Howard v. Reid Hospital et al

Filing 34

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Defendant Ronald Moore's Motion to Dismiss (Doc. 21 ) be GRANTED and this case DISMISSED. 2. The Court certify pursuant to 28 U.S.C. 1915(a)(3) that for the foregoing reasons a n appeal of an Order adopting this Report and Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to appeal in forma pauperis should be denied. 3. The case be terminated on the docket of this Court. Objections to R&R due by 8/27/2012. Signed by Magistrate Judge Sharon L Ovington on 8/10/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CORBIN J. HOWARD,

:

Plaintiff,

:

Case No. 3:11cv00287

v.

:

District Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington

REID HOSPITAL, et al.,

:

Defendants.

:
:

REPORT AND RECOMMENDATIONS1

I.

INTRODUCTION
On July 29, 2009, a man entered the emergency room at Reid Hospital in

Richmond, Indiana, in order to receive care for a laceration to his left forearm. The man
received relatively minor treatment and was discharged a short time thereafter.
According to Defendant Reid Hospital, the man who received care that day was Plaintiff
Corbin J. Howard. (Doc. #18). Plaintiff, however, alleges he was the victim of identity
fraud, perpetrated in part with his ex-wife’s assistance, and never visited the hospital that
day nor received the services rendered. (Doc. #2 at 3-6). Because he denied
responsibility for the bill, it not surprisingly remained unpaid. Eventually, in April 2010,

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

Reid Hospital assigned the debt to Finance System of Richmond, Inc. (Doc. #18-1 at 2930). Thereafter, on May 6, 2010, Finance System of Richmond, Inc., proceeding through
counsel Ronald J. Moore, filed a small claims action in Wayne County, Indiana, against
Corbin J. Howard for the debt. (Doc. #21-1 at 1; Doc. #2 at 3).
Plaintiff Corbin J. Howard, proceeding pro se, subsequently filed this action
against Reid Hospital, Reid Hospital employee Shannon Roshan, and attorney Ronald J.
Moore. (Doc. #2 at 2). Previously, upon initial review under 28 U.S.C. § 1915(d), this
Court found that Plaintiff’s pro se Complaint had raised at least one arguable claim under
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and that sua
sponte dismissal of Plaintiff’s case was not warranted. (Doc. #3).
The case is presently before the Court upon Defendant Ronald J. Moore’s Motion
to Dismiss (Doc. #21), Plaintiff’s Response in Opposition (Doc. #26), an evidentiary
hearing held on May 29, 2012 regarding the issue of personal jurisdiction (See Doc. #32),
and the record as a whole.
II.

MOTION TO DISMISS
Defendant Moore argues that Plaintiff’s Complaint should be dismissed for lack of

subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim.
(Doc. #21) (citing Fed. R. Civ. P. 12(b)(1), (2), (6), 8(a)). Plaintiff opposes Moore’s
Motion to Dismiss, but generally focuses his pro se memorandum in opposition on
attacking the accuracy of factual issues not significant to the analysis set forth below.
(See Doc. #26).
2

A.

Subject Matter Jurisdiction
Defendant Moore requests this Court “dismiss the Plaintiff’s Complaint with

prejudice for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1).” (Doc. #21-1 at 3-4).
“Rule 12(b)(1) motions to dismiss generally come in two varieties: a facial attack
or a factual attack.” Gentek Bldg Products, Inc. v. Steel Peel Litigation Trust, 491 F.3d
320, 330 (6th Cir. 2007) (citation omitted). A facial attack challenges the sufficiency of
the Complaint’s assertion of subject matter jurisdiction. Id. When countering a facial
attack, Plaintiff’s burden to prove subject matter jurisdiction is “not onerous.” Musson
Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996). The allegations in
the Complaint are taken as true, id., and “[i]f those allegations establish federal claims,
jurisdiction exists.” Gentek, 491 F.3d at 330. “Where, on the other hand, there is a factual
attack on the subject-matter jurisdiction alleged in the complaint, no presumptive
truthfulness applies to the allegations. When a factual attack ... raises a factual
controversy, the district court must weigh the conflicting evidence to arrive at the factual
predicate that subject-matter does or does not exist. In its review, the district court has
wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to
resolve jurisdictional facts.” Gentek, 491 F.3d at 330 (citations omitted).
Defendant Moore argues that “[t]he core fact at issue in the instant cause was
adjudicated by the Indiana Small Claims Court, which found that, contrary to Howard’s
claims then and now, he did receive services at Reid and he was liable for his debts.”
3

