The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WAYNE LEE BROWN-BEY,
Plaintiff,
Case No. 2:19-cv-1221
JUDGE GEORGE C. SMITH
v. Magistrate Judge Vascura
HIRSCHVOGEL, INC., et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court upon Defendant Hope Merry’s (“Merry”) Motion to
Dismiss Plaintiff’s Amended Complaint. (Doc. 24). Additionally, Defendants Deborah Rowe
(“Rowe”) and Hirschvogel Incorporation (“Hirschvogel”) filed a Motion to Dismiss Plaintiff’s
Amended Complaint. (Doc. 28). In response, Plaintiff filed: two affidavits, a document titled
“Conspiracy against Rights,” and a Notice to the Court requesting judgment in Plaintiff’s favor
(Docs. 26, 27, 29, and 30). The timeframe for the parties to submit additional briefing has lapsed
and the motions are ripe for review. For the reasons that follow, both Motions to Dismiss are
GRANTED.
I. BACKGROUND
The Plaintiff initiated this action on April 1, 2019. (See Doc. 1, Compl.). All three
Defendants filed Motions to Dismiss Plaintiff’s original Complaint (Docs. 12–13) and those
Motions were fully briefed.
On August 5, 2019, Plaintiff filed an Amended Complaint without leave from this Court.1
(See generally Doc. 19, Am. Compl.). In the Amended Complaint, Plaintiff contends Merry and
“Deborah Rowe discriminated against [him] because of [his] national origin and religion July of
2018” and “[i]n April or about Hope Merry and Deborah Rowe conspired to steal [his] property
by way of garnishment without due process or hearing.” (Id. at 3). In an attachment to the
Amended Complaint, Plaintiff alleges “I am including Hope Merry in my lawsuit along with
Deborah Rowe and Hirschvogel Inc. for fraud, conspiracy to commit fraud and theft.” (Id., Ex. 1
at 1).
Thereafter, Merry filed a Motion to Dismiss the Amended Complaint on September 4,
2019. (Doc. 24). Subsequently Hirschvogel and Rowe filed their own Motion to Dismiss the
Amended Complaint on October 4, 2019. (Doc. 28). In response, Plaintiff filed a document titled
“Conspiracy against Rights” on October 18, 2019. (Doc. 29).
II. STANDARD OF REVIEW
Defendants bring their motions pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, alleging that Plaintiff has failed to state a claim upon which relief can be granted.
Under 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).
1 Defendants Rowe and Hirschvogel also contend that Plaintiff failed to obtain their written consent to amend his
Complaint. (Doc. 28, Rowe & Hirschvogel Mot. at 1, 5).
Rule 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.
III. DISCUSSION
Defendants have moved to dismiss Plaintiff’s Complaint for failure to state a claim upon
which relief may be granted. In response, Plaintiff has filed a number of documents. The Court
will address these arguments in turn.
1. Exhibits Not Attached to the Complaint
Before discussing the merits of the arguments made in Defendants’ motions, the Court
must first address the affidavits submitted by Plaintiff. (See Doc. 26, Pl. Aff. 2; Doc. 27, Pl.
Aff. 3).
“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56.” Fed. R. Civ. P. 12(d). Sixth Circuit precedent is clear that Rule 12 motions “require[ ]
only one action by the district court for the conversion to a summary judgment motion to occur:
failure to exclude presented evidence.” Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d
494, 503 (6th Cir. 2006).
Neither the affidavit submitted on September 16, 2019, nor the one filed on September 30,
2019, were attached to Plaintiff’s Complaint or Amended Complaint. (Compare Doc. 1-1, Pl.
Aff. 1 with Doc. 26, Pl. Aff. 2 and Doc. 27, Pl. Aff. 3). Accordingly, it would be improper for the
Court to consider these affidavits when ruling on a Rule 12 motion and the Court is disinclined to
convert the pending Rule 12 motions into motions for summary judgment. As such, Plaintiff’s
affidavits (Doc. 26, Pl. Aff. 2; Doc. 27, Pl. Aff. 3), are excluded and the Court shall not consider
these documents when ruling on the merits of the pending motions.
2. Defendants’ Motions to Dismiss the Amended Complaint
It is well-settled that pro se litigants’ pleadings are to be “liberally construed,” and pro se
plaintiffs must be held to “less stringent standards.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Although the Sixth Circuit has recognized
the “liberal construction” standard, basic pleading essentials remain imperative. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989). A complaint merely containing labels and conclusions that are
unsupported by factual assertions, even if filed pro se, is not saved from dismissal if it fails to state
a plausible claim for relief. Iqbal, 556 U.S. at 678–80.
Here, Plaintiff’s Amended Complaint consists of conclusory statements unsupported by
factual assertions, and thus, is not saved from Defendants’ Motions. Likewise, Plaintiff’s
Amended Complaint contains no facts that support a plausible claim of legal liability against the
Defendants. Even when viewed in a light most favorable to Plaintiff under the lenient pleading
standards afforded to pro se litigants, the Amended Complaint fails to state a plausible claim upon
which relief can be granted. Rather, Plaintiff’s Amended Complaint broadly alleges violations of
theft and fraud, but it fails to provide necessary details to render such claims plausible.
IV. CONCLUSION
Based on the foregoing, both Motions to Dismiss are GRANTED.
The Clerk shall REMOVE Documents 24 and 28 from the Court’s pending motions list.
The Clerk shall enter final judgment in favor of Defendants and REMOVE this case from the
Court's pending cases list.
IT IS SO ORDERED
__/s/ George C. Smith_______________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT