Howard v. Moore

Filing 3

REPORT AND RECOMMENDATIONS re 2 - It is respectfully recommended that the Complaint herein be dismissed with prejudice. The Clerk is ORDERED not to issue process in this case except upon further order of a judge of this Court. Objections to R&R due by 7/18/2013. Signed by Magistrate Judge Michael R Merz on 7/1/13. (kje1)

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

:

- vs -

Case No. 3:13-cv-215
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

RONALD J. MOORE,
:
Defendant.

REPORT AND RECOMMENDATIONS; ORDER TO THE CLERK

This action is before the Court for review prior to issuance of process.

Plaintiff was

granted leave to proceed in forma pauperis under 28 U.S.C. §1915. 28 U.S.C. §1915(e)(2), as
amended by the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat.
1321(effective April 26, 1996)(the "PLRA"), reads as follows:
Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the
court determines that
(A) the allegation of poverty is untrue; or
(B) the action or appeal -(i) is frivolous or malicious;
(ii) fails to state a claim upon which relief can be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.

A complaint is frivolous under this statute if it lacks an arguable basis either in law or in fact.
Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989).

In

deciding whether a complaint is “frivolous,” that is, the Court does not consider whether a
plaintiff has good intentions or sincerely believes that he or she has suffered a legal wrong.
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Rather the test is an objective one: does the complaint have an arguable basis in law or fact?
It is appropriate for a court to consider this question sua sponte prior to issuance of
process "so as to spare prospective defendants the inconvenience and expense of answering such
complaints." Neitzke, 490 U.S. at 324; McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997);
Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The Court "is not bound, as it usually
is when making a determination based solely on the pleadings, to accept without question the
truth of the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Dismissal is
permitted under § 1915(e) only "if it appears beyond doubt that the plaintiff can prove no set of
facts which would entitle him to relief." Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985),
disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d
1177 (6th Cir. 1985). Section 1915(e)(2) does not apply to the complaint of a non-prisoner
litigant who does not seek in forma pauperis status. Benson v. O’Brian, 179 F.3d 1014 (6th Cir.
1999). Filing an in forma pauperis application tolls the statute of limitations. Powell v. Jacor
Communications Corporate, 320 F.3d 599 (6th Cir. 2003)(diversity cases); Truitt v. County of
Wayne, 148 F.3d 644, 648 (6th Cir. 1998)(federal question cases).
In the body of the Complaint, Howard alleges that Case No. 3:11-cv-287, in which he
sued Reid Hospital, Shannon Roshan, and Ronald Moore, was wrongfully dismissed in August,
2012. The same Ronald Moore is the Defendant sued in this action. In that case Magistrate
Judge Sharon Ovington recommended, after an evidentiary hearing, that Moore’s Motion to
Dismiss for lack of personal jurisdiction be granted (Case No. 3:11-cv-287, Report and
Recommendations, Doc. No. 34, PageID 330). Howard filed no objections and Judge Rose
adopted the Report and dismissed the case on August 28, 2012. Id., Doc. Nos. 35 & 36. Howard
took no appeal.

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Howard now seeks to have this Court reopen the judgment in Case No. 3:11-cv-287. He
claims Moore violated the Fair Debt Collection Practices Act by filing a false claim against him
in the Wayne County, Indiana, Courthouse in May, 2010 and again in August, 2010, by adding
Emily Howard as a co-defendant in that case.
The proper method to reopen a judgment is by motion under Fed. R. Civ. P. 60(b), and
not by filing a new lawsuit. That Rule provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a
party or a party’s representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence
which by due diligence could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment. The motion
shall be made within a reasonable time, and for reasons (1), (2),
and (3) not more than one year after the judgment, or proceeding
was entered or taken. A motion under this subdivision (b) does not
affect the finality of a judgment or suspend its operation.

Plaintiff’s claim is that this Court was wrong in dismissing his prior case for lack of
personal jurisdiction because “Corbin Howard is and has been at the same address in Ohio and
that there is no legal binding contract entered into outside of Ohio or the jurisdiction of this
Court.” (Complaint, Doc. No. 1-1, PageID 6.) All of these facts were known to the Court at the
time judgment was entered in the prior case. To put it another way, Plaintiff is not adverting to
any newly-discovered evidence. None of these facts are relevant to the issue decided by Judge
Ovington, to wit, that this Court could not exercise personal jurisdiction over Defendant Moore.
Plaintiff has not shown grounds to reopen the judgment in the prior case.
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Assuming it is proper to bring a new case to obtain relief from the judgment in a prior
case, Plaintiff is barred by the doctrine of collateral estoppel from relitigating the issue of this
Court’s personal jurisdiction over Defendant Moore. That doctrine precludes relitigation of
issues of fact or law actually litigated and decided in a prior action between the same parties and
necessary to the judgment, even if decided as part of a different claim or cause of action. Taylor
v. Sturgell, 553 U.S. 880 (2008); Stern v. Mascio, 262 F.3d 600, 608 (6th Cir. 2001), quoting
Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 660-61 (6th Cir. 1990).
The issue preclusion doctrine applies only if “(1) the precise issue raised in the present case
[was] raised and actually litigated in the prior proceeding; (2) determination of the issue [was]
necessary to the outcome of the prior proceeding; (3) the prior proceeding . . . resulted in a final
judgment on the merits; and (4) the party against whom [issue preclusion] is sought . . . had a full
and fair opportunity to litigate the issue in the prior proceedings.” Stern, 262 F.3d at 608,
quoting Smith v. Securities & Exch. Comm’n, 129 F. 3rd 356, 362 (6th Cir. 1997)(en banc).
The precise issue in question – whether this Court can exercise personal jurisdiction over
Mr. Moore based on his acts related to Mr. Howard – was indeed litigated in the prior case, was
the critical issue in Judge Ovington’s recommendation, resulted in a final judgment, and was
decided after Judge Ovington gave Mr. Howard a full and fair opportunity to litigate the matter,
including holding an evidentiary hearing.
Based on the foregoing analysis, it is respectfully recommended that the Complaint
herein be dismissed with prejudice. The Clerk is ORDERED not to issue process in this case
except upon further order of a judge of this Court.
July 1, 2013.
s/ Michael R. Merz
United States Magistrate Judge
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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).

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