Swartz et al v. DiCarlo

Filing 128

Opinion and Order. The Court Adopts the Magistrate Judge's Report and Recommendation (Related doc # 101 ) and Plaintiffs' Motion to Dismiss the Counterclaim for Intentional Infliction of Emotional Distress (Related doc # 54 ) is granted. Judge Christopher A. Boyko on 9/29/2014. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES R. SWARTZ, ET AL.,
Plaintiff,
vs.
MARK A. DICARLO,
Defendant.

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CASE NO.1:12CV3112
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
I. INTRODUCTION
This matter comes before the Court upon Magistrate Judge McHargh’s Memorandum
and Order dated April 11, 2014, recommending the Court grant Plaintiffs’ Motion to Dismiss
the Counterclaim for Intentional Infliction of Emotional Distress. (ECF DKT #54 and #101).
The issue is whether the finding by the Magistrate Judge that Defendant failed to support his
Counterclaim for Intentional Infliction of Emotional Distress with allegations that would
support a plausible claim for relief was appropriate. (ECF DKT #101 at 14). In other words,
the question is whether, in order to survive the Plaintiffs’ Motion to Dismiss, Defendant’s
Counterclaim “contain[ed] 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) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal citations omitted). Because Defendant
has failed to state a plausible claim for relief with regard to Intentional Infliction of Emotional
Distress, the Magistrate Judge’s Report and Recommendation is Adopted and Plaintiffs’
Motion to Dismiss is granted.
II. FACTS
Defendant filed a Counterclaim alleging Intentional Infliction of Emotional Distress
by Plaintiffs, Vilma Swartz, James R. Swartz, and Tonimarie Swartz (collectively
“Plaintiffs”). Plaintiffs filed a Motion To Dismiss the Counterclaim. Magistrate Judge
McHargh delivered his Report and Recommendation on April 11, 2014, recommending that
the Motion to Dismiss be granted. Defendant filed an Objection to the Report and
Recommendation on May 27, 2014. Plaintiffs filed a Response on June 3, 2014, in which
they stated that they “intend to rely on their previously filed motions, oppositions, responses,
and replies in this action and the Magistrate Judge’s April 11, 2014 Memorandum and
Order.” (ECF DKT # 120).

Specifically, Defendant’s Counterclaim “asserts that individually or in combination”:
A.) “That the Plaintiffs. . . .who by extreme and outrageous conduct intentionally
and/or recklessly caused severe emotional distress to Mark A. Di Carlo and is subject
to liability for such emotional distress, and if bodily harms to the other results from it,
for such bodily harm;”

B.) “That the actors. . . .demonstrated conduct that was so extreme and outrageous as
to go ‘beyond all possible bounds of decency’ and was such that it can be considered
as ‘utterly intolerable in a civilized community;’”
C.) “That the actors. . . .displayed such actions that were the proximate cause of Mark
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A. Di Carlo’s psychic injury;” and

D) “That the mental anguish suffered by Mark A. Di Carlo is serious and of nature
that ‘no reasonable man could be expected to endure it.’” (ECF DKT # 59 at 15 - 16).
Defendant alleges that Plaintiffs, either individually or in combination, engaged in
conduct that resulted in the death of his father, the deceased, for their benefit, which in turn
caused him to suffer serious emotional distress. Defendant alleges that Vilma Swartz, the
deceased’s sister and a named Plaintiff, obtained a medical Power of Attorney (POA) over the
deceased while the deceased was incompetent and that she was the deceased’s medical POA
prior to this. Defendant also alleges that changes were made to the Will of the deceased in
favor of Vilma Swartz and her children, James R. Swartz and Tonimarie Swartz, the other
named Plaintiffs, while the deceased was incompetent. Defendant also alleges that his father
was deprived of food, water and medical care causing his death in order to procure these
benefits for Plaintiffs. As a result, Defendant states he has suffered severe emotional distress.
III. LAW & ANALYSIS
A. Standard Of Review
1. Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a party may assert
the defense of “failure to state a claim upon which relief can be granted” by motion. Fed. R.
Civ. P. 12(b)(6). In other words, a party, whom a complaint has been made against, may
submit a motion to dismiss for failure to state a claim upon which relief can be granted. Id..
A motion to dismiss allows the moving party to test the sufficiency of a complaint. Lopardo
v. Lehman Bros., Inc., 548 F.Supp.2d 450, 454 (N.D. Ohio Dist. Ct. 2008). When looking at a

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motion to dismiss, the court construes the complaint in the light most favorable to the nonmoving party, accepts their allegations as true, and draws all reasonable inferences in favor of
the non-moving party. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Although
the court will accept all of the non-moving party’s factual allegations as true, the court does
not have to “accept as true legal conclusions or unwarranted factual inferences.” Gregory v.
Shelby County, Tenn., 220 F.3d 433, 446 (6th Cir. 2000).
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 570). In other words, a complaint must provide the reasons for
entitlement to relief, and this requires more than labels and conclusions or mere recital of the
elements of a cause of action. “A claim has facial plausibility when the [complaining party]
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.. This does not require that the claim be
pinned to a precise legal theory or “an exposition of [the complainant’s] legal argument.”
Skinner v. Switzer, 131 S.Ct. 1289, 1296 (2011). The Court in Iqbal explained that where “a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short
of the line between [conceivable] and plausib[le]. . . .’entitlement to relief.’” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 557). In short, on a motion to dismiss for failure to state
a claim upon which relief can be granted, the question is “not whether [the party making the
complaint] will ultimately prevail.” Skinner, 131 S.Ct. at 1296 (2011). Rather, the question
is “whether [the] complaint [is] sufficient to cross the federal court’s threshold”, id., from
what is conceivable to what is plausible.