(Doc. #21-1 at 4). Moore contends that as a result of the small claims court’s ruling, “Mr.
Howard is collaterally estopped from bringing forth the basis of the instant cause.” (Id. at
5). Moore argues that Plaintiff “is clearly requesting this Court review and overturn the
ruling made by the Indiana State Courts on the identical issues,” and that such review is
precluded under the Rooker-Feldman doctrine. (Id. at 5-15). Moore also argues that due
to the Indiana small claims court case against Mr. Howard, this Court is precluded by
Indiana preclusion law from reviewing Mr. Howard’s claims. (Id. at 8).
To the extent Plaintiff’s pro se Complaint can be construed as an attack on the
judgment of the small claims court, Moore is correct that this Court cannot provide the
relief requested therein. In Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68
L. Ed. 362 (1923), the Supreme Court “found that federal district courts were only
empowered with original jurisdiction, and that they did not have appellate jurisdiction to
hear a claim that a state court’s decision was in error.” Todd v. Weltman, Weinberg &
Reis Co., 434 F.3d 432, 436 (6th Cir. 2006) (citing Rooker, 263 U.S. at 416). More
recently, in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 161 L. Ed. 2d
454, 125 S. Ct. 1517 (2005) the Supreme Court “held that the Rooker-Feldman doctrine
applied only to ‘cases brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.’” Todd, 434 F.3d at 436
(quoting Exxon Mobil, 544 U.S. at 1521-22).
Thus, to the extent Plaintiff seeks review of the small claims court’s judgment, this
4

Court is precluded from doing so under the Rooker-Feldman doctrine. To the extent
Plaintiff’s pro se Complaint can be construed as a request for this Court to determine
whether he is liable for the unpaid medical bills, Rooker-Feldman does not preclude
review, but the claims cannot be reviewed due to preclusion law. In dicta, the Exxon
Mobil Court noted that where the plaintiff brought a federal claim after a state court
decision, a district court is not stopped “‘from exercising subject matter jurisdiction
simply because a party attempts to litigate in federal court a matter previously litigated in
state court.’” Todd, 434 F.3d at 436 (quoting Exxon Mobil, 544 U.S. at 1527). Instead,
“even if the independent claim was inextricably linked to the state court decision,
preclusion law was the correct solution to challenge the federal claim, not RookerFeldman.” Id. at 437. Accordingly, in this case Indiana law determines whether the
issues are precluded from being litigated by this Court. See Young v. Twp. of Green Oak,
471 F.3d 674, 680 (6th Cir. 2006) (“Well-settled law directs federal courts to ‘give to a
state court judgment the same preclusive effect as would be given that judgment under the
law of the State in which the judgment was rendered.’” (quoting Migra v. Warren City
Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984)).
Under Indiana Small Claims Rule (“S.C.R.”) 11(F), “[a] judgment shall be res
judicata only as to the amount involved in the particular action and shall not be
considered an adjudication of any fact at issue in any other action or court.” Accordingly,
S.C.R. 11(F) makes clear that Plaintiff cannot relitigate his liability for the medical debt,
and any claims he raised attempting to do so must be dismissed for lack of subject matter
5

