Fortkamp v. Timothy Roberson, ABN AMRO MTG. GROUP d.b.a. CT Corporation System et al

Filing 22

REPORT AND RECOMMENDATIONS - It is respectfully recommended that this case be dismissed with prejudice as barred by res judicata. Because res judicata doctrine fully disposes of this case, there is no need to analyze the balance of Defendants' arguments. Objections to R&R due by 3/30/2015. Signed by Magistrate Judge Michael R Merz on 3/11/2015. (kpf1)(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
WESTERN DIVISION AT DAYTON
YVONNE FORTKAMP,
Plaintiff,

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vs

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Case No. 3:14-cv-458
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

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ABN AMRO MORTGAGE GROUP, et al.,
Defendants.

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REPORT AND RECOMMENDATIONS ON DEFENDANTS’ MOTION
TO DISMISS

This case is before the Court on Defendants’ Motion to Dismiss the Complaint for failure
to state a claim on which relief can be granted (Doc. No. 12). Because Plaintiff is proceeding
pro se in this litigation, the Court notified her of her obligation to respond to the Motion not
later than March 2, 2105 (Order to Pro Se Plaintiff, Doc. No. 13).

Plaintiff has not filed a

memorandum in opposition, although she did file a Motion for Judgment on the Pleadings,
indicating Defendant’s Motion was an inappropriate response to her Complaint (Doc. No. 18).
The Magistrate Judge has filed a separate Report on that Motion (Doc. No. 19).
Defendants bring their Motion under Fed. R. Civ. P. 12(b)(6).

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Generally Applicable Law

“The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the
statement of the claim for relief; it is not a procedure for resolving a contest about the facts or
merits of the case.” Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1356 at
294 (1990); see also Gex v. Toys “R” Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct.
2, 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson
County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Stated differently, a motion to dismiss
under Fed.R.Civ.P. 12(b)(6) is designed to test the sufficiency of the complaint. Riverview
Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
The test for dismissal under Fed. R. Civ. P. 12(b)(6) has recently been re-stated by the
Supreme Court:
Factual allegations must be enough to raise a right to relief above the
speculative level, see 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he pleading must
contain something more ... than ... a statement of facts that merely
creates a suspicion [of] a legally cognizable right of action”), on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506,
508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams,
490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“ Rule
12(b)(6) does not countenance ... dismissals based on a judge's disbelief
of a complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint
may proceed even if it appears “that a recovery is very remote and
unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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[W]hen the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, “‘this basic deficiency should ... be
exposed at the point of minimum expenditure of time and money by the
parties and the court.’” 5 Wright & Miller § 1216, at 233-234 (quoting
Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii
1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336,
125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161
L. Ed. 2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc., 289
F. Supp. 2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation)
(“[S]ome threshold of plausibility must be crossed at the outset before a
patent antitrust case should be permitted to go into its inevitably costly
and protracted discovery phase”).
Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and
specifically disapproving of the proposition from Conley that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief”); see also Association of
Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007). In Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made it clear that Twombly applies in all
areas of federal law and not just in the antitrust context in which it was announced.
“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986)(on
a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a
factual allegation.”)

To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to "state a claim to relief that is
plausible on its face." [Twombly], at 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929. 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. Id., at 556, 127 S. Ct.
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1955, 167 L. Ed. 2d 929. The plausibility standard is not akin to a
"probability requirement," but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Ibid. Where a complaint pleads
facts that are "merely consistent with" a defendant's liability, it "stops
short of the line between possibility and plausibility of 'entitlement to
relief.'" Id., at 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (brackets
omitted).
Two working principles underlie our decision in Twombly. First, the
tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id., at 555, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (Although for the purposes of a motion to dismiss we must take all
of the factual allegations in the complaint as true, we "are not bound to
accept as true a legal conclusion couched as a factual allegation"
(internal quotation marks omitted)). Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a
prior era, but it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions. Second, only a complaint
that states a plausible claim for relief survives a motion to dismiss. Id.,
at 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929. Determining whether a
complaint states a plausible claim for relief will, as the Court of
Appeals observed, be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense. 490 F.3d at
157-158. But where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has
alleged -- but it has not "show[n]" -- "that the pleader is entitled to
relief." Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to dismiss
can choose to begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations. When there are wellpleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to
relief.

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Iqbal, 556 U.S. at 678; see also Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008), citing
League of United Latin Am. Citizens. v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)(stating
allegations in a complaint “must do more than create speculative or suspicion of a legally
cognizable cause of action; they must show entitlement to relief”); see further Delay v. Rosenthal
Collins Group, LLC, 585 F.3d 1003, 1005 (6th Cir. 2009), Tam Travel, Inc. v. Delta Airlines, Inc.
(In re Travel Agent Comm’n Antitrust Litig.), 583 F.3d 896, 903 (6th Cir. 2009), New Albany
Tractor v. Louisville Tractor, 650 F.3d 1046 (6th Cir. 2011) (holding a plaintiff is not entitled to
discovery to obtain the necessary plausible facts to plead.)
Under Iqbal, a civil complaint will only survive a motion to dismiss if it “contain[s]
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. ...
Exactly how implausible is "implausible" remains to be seen, as such a malleable standard will
have to be worked out in practice.” Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629630 (6th Cir. 2009).
[Twombly] is not requiring a universal standard of heightened fact
pleading, but is instead requiring a flexible “plausibility standard,”
which obliges a pleader to amplify a claim with some factual
allegations in those contexts where such amplification is needed to
render the claim plausible.
Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007).

