Scheffler v. Lee et al

Filing 50

MEMORANDUM OPINION AND ORDER by Senior Judge Charles R. Simpson, III on 8/21/2015 - Defendant Frederick Asset Protection LLC's motion to dismiss (DN 39) is GRANTED. Frederick Asset Protection LLC is DISMISSED as a defendant. Plaintiff Troy Scheffler's motion for leave to file sur-reply (DN 46) is DENIED AS MOOT. cc: Counsel(DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
TROY SCHEFFLER,

PLAINTIFF

v.

NO. 3:14-CV-00373-CRS

ALEX LEE, et al.,

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on motion by the Defendant Frederick Asset Protection
LLC’s (“Frederick”) to dismiss all conceivable claims against it in Plaintiff Troy Scheffler’s
First Amended Complaint, DN 35; DN 39, and motion by Plaintiff for leave to file sur-reply
thereto. DN 46.1 Fully briefed, these matters are now ripe for adjudication. Having considered
the parties’ respective positions, we conclude that the Plaintiff’s First Amended Complaint does
fail to state a claim against Defendant Frederick. Plaintiff’s motion for leave to file sur-reply is
resultantly moot. Per the rationale set forth below, the Court will grant the Defendant’s motion
to dismiss and deny the Plaintiff’s motion for leave. DN 39; DN 46.
I.
To overcome a motion to dismiss, a typical complaint must contain sufficient facts to
state a claim for relief that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

As noted in Southfield Education

Association v. Southfield Board of Education, No. 13-1600, 2014 WL 2900928 (6th Cir. June 26,
1

In his Response to Defendant’s Motion to Dismiss, Plaintiff alternatively requested leave to amend his First
Amended Complaint. This is not the proper practice for moving to amend a complaint. Nor did Plaintiff tender his
proposed Second Amended Complaint therewith. If Plaintiff wishes to amend his First Amended Complaint, he
must do so in accordance with the Federal Rules of Civil Procedure.

2014), “[a] complaint will be dismissed pursuant to Rule 12(b)(6) if no law supports the claim
made, if the facts alleged are insufficient to state a claim, or if the face of the complaint presents
an insurmountable bar to relief.” Twombly, 550 U.S. at 561-64.” Southfield Ed. Assoc., 2014
WL 2900928 at *2. “The factual allegations, assumed to be true, . . . must show entitlement to
relief” under “some viable legal theory.” Id. at *2 (quoting League of United Latin Am. Citizens
v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)). Pro se pleadings, on the other hand, are not
assessed with such scrutiny.
“[T]he allegations of a complaint drafted by a pro se litigant are held to less stringent
standards than formal pleadings in the sense that a pro se complaint will be liberally construed in
determining whether it fails to state a claim upon which relief could be granted.” Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519,
520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). This is so because “[t]he drafting of a formal
pleading presupposes some degree of legal training or, at least, familiarity with applicable legal
principles, and pro se litigants should not be precluded from resorting to the courts merely for
want of sophistication.” Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). Even under our
liberal pleading standards, however, a plaintiff must at least “give the defendant fair notice of
what [the] claim is and the grounds upon which it rests,” Conley v. Gibson, 355 U.S. 41, 47, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957). The Plaintiff in this matter, Troy Scheffler, is proceeding as a pro
se litigant, and the Court will view thus his pleadings through the appropriate lens.
II.
Plaintiff commenced this action after his involvement in an incident at the Galt House
Hotel on May 17, 2013. He alleges that he was unlawfully arrested, refused necessary medical
treatment, and subjected to various other statutory and constitutional violations by the

Defendants. DN 35. Plaintiff‘s original Complaint identified Frederick Asset Protection as one
such Defendant and, in the “Venue and Parties” section thereto, specifically alleged that
Frederick was liable for Defendant Alex Lee’s actions “per respondeat superior.” DN 1. Also, in
each of the allegations related to Claims I, II, and III, he reiterated that “Defendant Frederick
Asset Protection LLC is liable for the actions of Defendant Lee by virtue of respondeat
superior.” Id. at 2, 19, 20, 21. Then, however, Plaintiff amended his Complaint and significantly
altered the content of many of his claims. DN 34. He marked these amendments with red text, as
shown in the First Amended Complaint (Red Corrected Version). Id.

But as Defendant

Frederick has correctly indicated, one such amendment was the removal of any specific mention
of Frederick in Claims I, II, and III. DN 39. Thus, as the First Amended Complaint stands, the
only time it mentions Frederick is the following set of statements in the “Venues and Parties”
section:
9.
10.
11.

Defendant Alex Lee is employed by Frederick Asset Protection LLC.
Frederick Asset Protection LLC is located at 847 South 9th Street, Louisville,
Kentucky 40203.
Frederick Asset Protection shall answer to claims made in the acts their employee
and Defendant Alex Lee per respondeat superior.

DN 35, p.3 (emphasis added). Again, this is the extent to which Frederick is mentioned in this
Complaint.
Recognizing the omission of its name from Claims I, II, and III in the First Amended
Complaint, Frederick now requests that we dismiss all claims against it. DN 39. Frederick’s
motion alleges that Plaintiff has failed to state a claim against Frederick upon which relief can be
granted. Plaintiff nevertheless argues that Frederick should not be dismissed by pointing to
several facts: 1). that his First Amended Complaint still names Frederick as a defendant; 2). that
the “Venues and Parties” section still states that Frederick “shall answer to claims made the acts

their employee and Defendant Alex Lee per respondeat superior;” 3). that his First Amended
Complaint requests relief against “each and every defendant, jointly and severally;” and, 4) that
on November 6, 2014, this Court specifically ordered that Plaintiff could proceed against
Frederick on Claims I, II, and III. DN 7; DN 35, p. 2. We disagree.
To begin, it is well-settled that an amended complaint supersedes an original complaint
and renders it moot. Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 306-07 (6th Cir.
2000).

As such, we must only consider Plaintiff’s First Amended Complaint in resolving

Frederick’s motion. And as Frederick has correctly noted, Plaintiff has not asserted any claims
against it. True, the First Amended Complaint names Frederick as a defendant and requests that
“each and every defendant” be held liable “jointly and severally,” but these are legal conclusions,
not factual allegations. Plaintiff does, however, incomprehensibly allege that Frederick “shall
answer to claims made in the acts their employee and Defendant Alex Lee per respondeat
superior.” But even making several assumptions about this statement – 1). that it is attempting
to allege that Frederick should be held liable for Defendant Lee’s actions under the doctrine of
respondeat superior; and 2). that it can even be construed as a claim – it is pure conjecture and
comes nowhere close to alleging a claim against Frederick that is “plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). There is
no factual content from which the Court to draw a reasonable inference that Frederick is liable
under the doctrine of respondeat superior. Respondeat superior requires more than just an
employer-employee relationship, see Patterson v. Blair, 172 S.W.3d 316, 369 (Ky. 2005)
(explaining that an employer is only vicariously liable for an intentional tort of an employee if he
or she is actuated by a purpose to serve the employer), but that is all the Plaintiff has alleged.
Frederick must therefore be dismissed.

The Court acknowledges that the pleading rules are less stringent pro se litigants, but
these rules are not so stringent that a pro se plaintiff can force a defendant to hypothesize as to
what the allegations against him are. Our pleading standards evolved so that defendants may be
afforded fair notice of what the claims against them are and the grounds upon which they rest; a
complaint must accordingly, at a minimum, provide “either direct or inferential allegations
respecting all the material elements to sustain a recovery.” In re Commonwealth Institutional
Sec., Inc., 394 F.3d 401, 405 (6th Cir. 2005)(quoting Scheid v. Fanny Farmer Candy Shops, Inc.,
859 F.2d 434, 436 (6th Cir.1988)). Plaintiff has failed in that regard. The Court accordingly
finds that Plaintiff’s complaint fails to state a claim against Frederick for the reasons put forth.
III.
For the reasons set forth herein, and the Court being otherwise sufficiently advised, IT IS
HEREBY ORDERED AND ADJUDGED that Defendant Frederick Asset Protection LLC’s
motion to dismiss (DN 39) is GRANTED. Frederick Asset Protection LLC is DISMISSED
as a defendant. As such, Plaintiff Troy Scheffler’s motion for leave to file sur-reply (DN 46) is
DENIED AS MOOT.

IT IS SO ORDERED.

August 21, 2015

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