Perez et al v. Law Offices of John D. Clunk Co. L.P.A. et al

Filing 8

Memorandum Opinion and Order: Defendants' motions (Doc. Nos. 3 , 4 , and 5 ) are granted to the extent they seek dismissal of plaintiffs' complaint. This case is dismissed with prejudice. Judge Sara Lioi on 3/11/2016. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM PEREZ, et al.,

PLAINTIFFS,
vs.
LAW OFFICES OF JOHN D. CLUNK CO.
L.P.A., et al.,
DEFENDANTS.

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CASE NO. 5:15-cv-2642

JUDGE SARA LIOI
MEMORANDUM OF OPINION
AND ORDER

Introduction
Pro se plaintiffs William Perez and Alicia Ruitto have filed this fee-paid civil rights
action against the Law Offices of John D. Clunk Co. L.P.A. (“the Clunk Law Firm”), Bayview
Loan Servicing LLC (“Bayview”), Cuyahoga County Sheriff Department, and Nailah K. Byrd,
Cuyahoga County Clerk of Courts (collectively, “the County”). Plaintiffs’ complaint alleges
federal civil rights violations and state-law tort claims in connection with a foreclosure action in
state court wherein a judgment of foreclosure was entered in favor of Bayview against Ruitto
regarding commercial property she owned located at 9613 Madison Avenue, Cleveland, Ohio
(the Madison Avenue property). See Bayview Loan Servicing, LLC v. Ruitto, et al., No. CV-12787650 (Cuyahoga Cnty. Comm. Pl. Ct.) (filed July 23, 2012).
In their complaint, plaintiffs challenge the validity of the mortgage loan that was the
subject of the state foreclosure action in Bayview. They allege there was “fraud in the factum” in
connection with the mortgage loan, and that they signed an unconscionable, unconstitutional, and

unenforceable contract. They allege defendants violated their federal civil rights under 42 U.S.C.
§§ 1983, 1985, 1986, 1988 and 18 U.S.C. §§ 241 and 242, and engaged in other tortious conduct
under state law, in connection with the foreclosure on the Madison Avenue property. They seek
$4.9 million in damages and “free and clear deed of the subject property.”
On January 7, 2016, the County filed a motion to dismiss and for an order prohibiting
vexatious litigation. (Doc. No. 3.) The Clunk Law Firm filed a motion to join the County’s
motion. (Doc. No. 5.) Bayview filed its own motion to dismiss on January 14, 2016. (Doc. No.
4.)
For the reasons stated below, defendants’ motions are granted in part.
Standard of Review
Although pro se pleadings are liberally construed and held to less stringent standards than
pleadings drafted by lawyers, Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), pro se
plaintiffs are not exempt from the requirements of the Federal Rules of Civil Procedure. See
Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). Fed. R. Civ. P. 12(b)(6) provides for
dismissal of cases for failure to state a claim upon which relief can be granted. To survive a
dismissal under Rule 12(b)(6), a complaint must contain “sufficient factual matter, accepted as
true, to state a claim to relief that it is plausible on its face.” See Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010).
Discussion
All defendants contend that plaintiffs’ complaint must be dismissed under the doctrine of
res judicata because a federal court has already dismissed a prior complaint plaintiffs filed
wherein they alleged, as they do here, federal civil rights violations in connection with the
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foreclosure on the Madison Avenue property. See William Perez, et al. v. Law Offices of John D.
Clunk Co., L.P.A., et al., Case No. 1:15-cv-701 (N.D. Ohio) (filed April 9, 2015) (“Perez I”).
After considering fully briefed motions to dismiss, Judge Polster dismissed Perez I in a
written Memorandum of Opinion and Order dated July 20, 2015, ruling that plaintiff Perez
lacked standing to bring an action to challenge foreclosure on the Madison Avenue property, and
that Ruitto’s claims were barred by the Rooker-Feldman doctrine and the doctrine of res judicata.
He further ruled that the complaint failed to allege any viable federal claim for relief. (See Doc.
No. 18, Perez I.)
“Pursuant to the doctrine of res judicata, ‘a final judgment on the merits bars further
claims by parties or their privies based on the same cause of action.’” Bragg v. Flint Bd. of
Educ., 570 F.3d 775, 776 (6th Cir. 2009) (quoting Montana v. U.S., 440 U.S. 147, 153, 99 S. Ct.
970, 59 L. Ed. 2d 210 (1979)). For res judicata to apply, the following elements must be present:
“(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action
between the same parties or their ‘privies’; (3) an issue in the subsequent action which was
litigated or which should have been litigated in the prior action; and (4) an identity of the causes
of action.” Id. (quoting Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir. 1997)).
A comparison of the complaint in this case with the complaint in Perez I reveals that all
the elements of res judicata are present. The July 20, 2015 decision dismissing Perez I
constitutes a final decision on the merits by a court of competent jurisdiction. This subsequent
action brought by plaintiffs involves the same parties, or their “privies,” as Perez I.1 In addition,

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The only party in this lawsuit that was not specifically named in Perez I is Cuyahoga County Clerk of Courts
Nailah Byrd. The Court finds Byrd is in privity with the Cuyahoga County Sheriff’s Department for purposes of res
judicata because the only conceivable basis for the plaintiffs’ naming her as a defendant in this case is that she is a
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there is an identity of causes of action between the two cases. Plaintiffs assert the same federal
civil rights and state-law claims in this lawsuit that they asserted in Perez I, and all the issues
plaintiffs raise here were or could have been raised in Perez I.
Accordingly, this second, duplicative action filed by plaintiffs arising from the
foreclosure on the Madison Avenue property is barred by the doctrine of res judicata and must be
dismissed for failure to state a claim. See Thompson v. U.S., Small Business Administration, 8 F.
App’x 547 (6th Cir. 2001) (affirming district court’s dismissal of an action barred by res judicata
on the basis that it failed to state a claim).
In addition to dismissal of plaintiffs’ complaint, the Clunk Law Firm and the County seek
an order declaring the plaintiffs vexatious litigators and imposing future pre-filing restrictions on
them. The Clunk Law Firm and the County contend plaintiffs have engaged in improper and
vexatious conduct by requiring them to defend multiple frivolous lawsuits challenging valid state
foreclosures, including this case and Perez I. Although the Court will not impose sanctions on
plaintiffs at this time, plaintiffs are hereby strongly cautioned that any future frivolous lawsuits
they file in this district pertaining to settled state foreclosure proceedings may result in an
imposition of sanctions.

county employee charged with responsibilities of some kind in connection with County foreclosure proceedings.
Accordingly, her interests were adequately represented in the prior lawsuit by the Cuyahoga County Sheriff’s
Department, which also was presumably sued due to its responsibilities in connection with County foreclosures. See
Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d 1054, 1069-70 (6th Cir. 1995) (a non-party to a
prior lawsuit is considered sufficiently close to a party in a prior suit so as to justify preclusion if the non-party’s
interests were represented adequately by a party in the original suit).
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Conclusion
For the reasons stated above, defendants’ motions (Doc. Nos. 3, 4, and 5) are granted to
the extent they seek dismissal of plaintiffs’ complaint. This case is dismissed with prejudice.

IT IS SO ORDERED.

Dated: March 11, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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