United States District Court, S.D. Ohio, Eastern Division
Deavers Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court upon Defendant Secretary of State
John Husted's Motion to Dismiss (the
“Motion”). Defendant Husted moved this Court
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) to dismiss Plaintiffs' Complaint for lack of
subject matter jurisdiction and failure to state a claim.
(Doc. 3). Defendant Husted's arguments in support of his
12(b)(1) motion were premised on the idea that Defendant
Husted was being sued in his official capacity.
Plaintiffs' response in opposition clarified that he is
suing the Secretary of State in his personal, and not
official, capacity. (Doc. 4). As such, Defendant Husted's
reply brief focuses solely on the merits of his 12(b)(6)
argument. (Doc. 8). Defendant Husted's Motion is fully
briefed and ripe for review. For the following reasons,
Defendant's Motion is
case arises out of an event that occurred on April 19, 2016,
where Plaintiffs' car was towed while in a parking lot
controlled by FedEx Corporation
(“FedEx”) at 180 North High Street, Columbus, Ohio.
(Doc. 2, Compl. at ¶¶ 11-12). Plaintiff alleges
there was a contract in place between FedEx and Fumble
Recovery LLC (“Fumble Recovery”) that authorized
Fumble Recovery to tow any unauthorized vehicle from the lot.
(Id. at ¶ 11). Plaintiff Albert McCall parked
his vehicle in the lot and entered the FedEx office, where
Plaintiff Bondary McCall arrived shortly after. (Id.
at ¶ 12). Both Albert and Bondary McCall used and paid
for FedEx's services to send and receive faxed documents
and received receipts of their respective transactions.
(Id. at ¶¶ 12-13). While waiting for the
completion of their faxed documents, Bondary McCall noticed
the vehicle being towed outside the office by Fumble
Recovery. (Id. at ¶ 13). Both Albert and
Bondary McCall exited the building to stop the tow and showed
the driver their FedEx receipts, but their efforts were
unsuccessful and the vehicle was towed. (Id.)
Plaintiffs returned to the store and demanded the vehicle be
brought back. (Id.). The FedEx store manager
indicated Fumble Recovery was a third-party contractor and
there was a contract in place with the company that allowed
for Plaintiffs' car to be towed. (Id.).
are seeking to recover $50, 000 each from Defendants Husted
and FedEx, as well as attorneys' fees and court costs.
(Doc. 2, Compl. at ¶ 25). Defendant Husted originally
moved to dismiss Plaintiffs' Complaint for lack of
subject matter jurisdiction and failure to state a claim due
in part to the fact that it was unclear whether Plaintiff was
suing Defendant Husted in his official or individual
capacity. Plaintiffs' response in opposition clarified
that he is suing the Secretary of State in his personal, and
not official, capacity. As such, Defendant Husted's reply
brief focused on Plaintiffs' failure to state a claim
upon which relief can be granted. This Court will focus on
STANDARD OF REVIEW
brings this motion pursuant to Rule 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure. Because Defendant has
clarified that only Rule 12(b)(6) is applicable to
Plaintiffs' claims, the Court need only consider Rule
the Federal Rules, any pleading that states a claim for
relief must contain a “short and plain statement of the
claim” showing that the pleader is entitled to such
relief. Fed.R.Civ.P. 8(a)(2). To meet this standard, a party
must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A claim will be
considered “plausible on its face” when a
plaintiff sets forth “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
12(b)(6) allows parties to challenge the sufficiency of a
complaint under the foregoing standards. In considering
whether a complaint fails to state a claim upon which relief
can be granted, the Court must “construe the complaint
in the light most favorable to the plaintiff, accept its
allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Ohio Police & Fire
Pension Fund v. Standard & Poor's Fin. Servs.
LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). However, “the tenet that a court must accept a
complaint's allegations as true is inapplicable to
threadbare recitals of a cause of action's elements,
supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to
afford plaintiff every inference, the pleading must still
contain facts sufficient to “provide a plausible basis
for the claims in the complaint”; a recitation of facts
intimating the “mere possibility of misconduct”
will not suffice. Flex Homes, Inc. v. Ritz-Craft
Corp of Mich., Inc., 491 F. App'x 628, 632 (6th Cir.
2012); Iqbal, 556 U.S. at 679.
preliminary matter, the Court notes that every plaintiff in a
case must sign the Complaint unless represented by an
attorney pursuant to Rule 11(a) of the Federal Rules of Civil
Procedure. Bondary McCall may not represent Albert and
Richard McCall or any business entity without violating Ohio
Revised Code § 4705.01. Ohio Revised Code § 4705.01
states: “No person shall be permitted to practice as an
attorney and counselor at law, or to commence, conduct, or
defend any action or proceeding in which the person is not a
party concerned, either by using or subscribing the
person's own name, or the name of another person, unless
the person has been admitted to the bar by order of the
supreme court in compliance with its prescribed and published
rules.” Accordingly, Bondary McCall is permitted to
represent himself and his own interests in this case, but he
is not permitted to represent Albert or Richard McCall
without proper licensing. Accordingly, both Albert and
Richard McCall must sign the Complaint in this case or the
Court must strike all of the allegations in the Complaint
relating to their claims. Plaintiffs Albert and Richard
McCall have fourteen days to file an amended complaint with
their signatures or the signatures of a legal representative
affixed or the Court will strike all of their claims from the
Complaint. Ultimately, because the Court finds that the
signatory issue has no bearing on the final outcome of the
Motion, the Court proceeds with the merits of Husted's
Husted has moved to dismiss Plaintiffs' Complaint against
him for lack of subject matter jurisdiction and for failure
to state a claim. The Court need not address Defendant
Husted's jurisdictional arguments as those relied on the
assumption that Plaintiff brought a claim against him in his
official capacity. The arguments regarding ...