Tretola v. Minnich et al

Filing 17

ORDER granting 4 Motion to Dismiss for Lack of Jurisdiction; granting 9 Motion to Dismiss for Lack of Jurisdiction; denying 11 Motion to Amend/Correct; denying 14 Motion to Amend/Correct. Signed by Judge Gregory L. Frost on 11/14/14. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT J. TRETOLA,
Plaintiff,
Case No. 2:14-cv-576
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:
(1) a motion to dismiss filed by Defendant Sheila Minnich (ECF No. 4), a memorandum
in opposition filed by Plaintiff, Robert J. Tretola (“Plaintiff Tretola”) (ECF No. 6), a
reply memorandum filed by Minnich (ECF No. 7), and a sur-reply filed by Plaintiff
(ECF No. 8);1
(2) a motion to dismiss filed by Defendant Rebecca L. Tretola (“Defendant Tretola”)
(ECF No.9);
(3) a motion for leave to file an amended complaint filed by Plaintiff (ECF No. 11) and a
memorandum in opposition filed by Defendant Minnich (ECF No. 12);

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Local Civil Rule 7.2(a)(2) contemplates three types of legal memoranda: a motion, a
memorandum in opposition, and a reply memorandum. The rule provides that “[n]o additional
memoranda beyond those enumerated will be permitted except upon leave of court for good
cause shown.” S.D. Ohio Civ. R. 7.2(a)(2). Because Plaintiff filed his sur-reply memorandum
without having obtained leave of court, this Court will not consider the document. (ECF No. 8.)
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(4) a second motion for leave to file an amended complaint filed by Plaintiff Tretola
(ECF No. 14) and a combined memorandum in opposition filed by Defendant Tretola
that targets both motions to amend (ECF No. 16); and
(5) a document titled “Plaintiff’s Reply to Defendant’s Motion to Dismiss Plaintiff’s
Motion to Amend Complaint” filed by Plaintiff Tretola (ECF No. 13).2
For the reasons that follow, the Court DENIES the motions to amend (ECF Nos. 11 &
16) and GRANTS the motions to dismiss (ECF Nos. 4 & 9).
I.

Background

This case arises out of a divorce case in state court in Logan County, Ohio. In that case,
Defendant Rebecca Tretola, represented by Defendant Sheila Minnich, an attorney, filed for
divorce from Plaintiff, Dr. Robert Tretola. In what is his second federal case related to these
state proceedings, Plaintiff Tretola alleges in his pro se complaint that Defendants have filed
false affidavits with the state court, which he avers is biased against him, in order to procure half
of his Social Security benefits. Plaintiff Tretola asserts claims for abuse of process, fraud,
intentional infliction of emotional distress, and violation of his civil rights. (ECF No. 1 ¶¶ 5-8.)
Defendants have each filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1). (ECF Nos. 4 & 9.) Plaintiff Tretola has in turn filed two motions to amend
his original complaint. (ECF Nos. 11 & 14.) Briefing has closed on the motions, which are ripe
for disposition.

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It is unclear whether Plaintiff Tretola intends for his September 16, 2014 filing to inform the
motion to dismiss briefing in addition to the motion to amend briefing. Affording him some
leniency due to his pro se status, the Court has construed the filing as applicable to all of the
issues before this Court despite the fact that such a construction casts the filing in part as an
additional, impermissible sur-reply.
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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 Plaintiff Tretola because, as in his prior federal case, he again pleads Ohio
addresses for himself and for Defendants. Based on the addresses of the parties, no diversity
jurisdiction exists.
In his complaint, Plaintiff Tretola pleads that this Court has jurisdiction because the state
court action involves Social Security, which he describes as “a Federally mandated program
executed by law by the Federal government created by the Congress of the United States.” (ECF
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No. 1 ¶ 3.) He also asserts that Defendants have violated his civil rights. It thus appears Plaintiff
Tretola is seeking to rely upon 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 Plaintiff Tretola, however, because he has failed to plead any federal claim
that creates jurisdiction. In his complaint, Plaintiff Tretola presents numerous state law claims
and cites to several federal statutes: 18 U.S.C. § 242, 5 U.S.C. § 556(D), 5 U.S.C. § 557, and 5
U.S.C. § 706. The state law claims of course cannot create federal jurisdiction, and none of the
federal statutes provide for a private right of action against the named defendants, if against any
possible defendant. See, e.g., Moore v. Potter, 47 F. App’x 318, 320 (6th Cir. 2002) (upholding
dismissal of a “claim pursuant to 18 U.S.C. § 242 because [a private citizen] has no private right
of action pursuant to 18 U.S.C. § 242, a criminal statute”).
The Court recognizes that Plaintiff Tretola’s claim for “Civil Rights Violated”
conceivably could implicate 42 U.S.C. § 1983. (ECF No. 1 ¶ 8.) 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. There
are also insufficient facts pled as opposed to conclusory speculation that they were part of a
conspiracy with a state actor that would place them within the ambit of a § 1983 action. A
district court will assume original jurisdiction under § 1331 “ ‘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.

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SW. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990)). Neither situation exists here. There is
thus also a lack of federal question jurisdiction.
Dismissal of the original complaint is warranted. Moreover, neither of Plaintiff Tretola’s
two motions for leave to amend change the analysis leading to dismissal of his latest federal
lawsuit. It is not easily discernible whether Plaintiff Tretola intends for the motions to serve as
new complaints or whether he is simply presenting arguments and allegations that he would
incorporate into an amended pleading. What is discernible is that none of the allegations set
forth in the motions present new federal claims or alter the foregoing analysis. Thus, to the
extent that Plaintiff Tretola needs permission to amend his pleading, the Court denies such
permission on the grounds of futility. Although leave to amend should be given “freely . . . when
justice so requires,” Fed. R. Civ. P. 15(a)(2), a court need not grant a motion for leave to amend
“where amendment would be futile.” Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005)
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “Amendment of a complaint is futile when
the proposed amendment would not permit the complaint to survive a motion to dismiss.” Id.
(citing Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th
Cir. 1980)). None of the additional content cures the original complaint defects and establishes
jurisdiction so as to survive dismissal.
Finally, even if jurisdiction existed, the Court notes, as it did in the prior case, that it is
questionable whether this Court 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

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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 again unclear whether Plaintiff Tretola asks this Court to involve
itself in the ongoing state court case. A fair reading of his newest complaint suggests, however,
that what Plaintiff Tretola wants is for this Court to disturb the state court’s decisions and inject
itself into his divorce proceedings because he “has lost all confidence in the legal system in
Ohio.” (ECF No. 1 ¶ 4.) Such an invitation is improper. The divorce is apparently still pending
in the state court system. 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 Plaintiff
Tretola cannot raise his due process concerns in the state forum (and in the state court of appeals,
if necessary); he just does not have faith in Ohio’s courts. Therefore, even if this Court were to
assume arguendo that jurisdiction exists, the fact that part of the relief that Plaintiff Tretola
apparently seeks would intrude upon the state court proceedings would lead this Court to decline
to exercise jurisdiction.
III.

Conclusion

For the reasons that follow, the Court DENIES the motions to amend (ECF Nos. 11 &
14) and GRANTS the motions to dismiss (ECF Nos. 4 & 9). 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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