Tretola v. Tretola et al

Filing 12

ORDER granting 4 6 Defendants' Motions to Dismiss. Signed by Judge Gregory L Frost on 6/19/13. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT J. TRETOLA, M.D.,
Plaintiff,
Case No. 2:13-cv-358
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.
REBECCA L. TRETOLA, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of the following filings: a motion to
dismiss (ECF No. 4) filed by Defendant Sheila Minnich; a motion to dismiss filed by Defendants
Sheila Minnich and Rebecca Tretola (ECF No. 6); a memorandum in opposition (ECF No. 8)
filed by Plaintiff, Dr. Robert Tretola; and a reply memorandum (ECF No. 11) filed by Sheila
Minnich and Rebecca Tretola. The Court finds the motions to dismiss well taken.
I.

Background

This case arises out of an action currently pending before the Court of Common Pleas of
Logan County, Ohio, Case No. DR 12 09 0150. (ECF No. 6-1, PAGEID # 20.) In that state court
case, Rebecca Tretola, represented by attorney Sheila Minnich, is seeking a divorce from her
husband, Dr. Robert Tretola. In this federal court case, Dr. Tretola alleges in his pro se
complaint that his estranged wife and her counsel have filed false affidavits with the state court,
which he avers is biased against him. He asserts that the state court has denied him due process
by freezing a retirement account, which purportedly resulted in significant financial hardship and
damage to his name and credit. (ECF No. 2.)

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Defendant Minnich has filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) (ECF No. 4), and Defendants Minnich and Rebecca Tretola have also filed a
joint motion to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6)
(ECF No. 6). Briefing has closed on the motions, which are ripe for disposition.
II.

Discussion

Defendants move this Court to dismiss this case pursuant to Federal Rule of Civil
Procedure 12(b)(1). When subject matter jurisdiction is challenged under Rule 12(b)(1), the
plaintiff has the burden of proving jurisdiction. See Madison-Hughes v. Shalala, 80 F.3d 1121,
1130 (6th Cir. 1996). Motions to dismiss for lack of subject matter jurisdiction fall into two
general categories: facial attacks and factual attacks. A facial attack on subject matter
jurisdiction challenges whether a plaintiff has properly alleged a basis for proper subject matter
jurisdiction, and a district court must regard the allegations of the complaint as true. Ohio Nat’l
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). In contrast, a factual attack is a
challenge to the factual existence of subject matter jurisdiction. No presumptive truthfulness
applies to the factual allegations, and a district court may weigh the evidence in ascertaining
whether jurisdiction exists. Id. The motions present a facial attack on jurisdiction.
This Court can exercise jurisdiction based on diversity under 28 U.S.C. § 1332 or based
on the existence of a federal question under 28 U.S.C. § 1331. The former statute provides that
district courts have subject-matter jurisdiction in an action that meets two basic conditions: (1)
the amount in controversy must exceed $75,000, and (2) there must be complete diversity,
meaning that no defendant is a citizen of the same state as the plaintiff. 28 U.S.C. § 1332. This
is problematic for Dr. Tretola because he pleads Ohio addresses for himself and for Defendants.

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In his complaint, Dr. Tretola does not assert that diversity jurisdiction is based upon the
defendants in the case having diverse citizenship. Rather, he pleads that this Court has
jurisdiction because the firm with which he has his retirement account is an international
company. (ECF No. 2, PAGEID # 5.) But that firm is not a named party in this action. The fact
that the account in question is held at an international firm is thus not relevant to the jurisdiction
issue. Based on the addresses of the parties as pled, no diversity jurisdiction exists.
This leaves federal question jurisdiction. 28 U.S.C. § 1331 provides that district courts
have subject matter jurisdiction in “all civil actions arising under the Constitutions, laws, or
treaties of the United States.” This standard is also problematic for Dr. Tretola because he has
failed to plead any federal claim. Although his pro se complaint is not a model of clarity—it
violates Federal Ruled of Civil Procedure 8 and 10 in numerous ways—this Court can discern
that Dr. Tretola has attempted to plead fraud by Defendants. This is a state law claim that does
not invoke federal question jurisdiction.
The Court recognizes that Dr. Tretola also references violation of his due process rights
by the state court in his complaint. Dr. Tretola does not expressly mention 42 U.S.C. § 1983 in
the pleading, but even if he intended to assert a claim under this statute, there are no factual
allegations pled even suggesting that Defendants are the requisite state actors who might be
subject to liability under § 1983.1 A district court will assume original jurisdiction under § 1331

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In his memorandum in opposition to the motions to dismiss, Dr. Tretola sets forth several
factual allegations that are not in the complaint. The Court cannot consider these allegations as
informing the motions to dismiss. See United States v. Medquest Assocs., Inc., 702 F. Supp. 2d
909, 918 n.2 (M.D Tenn. 2010) (“ ‘It is axiomatic that the complaint may not be amended by the
briefs in opposition to a motion to dismiss.’ ” (quoting Car Carriers, Inc. v. Ford Motor Co., 745
F.2d 1101, 1007 (7th Cir. 1984))). Additionally, Dr. Tretola offers in his memorandum in
opposition to add the state court and its judge to this action if that would confer federal
jurisdiction. It is not the role of this Court to provide a party with legal advice on how to
proceed, and Dr. Tretola’s contingent offer does not amount to a motion to amend.
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“ ‘only [in] those cases in which a well-pleaded Complaint establishes either that federal law
creates the cause of action or that the plaintiff[’]s right to relief necessarily depends on resolution
of a substantial question of federal law.’ ” Eastman v. Marine Mech. Corp., 438 F.3d 544, 549
(6th Cir. 2006) (quoting Thornton v. SW. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990)).
Neither situation exists here. There is also a lack of federal question jurisdiction.
Even if jurisdiction existed, the Court notes that it is questionable whether it should
proceed in entertaining this matter under the Younger abstention doctrine. This doctrine
“prevents federal courts from interfering with ongoing state proceedings ‘when the moving party
has an adequate remedy at law and will not suffer irreparable injury if denied relief.’ ” Carroll v.
City of Mount Clemens, 139 F.3d 1072, 1075 (6th Cir. 1998) (quoting Younger v. Harris, 401
U.S. 37, 43-44 (1971)). It is applicable when a state proceeding “(1) is currently pending, (2)
involves an important state interest, and (3) affords the plaintiff adequate opportunity to raise
constitutional claims.” Id. at 1074.
Here, it is arguably unclear whether Dr. Tretola asks this Court to involve itself in the
ongoing state court case. A fair reading of his complaint suggests, however, that what he wants
is for this Court to disturb the state court’s decisions and inject itself into his divorce
proceedings. Such an invitation is improper. The matter still pending in state court is an action
by Rebecca Tretola seeking divorce from her husband, Dr. Tretola. Divorce and property
division have been held to be important state interests. See Milgrom v. Burstein, 374 F. Supp.2d
523, 530 (E.D. Ky. 2005) (citing Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995)). Further, there
is nothing to suggest that Dr. Tretola cannot raise his due process concerns in the state forum
(and in the state court of appeals, if necessary). Therefore, even if this Court were to assume
arguendo that jurisdiction exists, the fact that part of the relief Dr. Tretola apparently seeks

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would intrude upon the state court proceedings would lead this Court to decline to exercise
jurisdiction.
III.

Conclusion

The Court GRANTS Defendants’ motions to dismiss. (ECF Nos. 4, 6.) The Clerk shall
enter judgment accordingly and terminate this case on the docket records of the United States
District Court for the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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