The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MOSES MCCORMICK, et al., :
: Case No. 2:19-cv-03329
Plaintiffs, :
: JUDGE ALGENON L. MARBLEY
v. :
: Magistrate Judge Jolson
FRANKLIN COUNTY COURT OF COMMON :
PLEAS, DOMESTIC DIVISION, et al., :
:
Defendants. :
OPINION & ORDER
This matter is before the Court on Defendants County of Summit, Summit County Court
of Common Pleas, Summit County Domestic Relations Court, and William Wellemyer’s Motion
to Dismiss. (Doc. 14.) The matter is fully briefed, and the Court will resolve the Motion without
oral argument. For the reasons set forth below, the Court GRANTS Defendants’ Motion [#14].
II. BACKGROUND
Plaintiffs Moses and Mark McCormick filed this RICO action pursuant to 18 U.S.C. § 1962
following a string of events related to their state court proceedings that left them feeling aggrieved.
Plaintiffs make several allegations, many of which are difficult to follow, against various state
courts, agencies, and their employees. With respect to the Defendants at issue in this Motion,
Plaintiffs raise the following complaints:
Summit County Domestic Relations Court
Plaintiffs’ primary contention with the Summit County Domestic Relations Court
is that the Court dismissed Moses McCormick’s divorce action against his wife,
Hsiu-Chen Lu. (Doc. 1 at 227-229.) Plaintiffs allege that this violated Moses
McCormick’s constitutional rights. The dismissal, however, was upheld on appeal
by Ohio’s Ninth District Court of Appeals. (Id. at 230.)
Summit County Court of Common Pleas
Plaintiff Mark McCormick initiated a wrongful death suit in the Summit County
Court of Common Pleas against three defendants, including the Akron’s Children
Hospital, following the death of his ten-year-old nephew. (Id. at 217.) Plaintiffs
allege the Court of Common Pleas obstructed Mark McCormick’s due process
rights to a fair proceeding by, among other things, denying his requests for leave to
file documents with the court while granting them to the opposing party, dismissing
his lawsuit, preventing him from meeting with the presiding judge in person, and
blocking his discovery efforts. (Id. at 217-226.)
William Wellemyer
William Wellemyer is a staff attorney for the Summit County Court of Common
Pleas. (Id. at 233.) Plaintiffs contend that Wellemyer violated Mark McCormick’s
constitutional rights when he ignored a judicial notice that McCormick filed in the
wrongful death suit, changed an in-person status conference to a telephonic status
conference, cancelled a settlement/pre-trial conference after McCormick’s lawsuit
was dismissed on summary judgment, and denied McCormick several leave
requests while granting them to the opposing party. (Id. at 233-237.)
Defendants, including Summit County, Ohio1 who is named separately in this suit, have moved
for the dismissal of Plaintiffs’ Complaint for lack of personal jurisdiction and a failure to state a
claim upon which relief can be granted.2
III. STANDARD OF REVIEW
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for a
failure to state a claim upon which relief may be granted, “[a]ll factual allegations in the complaint
must be presumed true, and reasonable inferences must be made in favor of the non-moving party.”
Mitchell v. BMI Fed. Credit Union, 374 F. Supp. 3d 664, 667 (S.D. Ohio 2019) (quoting Total
1 Although Summit County is named as a Defendant, the Court is unable to find any allegations
directed specifically at the County. Accordingly, Defendant Summit County is DISMISSED from
this suit.
2 This case was initially filed in the District of Arizona but was later transferred to the Southern
District of Ohio. Due to the transfer, Defendants’ personal jurisdiction argument has become
moot.
Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008)). The Court, however, does not have to “accept unwarranted factual inferences.” Id.
(quoting Total Benefits, 552 F.3d at 434). A complaint “must state more than a bare assertion of
legal conclusions to survive a motion to dismiss.” Id. (internal quotations and citations omitted).
Indeed, “[a] plaintiff’s [f]actual allegations must be enough to raise a right to relief above the
speculative level.” Id. (internal quotations and citations omitted).
