Opinion
Case No. 1:12-cv-402
04-16-2013
JASON LEE NIEMAN, Plaintiff, v. BETH MURPHY, Defendant.
Weber, J.
Litkovitz, M.J.
ORDER AND REPORT AND
RECOMMENDATION
Plaintiff, proceeding pro se, brings this action against defendant Beth Murphy (defendant) under 42 U.S.C. § 1985, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., the Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1-101 et seq., and the Ohio Civil Rights Act, Ohio Rev. Code § 4112.02 et seq., alleging defendant unlawfully conspired with others to violate plaintiff's rights by, inter alia, concealing facts from the Equal Employment Opportunity Commission (EEOC), intimidating witnesses in related litigation to plaintiff's detriment, and engaging in improper litigation tactics designed to prevent plaintiff from prevailing on discrimination claims pending in Illinois. This matter is before the Court on: (1) defendant's motion to dismiss plaintiff's first amended complaint (Doc. 24), plaintiff's response in opposition (Doc. 26), and defendant's reply (Doc. 27); (2) plaintiff's motion to file a second amended complaint (Doc. 28) and defendant's response in opposition (Doc. 30); (3) plaintiff's motion to file a third amended complaint (Doc. 31), defendant's response in opposition (Doc. 34), and defendant's supplement to her response in opposition (Doc. 36); (4) plaintiff's motion to strike defendant's response in opposition to his motion to file a third amended complaint (Doc. 35) and defendant's response in opposition (Doc. 38); (5) plaintiff's motion to strike defendant's supplementation to her response in opposition to plaintiff's motion to file a second amended complaint (Doc. 37) and defendant's response in opposition (Doc. 40); and (6) plaintiff's motion to withdraw his motion to strike defendant's response in opposition to his motion to file a second amended complaint. (Doc. 39). The Court will first address defendant's motion to dismiss plaintiff's amended complaint.
I. Background and Factual Allegations
Plaintiff's first amended complaint alleges the following facts. Plaintiff is an Illinois resident and an insurance claims industry professional. (Doc. 20, ¶ 11). At all relevant times, defendant was a resident of the State of Ohio and was employed by Grange Insurance (Grange) as Assistant Vice President of Legal and Regulatory Compliance. Id., ¶ 12. Grange is affiliated with Integrity Mutual Insurance Co. (Integrity); Grange and Integrity are an integrated enterprise operating in Illinois, Ohio, and Wisconsin. Id.
In July 2009, Integrity advertised an opening for the position of Vice President of Claims in Integrity's Appleton, Wisconsin office. Id., ¶ 13. Plaintiff applied for this position through a job recruiter, Jeff Gipson (Gipson), and underwent an initial interview in February 2010. Id. The Appleton position was not filled at that time and Integrity re-advertised the position through 2011. Id. In May 2011, plaintiff applied for the position again through another recruiter, Mike Tingley (Tingley), who recommended plaintiff for the position. Id., ¶ 14. Plaintiff later called Tingley to follow up on the position; during this conversation plaintiff asked Tingley about whether recruiters and potential employers shared information through databases regarding potential employees' prior Title VII litigation activity. Id., ¶15. Tingley informed plaintiff that he was unaware of any such databases, but that some organizations discriminated against older employees. Id., ¶20. Plaintiff explained that he was concerned that he was being "blacklisted" because he had engaged in prior Title VII litigation. Id., ¶¶17, 26.
Shortly thereafter, Tingley informed plaintiff that he would not be offered the position at Integrity stating that plaintiff's lack of a master's degree in business administration (MBA) was a "dealbreaker." Id., ¶ 18. Plaintiff continued to follow up with Tingley regarding the Integrity position after noting it was reposted. Id., ¶20. In the summer of 2011, plaintiff learned that an individual who was younger than plaintiff and who did not have a MBA was hired to fill the position. Id., ¶22-23. Plaintiff then filed a complaint with the Equal Employment Opportunity Commission (EEOC) asserting that Integrity had unlawfully discriminated against him on the basis of his age. Id., ¶28. Plaintiff received his "right to sue" letter in October 2011 and initiated lawsuits against Integrity and others in Illinois. Id., ¶¶30, 33.
