Marshall v. Snider-Blake Personnel

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEPHANIE MARSHALL,

Plaintiff,

Case No. 2:22-cv-3736

vs. Judge Edmund A. Sargus, Jr.

Magistrate Judge Elizabeth P. Deavers

SNIDER-BLAKE PERSONNEL,

Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, an Ohio resident who is proceeding without the assistance of counsel, moves

this court for leave to proceed in forma pauperis. (ECF No. 1.) Plaintiff’s request to proceed in

forma pauperis is GRANTED. All judicial officers who render services in this action shall do so

as if the costs had been prepaid. 28 U.S.C. § 1915(a).

This matter is now before the Court for the initial screen of Plaintiff’s Complaint under

28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s

Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which

relief may be granted, or seeks monetary relief from a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow,

it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety. Further,

Plaintiff’s request for oral argument is DENIED.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a 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). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

1Formerly 28 U.S.C. § 1915(d).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

II.

The nature of Plaintiff’s claim is not clearly stated. Construing her pro se Complaint

liberally, however, Plaintiff appears to be attempting, in part, to assert a claim under the Fair

Labor Standards Act, 29 U.S.C.A. § 201 et seq. (“FLSA”), for the untimely payment of wages.2

Additionally, she appears to be asserting a claim for a violation of 41 U.S.C. § 6503 and the

Contract Clause of the United States Constitution. The Complaint also mentions in passing a

breach of a contract between Plaintiff and Snider-Blake.

As the Court understands Plaintiff’s allegations, Defendant Snider-Blake is a temporary

staffing agency. Through Snider-Blake, Plaintiff worked for Big Lots in November 2020. On

November 21, 2020, Plaintiff worked 12 hours for Big Lots and, under the terms of her

agreement with Snider-Blake, she was to be paid for that work on Friday November 27, 2020.3

Plaintiff does not allege that she has not been paid for the work she performed on November 21,

2020, but she alleges that “[a] late payment is considered the same as no payment.” (ECF No. 1-

1 at 9.) Beyond this, several of Plaintiff’s allegations indicate that she pursued claims arising

from these facts in a “lower court” proceeding. (Id. at 7.)

Consistent with these allegations, Plaintiff did, in fact, pursue such claims in state court.

The state appellate court decision confirms this Court’s understanding of Plaintiff’s factual

allegations, explaining and concluding, in relevant part, as follows.

On December 1, 2020, Marshall filed a complaint against Snider-Blake asserting

claims of willful nonpayment and breach of contract.1 Snider-Blake is a temporary

staffing agency. The allegations in the complaint related to the timing of Snider-

Blake's payment to Marshall for her work at Big Lots on November 21, 2020, for

which Snider-Blake placed Marshall. More specifically, Marshall alleged that,

pursuant to the terms of her agreement with Snider-Blake, she should have been

2 Plaintiff’s Complaint does not suggest that it relates in any way to non-payment for overtime

wages. Accordingly, the Court construes Plaintiff’s Complaint as attempting to assert a claim

under § 206 of the FLSA, the minimum wage provision. 29 U.S.C.A. § 206.

3 Plaintiff’s Complaint refers to her scheduled date of payment as Friday November 30, 2020.

This appears to be a typographical error. The Court notes that in 2020, November 30 was a

Monday. Interpreting the scheduled payment date as November 27, 2020 also is consistent with

other allegations in Plaintiff’s Complaint and, as further indicated, the state court’s recitation of

the facts.

paid for her November 21, 2020 work on Friday, November 27, 2020 but was not

actually paid until Monday, November 30, 2020. Marshall alleged the untimely

payment was a breach of the contract she had with Snider-Blake and sought

$250,000 in damages.

…

The matter then proceeded to a bench trial on November 30, 2021. At trial, Marshall

testified that when she worked for Snider-Blake and was placed at Big Lots, she

should have received a paycheck on Friday, November 27, 2020. The expected

paycheck related to work Marshall did at Big Lots on behalf of Snider-Blake on

Saturday, November 21, 2020. Marshall testified that she received her paycheck

three days later, on Monday, November 30, 2020, but that the delay in payment

time was stressful. After the delay in payment, Marshall said she stopped working

for Snider-Blake.

…

Following the trial, the trial court issued a December 1, 2021 decision and judgment

entry rendering judgment in favor of Snider-Blake on all of Marshall's claims.

…

The parties agree Marshall had a contract of employment with Snider-Blake. The

issue at trial was whether Marshall demonstrated a breach of that contract when

Snider-Blake paid her for her November 21, 2020 work at Big Lots. The pertinent

contract language is found in Snider-Blake's Rules and Regulations of employment

and provides:

8. I understand that the workweek at Snider-Blake runs from

Monday through Sunday and that I must record all time worked and

report my time to Snider-Blake by the following Tuesday. I

understand that it is my responsibility to have my supervisor sign

and verify the hours on my time sheet each week.