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2. Rule 8(a)
The Court also considers Rule 8(a) of the Federal Rules of Civil Procedure, which
outlines the general rules of pleading with regard to a claim for relief. Specifically, Rule
8(a)(2) requires that a pleading stating a claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Id. This “does not
require detailed factual allegations, but demands more than unadorned ‘the defendant
unlawfully harmed me’ accusations.” Iqbal, 556 U.S. at 677-678 (citing Twombly, 550 U.S.
at 555). Essentially, what is required is just enough facts that will bring the claim beyond
what is conceivable to what is plausible. Twombly, 550 U.S. at 554-555. However, this
“does not impose a probability requirement” but merely calls for enough factual allegations to
raise the claim from what is possible to what is plausible. Id. at 556. As Magistrate McHargh
pointed out, the allegations of the Complaint are located on a possibility - plausibility probability continuum when resolving a motion to dismiss. (ECF DKT #101, at 4-5).
Possibility being insufficient, probability not necessary, and plausibility just enough.
Important to this are two principles of the Twombly decision, which the Court highlighted in
Iqbal. First, although a court must accept as true all of the allegations contained in a
complaint when considering a motion to dismiss, this does not apply to legal conclusions.
Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. Second, only complaints that state
plausible claims for relief will survive a motion to dismiss. Id., at 679.

B. Intentional Infliction of Emotional Distress

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When assessing a motion to dismiss for failure to state a claim upon which relief can
be granted, the courts have been consistent with where to start. First, the Court will discuss
and outline the principles relevant to the claim in the Complaint. Iqbal, 556 U.S. at 675
(outlining the elements a plaintiff must plead to state a claim of unconstitutional
discrimination against officials entitled to assert the defense of qualified immunity);
Twombly, 550 U.S. at 553-554 (outlining antitrust principles); Directv, Inc., 487 F.3d at 478
(outlining when a credit or exemption will withstand Commerce Clause scrutiny). This case
is no different and the Court begins by identifying the elements required in order to state a
claim for the Intentional Infliction of Emotional Distress.
Under Ohio law, there are four elements required for a finding of Intentional Infliction
of Emotional Distress (IIED). There must be: 1) conduct so extreme and outrageous in
character that it is considered utterly intolerable in a civilized society; 2) the defendant either
intended to cause or knew or should have known that his conduct would cause the plaintiff
emotional distress; 3) the defendant’s conduct was the proximate cause of the plaintiff’s
emotional distress, and; 4) the plaintiff’s emotional distress was both severe and debilitating.
Cooper v. Metal Sales Mfg. Corp., 660 N.E.2d 1245, 1250-1251 (Ohio 11th Dist. Ct. App.
1995); Coley v. Lucas County, Ohio, 2014 WL 273194, 17 (N.D. Ohio Dist. Ct. 2014). In
Coley, the fourth element was stated as “emotional distress [so] serious and of such a nature
that no reasonable person could be expected to endure it.” Id. Each of these elements must
be proven for a finding of IIED.

C. Emotional Distress That Is Both Severe and Debilitating

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The next step is to test the sufficiency of the elements plead, relying upon the standard
of review outlined above. To do so, the Court must look at the relevant case law. In Tuleta v.
Med. Mut. of Ohio, 6 N.E.3d 106, 118 (Ohio 11th Dist. Ct. App. 2014), in order to satisfy the
element of serious emotional distress, plaintiff stated that he had suffered physical and
psychological injuries. The plaintiff claimed that he had suffered “permanent injury to his
reputation, economic loss and damages, pain and suffering, and past and future severe
emotional distress.” Id. This serves as a good example of the level of pleading required to
demonstrate how the individual has suffered severe emotional distress. In that case, the
motion to dismiss was granted because plaintiff had failed to show that the conduct of the
defendant was extreme and outrageous, which is the second element noted above. In Knief v.
Minnich, 103 Ohio App.3d 103 (Ohio 3rd Dist. Ct. App. 1995), the court found that a severe
and debilitating emotional injury did not exist where the appellants in that case did not submit
any evidence of the injury claimed. The court stated that even though “the appellants have
expressed frustration and anger, [they did not seek] medical or psychological treatment.” Id.
In Uebelacker, the plaintiff had submitted an affidavit of his wife in support of his
claim that he had suffered severe and debilitating emotional distress. Uebelacker v. Cincom
Systems, Inc., 48 Ohio App.3d 268, 276 (Ohio 1st Dist. Ct. App. 1988). The affidavit claimed
that plaintiff, at the time of the incident and for some time after, “was highly emotional,
moody, tearful, forgetful, distrusting of others, compulsive, uncommunicative and
unsupportive.” Id. There, when dealing with a motion for summary judgment, the court held
that the “issues of fact remain[ed] as to whether the defendants’ conduct caused the[plaintiff]
serious emotional distress. Id. These cases contain certain principles that are consistently

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present. First, where there is no “contemporaneous physical injury, compensable emotional
distress must be severe and [debilitating].” Knief , 103 Ohio App.3d at 108. Second, the
claim of “severe and debilitating emotional injury must present some guarantee of
genuineness. . . such as expert evidence.” Id.. However, the “guarantee of genuineness”, id.,
is not limited to expert evidence only. Uebelacker, 48 Ohio App.3d at 276 (allowing lay
witnesses familiar with plaintiff to supporting evidence).
Here, even if the Court accepts that Defendant has sufficiently plead the first three
elements of IIED1 (for the purposes of Rule 12(b)(6)), he fails on the final, and perhaps most
important, element. He has not sufficiently plead that he has suffered a severe emotional
injury. Defendant has only stated that he suffered “severe emotional distress” and nothing
else. (ECF DKT #59, at 34). There are no specifics as to how he suffered. Although
heightened factual declarations are not required, Iqbal, 556 U.S. at 677-679 (citing Twombly,
550 U.S. at 555), something more than merely reciting the elements of the claim is not only
required, but it is necessary. Clearly, it is conceivable that Defendant suffered severe
emotional distress. However, the question is not whether it is conceivable that Defendant
suffered severe emotional distress but, rather, whether it is plausible that Defendant suffered
severe emotional distress. Id., at 678 (citing Twombly, 550 U.S. at 570). In fact, this
distinction between conceivable and plausible is critical. Here, Defendant “merely pleads
facts that are merely consistent with a defendant’s liability.” Id., at 678 (citing Twombly, 550

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It is debatable whether Defendant has sufficiently plead the first three elements
and decisions on each could be found one way or the other. However, because
the Court has found that Defendant has failed to sufficiently plead the final
element, the Court need not address these other elements because his claim will
fail on this final element, in any event.
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U.S. at 557) (international quotations omitted). No additional facts are plead that show that
Defendant has suffered emotional distress that is both severe and debilitating, which is
required when there is no contemporaneous physical injury. Knief , 103 Ohio App.3d at 108.
And because of this, it does not cross the line from what is conceivable to what is plausible.
Distinguishing between an “ordinary loss” and a loss caused by malicious and
egregious actions by one out for self-benefit, Di Carlo must allege more than “I have suffered
severe emotional distress.” Where is the claim of sleepless nights, inability to work for a
period of time, or that close familial or personal relationships have suffered serious strain due
to the additional stress from the situation, or the “change in habitual makeup?” In
Defendant’s Counterclaim none of these are present. Even though Defendant outlines in
varying detail why he has suffered severe emotional distress2, (ECF DKT #59, at 34), he fails
to outline how he has suffered. Even conceding that Defendant has suffered emotional
distress, he has not shown that he suffered severe emotional distress.
D. Defendant’s Argument
Defendant argues that the Magistrate Judge relied upon a case dealing with negligent
infliction of emotional distress and, therefore, used the incorrect standard when assessing
what level of emotional distress was required. Defendant fails to take note that in Yeager, the
Supreme Court of Ohio used the same standard for establishing emotional distress in
negligent infliction of emotional distress actions and intentional infliction of emotional
distress. Yeager v. Local Union 20, Teamsters, Chauffeurs,..., 6 Ohio St.3d 369, 374 (1983).

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The Magistrate Judge likely found that Defendant had sufficiently plead this
element of the IIED claim.
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Regardless, Defendant still has not sufficiently plead to the standard. (ECF DKT #118, at 18)
Defendant argues that “serious emotional distress may be found where a reasonable person,
normally constitute, would be unable to cope adequately with the mental distress engendered
by the circumstances of the case.” Id. Defendant argues that “[s]evere and debilitating
emotional injury is nothing more than significant changes in the emotional or habitual
makeup of a plaintiff.” Id., at 19. Defendant relies on the cases of Knief and Uebelacker.
Although these statements may be true, Defendant has not alleged sufficient facts to support
them and does not provide any “guarantee of genuineness”. Knief , 103 Ohio App.3d at 108.
He still does not state how he has suffered “significant changes in [his] emotional or habitual
makeup.” Id. The Court has stated above that merely reciting the elements of a claim is
insufficient. Iqbal, 556 U.S. at 678.
IV. CONCLUSION
For the foregoing reasons, Defendant has failed to state a plausible claim for relief for
Intentional Infliction of Emotional Distress by failing to allege how he has suffered severe
emotional distress. Therefore, the Magistrate Judge’s Report and Recommendation is
adopted and the Court grants Plaintiffs’ Motion to Dismiss.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: September 29, 2014

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