JQ Solutions v. Fedex/Kinko's #1726

Filing 19

REPORT AND RECOMMENDATIONS re 18 MOTION for Scheduling Conference and Introduction of Stipulated Discovery Plan filed by Mark Johnson, 6 Complaint filed by Mark Johnson, 13 MOTION to Proceed with Case filed by Mark Johnson, 11 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Fedex/Kinko's #1726: that defendant's motion to dismiss (Doc. 11) be GRANTED; plaintiff's pending motions (Doc 13, 18) be DENIED AS MOOT; and this case be CLOSED. Objections to R&R due by 4/9/2012. Signed by Magistrate Judge Stephanie K. Bowman on 3/23/12. (Attachments: # 1 Certified Mail Receipt) (jl1)

“UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARK JOHNSON DBA JQ SOLUTIONS,

Case No. 1:11-cv-563

Plaintiff,
Weber, J.
Bowman, M.J.
v.
FEDEX/KINKO’S STORE #1726,
Defendant.

REPORT AND RECOMMENDATION
This action is now before the Court on Defendant Fedex/Kinko’s motion to
dismiss (Doc. 11), Plaintiff’s motion to proceed (Doc. 13), and Defendant’s responsive
memoranda. (Docs. 14, 15).
I. Procedural Background and Facts
Plaintiff JQ Solutions initiated this action on August 17, 2011 by filing a pro se
motion for leave to proceed in forma pauperis. (Doc. 1). Thereafter, the Court issued a
Show Cause Order directing Plaintiff to clarify whether he was bringing suit on behalf of
himself, Mark Johnson, or on behalf of JQ Solutions, a corporate entity. (Doc. 2).
Plaintiff responded that he was bringing suit on his own behalf, and the motion for leave
to proceed in forma pauperis was granted. (Doc. 5). The complaint was then filed on
September 28, 2011. (Doc. 6).

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Plaintiff’s complaint alleges a breach of contract with FedEx/Kinko’s Store #
17261 because the pricing in this store is different from the pricing in other
FedEx/Kinko’s stores in the area (Doc. 6 at 3), and allegedly differs within the store by
salesperson (Doc. 16). Plaintiff asserts that the Uniform Commercial Code (U.C.C.)
prohibits this variant pricing (Id.), and requests as relief (in part) that the Court “enforce
the U.S. Codes” in favor of his company, JQ Solutions. (Doc. 6 at 4). Plaintiff further
asserts that the federal courts have subject matter jurisdiction through 28 U.S.C. §
1331, which grants jurisdiction to the federal courts for lawsuits “arising under the
Constitution, laws, or treaties of the United States.”
In response, Defendant asserts, inter alia, that Plaintiff’s complaint should be
dismissed for lack of subject matter jurisdiction and failure to state a claim for relief.
The undersigned agrees, and for the reasons that follow, recommends that Plaintiff’s
complaint be dismissed.
II. Analysis
A. Standard of Review
Plaintiff bears the burden of proving subject matter jurisdiction.

Walburn v.

Lockheed Martin Corp., 431 F.3d 966, 970 (6th Cir. 2006) (citing United States ex rel.
McKenzie v. BellSouth Telecommunications, Inc., 123 F.3d 935, 938 (6th Cir. 1997)).
"[W]here a defendant argues that the plaintiff has not alleged sufficient facts in [his]
complaint to create subject matter jurisdiction, the trial court takes the allegations in the

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Defendant alleges that FedEx/Kinko’s Store #1726 is not a legal entity and the case could be dismissed
on this basis alone. Defendant alleges the proper Defendants are Federal Express Corporation and FedEx
Office and Print Services, Inc. Although the Court assumes that to be true, it will address the merits of
each claim.

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complaint as true." Nichols, 318 F.3d at 677 (citing Jones v. City of Lakeland, 175 F.3d
410, 413 (6th Cir. 1999)).
Furthermore, Rule 8 of the Federal Rules of Civil Procedure states that a plaintiff
need only plead “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This has been interpreted to indicate that the
pleading must contain facts sufficient to “state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). The court must
accept all well-pleaded factual allegations as true but need not “accept as true a legal
conclusion couched as a factual allegation.”

Twombly, 550 U.S. at 555 (quoting

Papasan v. Allain, 478 U.S. 265, 286 (1986)). While a complaint need not contain
“detailed factual allegations,” to survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), it must provide “more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). Concerning
this case, pro se complaints are held to a less rigorous standard than those drafted by
attorneys, but the court is not required to discover or create a claim that is not pled.
Williams v. Curtin, 631 F. 3d 380, 383 (6th Cir. 2011).
B.