Plaintiff filed an action in the United States District Court for the Central District of Illinois, Nieman v. Grange Mut. Casualty Co., et al., No. 3:11-cv-3404 (C.D. Ill. 2011) (Illinois Suit I). Illinois Suit I involves plaintiff's claims that Grange and Integrity unlawfully discriminated against him on the basis of his age in violation of Title VII, the ADEA, and the Illinois Human Rights Act. See Nieman, No. 3:11-cv-3404, 2012 WL 1467562 (C.D. Ill. Apr. 27, 2012) (denying Grange and Integrity's motion to dismiss). After Illinois Suit I entered the discovery phase, plaintiff filed a second suit against Grange and Integrity: Nieman v. Grange Mut. Ins. Co., et al., No. 3:12-cv-3250 (C.D. Ill. 2012) (Illinois Suit II). Illinois Suit II involves plaintiff's claims that Grange and Integrity unlawfully retaliated against him in violation of Title VII, the ADEA, § 1985, the Illinois Human Rights Act, and the Ohio Civil Rights Act by engaging in improper litigation conduct in Illinois Suit I. See Nieman, No. 3:12-cv-3250, 2013 WL 173466 (C.D. Ill. Jan. 16, 2013). Illinois Suit II was dismissed pursuant to District Judge Mills' grant of Grange and Integrity's motion to dismiss. Id.
On April 2, 2013, the District Judge in Illinois Suit I granted the defendants' motion for summary judgment on all of plaintiff's claims. Nieman, No. 3:11-cv-3404 (Doc. 127) (C.D. Ill. Apr. 2, 2013).
Plaintiff's allegations in the instant case are similar to those raised in Illinois Suits I and II. Notably, plaintiff's initial complaint includes allegations that are verbatim recitals of allegations raised in Illinois Suit I. Compare, e.g., Doc. 1, ¶¶ 17-30 with Nieman, No. 3:11-cv-3404 (Doc. 1, ¶¶ 26-37). For purposes of ruling on the instant motion, the Court focuses on the allegations in plaintiff's 37-page amended complaint relating to defendant Murphy.
Plaintiff alleges that defendant Murphy engaged in the following conduct in her capacity as an executive officer of Grange and/or Integrity, and not as an attorney. (Doc. 20, ¶ 12). Plaintiff's allegations regarding defendant Murphy primarily involve her role in investigating and preparing Integrity and/or Grange's response to plaintiff's EEOC discrimination charges and in orchestrating Grange and/or Integrity's litigation defense in the Illinois lawsuits. See, e.g., Doc. 20, ¶¶ 34, 38, 40-46. For example, plaintiff alleges that the discovery he received in Illinois Suit I demonstrates that Ms. Murphy has: made inconsistent statements regarding Integrity's basis for not hiring plaintiff; encouraged Ms. Cindy Heindel, the Integrity employee who interviewed plaintiff, to exclude information in her response to the EEOC regarding plaintiff's discrimination charge; and improperly failed to disclose information to the EEOC or plaintiff which was supportive of plaintiff's discrimination charge. Id., ¶¶ 34, 37, 39. Plaintiff further alleges that the record evidence demonstrates that defendant Murphy: had knowledge of and encouraged a pattern and practice of age discrimination at Grange and/or Integrity; bribed Gipson to ensure that he provided deposition testimony favorable to Grange and/or Integrity; and filed false documents with the Court and/or the EEOC. Id., ¶¶ 40-41. Plaintiff also complains that defendant Murphy is responsible for the conduct of defense counsel in Illinois Suit I and has conspired with said attorneys to preclude plaintiff from presenting discovery obtained in that matter in the instant case. Id., ¶¶43. Likewise, plaintiff alleges that defendant Murphy and defense counsel in Illinois Suit I have conspired against plaintiff by making a counter-demand to settle Illinois Suit I and filing a motion for sanctions. Id., ¶¶42, 44.
Plaintiff's amended complaint includes lengthy allegations summarizing Grange and/or Integrity's discovery responses from Illinois Suit I, such as verbatim recounting of email exchanges between defendant Murphy and Ms. Heindel. See, e.g., Doc. 20, f 38. For brevity's sake, these and other expositional allegations are omitted from the instant opinion.
Plaintiff's amended complaint contains two paragraphs numbered "39." See Doc. 20 at 20-21. The instant reference refers to the first.
In Count I of his amended complaint, plaintiff alleges defendant has violated the Ohio Civil Rights Act and committed acts of conspiracy and retaliation against plaintiff by: filing a position statement to the EEOC on behalf of Grange and Integrity in response to plaintiff's discrimination charge; conducting an inadequate internal investigation of plaintiff's discrimination claims; improperly opposing plaintiff's legal claims; directing the litigation in Illinois Suit I, improperly denying plaintiff's allegations therein, and improperly retaliating against him through the threat of counterclaims and sanctions in that action; violating her duty as an officer of the Court to engage in an objective and good faith investigation into plaintiff's discrimination claims; conspiring with Grange and/or Integrity employees to cover up facts relating to plaintiff's discrimination charge; and intimidating, influencing, bribing, and/or dissuading witnesses in Illinois Suit I. Id., ¶¶47-59. Count II, Conspiracy in Violation of 42 U.S.C. § 1985, includes plaintiff's allegations that defendant conspired with others to: discourage his candidacy for the Integrity position; oppose plaintiff's EEOC claims and plaintiff's claims in Illinois Suit I; intimidate and bribe Gipson prior to his deposition in Illinois Suit I; and prevent plaintiff from uncovering evidence of discrimination at Grange and Integrity. Id., ¶¶60-64. In support of Count III, the RICO claim, plaintiff alleges defendant conspired with others, including defense counsel in Illinois Suit I, to unlawfully deprive plaintiff of relief he is entitled to in his lawsuits by covering up Grange and Integrity's discriminatory practices; intimidating Gipson as a witness; and committing mail and/or wire fraud by making false filings with the EEOC in retaliation for plaintiff's lawsuits. Id., ¶¶ 65-70. Lastly, plaintiff's Count IV alleges defendant violated the Illinois Human Rights Act by committing acts of retaliation against plaintiff and, in conjunction with defense counsel in Illinois Suit I, coerced Gipson's testimony through use of threat, intimidation, and/or incentives such that she interfered with the performance of the duties of the Illinois Department of Human Rights. Id., ¶¶ 71-73.
II. Standard of Law on Rule 12(b)(6) Motion to Dismiss
Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, plaintiff's complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atlantic 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." Id. (citing Twombly, 550 U.S. at 556). Furthermore, the plaintiff must provide in the claim "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Twombly, 550 U.S. at 555).
It is well-settled that a document filed pro se is "to be liberally construed" and that a pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. . . ." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized the Supreme Court's "liberal construction" case law has not had the effect of "abrogat[ing] basic pleading essentials" in pro se suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Courts are not required to devote time to a case when the nature of a pro se plaintiff's claim "defies comprehension." Roper v. Ford Motor Co., No. 1:09cv427, 2010 WL 2670827, at *3 (S.D. Ohio April 6, 2010) (Report & Recommendation), adopted, 2010 WL 2670697 (S.D. Ohio July 1, 2010) (citing Jones v. Ravitz, No. 07-10128, 2007 WL 2004755, at *2 (E.D. Mich. July 6, 2007)).
III. Analysis
Defendant moves for dismissal of plaintiff's claims pursuant to Rule 12(b)(6), Fed. R. Civ. P., asserting that: (1) she is immune from liability for all of plaintiff's claims because they are based upon acts taken by her in her role as counsel for Integrity; (2) plaintiff's amended complaint fails to state any legally cognizable claim against her; and (3) plaintiff's state law claims are subject to issue preclusion. (Docs. 24, 36). Defendant's motion is well-taken.
A. Plaintiff has failed to state a claim for conspiracy in violation of 42 U.S.C. § 1985 .
Section 1985 of Title 42 provides a cause of action for conspiracy to deprive individuals equal protection of the law. See 42 U.S.C. § 1985(3). "In order to establish a conspiracy claim under § 1985, a plaintiff must prove '(1) a conspiracy involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws and (3) an act in furtherance of the conspiracy (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States.'" Ashiegbu v. Purviance, 76 F. Supp.2d 824, 830 (S.D. Ohio 1998), aff'd, 194 F.3d 1311 (6th Cir. 1999) (quoting Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994)).
Defendant argues that plaintiff's § 1985 claim falls within the "intra-corporate conspiracy" doctrine, which recognizes that "[a] conspiracy requires a plurality of actors, and because employees [or agents] who work for the same agency or corporation are deemed to be a part of a single entity, they cannot conspire with themselves." (Doc. 24 at 14-15) (quoting Stanley v. Malone, No. 2:07-cv-694, 2010 WL 582596, at* 18 n.12 (S.D. Ohio Feb. 11, 2010). See also Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ, 926 F.2d 505, 509 (6th Cir. 1991). Here, plaintiff has alleged that defendant, in her role as an employee of Integrity, conspired with other Integrity and Grange employees and agents thereof to deprive plaintiff of his right to pursue his discrimination claims against Integrity and Grange. According to plaintiff's allegations, each member of the conspiracy is either an employee or agent of Integrity or Grange. Therefore, defendant's assertion that plaintiff's § 1985 claim is barred by the "intra-corporate conspiracy" doctrine is well-taken.
Plaintiff alleges that Grange and Integrity are an integrated enterprise, see Doc. 20, ¶ 12; thus, taking plaintiff's allegations as true the Court considers Grange and Integrity to be a single business entity.
In his brief in opposition, plaintiff does not contest that the doctrine applies, but citing to Doe 20 v. Board of Educ. Of Cmty. Unit Sch. Dist. No. 5, 680 F. Supp.2d 957, 979-80 (C.D. Ill. 2010), he argues that it does not preclude his claim. Plaintiff appears to contend that because the Doe plaintiff's § 1985 claim survived despite allegations of a conspiracy among employees of a single entity, that his claim likewise survives. Plaintiff's brief and conclusory citation to the Doe case fails to accurately portray its limited holding. In denying the Doe defendants' motion to dismiss the § 1985 conspiracy claim, the court relied on an exception to the "intra-corporate conspiracy" doctrine created by the Seventh Circuit whereby certain types of extensive discriminatory practices and allegations of conspiracy are not afforded protection under the doctrine. Id. (citing cases). In applying the exception to the Doe facts, the court noted that the allegations that the defendants (employees of an elementary school) conspired to protect themselves and a first-grade teacher who had been accused of sexually abusing his students were sufficiently egregious to justify permitting the claim to proceed at the pleading stage. Id. at 980-81. Notably, the Doe court opined that applying the exception was a "close call" but that the matter was more properly suited for summary judgment given the "egregious circumstances." Id. The instant allegations fall far short of this standard. Plaintiff has simply alleged that defendant and certain co-employees and agents of Grange and Integrity conspired to prevent him from being hired by Integrity and unlawfully interfered with Illinois Suit I such that he has been deprived of his right to prosecute his discrimination claims. (Doc. 20, ¶¶ 60-64). Such allegations do not describe the type of "egregious circumstances," e.g., the sexual abuse of grade school children, necessary to overcome defendant's valid "intra-corporate conspiracy" doctrine defense. See Wright v. Ill. Dept. of Children & Family Srvs, 40 F.3d 1492, 1508-09 (7th Cir. 1994) (upholding dismissal of § 1985 conspiracy claim where the individual defendants were employees of the same entity). Accordingly, plaintiff's § 1985 claim should be dismissed.
