Johnson v. Hartwell et al

Filing 25

OPINION AND ORDER Granting Defendants' Motion to Dismiss 12 , Striking Plaintiff's Amended Complaint 17 , Denying Defendants' Motion to Strike Amended Complaint as Moot 19 and Denying Plaintiff's Motion to Re Serve as Moot 22 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CYNTHIA JOHNSON,
Plaintiff,

CASE NO. 18-10424
HON. DENISE PAGE HOOD

v.
BRIAN C. HARTWELL, et al.,
Defendants.
_________________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS [#12], STRIKING PLAINTIFF’S AMENDED COMPLAINT [#17],
DENYING DEFENDANTS’ MOTION TO STRIKE AMENDED
COMPLAINT AS MOOT [#19], AND DEYING PLAINTIFF’S ‘MOTION TO
RE SERVE’ AS MOOT [#22]
I.

BACKGROUND
On February 5, 2018, pro se Plaintiff Cynthia Johnson (“Johnson”) brought this

action against Defendants Brian C. Hartwell (“Mr. Hartwell”), the Law Offices of
Brian C. Hartwell, PLLC (“Hartwell, PLLC”), Paul Boehms (“Boehms”), and P&J
Apartments LLC (“P&J Apartments”) (collectively, “Defendants”), for Negligence
(Count I), Intentional Infliction of Emotional Distress (Count II), and Invasion of
Privacy (Count III). (Id. at 5–8) Johnson seeks compensatory and punitive damages,
among other things, for the alleged harms. (Id. at 9)
Leonard Stinson (“Stinson”), Johnson’s son, was a tenant of the P&J
Apartments. Johnson was a co-signer on Stinson’s lease with P&J Apartments. (Doc
1 

# 18, Pg. 9) P&J Apartments hired Mr. Hartwell and Hartwell, PLLC to collect the
fees owed by Stinson to P& J Apartments. (Id.) Boehms is the sole owner of P&J
Apartments. (Doc # 18, Pg. 9)
On April 23, 2015, Mr. Hartwell, acting on behalf of his client, P&J
Apartments, sent an email to Johnson (“the April 23, 2015 email”) that included a
PDF attachment with Johnson’s name, Social Security number, birthday, driver’s
license, work history with salary information, and residence history, among other
information. (Doc # 1, ¶ 4; Doc # 18, Pg. 9) In total, Mr. Hartwell sent the April 23,
2015 email to six different email addresses: (1) [e-mail]; (2)
[e-mail], (3) [e-mail], (4) [e-mail], (5)
[e-mail], (6) [e-mail]. At some point, Mr. Hartwell
mailed the information included in the April 23, 2015 email to a Detroit, Michigan
residence thought to be Stinson’s home. (Doc # 18, Pg. 10) A letter with the same
information was mailed to Johnson at her home in Avon, Indiana. (Id.; Doc # 1, ¶ 5)
Johnson subsequently filed, but later withdrew, a lawsuit against Defendants in
Michigan state court. (Doc # 1, ¶ 9) After withdrawing the case from Michigan state
court, Johnson filed suit in the United States District Court for the Southern District
of Indiana. Johnson v. Hartwell, No. 115CV01632RLYDKL, 2016 WL 6432617,
(S.D. Ind. Oct. 31, 2016), aff’d, 690 F. App’x 412 (7th Cir. 2017). In that case, the
district court judge dismissed Johnson’s case without prejudice for want of personal
2 

jurisdiction, and informed Johnson that she was free to re-file this action in a court of
proper jurisdiction. Id. at *2.
This matter is before the Court on Defendants Boehms and P&J Apartments’
Motion to Dismiss the Complaint for lack of subject matter jurisdiction (pursuant to
Fed. R. Civ. P. 12(b)(1)), and for failure to state a claim upon which relief can be
granted (pursuant to Fed. R. Civ. P. 12(b)(6)). (Doc # 12) Johnson filed an “Amended
Complaint” and a Response on June 21, 2018. (Doc # 17; Doc # 18) Defendants
Boehms and P&J Apartments filed a Motion to Strike the Amended Complaint and a
Reply on June 28, 2018. (Doc # 19; Doc # 20)
Johnson’s “Amended Complaint” states that is in “Opposition to Defendant’s
Motion to Dismiss . . .” (Doc # 17, Pg. 1), presents arguments similar to those provided
in Johnson’s Response (Doc # 18), addresses various matters that are not before the
Court, and requests that a default judgment be entered in Johnson’s favor. The Court
interprets the supposed “Amended Complaint” as a response, not an Amended
Complaint. Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure and Eastern
District of Michigan Local Rule 7.1(c)(3), Johnson’s “Amended Complaint” (Doc #
17) is STRICKEN. Accordingly, Defendants Boehms and P&J Apartments’ Motion
to Strike the Amended Complaint (Doc # 19) is DENIED as MOOT. In addition, for
the reasons set forth below, the present Motion to Dismiss (Doc # 12) is GRANTED.

3 

On July 18, 2018, Johnson filed a “Motion to Re Serve,” stating that the Motion
is “to have Defendants Re-served with a correct address. That defendant refused to
give the court and plaintiff.” (Doc # 22) Because the Court is dismissing this case,
that Motion is DENIED as MOOT.
II.

ANALYSIS
A. Standards of Review
1. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action

for lack of subject matter jurisdiction. A Rule 12(b)(1) motion for lack of subject
matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack)
or the factual existence of subject matter jurisdiction (factual attack). Cartwright v.
Garner, 751 F.3d 752, 759–60 (6th Cir. 2014) (citing United States v. Ritchie, 15 F.3d
592, 598 (6th Cir. 1994).
In the case of a facial attack, the court takes the allegations of the complaint as
true to determine whether the plaintiff has alleged a basis for subject matter
jurisdiction. Id. In the case of a factual attack, a court has broad discretion with
respect to what evidence to consider in deciding whether subject matter jurisdiction
exists, including evidence outside of the pleadings, and has the power to weigh the
evidence and determine the effect of that evidence on the court’s authority to hear the
case. Id. Plaintiff bears the burden of establishing that subject matter jurisdiction
4 

exists. DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).
In the case of a factual attack, plaintiff carries the burden of establishing subject matter
jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance
Corp. of Ind., 298 U.S. 178, 189 (1936).
2. Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for a motion to
dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). This type of motion tests the legal sufficiency of the plaintiff’s complaint.
Davey v. Tomlinson, 627 F. Supp. 1458, 1463 (E.D. Mich. 1986). When reviewing a
motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the
light most favorable to the plaintiff, accept its allegations as true, and draw all
reasonable inferences in favor of the plaintiff.” Directv Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007). A court, however, need not accept as true legal conclusions or
unwarranted factual inferences.” Id. (quoting Gregory v. Shelby Cnty., 220 F.3d 443,
446 (6th Cir. 2000)). “[L]egal conclusions masquerading as factual allegations will
not suffice.” Edison v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634
(6th Cir. 2007).
As the Supreme Court has explained, “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. Factual
5 

allegations must be enough to raise a right to relief above the speculative level . . . .”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see
LULAC v. Bresdesen, 500 F.3d 523, 527 (6th Cir. 2007). To survive dismissal, the
plaintiff must offer sufficient factual allegations to make the asserted claim plausible
on its face. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
3. Pro Se Litigants
Federal courts hold pro se complaints to “less stringent standards” than those
drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, pro se
litigants are not excused from failing to follow basic procedural requirements.
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991); Brock v. Hendershott, 840 F.2d
339, 343 (6th Cir. 1988). A pro se litigant “must conduct enough investigation to
draft pleadings that meet the requirements of the federal rules.” Burnett v. Grattan,
468 U.S. 42, 50 (1984).
B. Applicable State Law
The parties agree that Michigan law should be applied in this case. (Doc # 18,
Pg. 2; Doc # 12, Pg. 15) Michigan law governs this action because the Court’s
jurisdiction is based on diversity of citizenship. See Michigan First Credit Union v.
CUMIS Ins. Soc’y, Inc., 641 F.3d 240, 251–52 (6th Cir. 2011) (citing Erie R.R. v.
6 