Plaintiff’s complaint is properly dismissed pursuant to Rules 12(b)(1)
and 12(b)(6)

Plaintiff’s complaint asserts that his claim falls under the U.C.C.. However, the
U.C.C. is not a codified federal statute from which Plaintiff can obtain relief. In his

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response to the Defendant’s motion to dismiss, Plaintiff admits that his claim is not a
federal claim, but nonetheless, he asserts that his state law claim should still be heard
in federal court pursuant to the rules of pendant jurisdiction, found in 28 U.S.C. § 1367.
(Doc. 13 at 1). He also continues to argue that the U.C.C. controls his breach of
contract claim. (Id. at 3).
The U.C.C. does not grant federal subject matter jurisdiction. See Motorola Inc.
v. Perry, 917 F.Supp. 43, 48 (D.D.C. 1996) (“Uniform Commercial Code is not a federal
law”); See also Brown v. Countrywide Home Loans, No. 09CV12359, 2009 U.S. Dist.
LEXIS 72396, at *4 (E.D. Mich. Aug. 17, 2009) (“Alleged violations of the UCC raise
questions of state law, not federal law”); Barta v. Farm Serv. Agency, 8:11CV198, 2011
U.S. Dist. LEXIS 146791, at *7 (D. Neb. Dec. 20, 2011) (finding no federal question
jurisdiction where plaintiff’s only reference to this was that that the complaint was “filed
pursuant to UCC 1 commercial law…and under USA CONSTITUTIONAL LAW”
(capitalization in original)).
Taking into account that Plaintiff is a pro se complainant and thus held to a less
rigorous drafting standard than an attorney (see Williams v. Curtin, 631 F. 3d 380, 383
(6th Cir. 2011)), the Court will give Plaintiff some deference and treat his claim as one
filed under Title 13 of the Ohio Revised Code, titled the Ohio Uniform Commercial
Code. However, this does not cure Plaintiff’s deficiencies as the applicable sections of
Ohio’s U.C.C. only apply to the “sale of goods” and not to “services” as alleged here.2

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“Goods” means all things (including specially manufactured goods) which are movable at the time of
identification to the contract for sale other than the money in which the price is to be paid, investment
securities, and things in action, see Ohio Rev. Code §1302.01(A)(8), whereas “Services” means
performance of labor for the benefit of another. See Ohio Adm.Code §109: 4-3-01(C)(1) and (2).

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See Allied Indus. Serv. Corp. v. Kasle Iron & Metals, Inc., 405 N.E.2d 307, 309 (Ohio
Ct. App., 1977) (The Ohio Revised Code, Chapter 1302, “applies only to transactions in
goods.”). In this case, Plaintiff’s complaint does not contain any allegations relating to
the sale of goods. To the contrary, the complaint expressly asserts that the Defendant
overcharged him for shipping “services.” (Doc. 6 at 3). Accordingly, to the extent that
Plaintiff has asserted a claim under Ohio’s U.C.C., his claim fails as a matter of law.
Plaintiff further argues that the Court may properly exercise supplemental
jurisdiction over his purported state law breach of contract claim as a result of his claim
for remedies under Chapter 63 of the U.C.C, which he improperly believes provides him
federal relief. (Doc. 13 at 2). 28 U.S.C. § 1367 states that “[with certain exceptions] in
any civil action of which the district courts shall have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case
or controversy….” Id. at §1367(a)). However, for §1367(a) to apply, the Court must first
have original jurisdiction - which it does not. Pursuant to 28 U.S.C. §1331, for the Court
to have original jurisdiction the complaint must allege sufficient facts that support a “civil
action arising under the Constitution, laws, or treaties of the United States.” As set forth
above, Plaintiff has not done so here.4

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Chapter 6 of the U.C.C. is titled “Bulk Sales,” and gives as background to the subject that legislation on
bulk sales was enacted to protect creditors from unscrupulous merchants who would sell their inventories
bought with credit, and then spend or hide the money so that creditors could not get at it. The bulk sale
would eliminate almost all personal possessions against which in-rem proceedings might otherwise be
available.

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Although it is possible that the Court would have diversity jurisdiction, there have been no facts alleged
that would enable the Court to make that determination.

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Finally Plaintiff also alleges “theft by deception,” a state law claim which falls
under the Ohio Revised Code § 2913.02, the criminal statute for theft. O.R.C § 2307.60
does provide for civil recovery for a criminal act in certain circumstances. However, this
is a state law claim and for the reasons set forth above, this Court does not have
jurisdiction.
II. Conclusion
For the reasons stated herein, IT IS THEREFORE RECOMMENDED that: (1)
Defendant’s motion to dismiss (Doc. 11) be GRANTED; (2) Plaintiff’s pending motions
(Docs. 13, 185) be DENIED as MOOT; and (3) this case be CLOSED.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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  On March 8, 2012, Plaintiff filed a “ Motion for a Scheduling Conference and Introduction of Stipulated
Discovery Plan. (Doc. 18). Said motion, however, does not request any relief from the Court and appears
to be Plaintiff’s Rule 26(f) report.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARK JOHNSON DBA JQ SOLUTIONS,

Case No. 1-11-cv-563

Plaintiff,
Weber, J.
Bowman, M.J.
v.

FEDEX/KINKO’S STORE #1726,
Defendant.
NOTICE

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law
in support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).

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