jurisdiction. Plaintiff is liable for the amount of the unpaid medical bills and this issue
cannot be relitigated.
Plaintiff, however, not only challenged the determination of his liability for the
medical debt, but sought to recover expenses due to “numerous trips” he took to
Richmond, Indiana “to try to correct this matter.” (Doc. #2 at 7). Such expenses were
due, in part, to legal actions brought against him in Wayne County, Indiana. (Id. at 3-7).
Howard, a resident of Eaton, Ohio, alleged in his Complaint, however, that he did not
sign a financial responsibility form at Reid Hospital. (Id.).
Assuming such facts to be true raises an arguable claim under the venue provision
of the Fair Debt Collection Practices Act. See 15 U.S.C. § 1692i. The venue provision of
the FDCPA specifically provides that “[a]ny debt collector who brings any legal action on
a debt against any consumer shall . . . bring such action only in the judicial district or
similar legal entity – (A) in which such consumer signed the contract sued upon; or (B) in
which such consumer resides at the commencement of the action.” 15 U.S.C. §
1692i(a)(2). Regardless of the amount in controversy, the FDCPA provides district courts
with jurisdiction over claims made pursuant to the Act. 15 U.S.C. § 1692k(d).
Neither the Rooker-Feldman doctrine nor Indiana’s Small Claims Rule 11(F)
preclude this Court’s subject matter jurisdiction over the FDCPA claims. RookerFeldman does not do so because any injury involved was not caused by the state court
judgment. See Todd, 434 F.3d at 437 (holding Rooker-Feldman doctrine does not
preclude subject matter jurisdiction over plaintiff’s claims under the FDCPA where
6

plaintiff does not complain about injuries caused by the state court judgment in a
garnishment proceeding, but by the filing of a false affidavit by defendant in that action).
Small Claims Rule 11(F) also does not preclude subject matter jurisdiction to hear claims
raised under the FDCPA regarding the manner in which the debt was collected because
such an issue was not previously litigated, and due to S.C.R. 11(F)’s restrictive res
judicata effect, is not precluded from being litigated now.
In fact, the very issue of whether Small Claims Rule 11(F) precludes an action
under the FDCPA was recently addressed in Kelley v. Med-1 Solutions, LLC., 952 N.E.2d
817 (Ind. Ct. App. 2011). In this case, the Indiana Court of Appeals determined the
following regarding the effect of S.C.R. 11(F):
Regarding actions for violations of the FDCPA, this court has held that a
plaintiff who brings a claim based on the manner in which a defendant brought an
action in small claims court may bring such claim in an “independent action” and
is not barred by res judicata. See Watson v. Auto Advisors, Inc., 822 N.E.2d 1017,
1028 (Ind. Ct. App. 2005) (finding that the doctrine of res judicata did not bar the
plaintiff from asserting an independent action for, inter alia, violation of the
FDCPA as the action was not an attempt to undermine the validity of the
judgment). Moreover, even where the plaintiff could have raised claims as
counterclaims in the small claims action, the plaintiff is not precluded from
asserting the claims in a separate, independent action. See id; see also Spears, 745
N.E.2d at 877 (holding that plaintiff “was not required to invoke his rights under
the FDCPA during the course of the debt collection claim or risk waiving those
rights altogether” as “[a]n FDCPA claim ‘has nothing to do with whether the
underlying debt is valid,’” but instead “‘concerns the method of collecting the
debt. It does not arise out of the transaction creating the debt[.]’” (quoting Azar v.
Hayter, 874 F. Supp. 1314, 1318 (N.D. Fla. 1995)).
Kelley, 952 N.E.2d at 829-30. The restrictive nature of S.C.R. 11(F) appears to be based
largely upon the informality of small claims proceedings in Indiana. For example, in

7

Bowman v. Kitchel, 644 N.E.2d 878 (Ind. 1995), the Supreme Court of Indiana stated
that:
Small claims court is intended to be a place where such formality is not the order
of the day. Indiana Small Claims Rule 8(A) embodies this policy by declaring:
“The trial shall be informal, with the sole objective of dispensing speedy justice
between the parties according to the rules of substantive law, and shall not be
bound by the statutory provisions or rules of practice, procedure, pleadings or
evidence. . . .” Similar informality extends to the written entries memorializing
small claims decisions. We exempt the judgments issued in small claims courts
from the requirements prevailing in other civil cases. Trial Rule 58(B), which
spells out the contents of judgments, especially declares that it applies “[e]xcept in
small claims cases.”
Bowman, 644 N.E.2d at 879. Similarly, in Cook v. Wozniak, 500 N.E.2d 231, aff’d 513
N.E.2d 1222 (Ind. 1987), the Indiana Court of Appeals noted the following regarding
Small Claims Rule 11(F):
[I]t appears that the rule was intended primarily to limit issue preclusion where
some fact in the small claim action is at issue in another case. It is stated broadly
enough, however, to also apply to claim preclusion to the extent that claim
preclusion would ordinarily bar all matters which might have been litigated but
were not actually litigated in the small claims action. See Town of Flora v.
Indiana Service Corp. (1944), 222 Ind. 253, 53 N.E.2d 161. This would be in
keeping with a limitation whose purpose was to discount far reaching effects based
upon the informality of a small claims proceeding and the limited exposure for
liability.
Cook, 500 N.E.2d at 233. Based on the foregoing, it is clear that while “claim preclusion
would ordinarily bar all matters which might have been litigated but were not actually
litigated in the small claims action,” S.C.R. 11(F) “limits the conclusive effect of small
claims judgments to the very claim determined in the action.” Id.
Accordingly, while Plaintiff’s liability for the amount of the debt cannot be

8

relitigated, the Court does have federal question jurisdiction under 28 U.S.C. § 1331 to
hear claims brought under the FDCPA. Dismissal pursuant to 12(b)(1) is therefore not
warranted.
B.

Personal Jurisdiction
Defendant Moore also requests this Court dismiss Plaintiff’s Complaint for lack of

personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). (Doc. #21-1 at 11).
Lack of personal jurisdiction is a valid ground for moving to dismiss a complaint.
See Fed. R. Civ. P. 12(b)(2). In resolving personal jurisdiction issues, a court “‘may
determine the motion on the basis of affidavits alone; or it may permit discovery in aid of
the motion; or it may conduct an evidentiary hearing on the merits of the motion.’” Serras
v. First Tenn. Bank, N.A., 875 F.2d 1212, 1214 (6th Cir. 1989)(quoting Marine Midland
Bank, N.A. v. Miller, 644 F.2d 899, 904 (2nd Cir. 1981)). “The party seeking to assert
personal jurisdiction bears the burden of demonstrating that such jurisdiction exists.” Bird
v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002). “When the district court holds an
evidentiary hearing to determine jurisdiction . . . Plaintiff must establish jurisdiction by a
preponderance of the evidence.” Youn v. Track, Inc., 324 F.3d 409, 417 (6th Cir. 2003)
(citing Serras, 875 F.2d at 1214)).
In this case, the Court elected to hold an evidentiary hearing regarding the issue of
personal jurisdiction. (Doc. #30). The hearing was held on May 29, 2012, and both
parties – Plaintiff Corbin J. Howard and Defendant Ronald J. Moore – appeared and
proceeded pro se. (Doc. #32). Prior to the hearing, Plaintiff was informed that he
9

“should be prepared to show this Court any contacts Defendant Moore had with the forum
state (Ohio) that may establish either general or specific personal jurisdiction,” and that
“the burden is on Plaintiff to demonstrate personal jurisdiction.” (Doc. #30 at 2).
Plaintiff also was placed on notice that failure to meet this burden would result in
dismissal or transfer of his case. (Id.).
Where, as in this case, “a federal court’s subject matter jurisdiction over a case
stems from the existence of a federal question, personal jurisdiction over a defendant
exists ‘if the defendant is amenable to service of process under the [forum] state’s longarm statute and if the exercise of personal jurisdiction would not deny the defendant[] due
process.” Bird, 289 F.3d at 871.
Ohio’s long-arm statute provides in relevant part:
(A) A court may exercise personal jurisdiction over a person who acts directly or
by an agent, as to a cause of action arising from the person’s:
(1) Transacting any business in this state;
...
(6) Causing tortious injury in this state to any person by an act outside this
state committed with the purpose of injuring persons, when he might
reasonably have expected that some person would be injured thereby in this
state;
Ohio Revised Code Ann. § 2307.382(A)(1), (6). “Although the Ohio Supreme Court has
determined the Ohio long-arm statute does not extend to the constitutional limits of the
Due Process Clause, [the] central inquiry is whether minimum contacts are satisfied so as
not to offend ‘traditional notions of fair play and substantial justice.’” Calphalon Corp. v.
10

