United States District Court, N.D. Ohio, Eastern Division
VINCENT M. NIEPSUJ, PLAINTIFF,
J.G. (O.S. Court No. 2809), DEFENDANT.
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE.
the Court is the motion to dismiss filed by defendant, Judge
Joseph Giulitto (“Judge Giulitto” or
“defendant”), pursuant to Fed.R.Civ.P. 12(b)(2),
12(b)(3), and 12(b)(6). (Doc. No. 11 [“MTD”].)
Plaintiff, Vincent Niepsuj (“Niepsuj” or
“plaintiff), has filed a response in opposition. (Doc.
No. 15 [“Opp'n”].) Judge Giulitto filed a
reply. (Doc. No. 16 [“Reply”].) For the reasons
set forth herein, defendant's motion to dismiss is
proceeding pro se, filed this action in the Western
District of New York on April 2, 2018. (See Doc. No.
1.) He filed an amended complaint on October 3, 2019
(hereinafter “complaint”), naming only
“J.G. (O.S. Court No. 2809)” as a
defendant. (Doc. No. 6 [“Compl.”].)
Niepsuj's complaint is difficult to parse but-based on
review of the entire record-it appears that Niepsuj's
grievances stem from a civil protection order
(“CPO”) that was issued against him in March 2016
by the defendant, a visiting judge in the Summit County
Domestic Relations Court.
appealed the CPO and on August 9, 2017, Ohio's Ninth
District Court of Appeals-finding that Judge Giulitto abused
his discretion in issuing the order-vacated the CPO. (Compl.,
Ex. 7 at 126-40.) Niepsuj then filed this §
1983 action alleging that Judge Giulitto violated his First
and Fourteenth Amendment rights by issuing the CPO.
(See Compl. at 52-53.) Niepsuj also appears to be
challenging the constitutionality of Ohio Rev. Code §
3113.31, which governs CPOs.
November 30, 2018, Judge Giulitto filed the instant motion
seeking dismissal on several grounds, including failure to
state a claim, improper venue, and lack of personal
jurisdiction over him in New York. (See MTD at
175-77.) Niepsuj filed a brief opposing the motion to dismiss
and, alternatively, asked the New York District Court to
dismiss his action without prejudice if the court found that
it lacked jurisdiction over the defendant, or to
“transfer venue” to the Northern District of
Ohio. (See Opp'n. at 186.) On March 21, 2019,
the District Court for the Western District of New York
granted Niepsuj's motion to change venue and transferred
the case “to the Northern District of Ohio while
leaving defendant's motion to dismiss …
pending.” (Doc. No. 20 at 234-35.) With the venue and
jurisdictional issues remedied, the sole issue before the
Court is whether the complaint states a claim upon which
relief can be granted under Rule 12(b)(6). It does not.
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the pleading. Davis H. Elliot Co., Inc. v. Caribbean
Util. Co., Ltd., 513 F.2d 1176, 1182 (6th Cir.
1975). A court must dismiss a complaint if it “fail[s]
to state a claim upon which relief can be granted[.]”
Fed.R.Civ.P. 12(b)(6). To state a claim, the complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief[.]
Fed.R.Civ.P. 8(a)(2). Although this standard is liberal,
“[t]o 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.'” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible
“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). If the plaintiff
has not “nudged [his] claims across the line from
conceivable to plausible, [the] complaint must be
dismissed.” Twombly, 550 U.S. at 570 (citation
considering a motion to dismiss, all allegations of fact by
the non-moving party are accepted as true and construed in
the light most favorable to that party. See Grindstaff v.
Green, 133 F.3d 416, 421 (citing Meador v. Cabinet
for Human Res., 902 F.2d 474, 475 (6th Cir. 1990)). The
Court, however, “need not accept as true legal
conclusions or unwarranted factual inferences.”
Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)
(citing Morgan v. Church's Fried Chicken, 829
F.2d 10, 12 (6th Cir. 1987)).
decision of the Ohio Court of Appeals terminated the
controversy in Niepsuj's favor and rendered this action
moot. While Judge Giulitto did not move to dismiss for
mootness, '"the question of mootness is
... one which a federal court must resolve
before it assumes jurisdiction.'” Locke v.
Brown, No. 3:18-cv-697-RGJ, 2019 WL 4675390, at *3 (W.D.
Ky. Sept. 25, 2019) (quoting North Carolina v. Rice,
404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)).
only relief Niepsuj seeks in his complaint is declaratory
relief in connection with the lawfulness of the CPO and the
constitutionality of Ohio Rev. Code § 3113.31. (Compl.
at 69.) Although “declaratory relief is available
against state courts under § 1983[, ]” such claims
are only actionable “when a live controversy continues
to exist.” Ward v. City of Norwalk, 640
Fed.Appx. 462, 468 (6th Cir. 2016) (citations omitted). In
other words, constitutional standing, mootness, and other
jurisprudential doctrines apply to declaratory relief
actions. Cooper v. Rapp, 702 Fed.Appx. 328, 333 (6th
Cir. 2017) (noting that declaratory relief is limited by
abstention doctrines and Article III 's
mootness doctrine requires that there be a live case or
controversy at the time the district court decides the case.
Sullivan v. Benningfield,920 F.3d 401, 410 (6th
Cir. 2019); Cleveland Branch, N.A.A.CP. v. City of
Parma,263 F.3d 513, 530 (6th Cir. 2001) (“A
federal court has no authority to render a decision upon moot
questions or to declare rules of law that cannot affect the
matter at issue.”). If events occur that “deprive
the court of its ability to give meaningful relief, then the
case is moot and must be dismissed.” Sullivan,
920 F.3d at 410 (quoting Ailor v. City of
Maynardville,368 F.3d 587, 596 (6th Cir. 2004)
(internal quotation marks omitted)). “The test for
mootness is whether the relief sought would, if granted, make