hide their alleged negligence and breach
of contract.4 [Record No. 15, p. 18]
The Amended Complaint also states that McCord’s fraud claim arises under Rule 9(b) of the
Federal Rules of Civil Procedure. [See Record No. 15, p. 1.] However, Rule 9(b) sets forth
the pleading requirements for a claim of fraud; it does not provide a substantive cause of action.
Accordingly, this claim will be construed as a state law fraud claim.
McCord’s abuse of administrative process claim could either be construed as a
procedural due process claim under 42 U.S.C. § 1983, [see Record No. 24, p. 7 (offering this
interpretation)], or a state law tort claim, see Cherry v. Howie, 191 F. Supp. 3d 707, 715-16
(W.D. Ky. 2016) (describing the elements of an abuse of process claim under Kentucky law).
If it is a state tort claim, the Court does not have original jurisdiction over any of McCord’s
claims, and must dismiss this case. See Fed. R. Civ. P. 12(h)(3). If it is a claim under § 1983
the Court would have original federal question jurisdiction over it, and could exercise
supplemental jurisdiction over McCord’s related state law claims. See 28 U.S.C. §§ 1331,
1367(a). Accordingly, the Court will assume arguendo that McCord’s abuse of administrative
process claim is a federal claim arising under 42 U.S.C. § 1983.
However, construed in this way, McCord’s abuse of administrative process claim is
barred by the doctrine of collateral estoppel. [Record No. 24, p. 7] Collateral estoppel applies
when: (i) the same issue was involved in the prior proceeding, (ii) the issue was actually
litigated in the prior proceeding, (iii) determination of the issue was a critical and necessary
part of the decision in the prior proceeding, and (iv) the prior forum provided the party against
whom estoppel is to be asserted a full and fair opportunity to litigate the issue. Georgia-Pac.
Consumer Prod. LP v. Four-U-Packaging, Inc., 701 F.3d 1093, 1098-99 (6th Cir. 2012).
“Mutuality between the parties is not required in defensive collateral estoppel cases so long as
‘the plaintiff has had a full and fair opportunity to litigate the contested issue previously.’” Id.
at 1098-99 (quoting McAdoo v. Dallas Corp., 932 F.2d 522, 523 (6th Cir. 1991)).
In the prior proceeding, the Court held that McCord’s claims under 42 U.S.C. § 1983
were time barred. McCord, 2017 WL 1217170 at *5. The Court then denied McCord’s motion
to add BMF and the KEA as defendants, because the only federal claims against them arose
under § 1983, and would be barred by the one-year statute of limitations.
Id. at *6.
Accordingly, the Court has already decided that any 42 U.S.C. § 1983 claim regarding the
administrative proceedings would be barred by the applicable statute of limitations, and
McCord is collaterally estopped from bringing a new § 1983 claim regarding those proceedings
in this action. See Georgia-Pac., 701 F.3d at 1098 (“Where a litigant brings repeated actions
based upon the same operative facts, issue preclusion may still properly apply despite a change
in legal theory or the ‘cast of characters-defendants.’”) (quoting Randles v. Gregart, 965 F.2d
90, 93 (6th Cir. 1992)).
As a result, McCord’s abuse of administrative process claim will be dismissed. The
Court thus lacks original jurisdiction over any of McCord’s pending claims. Because the Court
declines to exercise supplemental jurisdiction, see 28 U.S.C. § 1367(c), McCord’s state law
claims for negligence, breach of contract, tortious interference with a contract, and intentional
infliction of emotional distress will be dismissed as well.
The Plaintiff’s Motion to Amend
After the defendants filed their renewed motions to dismiss, McCord filed a second
motion to amend and tendered a Second Amended Complaint in which she categorized and
itemized her claimed damages. [Record No. 26] Permitting such an amendment would not
save McCord’s Amended Complaint from dismissal. As a result, amendment would be futile,
and McCord’s motion to amend will be denied. See Riverview Health Inst., LLC v. Med. Mut.
of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
If McCord’s abuse of administrative process claim is construed as a state law tort claim,
dismissal for lack of jurisdiction is required. Fed. R. Civ. P. 12(h)(3). The only way to avoid
that result is by construing McCord’s abuse of administrative process claim as a federal claim
under 42 U.S.C. § 1983. However, any such claim would be improper under the doctrine of
collateral estoppel. As a result, this Court does not have original jurisdiction over any of
McCord’s claims, and it declines to exercise supplemental jurisdiction. Allowing McCord
leave to amend her complaint would do nothing to change this result. Accordingly, it is hereby
ORDERED as follows:
The defendants’ renewed motions to dismiss [Record Nos. 20, 24] are
GRANTED. This matter is dismissed, in its entirety, with prejudice.
Defendant BMF’s motions to strike [Record Nos. 35, 41] are GRANTED.
The plaintiff’s motion for leave to amend [Record No. 26] is DENIED.
This 7th day of November, 2017.
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