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Taylor v. Zellen & Zellen, PLLC

United States District Court, Eastern District of Michigan, Southern Division

February 4, 2015

LEVA TAYLOR, Plaintiff,
v.
ZELLEN & ZELLEN, PLLC, MICHAEL JONES, and VICTOR LOTYCZ, Defendants.

OPINION AND ORDER GRANTING MOTION TO DISMISS FILED BY DEFENDANTS VICTOR LOTYCZ AND MICHAEL JONES [ECF NO. 8]

LINDA V. PARKER U.S. DISTRICT JUDGE

Plaintiff filed this lawsuit on June 26, 2014, seeking damages for the alleged violations of her civil rights and state law arising from the execution of an Order to Seize Property by Defendants Michael Jones (“Jones”) and Victor Lotycz (“Lotycz”) (collectively “Defendants”).[1] Plaintiff alleges that Defendants “fraudulently claim[ed] to be court officers” when they executed the Order to Seize Property (hereafter also “Order”). (ECF No. 1 ¶ 7.) She also claims that the Order had expired when Jones seized her property in June 2014. (Id., Facts ¶ 16.) Plaintiff asserts the following claims against Defendants in her Complaint: (I) violation of her Fourteenth Amendment rights under 42 U.S.C. § 1983; (II) conspiracy; (III) fraud; (IV) abuse of process; (V) intentional infliction of emotional distress (“IIED”); (VI) intrusion; and (VII) conversion.

On July 16, 2014, Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2), (4), (5), and (6). (ECF No. 8.) Plaintiff filed a response to the motion on September 29, 2014. (ECF No. 14.) This Court has held the motion in abeyance pending its assessment of whether there is federal subject matter jurisdiction over Plaintiff’s Complaint. (See ECF No. 15.) Having resolved the issue, finding that subject matter jurisdiction exists under 28 U.S.C. § 1331, the Court now addresses Defendants’ motion. The Court has concluded that oral argument will not aid in its disposition of Defendants’ motion and therefore dispensed with oral argument pursuant to Rule 7.1(f). (ECF No. 24.)

Standard of Review

Defendants seek dismissal of Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), (4), (5), and (6).[2] With respect to Rules 12(b)(4) and (5), Defendants contend that Plaintiff failed to serve Jones with the Summons and copy of her Complaint in accordance with the federal rules. The Fifth Circuit Court of Appeals has clarified the difference between these two subdivisions of Rule 12(b): “Generally speaking, ‘[a]n objection under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service, ’ while a ‘Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of the summons and complaint.’ ” Gartin v. Par Pharm. Co., 289 F. App’x 688, 692 (5th Cir. 2008) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Civil § 1353 (3d ed.)). The treatise further explains:

An objection under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service. Technically, therefore, a Rule 12(b)(4) motion is proper only to challenge noncompliance with the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons. A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack of delivery of the summons and complaint. Other than those cases in which it is confused with a motion under Rule 12(b)(5), a motion under Rule 12(b)(4) is fairly rare.

Federal Practice and Procedure Civil § 1353 (footnotes omitted). Because Defendants contest the mode of delivery of the Summons and Complaint, the Court will review their challenge under Rule 12(b)(5).

The plaintiff bears the burden of proving that proper service was effected. Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981); Frederick v. Hydro-Aluminum S.A., 153 F.R.D. 120, 123 (E.D. Mich. 1994). Facts in uncontroverted affidavits may be considered in ruling on a motion to dismiss under Rule 12(b)(5). See Metro. Alloys Corp. v. State Metals Industries, Inc., 416 F.Supp.2d 561, 563 (E.D. Mich. 2006); Shires v. Magnavox Co., 74 F.R.D. 373, 376-77 (E.D. Tenn. 1977); see also Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (“a judge may make factual findings necessary to resolve motions to dismiss for lack of personal jurisdiction, improper venue, and ineffective service of process”).

In comparison, when deciding a Rule 12(b)(6) motion, the court generally may rely only on the allegations in the plaintiff’s complaint and must accept those factual allegations as true. See Kostrzewa v. City of Troy, 247 F.3d 633, 643-44 (6th Cir. 2001); Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). If the court considers matters outside the pleadings, it must convert the motion into one for summary judgment under Rule 56 and “give the parties a ‘reasonable opportunity to present all material made pertinent to such a motion by Rule 56.’ ” Kostrzewa, 247 F.3d at 643-44 (quoting Fed.R.Civ.P. 12(d)). However certain outside matters may be considered by the court without converting the motion into one for summary judgment, such as “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint[.]” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (citing Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)). The Sixth Circuit also has “held that documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the plaintiff’s] claim.” Id. (internal quotation marks and citations omitted).

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). Under the Federal Rules of Civil Procedure, a pleading 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). To survive a motion to dismiss, a complaint need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not “suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

As the Supreme Court has provided, “[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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “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). The plausibility standard “does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556.

In deciding whether the plaintiff has set forth a “plausible” claim, the court must accept the factual allegations in the complaint as true. Id.; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). This presumption, however, is not applicable to legal conclusions. Iqbal, 556 U.S. at 668. Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

Factual Background

According to Plaintiff’s Complaint, Jones came to her home on November 11, 2013, identified himself as a court officer, and showed her the Order to Seize Property. (Compl., Facts ¶¶ 7, 8.) The Order had been issued by the 22nd Judicial District Court, State of Michigan, to satisfy a judgment Echo Management Services, LLC had obtained against Plaintiff on August 7, 2013. (ECF No. 8, Ex. B.) The total amount of the unsatisfied judgment, which included interest, was $ 952.85. (Id. ¶¶ 1-2.) The Order provided that “[s]tatutory ...


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