Rowlette, 228 F.3d 718, 721 (6th Cir. 2000) (citing Cole v. Mileti, 133 F.3d 433, 436 (6th
Cir. 1998) (citing Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541, 545 n.1
(1994)). “Jurisdiction may be found to exist either generally, in cases in which a
defendant’s ‘continuos and systematic’ conduct within the forum state renders the
defendant amendable to suit in any lawsuit brought against it in the forum state, or
specifically, in cases in which the subject matter of the lawsuit arises out of or is related
to the defendant’s contacts with the forum.” Estate of Thomson v. Toyota Motor Corp.
Worldwide, 545 F.3d 357, 361 (6th Cir. 2008)(citing Nationwide Mut. Ins. Co. v. Tryg
Int’l Ins. Co., 91 F.3d 790, 793 (6th Cir. 1996).
In this case, although Plaintiff clearly expressed his desire at the hearing for this
Court to hear the case, he failed to establish by a preponderance of the evidence that
Defendant Moore had any contacts with Ohio sufficient to establish either general or
specific personal jurisdiction. Plaintiff acknowledged that Moore had not sent him a
letter in Ohio, called him in Ohio, nor otherwise communicated with him in Ohio.
Defendant Moore testified that he is not a resident of Ohio, does not own property in
Ohio, does not do business in Ohio, and – aside from attending the hearing – does not
travel to Ohio. Plaintiff did not present any evidence to contradict these assertions, nor
did he attempt to argue otherwise. In fact, the only possible connection between Moore
and Ohio appears to be that Moore filed the small claims court case in Indiana and caused
service of process to be effectuated upon Plaintiff at his home in Ohio by the Sheriff. Yet
even assuming these actions violated the venue provision of the Fair Debt Collection
11

Practices Act, see 15 U.S.C. § 1692i, and caused tortious injury to Plaintiff in Ohio (an
issue Plaintiff also did not address during the hearing), Plaintiff fell woefully short of
meeting his burden of proving by a preponderance of the evidence that Defendant Moore
filed the small claims lawsuit in Indiana with the purpose of injuring him, or that he might
have reasonably expected Plaintiff would be injured. In fact, Plaintiff did not present any
evidence at the hearing and his few arguments failed to address the issue of personal
jurisdiction. Answers provided by Plaintiff to questions posed by the Court during the
hearing likewise do not assist him in overcoming this burden.
As Plaintiff did not establish by a preponderance of the evidence facts sufficient to
confer personal jurisdiction on Defendant Moore under Ohio’s long-arm statute, this
Court need not further address the additional question of whether exercising jurisdiction
under these circumstances would violate Moore’s right to due process of law.
Plaintiff also did not request, nor otherwise address, transferring this case to
another district court in the event this Court did not confer personal jurisdiction on
Defendant Moore. Accordingly, Plaintiff has also not met his burden2 of proving grounds
sufficient to transfer this case under 28 U.S.C. § 1406, nor does this Court find it to be in
the interest of justice to do so.

2

“[C]ase law in this circuit clearly provides that ‘[t]he burden of establishing jurisdiction is on
the plaintiff,’ and in the absence of the ability to establish jurisdiction in the district in which the
complaint was filed and faced with a motion to dismiss, it seems clear that the plaintiff would have the
burden of proving grounds for a transfer.” Stanifer v. Brannan, 564 F.3d 455, 459 n.1 (6th Cir. 2009)
(quoting Tobin v. Astra Pharm. Prods., Inc., 993 F.2d 528, 543 (6th Cir. 1993)).

12

IT IS THEREFORE RECOMMENDED THAT:
1.

Defendant Ronald Moore’s Motion to Dismiss (Doc. #21) be GRANTED
and this case DISMISSED;

2.

The Court certify pursuant to 28 U.S.C. §1915(a)(3) that for the foregoing
reasons an appeal of an Order adopting this Report and Recommendations
would not be taken in good faith, and consequently, leave for Plaintiff to
appeal in forma pauperis should be denied; and,

3.

The case be terminated on the docket of this Court.

August 10, 2012
s/ Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

13

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served
with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to seventeen days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). 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 Recommendations are based in whole or in
part upon matters occurring of 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
fourteen 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).

14