9. If I encounter a payroll error or a delay in receiving my pay, I will

notify Snider-Blake within 7 days of the week in which the payroll

error occurred.

(Def.’s Ex. A.)

The evidence at trial indicated that Big Lots failed to properly document Marshall's

hours worked and submit them to Snider-Blake in a timely fashion. When Marshall

notified Snider-Blake of the error, Snider-Blake paid Marshall the day after it

received the proper documentation from Big Lots in accordance with the

employment Rules and Regulations. Thus, we agree with the trial court that

Marshall did not demonstrate a breach of the contract.

Moreover, Marshall did not present any evidence of damages that occurred as a

result of the alleged breach. When asked at trial what damages she incurred,

Marshall repeatedly stated that she was not paid on time. Essentially, Marshall

attempted to point to what she deemed proof of the breach as necessarily

demonstrating damages. However, as the evidence submitted at trial demonstrated

that Marshall was paid, in accordance with the employment Rules and Regulations,

the day after Big Lots provided Marshall's completed timecard to Snider-Blake,

Marshall's claim lacks merit. Moreover, though Marshall sought punitive damages

for the allegedly untimely payment, we are mindful that “[p]unitive damages are

not recoverable in an action for breach of contract.” Lucarell v. Nationwide Mut.

Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, paragraph one of the syllabus.

…

The remaining claim in Marshall's complaint is one she deems willful nonpayment.

Through her appellate brief, Marshall does not articulate an argument specific to a

claim of willful nonpayment. Instead, she argues the trial court erred in failing to

find that Snider-Blake violated 41 U.S.C. 6503, Section 1-308 of the Uniform

Commercial Code (“UCC”), the Contract Clause of the United States Constitution,

and/or the Fair Labor Standards Act (“FLSA”).

We agree with the trial court that 41 U.S.C. 6503 is not applicable to Marshall's

claim. 41 U.S.C. 6503 relates to public contracts with the federal government. As

Snider-Blake is not a government agency, 41 U.S.C. 6503 does not apply.

We additionally agree with the trial court that the Contract Clause of the United

States Constitution is inapplicable to this matter. Article I, Section 10, Clause I of

the United States Constitution provides “[n]o State shall * * * pass any * * * Law

impairing the Obligation of Contracts” and relates to the encroachment of a state

upon contracts. See, e.g., Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-

Ohio-5849, ¶ 9 (“the United States Constitution specifically protects against state

encroachment upon contracts”). As this case does not implicate an act of the state

impacting the contract between Marshall and Snider-Blake, the Contract Clause of

the United States Constitution does not apply.

To the extent Marshall asserts the trial court should have found Snider-Blake's

conduct to be a violation of UCC 1-308, we agree with the trial court that UCC 1-

308 does not apply to this matter as the case does not involve a commercial

transaction. See, e.g., Northeast Ohio College of Massotherapy v. Burek, 144 Ohio

App.3d 196, 202 (7th Dist.2001), fn. 6 (Ohio's version of the UCC applies to

“commercial transactions, not employment contracts.”).

Lastly, though Marshall now argues the trial court erred in failing to find Snider-

Blake's conduct was a violation of the FLSA, we note that Marshall's complaint did

not assert a claim for an FLSA violation. See Civ.R. 8(A) (“[a] pleading that sets

forth a claim for relief * * * shall contain (1) a short and plain statement of the

claim showing that the party is entitled to relief, and (2) a demand for judgment for

the relief to which the party claims to be entitled”). Moreover, Marshall's entire

argument related to the FLSA is that Snider-Blake failed to promptly pay her.

However, as we explained in our resolution of Marshall's breach of contract claim,

the evidence at trial demonstrated that Snider-Blake paid her the day after receiving

Marshall's completed timecard from Big Lots. Marshall points to no authority

indicating the timing of her payment from Snider-Blake violates any portion of the

FLSA.

Marshall v. Snider-Blake Bus. Serv., Inc., 2022-Ohio-1869, ⁋⁋ 2, 4, 10, 16-18, 20-24, 2022 WL

1797013, at **1-4 (Ohio 10th Dist. June 2, 2022), appeal not allowed, 2022-Ohio-3322, 167

Ohio St. 3d 1526.

III.

The doctrine of res judicata or claim preclusion operates to bar Plaintiff's claims. Under

the doctrine of res judicata or claim preclusion, “a final judgment on the merits bars any and all

claims by the parties or their privies based on the same cause of action, as to every matter

actually litigated as well as every theory of recovery that could have been presented.” Smith v.