Tompkins, 304 U.S. 64 (1938)). “In applying state law, we anticipate how the relevant
state’s highest court would rule in the case and are bound by controlling decisions of
that court.” Appalachian Railcar Servs. v. Boatright Enters., Inc., 2008 WL 828112,
*14 (W.D.Mich.2008) (quoting NUFIC of Pittsburgh, Pa. v. Alticor, Inc., 472 F.3d
436, 438 (6th Cir.2007) (citation omitted)).
C. Rule 12 (b) Arguments
1. Subject Matter Jurisdiction Over Johnson’s Claims
Boehms and P&J Apartments argue that Johnson’s Complaint cannot survive a
facial nor a factual attack for lack of subject matter jurisdiction. Johnson responds
that denying the present Motion “is the only and is the right thing to do” (Doc # 18,
Pg. 2), and that this Court’s “jurisdiction raises claims that exceed $75,000 and
minimal diversity of citizenships exists . . . .” (Id. at 3) The Court agrees with
Defendants.
Johnson has not alleged any count arising under federal law, and the Court lacks
subject matter jurisdiction under 28 U.S.C. § 1331. Johnson alleges the Court has
subject matter jurisdiction over this action based on diversity jurisdiction under 28
U.S.C. § 1332. Federal “district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between (1) citizens of different States . . . .”
28 U.S.C.A. § 1332.
7 

Johnson’s Complaint cannot survive a facial attack for lack of subject matter
jurisdiction because at paragraph 13, Johnson alleges, “the amount in controversy,
exclusive of interest, costs, and attorney’s fees, (if any) exceeds the Twenty Five
Thousand ($25,000.00) Dollar jurisdictional requirement of this court.” (Doc # 1, ¶
13) Johnson did not make any other allegation regarding the amount in controversy
in the Complaint. On its face, Johnson’s Complaint fails to meet the amount in
controversy requirement to establish that the Court has subject matter jurisdiction over
this case.
Johnson’s Complaint cannot survive a factual attack for lack of subject matter
jurisdiction because she does not allege that she has suffered any injury resulting from
Defendants’ actions. Johnson merely alleges that she will worry about identity theft.
(Doc # 1, ¶ 7)

Johnson also asserts that Defendants have caused harm with

“substantial potential economic damages . . . .” (Doc # 18, Pg. 4) Under Michigan
law, remote, contingent, or speculative damages cannot be recovered in a tort action.
Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 268 Mich. App.
83, 96, 706 N.W.2d 843, 852 (2005) (citations omitted). “A plaintiff asserting a cause
of action has the burden of proving damages with reasonable certainty, and damages
predicated on speculation and conjecture are not recoverable.” Id. (citation omitted).
All of Johnson’s claims against Defendants are Michigan tort law claims. Johnson
cannot recover for potential or speculative damages. Johnson has not demonstrated
8 

that the amount in controversy requirement to establish subject matter jurisdiction has
been met by a preponderance of the evidence.
The Court does not have subject matter jurisdiction over Johnson’s Michigan
tort law claims. Defendants Beohms and P&J Apartments’ Motion to Dismiss for
lack of subject matter jurisdiction is GRANTED.
2. Failure to State a Claim
The Court lacks subject matter jurisdiction over this case, and need not address
Defendants’ arguments that this action should be dismissed for failure to state a claim
upon which relief can be granted. The Court, however, notes that Johnson has failed
to allege that the Defendants’ conduct caused her an injury or that Defendants’
conduct was extreme and outrageous.
III.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that the Court STRIKES Plaintiff Cynthia

Johnson’s “Amended Complaint” (Doc # 17).
IT IS FURTHER ORDERED that Defendants Paul Boehms and P&J
Apartments, LLC’s Motion to Strike Amended Complaint (Doc # 19) is DENIED as
MOOT.
IT IS FURTHER ORDERED that Defendants Paul Boehms and P&J
Apartments, LLC’s Motion to Dismiss (Doc # 12) is GRANTED.
9 

IT IS FURTHER ORDERED that Plaintiff’s “Motion to Re Serve” (Doc #
22) is DENIED as MOOT.
IT IS FURTHER ORDERED that Defendants Paul Boehms and P&J
Apartments, LLC are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that this case is DISMISSED WITHOUT
PREJUDICE because this Court lacks subject matter jurisdiction.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 21, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 21, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

10