Flemming v. Gloege

Filing 9

ORDER granting 7 Motion to Dismiss. This case is dismissed with prejudice. The Clerk is DIRECTED to enterd Judgment in favor of Defendant. Signed by Judge Algenon L. Marbley on 10/16/2015. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAY FLEMING,

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Plaintiff,
v.
MARLEANE GLOEGE,
Defendant.

Case No. 2:14-CV-2158
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This matter is before the Court on Defendant Marleane Gloege’s Motion to Dismiss
Plaintiff Jay Fleming’s Complaint. Defendant contends that the Complaint should be dismissed
because the Court lacks subject-matter jurisdiction over Plaintiff’s claim and personal
jurisdiction over Defendant. Defendant further argues that the Complaint should be dismissed
because Plaintiff has failed to state a claim under which relief can be granted. Because the Court
lacks subject-matter jurisdiction over Plaintiff’s claim, Defendant’s Motion to Dismiss is
GRANTED.
I.

BACKGROUND

Plaintiff Fleming and Defendant Gloege were former spouses whose marriage was
dissolved on September 9, 2013 in Pinal County, Arizona. (See Doc. 7-1.) As part of their
Consent Decree of Dissolution of Marriage, the parties agreed that Defendant could continue to
reside at the home they jointly owned, located at 10005 East Cloudview Avenue, Gold Canyon,
AZ 85118, until the property could be sold. (Doc. 7-1 at 9.) The decree provided that Defendant
would make all utility payments, Plaintiff and Defendant would share equally in mortgage

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payments and upkeep on the property, and they would divide equally the proceeds from the
eventual sale of the house. (Id.)
On October 31, 2014, Plaintiff filed a Complaint asserting a breach of contract claim
against Defendant. (Doc. 1.) Although Plaintiff’s complaint is poorly drafted, it appears to
allege that Defendant has breached a contract allowing Plaintiff to possess the home at 10005
East Cloudview Avenue. Although the Complaint contains references to three attached exhibits,
Plaintiff failed to attach any exhibits. (See Doc. 1 paragraph 6.)
Defendant subsequently filed a Motion to Dismiss the Complaint, arguing that dismissal
is required under Federal Rules of Civil Procedure 12(b)(1) and (2) because the Court lacks
subject-matter jurisdiction over the claim and personal jurisdiction over the Defendant. (Doc. 7.)
Defendant also contends that dismissal is warranted under Rule 12(b)(6) because Plaintiff’s
Complaint fails to state a claim upon which relief can be granted. Defendant attached to her
Motion a copy of the divorce decree. (Doc. 7-1.) Plaintiff’s response to the Motion to Dismiss
contains no argument and consists mostly of long excerpts from law-review articles and treatises
that bear little relation to the issues in this case. (Doc. 8.)
II.

ANALYSIS

A federal court “generally may not rule on the merits of a case without first determining
that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the
parties (personal jurisdiction).” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549
U.S. 422, 430-31 (2007). “Customarily, a federal court first resolves doubts about its jurisdiction
over the subject matter” before proceeding to the personal-jurisdiction inquiry. Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 578 (1999). Therefore, the Court will first address Defendant’s
challenge to its subject-matter jurisdiction.

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Motions to dismiss for lack of subject-matter jurisdiction generally fall into two
categories: facial attacks and factual attacks. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co.,
491 F.3d 320, 330 (6th Cir. 2007). A facial attack is a challenge to the sufficiency of the
pleading and requires the court to take all of the allegations in the complaint as true. Carrier
Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012). A factual attack, however, allows
the court to “weigh evidence to confirm the existence of the factual predicates for subject-matter
jurisdiction.” Id. In a factual attack, “no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.” RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).
Defendant presents a factual attack on the Court’s subject-matter jurisdiction, arguing
that Plaintiff’s Complaint must be dismissed because the domestic-relations exception to federal
jurisdiction applies to this case. “The domestic-relations exception deprives federal courts of
diversity jurisdiction if the plaintiff seeks to modify or interpret the terms of an existing divorce,
alimony, or child-custody decree.” Chevalier v. Estate of Barnhart, No. 14-3146, 2015 WL
5729456, at *4 (6th Cir. Oct 1, 2015). The Sixth Circuit has held that the domestic-relations
exception applied where a plaintiff brought a breach-of-contract claim against a defendant based
on an agreement to sell residential real estate that had been incorporated into a divorce decree.
McLaughlin v. Cotner, 193 F.3d 410, 415 (6th Cir. 1999).
As in McLaughlin, the dispute between Plaintiff and Defendant “involves issues arising
out of conflict over a divorce decree,” id. at 413, and “the obligations now imposed [as a result
of the agreement] are not those imposed by the law of contract or torts, . . . but are those imposed
by the divorce decree,” id. at 414. Plaintiff seeks to modify the divorce decree to repossess the

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parties’ jointly-owned home located at 10005 East Cloudview Avenue. Plaintiff has presented
no evidence of any other contract concerning the home besides the divorce decree. The divorce
decree, which Defendant attached to her Motion to Dismiss and may be considered when
weighing evidence to determine if the Court has jurisdiction, establishes that the parties’
agreement regarding the use and sale of the house was incorporated into the divorce decree.
Plaintiff may not “artfully cast a suit seeking to modify or interpret the terms of a divorce,
alimony, or child-custody decree as a state-law contract or tort claim in order to access the
federal courts.” Chevalier, 2015 WL 5729456, at *4 (citing McLaughlin, 193 F.3d at 414-15).
Because the Court lacks subject-matter jurisdiction over Plaintiff’s claim, it need not
address Defendant’s arguments that the Complaint should be dismissed for lack of personal
jurisdiction and failure to state a claim upon which relief can be granted.
III.

CONCLUSION

Defendant’s Motion to Dismiss is GRANTED and this case is DISMISSED with
prejudice. The clerk is directed to enter Judgment in Defendant’s favor.
IT IS SO ORDERED.

s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: October 16, 2015

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