Pinter v. Michigan Mutual Inc.
ORDER: The R & R 45 is hereby ACCEPTED and APPROVED, Defendant's Objections thereto 47 are OVERRULED, and Defendant's Motion to Dismiss 38 is DENIED. With these rulings, Plaintiff's Objection to Objections 49 is MOOT. Signed by Chief Judge Kevin H. Sharp on 3/28/17. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
MICHIGAN MUTUAL, INC.,
Magistrate Judge Newbern has issued a Report and Recommendation (“R & R”) (Docket No.
45) in which she recommends that Defendant’s Motion to Dismiss (Docket No. 38) be denied.
Having conducted the de novo review required by Rule 72(b) of the Federal Rules of Civil
Procedure, the Court agrees with the recommended disposition and will adopt the R & R.
The Clerk has docketed “objections” from both parties. However, Plaintiff Thomas Pinter’s
objections are more in the nature of a request that this Court affirm the Magistrate Judge. In fact,
he labels his filing as an “Objection to Objections” (Docket No. 49) and, both at the beginning and
the end, he asks the Court to adopt the R & R in full. Thus, and because the Court will accept and
approve the R & R, Plaintiff’s “Objection” will be deemed moot.
Turning to Defendant Michigan Mutual Inc.’s objections, Defendant points to the wellsettled law that, on a motion to dismiss, a court should not consider matters outside the pleading and
argues that the Magistrate Judge erred in doing so. Defendant continues:
Here, the magistrate judge admitted that he improperly considered matters outside
of the pleadings when he relied on Plaintiff’s Response Brief to find that Plaintiff
had stated a claim for disability discrimination by alleging that he could perform the
essential functions of his job as an account executive. See Doc. No. 45. To justify
its reliance on matters outside of the pleadings, the magistrate judge cites to a
footnote in Pegram v. Herdich [sic], 530 U.S. 211, 230 n. 10 (2000) for the assertion
that it “may use Pinter’s brief to clarify allegations in his complaint whose meaning
is unclear.” See id. p. 6. The magistrate judge’s reliance on Pegram is misplaced.
In Pegram, the Supreme Court granted defendant’s motion to dismiss and noted, in
a footnote, that any “uncertainty” about what the Plaintiff meant in the complaint “is
dispelled by her brief.” Id. at 230.
(Docket No. 47 at 3, emphasis in original).1
First, the Supreme Court did not grant defendant’s motion to dismiss; rather, the Supreme
Court reversed the Seventh Circuit’s reversal of the district court’s grant of a motion to dismiss for
failure to state a claim. Second, while the ultimate outcome in Pegram was dismissal, see Herdrich
v. Pegram, 6 F. App’x 480, 481 (7th Cir. 2001) (“Given the directive of the United States Supreme
Court, the decision of the district court holding that count III . . . failed to state a claim upon which
relief could be granted is now affirmed”), it does not follow that dismissal is warranted in this case,
nor does it detract from the fact that the Supreme Court stated it could use plaintiff’s “brief to clarify
allegations in her complaint whose meaning is unclear.” Pegram, 530 U.S. at 230 n.10.
Defendant goes on to acknowledge that pleadings filed by pro se litigants are generally
afforded lenience, but points out there are limits. It cites Pilgrim v Littlefield, 92 F.3d 413, 416 (6th
Cir. 1996) for that assertion, and Well v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) for the
proposition that courts have not been “willing to abrogate basic pleading essential in pro se suits.”
True enough, but the Sixth Circuit has also recognized that “Fed. R. Civ. P. 8(f) . . . provides that
‘all pleadings shall be so construed as to do substantial justice,’” and that “‘[t]he drafting of a formal
pleading presupposes some degree of legal training or, at least, familiarity with applicable legal
While this case was once assigned to Magistrate Judge Bryant, the R & R was authored by
Magistrate Judge Newbern who is not a “he.”
principles, and pro se litigants should not be precluded from resorting to the courts merely for want
of sophistication.’” West v. Adecco Employment Agency, 124 F. App’x 991, 992-93 (6th Cir. 2005)
(quoting Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991)). Magistrate Judge Newbern undoubtedly
attempted to do justice by allowing Plaintiff’s claims to go forward at this time.
Defendant also contends that the R & R “did not address Defendant’s argument that Plaintiff
was not released to work at the time he was terminated” as evidenced by Plaintiff’s allegations “that
his own doctor ‘would not release me as I was not ready,’ and that ‘I’ll never be able to work again
now.’” (Docket No. 47 at 4, citation omitted). It also argues that, “[t]o the extent the magistrate
judge considered matters outside the pleadings, Defendant’s motion should be converted to a
motion for summary judgment.’” (Id. at 5). This is particularly so, Defendant maintains, because
Plaintiff’s present claims are allegedly incongruous with the Award of Benefits he received from
the Social Security Administration.
It is true that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56.” Fed. R. Civ. 12(d). But Rule 12(d) also states that “[a]ll parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion,” id., and
this takes on added significance where a party is proceeding pro se. See Hernandez v. Coffey, 582
F.3d 303, 307 (2nd Cir. 2009) (citations omitted) (stating that “[o]rdinarily, formal notice is not
required where a party ‘should reasonably have recognized the possibility that the motion might be
converted into one for summary judgment’” but that “[i]n the case of a pro se party, . . . ‘[n]otice
is particularly important’ because the pro se litigant ‘may be unaware of the consequences of his
failure to offer evidence bearing on triable issues’”); Christy v. Sheriff of Palm Beach Cnty., 288
Fed. App’x 3059718 (11th Cir. 2008) (citation omitted) (stating that, for purposes of Rule 12(d), “‘a
court should be particularly careful to ensure proper notice to a pro se litigant’”). Certainly,
Defendant can reassert the arguments it now raises in the context of a motion for summary
It is also true that “a plaintiff can plead himself out of court,” Progressive Foods, LLC v.
Dunkin’ Donuts, Inc., 491 F. App’x 709, 711 (6th Cir. 2012) (citation omitted), but this generally
occurs when the “complaint includes ‘facts that establish an impenetrable defense to [his] claims,’”
Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009) or “allege[s] fact that render success on
the merits impossible,” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D. C. Cir. 2000),
or “includ[es] factual allegations that establish that the plaintiff is not entitled to relief as a matter
of law,” O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015). Here, Plaintiff may have
a tough row to hoe in establishing his claims given the allegations he has made, but the Court finds
that he has not pled himself out of court at this juncture.
Accordingly, the R & R (Docket No. 45) is hereby ACCEPTED and APPROVED,
Defendant’s Objections thereto (Docket 47) are OVERRULED, and Defendant’s Motion to Dismiss
(Docket No. 38) is DENIED. With these rulings, Plaintiff’s Objection to Objections (Docket No.
49) is MOOT.
It si SO ORDERED.
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE
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