Smith v. Laufman, Jensen & Napolitano, LLC

Filing 5

REPORT AND RECOMMENDATIONS re 4 Complaint filed by Deborah Smith. It is therefore RECOMMENDED that: 1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). 2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith, and therefore, deny plaintiff leave to appeal in forma pauperis. Objections to R&R due by 6/4/2012. Signed by Magistrate Judge Stephanie K. Bowman on 5/17/12. (lk) (Additional attachment(s) added on 5/17/2012: # 1 Certified Mail Receipt) (lk).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DEBORAH SMITH,
Plaintiff,
vs

LAUFMAN, JENSON &
NAPOLITANO, LLC,
Defendant.

Case No. 1:12-cv-304
Spiegel, J.
Wehrman, M.J.

REPORT AND
RECOMMENDATION

Plaintiff, who resides in Cincinnati, Ohio, has filed a pro se complaint. (See Doc. 1,
Complaint). By separate Order issued this date, plaintiff has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte
review of the complaint to determine whether the complaint, or any portion of it, should be
dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B).
Congress has authorized federal courts to dismiss an in forma pauperis complaint if
satisfied that the action is frivolous or malicious. Denton v. Hernandez, 504 U.S. 25, 31 (1992);
see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the
plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.
Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th
Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or
when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490
U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise
to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at

1199. The Court need not accept as true factual allegations that are “fantastic or delusional” in
reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).
Congress has also authorized the sua sponte dismissal of complaints which fail to state a
claim upon which relief may be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii). Although a
plaintiff’s pro se complaint must be “liberally construed” and “held to less stringent standards
than formal pleadings drafted by lawyers,” the complaint must “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation omitted)). The complaint
“must contain 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) (quoting Twombly, 550 U.S.
at 570); see also Hill, 630 F.3d at 470-71 (“dismissal standard articulated in Iqbal and Twombly
governs dismissals for failure to state a claim” under §§ 1915(e)(2)(B)(ii) and 1915A(b)(1)).
“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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all wellpleaded 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)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a

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formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557.
Plaintiff brings this action against a Cincinnati law firm, Laufman, Jensen & Napolitano,
LLC. Plaintiff states that she hired Paul Laufman of the defendant law firm to represent her son
on November 19, 2007, and that during the time her son was Laufman’s client, “several
problems” arose. (Doc. 1, Complaint, p. 3). She alleges that Laufman told her on April 22, 2008
that she and her son “were the worst clients he’s ever had.” (Id.). Plaintiff states that she
obtained another lawyer to represent her after that point, but that Laufman “refuse[d] to step
down as [her] son’s attorney.” (Id.). Plaintiff further alleges in pertinent part:
Even though Mr. Laufman knew of my son’s disability he later stated to the
prosecutor he hopes that my son keeps him so that he can make an ass out of me.
He said this in front of my daughter and grandchildren. Not only was that rude
but totally disrespectful to my family. Mr. Laufman then sent a letter to my
lawyer stating that he had represented my son to the best of his ability and wanted
to be paid. He said that he knew I was going to file [a] grievance and if I didn’t
that he would take only $10,000. But if I did he wanted $11,500.
(Id.).
Plaintiff states that she filed a grievance on August 11, 2008 with the Cincinnati Bar
Association (CBA). The matter proceeded to arbitration and resulted in an agreement by
Laufman to “fix [her] son’s credits” and to return $1,500 of his $11,500 fee to plaintiff. (Id.).
Plaintiff alleges that Laufman sent a letter to the CBA on December 19, 2008, stating that “the
issue was resolved and that he had fixed [her] son’s credits.” (Id.). Plaintiff claims that
Laufman lied because the credits issue was not resolved until “18 months later,” but that the
CBA matter was closed “because we all thought [Laufman] had held up his end of the

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agreement.” (Id.).
On April 1, 2009, plaintiff filed a malpractice lawsuit against Laufman, alleging that he
had broken the two agreements he had entered with plaintiff and her son. (Id., p. 4). Plaintiff
alleges that although Laufman was “clearly at fault” by failing to answer her complaint within
the required 28-day time frame, the judge denied her motion for default judgment. (Id.).
Plaintiff further alleges that she wrote a letter in September 2009 to Maria Palermo of the CBA,
requesting that the CBA case be reopened. (Id.). Palermo responded by stating that “she sees
where [Laufman] breached both contracts but she didn’t see where it hurt [plaintiff].” (Id.).
As relief, plaintiff seeks $110,000 in damages stemming from Laufman’s alleged breach
of two contracts, his failure to represent her son “to the best of his ability,” and his humiliation
and intimidation of plaintiff while “aware of our disabilities.” (Id.). Plaintiff also requests “to
know if Mr. Laufman has ever given any money back to a client of his after telling them to seek
other representation.” (Id.).
Plaintiff asserts that subject matter jurisdiction exists in this case under 28 U.S.C. §
1343(3) because her complaint is a “civil rights lawsuit” brought pursuant to 42 U.S.C. § 1983
“alleging the Defendant(s) acting under color of State law, deprived [her] of a right secured by
federal law or the Constitution.” (Id., p. 2).1 In the instant case, plaintiff’s allegations are
insufficient to state a claim upon which relief may be granted by this Court.
First, it appears clear from the face of the complaint that it is time-barred. A civil rights

1

It is noted that plaintiff is unable to prevail on any claim that other jurisdictional provisions apply in this
case, which would permit this Court to entertain her complaint. Plaintiff has not alleged any facts even remotely
suggesting that defendant violated a federal statute. Moreover, there is no diversity of citizenship between the
parties for diversity jurisdiction to lie under 28 U.S.C. § 1332(a)(1) for consideration of any state-law breach-ofcontract or tort claims alleged by plaintiff in this case. Cf. Riser v. Pollitt, 43 F. App’x 912, 913 (6th Cir. 2002)
(finding no basis for diversity jurisdiction where the plaintiff and defendants were all residents of Ohio).

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action under 42 U.S.C. § 1983 is governed by Ohio’s two-year statute of limitations applicable to
personal injury claims. See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989); see also
Ewing v. O’Brien, 115 F. App’x 780, 783 (6th Cir. 2004) (“Section 1983 claims brought in
federal court in Ohio are subject to the two-year statute of limitations period set forth in Ohio
Rev. Code § 2305.11.”); Huffer v. Bogen, No. 1:10cv312, 2011 WL 5037209, at *12 (S.D. Ohio
Oct. 24, 2011) (Weber, J.) (and authorities cited therein) (“With respect to alleged violation[s] of
42 U.S.C. § 1983, such claims are governed by Ohio’s personal injury statute of limitations,
which is two years.”). Here, the two-year limitations period has run with respect to plaintiff’s
claims, which accrued in 2008-2009 during Laufman’s representation of plaintiff’s son and the
subsequent CBA arbitration proceeding. Plaintiff was well aware by September 2009, when she
learned that the CBA matter would not be reopened, of all the facts giving rise to her allegations
against the defendant. Therefore, the complaint under § 1983, filed over two and one-half years
later in April 2012, is time-barred.
In any event, plaintiff’s complaint fails to state a claim for relief under § 1983 against the
defendant. In order to allege a cognizable § 1983 civil rights claim, plaintiff must allege that the
person engaging in the challenged conduct was acting under color of state law and that such
conduct deprived the plaintiff of some right secured by the Constitution or laws of the United
States. See Hines v. Langhenry,

F. A’ppx , No. 09-3354, 2011 WL 5966615, at *3 (6th Cir.

Nov. 30, 2011) (citing Boykin v. Van Buren Twp., 479 F.3d 444, 451 (6th Cir. 2007); Tahfs v.
Proctor, 316 F.3d 584, 590 (6th Cir. 2003)). Neither Laufman nor Laufman’s law firm are state
actors subject to liability under § 1983. See Polk County v. Dodson, 454 U.S. 312 (1981)
(holding that public defender does not act under color of state law for purposes of § 1983);

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Otworth v. Vanderploeg, 61 F. App’x 163, 165 (6th Cir. 2003) (“A lawyer representing a client
is not, by virtue of being an officer of the court, a state actor under color of state law within the
meaning of § 1983.”); McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1979) (applying Polk
County to retained criminal lawyers); see also Catz v. Chalker, 142 F.3d 279, 289 (6th Cir.
1998); Horton v. Martin, 137 F. App’x 773, 775-76 (6th Cir. 2005). Absent any allegation
suggesting that Laufman acted under color of state law by acting in concert with state officials,
plaintiff’s complaint fails to state a claim against the defendant under § 1983. Cf. Horton, 137 F.
App’x at 775-76 (affirming dismissal of § 1983 claim against attorney who represented the
plaintiff in a parole revocation hearing given the lack of any “factual support or evidence upon
which a conspiracy [with state officials] could be based”); see also Twombly, 550 U.S. at 555.
Finally, plaintiff’s allegations do not state a claim of a violation of federal law. A case
arises under federal law when an issue of federal law appears on the face of a well-pleaded
complaint. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). The Court cannot
discern any possible federal claim from the allegations in plaintiff’s complaint. Rather,
construing the complaint liberally, plaintiff’s allegations state only tort and breach-of-contract
claims that are governed by Ohio law. Cf. Riser v. Pollitt, 43 F. App’x 912, 913 (6th Cir. 2002)
(holding that the district court did not err in determining that the complaint did not raise an issue
of federal law, but rather sounded “in state statutory and tort law”). Pendent jurisdiction should
not be exercised to consider the state-law claims because plaintiff has failed to state a viable
federal claim. See United States Mine Workers v. Gibbs, 383 U.S. 715 (1966); see also Brooks
v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (quoting Wojnicz v. Davis, 80 F. App’x 382, 384-85
(6th Cir. 2003)) (“If the federal claims are all dismissed before trial, the state claims generally

6

should be dismissed as well”).
Accordingly, in sum, the Court concludes that the plaintiff's complaint is subject to
dismissal because it is time-barred. In addition, the Court lacks subject matter jurisdiction to
consider the complaint because plaintiff has failed to state a viable federal claim for relief under
42 U.S.C. §1983.
IT IS THEREFORE RECOMMENDED THAT:
1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith,
and therefore, deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997).

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

7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DEBORAH SMITH,
Plaintiff,

Case No. 1:12-cv-304
Weber, J.
Bowman, M.J.

vs
LAUFMAN, JENSON &
NAPOLITANO, LLC,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), within 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific written objections to the proposed
findings and recommendations. This period may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
within 14 days after being served with a copy thereof. Failure to make objections in accordance
with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th
Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).
cbc