Kouekassazo v. Intellisource et al

Filing 3

REPORT AND RECOMMENDATION: Magistrate Judge grants 1 Motion for Leave to Proceed in forma pauperis, RECOMMENDS dismissing 2 Complaint. Objections to R&R due by 2/16/2018. Signed by Magistrate Judge Kimberly A. Jolson on 2/2/2018. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ELOI KOUEKASSAZO,

Plaintiff,
Case No. 2:18-CV-00061-GCS
JUDGE GEORGE C. SMITH
Magistrate Judge Jolson

v.
INTELLISOURCE, ZULILY, INC.,
REMINGER CO.,
Defendants.

REPORT AND RECOMMEDNATION
Plaintiff, Eloi Kouekassazo, an Ohio resident who is proceeding without the assistance of
counsel, brings this action against Defendants Intellisource, Zulily, Inc., and Reminger Co. This
matter is before the undersigned for consideration of Plaintiff’s Motion for Leave to Proceed in
forma pauperis (Doc. 1) and the initial screen of Plaintiff’s Complaint under 28 U.S.C.
§ 1915(e)(2). Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial
officers who render services in this action shall do so as if the costs had been prepaid. 28 U.S.C .
§ 1915(a). Furthermore, having performed an initial screen, for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s claims.
I.

BACKGROUND
Plaintiff brought a previous lawsuit in this Court that is relevant to the current litigation.

Proceeding pro se and in forma pauperis, Plaintiff filed an employment discrimination action
against Defendants IntelliSource and zulily, inc. n/k/a zulily, llc. Lawyers from Reminger Co.
LPA represented the defendants in that action. (See generally Case No. 2-15-cv-2437). This
Court granted Defendants’ Summary Judgment Motion and terminated the case. (2-15-cv-2437,

Doc. 65). Plaintiff appealed, and the Sixth Circuit affirmed this Court’s judgment. (2-15-cv2437, Doc. 71).
Now, in this proceeding, Plaintiff has again sued his former employers (Intellisource and
Zulily, Inc.) and also the law firm that represented them in the previous lawsuit (Reminger Co.,
LPA). The thrust of Plaintiff’s Complaint seems to be that Defendants committed mail fraud by
mailing pleadings from Case No. 2-15-cv-2437 to him directly. (See, e.g., Doc. 1-1 at 3 (“The
mail that I received in September 2016, containing the decision about the case was supposed to
from the district Court, but it was from Reminger Co instead.”). Plaintiff also claims Defendants
have intentionally caused him emotional distress. (Id. at 4).
II.

LEGAL STANDARD
Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set
forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” In
reviewing the Complaint, the Court must construe it in favor of Plaintiff, accept all well-pleaded
factual allegations as true, and evaluate whether it contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). On the other hand, a
complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se

complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic
pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III.

DISCUSSION
In Counts I and II of his Complaint, Plaintiff alleges mail fraud, in violation of 18 U.S.C.

§ 1341, and conspiracy to commit mail fraud. The mail fraud statute, however, is criminal. And,
importantly, there is no private cause of action under 18 U.S.C. § 1341. Bell v. Health-Mor Inc.,
549 F.2d 342, 346 (5th Cir.1977) (“There is no private cause of action under 18 U.S.C. § 1341, a
criminal statute prohibiting mail fraud.”). Accordingly, Plaintiff’s mail fraud claim fails.
Further, to the extent Plaintiff alleges general fraud, such a claim arises under state law.
See 500 Assocs. v. Vt. Am. Corp., 496 F. App'x 589, 591 (6th Cir. 2012) (“Fraud is a state-law
claim[.]”). The same is true for intentional infliction of emotional distress, the third count in
Plaintiff’s Complaint. See, e.g., Blackshear v. Interstate Brands Corp., 495 F. App’x 613, 619–
20 (6th Cir. 2012) (noting the state-law claim of intentional infliction of emotional distress and
applying Ohio law).

When all federal claims are dismissed before trial, state-law claims

“generally should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009).
Because Plaintiff’s federal claim must be dismissed, the Undersigned recommends not exercising
supplemental jurisdiction over the remaining state-law claims pursuant to 28 U.S.C.
§ 1367(c)(3). See Mathis v. Doctor's Hosp. (West), No. 2:12-cv-358, 2012 U.S. Dist. LEXIS
80190 *9–10 (S.D. Ohio June 11, 2012) (adopting recommendation not to exercise supplemental
jurisdiction where federal claims failed).
In sum, Counts I and II fail because Plaintiff has no private cause of action under the mail
fraud statute, 18 U.S.C. § 1341. The remaining claims (fraud and intentional infliction of
emotional distress) arise under state law. As such, Plaintiff has failed to state a claim upon

which relief can be granted. Consequently, the undersigned recommends dismissal. 28 U.S.C.
§ 1915(e)(2).
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.
Date: February 2, 2018

/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE