The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
District Judge Thomas M. Rose
ORDER GRANTING REQUEST TO FILE AMENDED COMPLAINT; REPORT AND RECOMMENDATIONS
This case is before the Court on Motion to Dismiss of Defendant Montgomery County, Ohio, originally filed in the Montgomery County Common Pleas Court on April 11, 2006, and then re-filed in this Court after removal on May 5, 2006 (Doc. No. 5). Plaintiffs' responsive Memorandum in Opposition and Request for Leave to File Amended Complaint was initially filed in the Common Pleas Court on April 28, 2006, but was not filed in this Court until August 21, 2006 (Doc. No. 11). Montgomery County filed a Reply Memorandum in support on May 5, 2006 (Doc. No. 6).
Montgomery County makes no objection to Plaintiffs' being granted leave to amend and their request to do so is GRANTED. Plaintiffs shall re-caption the proposed amended complaint attached to Doc. No. 11 to show that it is being filed in this Court and shall file it electronically forthwith. In its Reply Memorandum, Montgomery County insists that the Amended Complaint does not state a claim for relief. The additional analysis in this Report and Recommendations is therefore directed to the Amended Complaint.
Upon the authority cited by Montgomery County in both its original and reply memoranda, Montgomery County is not sui juris and should be dismissed without prejudice because it is not a suable entity. The further analysis in this Report relating to Montgomery County is premised on the substitution of the Board of County Commissioners.
A motion to dismiss for failure to state a claim for relief is to be considered under Fed. R. Civ. P. 12(b)(6) whose purpose is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. 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). Put another way, "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).
The test for dismissal under Fed. R. Civ. P. 12(b)(6) is a stringent one:
[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.
Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 125 L.Ed. 2d 612 (1993), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed. 2d 338 (1989); Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 229, 81 L.Ed. 2d 59(1984); Monette v. Electronic Data Systems, Inc., 90 F.3d 1173, 1189 (6th Cir. 1996). For purposes of the motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed. 2d 90 (1974); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976); Craighead v. E.F. Hutton & Co., 899 F.2d 485 (6th Cir. 1990). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988); followed Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236 (6th Cir, 1990); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995). The Court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Bare assertions of legal conclusions are not sufficient. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996); Sogevalor S.A. v. Penn Central Corp., 771 F. Supp. 890, 893 (S.D. Ohio 1991). It is only well-pleaded facts which are construed liberally in favor of the party opposing the motion to dismiss. Id., citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed. 2d 90 (1974); see also Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1357 at 311- 318 (1990).
The individual Defendants in this case are City of Trotwood Detective Brad Williams and John Does 1-10. With respect to these alias defendants, Plaintiffs assert:
Defendants John Does are individuals and/or entities whose names could not be ascertained with any certainty prior to filing this Complaint, and have liability in any manner with respect to the following causes of action because they supervised or assisted in the actions of the named Defendants, and/or engaged in separate actions of a similar nature. (Amended Complaint, ¶ 8.) Plaintiffs claim that the names of the John Does are unknown and federal practice allows the use of a "John Doe" designation provided that the person is otherwise sufficiently identified so as to permit service of process. Keno v. Doe, 74 F.R.D. 587 (D.N.J. 1977); see generally Wright & Miller, Federal Practice and Procedure: Civil 3rd § 1321.
However, Plaintiffs have also not alleged any operative facts with respect to any such persons or even sufficient facts to enable them to be served with process. None of the first sixty-four paragraphs of the Amended Complaint, which are the factual allegation paragraphs incorporated by reference in the balance of the pleading, allege any act or omission by any particular "John Doe."
Paragraphs 17-21, 40, 41, 43, 44, and 47 refer to acts of various unidentified Trotwood police officers, but do not state that any of them is one of the unidentified John Does, so that those officers and their employing entity cannot tell if they are alleged to have violated Plaintiffs' rights. Additional factual allegations about actions by persons other than Defendant Williams are made in the passive voice. See, e.g., ¶ 54 ("prosecution ... was based"), ¶ 55 ("simplest of investigations by someone other than Defendant Williams . . . would have revealed"), ¶ 56 ("The case against Robin was then used as leverage. . . ."). However, none of the John Does is said to have committed any of these acts, nor are the persons who did or allegedly should have done these acts otherwise identified. Instead, all of the Defendants are gathered up in one undifferentiated lump and all collectively are alleged to have violated Plaintiffs' rights. These allegations against the John Does do not satisfy the minimal notice pleading requirements of Fed. R. Civ. P. 8. Possible unstated claims ...