Assuming, arguendo, that plaintiff's allegations are sufficient to justify excepting his claim from the doctrine, it should nevertheless be dismissed because plaintiff has not alleged facts that would entitle him to relief. To state a § 1985 conspiracy claim, plaintiff's allegations must be factually specific and include: "(1) specific conduct that violated his rights, (2) the time and place of that conduct and (3) the identity of the responsible parties." Ashiegbu, 76 F. Supp.2d at 830. Plaintiff's amended complaint fails to allege any specific dates, times, or locations regarding the defendant's purported conspiratorial acts. Further, his allegations that defendant "appear[s]to have operated in concert or conspiracy" during the EEOC investigation and that her "actions ... suggest evidence of witness bribery" are speculative and unsupported by specific facts. (Doc. 20, ¶¶ 61-62). Such vague assertions do not suffice to state a § 1985 conspiracy claim. The undersigned therefore finds that plaintiff has failed to state a claim for relief under 42 U.S.C. § 1985.
B. Plaintiff has failed to state a RICO claim.
Defendant contends that plaintiff's civil RICO claim must be dismissed as his amended complaint fails to include certain prerequisite factual allegations. Specifically, defendant identifies that plaintiff's allegations that defendant engaged in racketeering activity by making "false filings with the U.S. EEOC (mail fraud and/or wire fraud)" and engaged in "witness bribery and/or intimidation" are unsupported, conclusory, and insufficient to state a RICO claim. (Doc. 24 at 17) (quoting Doc. 20, ¶¶ 62, 68).
The RICO statute, most commonly used to target criminal enterprises, includes a civil liability component. Section 1964(c) of Title 18 provides a cause of action for private individuals who have been injured in "business or property by reason of a violation of [18 U.S.C. § 1962] . . . ." 18 U.S.C. § 1964(c). As best the Court can surmise, plaintiff appears to allege a violation of § 1962(c) which provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.18 U.S.C. § 1962(c). A "pattern of racketeering activity" requires "at least two acts of racketeering activity. . . ." 18 U.S.C. § 1961(5). "[Racketeering activity" includes "any act which is indictable" including bribery under 18 U.S.C. § 201, mail fraud under 18 U.S.C. § 1341, and wire fraud under 18 U.S.C. § 1343. 18 U.S.C. § 1961(1)(B). Thus, to state a RICO claim, plaintiff must allege "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985).
Defendant argues that plaintiff's RICO claim is insufficiently pled because plaintiff has failed to allege facts sufficient to state a claim based on the predicate acts of mail and/or wire fraud. The undersigned agrees.
First, plaintiff's amended complaint fails to allege sufficiently specific facts supporting his allegations that defendant engaged in the predicate acts of mail or wire fraud. Rule 9(b) of the Federal Rules of Civil Procedure provides that: "[i]n alleging fraud ... a party must state with particularity the circumstances constituting fraud. . . ." Fed. R. Civ. P. 9(b). To meet the heightened pleading requirement of Rule 9(b), plaintiff must allege, at a minimum, "the time, place, and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud." Coffey v. Foamex L.P., 2 F.3d 157, 161-62 (6th Cir. 1993) (internal quotations omitted). "The elements of mail and wire fraud are: (1) a scheme to defraud, and (2) use of the mails, or of an interstate electronic communication, respectively, in furtherance of the scheme." Advocacy Org. for Patients & Providers v. Auto Club Ins. Assoc., 176 F.3d 315, 322 (6th Cir. 1999). "Courts have repeatedly held in RICO cases alleging mail fraud and wire fraud as the 'predicate acts', the underlying fraudulent activities must be pled with particularity." Berent v. Kemper Corp., 780 F. Supp. 431, 448 (E.D. Mich. 1991), aff'd, 973 F.2d 1291 (6th Cir. 1992); Kenty v. Bank One, 92 F.3d 384, 390 (6th Cir. 1996).
Here, plaintiff's allegations of defendant's purported fraud are insufficient to state a legally cognizable RICO claim. Plaintiff has alleged only that defendant made "apparent false filings with the U.S. EEOC (mail fraud and/or wire fraud) . . . ." (Doc. 20, f 68). While plaintiff has included defendant's "Position Statement" to the EEOC in response to his discrimination and retaliation charge, his RICO claim remains deficient as plaintiff fails to allege with any specificity the time and place of the alleged misrepresentation; what representations in the "Position Statement" are false; or how the filing of the "Position Statement" has proximately caused injury to plaintiff. Notably, plaintiff's allegation that the "Position Statement" is apparently a false filing is insufficient to allege that defendant, in fact, made a fraudulent statement. The complaint is also vague, at best, as to what statements or omissions made by defendant amount to fraudulent misrepresentation. "[W]ithout an adequately detailed description of the predicate acts of mail and wire fraud, a complaint does not provide either the defendant or the court with sufficient information to determine whether or not a pattern of racketeering activity has been established." Jepson, Inc. v. Makita Corp., 34 F.3d 1321, 1328 (7th Cir. 1994). As plaintiff's amended complaint does not provide sufficiently specific details regarding defendant's alleged fraudulent activities, it fails to state a cognizable RICO claim.
Further, plaintiff's allegation that he has suffered damages resulting from defendant's conduct such as "significant mental anguish, humiliation, degradation, physical and emotional pain and suffering, inconvenience, lost wages and executive incentives, lost employment benefits, lost future promotional opportunities and future pecuniary losses, and unfounded damage to his personal and professional reputation by virtue of [defendant's] improper and unwarranted publication as to protected conduct[,]" is vague and describes damages unrelated to defendant's purported fraudulent scheme. (Doc. 20, ¶ 70).
A plaintiff raising a RICO claim "can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation [of RICO]." Sedima, 473U.S. at 495; 18 U.S.C. § 1964. To state an injury under RICO, plaintiff must allege a "concrete financial loss and not merely injury to a valuable intangible property interest." Maio v. Aetna, Inc., 221 F.3d 472, 483 (3d Cir. 2000). Plaintiff's allegations of emotional distress and physical injury fail to state a concrete financial loss. See Echeverria v. BAC Home Loans Servicing, LP, No. 6:10-cv-1933, 2012 WL 1081176 (M.D. Fla. Mar. 30, 2012) (allegations of personal physical and emotional injuries are insufficient to state a RICO claim). Plaintiff's allegations regarding his potential lost future income as it relates to damage to his reputation likewise fail to state a concrete financial loss as "such losses are not compensable under RICO." Lauter v. Anoufrieva, 642 F. Supp.2d 1060, 1086 (C.D. Cal. 2009) (citing Diaz v. Gates, 420 F.3d 897, 902 (9th Cir. 2005)). To the extent plaintiff alleges future pecuniary losses, this injury is speculative and fails to allege an injury under RICO. See Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 24 (2d Cir. 1990) (listing cases where allegations of pecuniary losses were insufficient to state a RICO claim). Lastly, insofar as plaintiff alleges that defendant's "Position Statement" caused the EEOC to dismiss plaintiff's charge (Doc. 20, ¶ 55), there are no allegations supporting this conclusory allegation.
Plaintiff's amended complaint fails to sufficiently allege the predicate acts of mail or wire fraud and fails to allege damages which are compensable under RICO. Accordingly, plaintiff's RICO claim fails and should be dismissed.
C. The Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims.
Given the undersigned's finding that plaintiff has failed to state a legally cognizable federal claim, it is not necessary to address the merits of plaintiff's state law claims. Pursuant to 28 U.S.C. § 1367(c)(3), the district court has the discretion to dismiss claims over which it has supplemental jurisdiction when it has dismissed all claims over which it has original federal jurisdiction. Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 546 (6th Cir. 1999). Moreover, the Sixth Circuit has recognized a general rule disfavoring a district court's exercise of supplemental jurisdiction when federal question claims are dismissed before trial. See Gaff v. Federal Deposit Ins. Corp., 814 F.2d 311, 319 (6th Cir. 1987) (citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966)). See also Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) ("If the federal claims are all dismissed before trial, the state claims generally should be dismissed as well.") (quoting Wojnicz v. Davis, 80 F. App'x 382, 384-85 (6th Cir. 2003)). Therefore, if the District Judge adopts the undersigned's recommendation to grant defendant's motion to dismiss, then it is recommended that the Court decline to exercise supplemental jurisdiction over plaintiff's state law claims and dismiss these claims without prejudice.
The Court now turns to plaintiff's motions to amend.
III. Plaintiff's motions to amend the complaint (Docs. 28, 31)
Plaintiff has filed two motions to amend his complaint to include additional allegations related to defendant's litigation conduct in one of the Illinois lawsuits. Plaintiff has failed to identify the specific additional allegations he seeks to include. However, a review of plaintiff s motion to file a second amended complaint reveals that he seeks to include retaliation claims against defendant pursuant to 42 U.S.C. § 1981, the IHRA, and the OCRA for her role in conducting litigation in Illinois Suit II. (Doc. 28, Ex. 1 at 35-36). Plaintiff's motion to file a third amended complaint includes additional allegations related to these newly proposed claims; additional claims based on filings in the Illinois lawsuits, such as Grange and Integrity's filing of counterclaims against plaintiff; and plaintiff's request to include defendant's direct supervisor, Lavawn Coleman, as a defendant based on his allegations that Mr. Coleman knew or should have known of defendant's purportedly unlawful conduct. See Doc. 31, Ex. 1 at 5-8, 25-26, 38-47. As plaintiff has failed to show any basis for permitting the proposed amendments, the undersigned recommends that his motions to amend be denied.
Plaintiff's motions fail to specify whether the conduct occurred in relation to Illinois Suit 1 or Illinois Suit II.
Rule 15(a), Fed. R. Civ. P., provides that leave to amend a pleading shall be "freely given when justice so requires." Several factors must be considered in determining whether to permit an amendment: (1) undue delay in filing; (2) lack of notice to the opposing party; (3) bad faith by the moving party; (4) repeated failure to cure deficiencies by previous amendments; (5) undue prejudice to the opposing party; and (6) futility of amendment. Coe v. Bell, 161 F.3d 320, 341- 42 (6th Cir. 1998); Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir. 1989). A proposed amended complaint would be futile in as much as it would not withstand a motion to dismiss. See Commercial Money Center, Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 346 (6th Cir. 2007).
Upon careful review, the undersigned finds that plaintiff's motions to amend are not well-taken, as the allegations contained in the proposed amended complaints would not withstand a motion to dismiss. To the extent that plaintiff seeks to raise new claims under 42 U.S.C. § 1981, these claims fail. Section 1981 provides equal rights to "[a]ll persons within the jurisdiction of the United States [that are] enjoyed by white citizens . . . ." 42 U.S.C. § 1981. Consequently, in order to state a claim under § 1981, plaintiff must allege that he was deprived of equal rights based on his race. See St. Francis College v. Al-Khazraji, 481 U.S. 609 (1987). Plaintiff's proposed amended complaints include no allegations that he was discriminated or retaliated against on the basis of his race. Accordingly, his motions to amend to include a § 1981 claim should be denied. To the extent plaintiff's proposed amendments include additional state law claims, the motions to amend should be denied because, as stated above, the Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims in the absence of any federal claims.
The undersigned further notes that in the order granting the Illinois Suit I defendants' motion for summary judgment, the district judge held that plaintiff had engaged in harassing and vexatious litigation, had intimidated Gipson, a witness in that matter, had violated several court orders, and had engaged in other improper litigation tactics which supported an entry of sanctions against him. Nieman, No. 3:11-cv-3404 (Doc. 127 at 49-69) (C.D. Ill. Apr. 2, 2013).
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VII. Conclusion
For the reasons stated herein, IT IS RECOMMENDED THAT defendant's motion to dismiss plaintiff's amended complaint (Doc. 24) be GRANTED and that plaintiff's state law claims be dismissed without prejudice. It is further RECOMMENDED that plaintiff's motions to file a second and third amended complaint (Docs. 28, 31) be DENIED.
Further, IT IS HEREBY ORDERED that plaintiff's motion to withdraw his motion to strike (Doc. 39) be GRANTED. Consequently, plaintiff's motion to strike (Doc. 35) is STRICKEN FROM THE RECORD. Lastly, plaintiff's motion to strike defendant's supplementation (Doc. 37) is DENIED as moot.
______________
Karen L. Litkovitz
United States Magistrate Judge
JASON LEE NIEMAN, Plaintiff,
vs.
BETH MURPHY, Defendant.
Case No. 1:12-cv-402
Weber, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. 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 Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Am, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).