IV. ANALYSIS
Defendants move to dismiss Plaintiffs’ Complaint for a failure to state a claim upon which
relief can be granted. The Court will address each of Defendants’ arguments, in turn, below.
A. Courts in Ohio are Immune from Civil Suits
Defendants argue that all claims against the Summit County Court of Common Pleas and
the Summit County Domestic Relations Court must be dismissed because Ohio state courts are
not capable of being sued. The Court agrees.
Federal Rule of Civil Procedure 17(b) governs the ability to sue or be sued in federal court.
Fed. R. Civ. P. 17(b). Whether a suit can be brought against a state court is determined by state
law. See Fed. R. Civ. P. 17(b)(3). The Sixth Circuit has held that state courts within Ohio cannot
be sued per Ohio law. See Fields v. Doe, 2008 U.S. App. LEXIS 28481, at *4 (6th Cir. 2008)
(“The Brown County Court of Common Pleas is not an entity capable of being sued. Ohio law
provides that a court cannot be sued. Therefore, Fields cannot maintain a cause of action against
the county court.”) (internal citations omitted). Accordingly, Plaintiffs’ claims against Defendants
Summit County Court of Common Pleas and Summit County Domestic Relations Court are
DISMISSED.
B. Quasi-Judicial Immunity
Next, Defendants argue that William Wellemyer, as an arm of the Summit County Court
of Common Pleas, is entitled to judicial immunity. Again, the Court agrees.
Judicial immunity is immunity from suit. Mireles v. Waco, 502 U.S. 9, 11 (1991). Such
immunity is not overcome by allegations of bad faith or malice; rather, immunity is overcome only
in two scenarios: (1) “a judge is not immune from liability for nonjudicial actions, i.e., actions not
taken in the judge’s judicial capacity”; and (2) “a judge is not immune for actions, though judicial
in nature, taken in complete absence of all jurisdiction.” Id. at 11-12. Importantly, judicial
immunity extends to those who are not judges, but “who perform ‘quasi-judicial’ duties.” Bush v.
Rauch, 38 F.3d 842, 847 (6th Cir. 1994). Indeed, “quasi-judicial immunity extends to those
persons performing tasks so integral or intertwined with the judicial process that these persons are
considered an arm of the judicial officer who is immune.” Id. The Sixth Circuit has recognized
court clerks as being immune from suit when they merely carry out the directions of a judge. See
Foster v. Walsh, 864 F.2d 416, 417-18 (6th Cir. 1988).
Here, each of the allegations in Plaintiffs’ Complaint relate to Mr. Wellemyer’s actions as
a staff attorney for the court. It appears that Wellemyer’s role is equivalent to that of a judicial
law clerk or case manager, who themselves are direct extensions of the judge. For example,
Wellemyer granted and denied requests for leave to file documents with the court, scheduled status
conferences with the judge, and ordered/cancelled settlement and pre-trial hearings. These, of
course, are acts that can only be taken at the direction of the presiding judge. Mr. Wellemyer’s
actions are therefore immune from liability. See Bradley v. United States, 84 F. App’x 492, 493
(6th Cir. 2003) (“The district court properly held that the judicial defendants were immune from
suit. Bradley attempted to hold Judges Weber and Dlott, law clerk Snyder, and court clerk Murphy
liable for delays in his § 2241 petition. These defendants were acting in their judicial and quasi-
judicial duties, and so are immune from suit.”). Accordingly, Plaintiffs’ claims against Defendant
William Wellemyer are DISMISSED.
V. CONCLUSION
For the reasons stated herein, the Court GRANTS Defendants’ Motion to Dismiss [#14].
Defendants County of Summit, Summit County Court of Common Pleas, Summit County
Domestic Relations Court, and William Wellemyer are hereby DISMISSED from this suit.
IT IS SO ORDERED.
/s/ Algenon L. Marbley___
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: November 12, 2019