“Iqbal thus held that Twombly’s

plausibility standard did not significantly alter notice pleading or impose heightened pleading
requirements for all federal claims. Instead, Iqbal interpreted Twombly to require more concrete
allegations only in those instances in which the complaint, on its face, does not otherwise set
forth a plausible claim for relief.” Weisbarth v. Geauga Park District, 499 F.3d 538, 542 (6th Cir.
2007).

5

Application to this Case

In general, a court may not consider any facts outside the complaint and any attached
exhibits on a motion to dismiss for failure to state a claim. Amini v. Oberlin College, 259 F.3d
493, 502 (6th Cir. 2001); Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th Cir. 2001) (citing 2
James Wm. Moore et al., Moore's Federal Practice § 12.34[2] (3d ed. 2000)). A court may
derive the facts from the exhibits attached to the complaint, if the complaint refers to them and
they are “central to the claims” in it. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430
(6th Cir. 2008), citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001).
In ruling on a motion to dismiss, this Court "may consider [only] the [c]omplaint and any
exhibits attached thereto, public records, items appearing in the record of the case and exhibits
attached to defendant's motion to dismiss so long as they are referred to in the [c]omplaint and
are central to the claims contained therein." Bassett, 528 F.3d at 430; Commercial Money Ctr.,
Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007); Weiner v. Klais & Co., 108 F.3d
86, 89 (6th Cir. 1997).
All of the documents relied on in the Motion to Dismiss are either attached to the
Complaint or are documents which are public records in the Mercer County Common Pleas
Court Case No. 14-CIV-050 (the “Mercer County Case”). It is proper for this Court to take
judicial notice of the public records of other courts. Winget v. JP Morgan Chase Bank, N.A., 537
F.3d 565, 576 (6th Cir. 2008); Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 560 (6th
Cir. 2005); Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999).
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Defendants move for dismissal with prejudice, asserting Fortkamp’s claims are barred by
the claim preclusion branch of res judicata doctrine. They assert that they sued Fortkamp in the
Mercer County Case and that all of the claims she makes here arise out of the same underlying
transaction and were or could have been raised in that case.
Federal courts in subsequent litigation are obliged to give prior state court judgments the
same effect those judgments would be given in the courts of the rendering State. 28 U.S.C.
§1738, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985); Migra v.
Warren City School District Board of Edn., 465 U.S. 75 (1984); Kremer v. Chemical Constr.
Corp., 456 U.S. 461 (1982); Trafalgar Corp. v. Miami County, 519 F.3d 285 (6th Cir. 2008),
citing Hamilton’s Bogarts, Inc. v. State of Michigan, 501 F.3d 644, 650 (6th Cir. 2007); Gutierrez
v. Lynch, 826 F.2d 1534 (6th Cir. 1987); McNasby v. Crown Cork and Seal Co., Inc., 888 F.2d
270 (3rd Cir. 1989). Federal courts are not authorized to recognize exceptions to §1738 to allow
a federal forum for federal claims generally, such as the many federal claims Fortkamp makes
against the Defendants in the Complaint. San Remo Hotel, L.P., v. City of San Francisco, 545
U.S. 323 (2005).
Under Ohio law:
A valid, final judgment rendered upon the merits bars all
subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject matter of the
previous action.
Grava v. Parkman Twp., 73 Ohio St. 3d 379 (1995), syllabus. (Paragraph two of the syllabus of
Norwood v. MacDonald, 142 Ohio St. 299 (1943), overruled; paragraph two of the syllabus of
Whitehead v. Gen. Tel. Co., 20 Ohio St. 2d 108 (1969), overruled to the extent inconsistent
herewith; paragraph one of the syllabus of Norwood, supra, and paragraph one of the syllabus of

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Whitehead, supra, modified; 1 Restatement of the Law 2d, Judgments (1982), §§ 24-25,
approved and adopted.)
This Court has recognized that the relevant Ohio claim preclusion doctrine is set forth in
Grava, 73 Ohio St. 3d 379:
In Ohio, a party seeking to invoke the doctrine of res judicata must
prove four elements: (1) a prior final, valid decision on the merits by a
court of competent jurisdiction;(2) a second action involving the same
parties or their privies, as the first;(3) a second action raising claims
that were or could have been litigated in the first action; and (4) a
second action arising out of the transaction or occurrence that was the
subject matter of the previous action.
Ater v. Follrod, 238 F. Supp. 2d 928, 937 (S.D. Ohio 2002)(Holschuh, J.), quoting In re Fordu,
201 F.3d 693, 703-04 (6th Cir. 1999)(construing Ohio law).
Defendants have proven that there is a valid final judgment in the Mercer County Case
which was not appealed. They have shown that all claims made in the Complaint were or could
have been made in that case.

It is therefore respectfully recommended that this case be

dismissed with prejudice as barred by res judicata. Because res judicata doctrine fully disposes
of this case, there is no need to analyze the balance of Defendants’ arguments.

March 11, 2015.
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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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