Morgan, 75 F. App'x 505, 506 (6th Cir. 2003). “In determining whether a state-court judgment

has a preclusive effect on a subsequent federal action, the Full Faith and Credit Act, 28 U.S.C. §

1738, requires federal courts ‘to give to a state court judgment the same preclusive effect as

would be given that judgment under the law of the State in which the judgment was rendered.’”

Scott v. City of Detroit, No. 20-11572, 2021 WL 323756, at *2 (E.D. Mich. Feb. 1, 2021)

(quoting Young v. Twp. of Green Oak, 471 F.3d 674, 680 (6th Cir. 2006) (internal quotation

marks and citation omitted)). Thus, “[w]hen a court considers ‘[t]he preclusive effect of a state

court judgment in a subsequent federal lawsuit[,]’ a federal court is to ‘refer to the preclusion law

of the State in which the judgment was rendered[,]’ not the federal court's own res judicata rules.

Armatas v. Aultman Health Found., No. 5:19-CV-00349, 2019 WL 8755140, at *9 (N.D. Ohio

Dec. 19, 2019), report and recommendation adopted, No. 5:19CV349, 2020 WL 1650841 (N.D.

Ohio Mar. 27, 2020) (quoting Marrese v. American Academy of Orthopedic Surgeons, 470 U.S.

373, 379-380 (1985)). Accordingly, Ohio's res judicata law applies here.

“In Ohio, res judicata involves both claim preclusion and issue preclusion.” Hake v.

Simpson, No. 3:17-CV-420, 2018 WL 3973098, at *5 (S.D. Ohio Aug. 20, 2018), aff'd, 770 F.

App'x 733 (6th Cir. 2019) (citing Grava v. Parkman Township, 73 Ohio St.3d 379, 381 (1995)).

“Under claim preclusion, a valid, final judgment on the merits bars all subsequent actions based

on any claim arising out of the transaction or occurrence that was the subject matter of the

previous action.” Id. (citing Kirkhart v. Keiper, 101 Ohio St. 3d 377, 378 (2004)). “Claim

preclusion not only bars claims and defenses that were actually brought in the prior action, but

also those that were part of the same transaction or occurrence that could have been brought.” Id.

(citing Grava, 73 Ohio St. 3d at 382; Kocinski v. Reynolds, No. L-99-1318, 2000 WL 1132778,

at *2, *4 (Ohio 6th Dist. Aug. 11, 2000)). “’Transaction’” is defined as a “’common nucleus of

operative facts.’” Id. (quoting Grava, 73 Ohio St. 3d at 382)); see also WCI, Inc. v. Ohio Dep't

of Pub. Safety, 475 F. Supp. 3d 770, 776 (S.D. Ohio 2020), aff'd, 18 F.4th 509 (6th Cir. 2021)

(quoting Hake).

“If a claim is barred by the doctrine of res judicata, ‘[t]he weight of authority supports

dismissal for failure to state a claim.’” Turner v. DeJoy, No. 221CV02223SHLATC, 2022 WL

1817752, at *4–5 (W.D. Tenn. Mar. 15, 2022), report and recommendation adopted, No.

221CV02223SHLATC, 2022 WL 1813910 (W.D. Tenn. June 2, 2022) (quoting Owens v. Shelby

Cnty. Sch. Bd. of Educ., No. 2:18-cv-02345-JTF-dkv, 2018 WL 4374238, at *8 (W.D. Tenn. Jul.

18, 2018), report and recommendation adopted, 2018 WL 4179076 (W.D. Tenn. Aug. 31, 2018)

(collecting Sixth Circuit cases affirming Rule 12(b)(6) dismissal based on res judicata)). “Courts

are ‘empowered to raise res judicata sua sponte ... in the interests of, inter alia, the promotion of

judicial economy.’” Id. (quoting Holloway Const. Co. v. U.S. Dep't of Labor, 891 F.2d 1211,

1212 (6th Cir. 1989) (citations omitted)). Finally, “res judicata is an appropriate basis to dismiss

for failure to state a claim during the initial screening of a complaint pursuant to § 1915(e)(2).”

(citing Smith v. Morgan, 75 F. App'x at 506 (affirming dismissal “pursuant to § 1915(e) because

the doctrine of res judicata bars consideration of the instant complaint”) and Leirer v. Ohio

Bureau of Motor Vehicles Compliance Unit, 246 F. App'x 372, 374 (6th Cir. 2007) (affirming

dismissal based on res judicata pursuant to § 1915(e) because the plaintiff “could have made all

of the same allegations and claims he makes in his current lawsuit in that earlier second

lawsuit”)).

As set forth in detail above, Plaintiff reasserts the same claims and causes of action

arising out of the same facts she alleged in her state-court case. Plaintiff received a valid, final

judgment on the merits of those claims when the state courts rejected them. WCI, Inc., 475 F.

Supp. 3d 770, 776. Again, it makes no difference that the judgment was obtained in state court

because “[s]tate-court judgments are given the same preclusive effect under the doctrines of res

judicata and collateral estoppel as they would receive in courts of the rendering state.” Anderson

v. City of Blue Ash, 798 F.3d 338, 350 (6th Cir. 2015). The claims and defenses that were

actually brought in Plaintiff's state-court action are barred, as well as those that were part of the

same transaction or occurrence that could have been brought. WCI, Inc., at 776 (citing Grava, 73

Ohio St. 3d at 382, 653 N.E.2d 226). This includes any FLSA claim Plaintiff is attempting to

raise here.4

4 Even if Plaintiff’s purported FLSA claim under § 206 was not barred by res judicata, she

would be unable to succeed on any such claim here. As noted, her claim appears to be for the

late payment of wages. Certainly, “[t]he Supreme Court has held that the right to payment of

minimum wage under FLSA is the right to ‘on-time’ payment.” Athan v. United States Steel, 364

F.Supp. 3d 748, 753 (E.D. Mich. 2019) (quoting Brooklyn Savings Bank v. O’Neil, 324 U.S. 697,

Additionally, to the extent Plaintiff’s Complaint could be viewed as an attempt to appeal

the state-court judgment dismissing her claims against Snider-Blake, a doctrine known as

Rooker-Feldman limits this Court's ability to adjudicate such claims. See Rooker v. Fidelity Trust

Co., 263 U.S. 413, 415–16 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 476 (1983). “The Rooker-Feldman doctrine embodies the notion that appellate review of

state-court decisions and the validity of state judicial proceedings is limited to the Supreme Court

under 28 U.S.C. § 1257, and thus that federal district courts lack jurisdiction to review such

matters.” In re Cook, 551 F.3d 542, 548 (6th Cir. 2009). The Rooker-Feldman doctrine applies to

cases “brought by state-court losers complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced and inviting district court review and

707 (1945); see also Martin v. United States, 117 Fed. Cl. 611, 621 (2014) (“The FLSA requires

– and the Supreme Court has recognized approvingly – that an employee receive on time

payment for work performed. The court understands such timeliness to mean that an employer

pays an employee on the regularly scheduled paydays.”) Assuming she could demonstrate a late

payment under the facts alleged here, the relief she seeks – $250,000.00 in punitive damages – is

unavailable for violations of § 206. As explained in Southerland v. Corp. Transit of Am., No.

13-14462, 2014 WL 4906891, at *8 (E.D. Mich. Sept. 30, 2014):

While the Sixth Circuit has not yet decided whether punitive damages are

recoverable under the FLSA, it is clear that such damages could only be recovered

under the FLSA's anti-retaliation provision. Section 216(b) specifies the relief

available for violations of §§ 206 and 207, the minimum wage and overtime

provisions: “unpaid minimum wages, or ... unpaid overtime compensation, as the

case may be, and ... an additional equal amount as liquidated damages.”

Broader remedies are only available for violations of the FLSA's anti-retaliation

provision: “such legal or equitable relief as may be appropriate to effectuate section

215(a)(3) [sc. the anti-retaliation provision].” See Moore v. Freeman, 355 F.3d 558,

564 (6th Cir.2004) (recognizing split among circuits on availability of punitive

damages under § 216(b)); Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d

108, 112 (7th Cir.1990) (holding punitive damages available under FLSA, but only

for retaliation claims, based on language of § 216(b)).

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Ind. Corp., 544 U.S. 280, 284

(2005). “The pertinent question in determining whether a federal district court is precluded under

the Rooker-Feldman doctrine from exercising subject-matter jurisdiction over a claim is whether

the ‘source of the injury’ upon which plaintiff bases his federal claim is the state court

judgment.” In re Cook, 551 F.3d at 548.

IV.

For the reasons set forth above, it is RECOMMENDED that the Complaint be

DISMISSED in its entirety for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)

because it is barred by the doctrine of res judicata. Alternatively, to the extent Plaintiff’s

Complaint could be construed as an appeal of a state court judgment, it is RECOMMENDED

that it be DISMISSED in its entirety for lack of subject matter jurisdiction pursuant to the

Rooker-Feldman doctrine.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted)).

IT IS SO ORDERED.

/s/ Elizabeth A. Preston Deavers______

DATED: November 8, 2022 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE