Ballard v. Cope

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:22-CV-029 (WOB-EBA)

JASON BALLARD, PLAINTIFF,

VS. MEMORANDUM OPINION AND ORDER

DANNY COPE, ET AL., DEFENDANTS.

This is a lawsuit arising out of Defendant Danny Cope’s forced

entry into Plaintiff Jason Ballard’s home in connection with the

repossession of rent-to-own furniture. Currently before the Court

are Defendants’ Motions to Dismiss, (Doc. 14; Doc. 15; Doc. 30;

Doc. 31), and Plaintiff’s Motion pursuant to Rule 56(d), (Doc.

20).

The Court has carefully reviewed this matter and, being

advised, now issues the following Memorandum Opinion and Order.

Factual and Procedural Background1

Plaintiff Jason Ballard (“Ballard”) alleges that in the

spring and summer of 2020, he entered into rent-to-own contracts

1 Because Ballard’s original complaint was unclear, the Court ordered

him to file an amended complaint that only added specific allegations

as to which counts were asserted against which defendants and corrected

“scrivener’s errors.” (Doc. 28). Thereafter, Ballard did file an Amended

Complaint. (Doc. 29). Defendants argue that Ballard violated the Court’s

order by making changes in his Amended Complaint that go beyond the

specific alterations discussed in the order. (Doc. 30 at 2). However,

because Defendants have not filed a motion to strike the Amended

Complaint and because Ballard characterizes each alteration as a

corrected “scrivener’s error,” (Doc. 34 at 2–3), the Court will treat

the First Amended Complaint as the operative pleading.

with Defendant United Household Rentals, Inc. (“UHR”) for a

sectional sofa and a television. (Doc. 29 ¶ 9).

Ballard fell behind on his payments, and on March 12, 2021,

UHR filed a Complaint in Boone County District Court alleging that

Ballard was in possession of goods he rented from UHR which he

failed to pay for or return. (Id. ¶¶ 10, 15). The same day, UHR

obtained an ex-parte writ of possession, issued a bond, and the

Boone County judge issued an order appointing Defendant Danny Cope

(“Cope”), a Kenton County Constable, as a “special process server.”

(Id. ¶¶ 2, 11)2.

Ballard alleges that the ex-parte writ of possession was based

upon a false statement by Defendant Tina Maxwell (“Maxwell”), a

UHR employee, that Ballard’s lease had ended in April 2021, and

that he did not plan to renew it. (Id. ¶¶ 12–15). Ballard alleges

that he had renewed his lease in February 2021 and that he had

been in contact with UHR regarding repair to his furniture and his

intention to bring his payments current. (Id.).

On March 12, 2021, Cope went to Ballard’s home to serve the

ex-parte writ of possession. (Id. ¶¶ 24–27). Ballard alleges that

he did not recognize Cope’s uniform as that of local law

enforcement, so he denied Cope entry. (Id. ¶ 25). Cope then

identified himself as a police officer, and, “in the presence of

2 In his original complaint, Ballard alleged that Cope was appointed as

a “special bailiff.” (Doc. 1 ¶ 11).

representatives from the rental company,” attempted to pick the

lock on the door. (Id. ¶ 27). Cope then began shouldering his way

into the home. (Id. ¶ 28). Ballard told Cope that he possessed a

weapon as Cope was trying to enter the home, and Cope threatened

to kill Ballard. (Id. ¶¶ 29–30).

Cope then entered the home by force and pointed a gun at

Ballard, kicking away a pellet gun that Ballard had dropped. (Id.

¶¶ 31–36). Ballard called 911, and Cope followed Ballard to his

bedroom where he confined Ballard for approximately ten minutes by

holding a can of pepper spray towards him. (Id. ¶¶ 39–41)

Cope was subsequently arrested and indicted for wanton

endangerment, unlawful imprisonment, and official misconduct

related to these events. (Id. ¶ 45). On October 11, 2021, Cope

entered an Alford plea to the unlawful imprisonment and official

misconduct charges. (Id. ¶ 46).3

Ballard filed this lawsuit on March 10, 2022. (Doc. 1). In

his Amended Complaint, he alleges claims for: (1) violation of the

Fourth and Fourteenth Amendments against Cope under 42 U.S.C. §

1983; (2) civil conspiracy to violate his civil rights against

Cope, UHR, and Maxwell; (3) unlawful entry against Cope; (4) First

Amendment retaliation against Cope; (5) trespass against Cope; (6)

assault against Cope; (7) battery against Cope; (8) common law

3 The documents relating to the criminal charges against Cope are attached

to the original complaint. (Doc. 1-1).

false imprisonment against Cope; (9) intentional infliction of

emotional distress against Cope, UHR, and Maxwell; (10) negligence

per se against Cope, UHR, and Maxwell; (11) respondeat

superior/vicarious liability against UHR; and (12) abuse of

process against Cope, UHR, and Maxwell. (Doc. 29).

Defendants moved to dismiss both Ballard’s original

Complaint, (Doc. 14; Doc. 15), and his Amended Complaint, (Doc.

30; Doc. 31). Accordingly, the Court will deny Defendants’ Motions

to Dismiss the original Complaint as moot and analyze the Motions

to Dismiss the Amended Complaint.4 See Ky. Press Ass’n, Inc. v.

Kentucky, 355 F. Supp. 2d 853, 857 (E.D. Ky. 2005) (“Plaintiff’s

amended complaint super[s]edes the original complaint, thus making

the motion to dismiss the original complaint moot.”) (citing Parry

v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir.

2000)).

Analysis

A. Subject Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a party may

move to dismiss a suit for lack of subject matter jurisdiction.

Because federal courts are courts of limited jurisdiction, “a

4 Cope’s Motion to Dismiss the Amended Complaint adopts his Motion to

Dismiss the original Complaint, (Doc. 15), and his supporting Reply,

(Doc. 23), as if fully restated in his present Motion. (Doc. 31 at 2).

Accordingly, the Court will cite to Cope’s original Motion when referring

to his current arguments.

federal court must dismiss any claim for which it lacks

jurisdiction without addressing the merits.” Chase Bank USA, N.A.

v. City of Cleveland, 695 F.3d 548, 553 (6th Cir. 2012). Rule

12(b)(1) motions may be either a facial attack or a factual attack.

Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016)

(citing O’Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009)).

“A facial attack . . . ‘questions merely the sufficiency of the

pleading.’” Id. (quoting O’Bryan, 556 F.3d at 375). In analyzing

a facial attack, a court must accept the allegations in the

complaint as true and look for a short and plain statement of the

grounds for jurisdiction. Id. (internal citations omitted).

i. Rooker-Feldman Doctrine

Defendants argue that this Court lacks subject matter

jurisdiction over Ballard’s claims for unlawful entry, trespass,

intentional infliction of emotional distress, negligence per se,

and abuse of process pursuant to the Rooker-Feldman doctrine. (Doc.

15 at 8—9; Doc. 30 at 5). Motions to dismiss for lack of subject

matter jurisdiction under Rooker-Feldman are construed as facial

attacks. See King v. CitiMortgage, Inc., No. 2:10-CV-01044, 2011

WL 2970915, at *5 (S.D. Ohio July 20, 2011). “The Rooker-Feldman

doctrine prohibits federal courts below the United States Supreme

Court from exercising ‘appellate jurisdiction over the decisions

and/or proceedings of state courts, including claims that are

inextricably intertwined with issues decided in state court

proceedings.’” Gilbert v. Ferry, 401 F.3d 411, 416 (6th Cir. 2005)

(quoting Executive Arts Studio, Inc. v. City of Grand Rapids, 391

F.3d 783, 793 (6th Cir. 2004)).

Federal claims are “inextricably intertwined” and thus barred

by Rooker-Feldman only when they assert “an injury whose source is

the state court judgment.” McCormick v. Braverman, 451 F.3d 382,

394–95 (6th Cir. 2006) (internal citations omitted). Courts apply

the Rooker-Feldman abstention doctrine in two categories of cases:

“(1) cases that constitute a direct attack on the substance of the

state court opinion, and (2) cases that challenge the procedures

by which a state court arrived at its decision.” Anderson v.

Charter Twp. of Ypsilanti, 266 F.3d 487, 493 (6th Cir. 2001)

(internal citations omitted).

However, the Sixth Circuit has held that the Rooker-Feldman

doctrine “is not a panacea to be applied whenever state court

decisions and federal court decisions potentially or actually

overlap.” McCormick, 451 F.3d at 395. On the contrary, the doctrine

is confined to cases in which “a plaintiff asserts before a federal

district court that a state court judgment itself was

unconstitutional or in violation of federal law.” Id.

Here, Defendants argue that Ballard’s claims for unlawful

entry, trespass, intentional infliction of emotional distress,

negligence per se, and abuse of process directly stem from the

issuance of the writ of possession by the Boone County District

Court. (Doc. 15 at 8–10; Doc. 30 at 5–7). Defendants argue that,

because Ballard is challenging the propriety of the writ along

with the authority it granted and, without the existence of the

writ, none of Ballard’s alleged injuries would have occurred, he

is asking this Court to improperly review the state court’s

judgment. (Doc. 15 at 9; Doc. 30 at 6).

Ballard argues that he is not attacking the state court’s

decision, but rather, Defendants’ tortious use of procedure in

obtaining and executing the writ. (Doc. 34 at 6; Doc. 35 at 15).

Ballard posits that he was injured by the allegedly false affidavit

Maxwell supplied to obtain the writ and Cope’s allegedly illegal

entry into his home, use of excessive force, and unlawful

imprisonment of his person. (Doc. 34 at 6; Doc. 35 at 15). Ballard

also notes that he is not seeking the return of or damages related

to the property identified in the writ. (Doc. 34 at 7; Doc. 35 at

15).

The Sixth Circuit has held that “Rooker-Feldman does not bar

a federal-court challenge to an individual’s improper conduct

during a prior state court proceeding.” Pittman v. Cuyahoga Cnty.

Dep’t of Child. & Fam. Servs., 241 F. App’x 285, 288 (6th Cir.

2007). In Todd v. Weltman, Weinberg & Reis Co., the Sixth Circuit

held that Rooker-Feldman did not apply where the plaintiff

complained of harm caused by a false affidavit that the defendant

submitted in a state court garnishment proceeding. 434 F.3d 432,

436–37 (6th Cir. 2006). Similarly, in McCormick, the Sixth Circuit

found that the doctrine did not bar claims that the defendants had

committed fraud, misrepresentation, and abuse of process in

divorce proceedings. 451 F.3d at 392.

Here, the Court finds that, just as in Todd and McCormick,

Rooker-Feldman does not bar Ballard’s claims that Defendants

engaged in improper conduct in connection with the writ of

possession. Ballard has not asserted that the writ itself was

unconstitutional or in violation of federal law.5 All of his claims

focus on Defendants’ allegedly improper conduct, rather than the

outcome of the state court proceedings. The source of Ballard’s

alleged injury is Defendants’ actions, not the state court

judgment.6

5 Although Ballard alleges that the writ of possession was “facially

deficient,” (Doc. 29 ¶¶ 71, 86), he does not claim that it was issued

in violation of any federal law. Rather, Ballard claims that all

Defendants knew it was obtained via false representations and that it

was executed through use of excessive force and in violation of Kentucky

statutes. (Id. ¶¶ 69–70, 72–74, 85). While Ballard’s claim that Cope, a

Kenton County Constable, “was not statutorily or constitutionally

authorized to execute” the writ, (Id. ¶ 86), is contrary to the state

court’s order directing Cope to seize the identified property, the

Supreme Court has held that “[i]f a federal plaintiff present[s] some

independent claim, albeit one that denies a legal conclusion that a state

court has reached in a case . . . then there is jurisdiction and state

law determines whether the defendant prevails under principles of

preclusion.” See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 293 (2005) (internal citations omitted). Accordingly, Ballard’s

assertion that Cope illegally executed the writ, despite the state court

order, is not barred by the Rooker-Feldman doctrine.

6 Although Defendants cite Kvet v. Stammitti, No. 1:12-CV-2178, 2013 WL

179434 (N.D. Ohio Jan. 16, 2013), in support of their argument that

Plaintiff’s claims are barred by Rooker-Feldman, (Doc. 30 at 7), that

Thus, the Rooker-Feldman doctrine does not bar Ballard’s

claims.

ii. Plaintiff’s Failure to Seek Relief in State Court

UHR and Maxwell also argue that this Court lacks subject

matter jurisdiction over Ballard’s claims for intentional

infliction of emotional distress, abuse of process, and negligence

per se because Ballard failed to seek relief under applicable

Kentucky statutes and that Ballard is collaterally estopped and

barred by res judicata from bringing his claims in this Court.

(Doc. 30 at 8–10).

UHR and Maxwell argue that K.R.S. §§ 425.031, 425.036,

425.046, 425.081, and 425.111 provide the course of action Ballard

should have pursued to recover any damages he incurred due to the

writ of possession. K.R.S. § 425.031 provides that, upon request

of the defendant, “the judicial officer shall conduct a hearing”

and thereafter make a determination based on the evidence

introduced. K.R.S. § 425.036 provides the findings a judicial

officer must make before issuing a writ of possession.

case is not in conflict with the Court’s holding here, as that court

held that it only lacked subject matter jurisdiction to the extent that

the plaintiff was seeking to overturn state court orders or to relitigate

the same matters, but that it could entertain claims based on the

defendants’ conduct in state court proceedings. See 2013 WL 179434, at

*3. Here, Ballard has explicitly stated that he is not seeking a return

of the property identified in the writ, but rather is only alleging

damages based on Defendants’ conduct in connection with the writ. (Doc.

34 at 7; Doc. 35 at 15).

K.R.S. § 425.046 mandates the required contents of such a

writ, including that it must “inform the defendant of his right to

seek an order from the court, under KRS § 425.081, to quash the

writ and seek a release of the property seized.” As referenced in

K.R.S. § 425.046, K.R.S. § 425.081 provides that a defendant may

apply for an order to quash the writ and release the seized

property, which will issue if the judicial officer determines that

the plaintiff is not entitled to a writ of possession.

Finally, K.R.S. § 425.111, upon which the parties in this

case primarily focus, mandates that a writ of possession will not

issue unless the plaintiff files a written bond and that “if the

plaintiff fails to recover judgment in the action, the plaintiff

shall return the property to the defendant . . . and shall pay .

. . all damages referred to in subsection (2), not exceeding the

amount of the bond.” “The damages referred to in subjection (1)

are all damages sustained by the defendant which are proximately

caused by . . . the levy of the writ of possession, and the loss

of possession of the property pursuant to levy of the writ of

possession . . . .” K.R.S. § 425.111(2).

None of these statutes bar Ballard’s action in this Court. It

is undisputed that Ballard could have requested a hearing and

sought an order from the Boone County District Court to quash the

writ and to recover the property it identified, but that he did

not do so. But none of these statutes indicate that requesting

such a hearing is a method, let alone the only method, through

which Ballard may address alleged wrongs committed in obtaining

and executing the writ. Thus, K.R.S. §§ 425.031, 425.036, 425.046,

and 425.081 are inapplicable, as Ballard does not seek to quash

the writ or recover the property and he does not argue that the

writ failed to inform him of his right to request a hearing on

those issues.

K.R.S. § 425.111 is similarly inapplicable. That section

merely provides that, “if the plaintiff,” UHR, “fails to recover

judgment in the action,” it “shall return the property to the

defendant,” Ballard, “and shall pay . . . all damages referred to

in subsection (2), not exceeding the amount of the bond.” K.R.S.

§ 425.111(1). However, this Court has not been asked to decide

whether UHR should ultimately fail to recover in its underlying

state court action regarding the rental furniture. Thus, whether

any bond posted by UHR may be used to pay Ballard’s damages is not

a question before this Court.

Although K.R.S. § 425.111(2) provides that potentially

recoverable damages under its purview include “all damages

sustained by the defendant which are proximately caused by . . .

the levy of the writ of possession,” as discussed above, Ballard

is not seeking to recover damages caused by the writ itself or the

levy of the identified property, but rather damages allegedly

caused by Defendants’ conduct in procuring and executing the writ.

Accordingly, the damages addressed in K.R.S. § 425.111(2) are not

the damages requested in this case.

The cases cited by the parties, Fort Knox National Bank v.

Gustafson, 385 S.W.2d 196 (Ky. 1964), Vallandingham v. Ray, 108

S.W 896 (Ky. 1908), and Ky. Land & Immigration Co. v. Crabtree, 80

S.W. 1161 (Ky. 1904), neither address the relevant statutes nor

the specific circumstances of this case. Accordingly, the

referenced statutes do not limit Ballard’s claims in this action.

UHR and Maxwell also argue that Ballard is barred by

collateral estoppel and res judicata from seeking relief in this

Court. (Doc. 30 at 9–10). The elements of collateral estoppel under

Kentucky law are: (1) identity of issues; (2) a final decision or

judgment on the merits; (3) a necessary issue with the estopped

party given a full and fair opportunity to litigate; (4) a prior

losing litigant. Moore v. Kentucky, 954 S.W.2d 317, (Ky. 1997)

(internal citations omitted). The doctrine of res judicata has two

parts: (1) claim preclusion, which bars a party from re-litigating

a previously adjudicated cause of action and (2) issue preclusion,

which bars the parties from relitigating any issue actually

litigated and finally decided in an earlier action. Yeoman v.

Kentucky, 983 S.W. 2d 459, 464–65 (Ky. 1998) (internal citations

omitted).

While it is dubious whether Ballard could be considered a

“losing litigant” in the context of an ex-parte writ of possession,

the state court’s issuance of a writ of possession can hardly be

considered a final decision. K.R.S. Chapter 425, under which the

statutory authority for writs of possession is found, is titled

“Provisional Remedies” and K.R.S. § 425.061 specifically provides

that “determinations of the judicial officer under this chapter

shall have no effect on the determination of any issues in the

action other than the issues relevant to proceedings under this

chapter, nor shall they affect the rights of any party in any other

action arising out of the same claim.” Defendants have not cited

any contrary authority for their proposition that the writ should

operate as a final decision with preclusive effect.

Further, it is undisputed that Ballard did not raise any of

his current claims in any prior proceeding before the state court.

Thus, because there has not been a final decision regarding any of

the issues raised by Ballard’s claims and because he has not

previously brought these claims against these parties, neither

collateral estoppel nor res judicata bar his claims in the present

case.

B. Plausibility of Claims7

Under Federal Rule of Civil Procedure 12(b)(6), a court must

dismiss a claim if it “fail[s] to state a claim upon which relief

7 Defendants do not argue that Ballard has failed to state a plausible claim

for unlawful entry or trespass.

can be granted.” To survive a motion to dismiss, a complaint must

contain “enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“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.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing id. at 556).

“A pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not

do.’” Id. (quoting Twombly, 550 U.S. at 555). However, at the

motion to dismiss stage, courts must construe the complaint

liberally, presume all factual allegations in the complaint to be

true, and make reasonable inferences in favor of the non-moving

party. Total Benefits Plan. Agency, Inc. v. Anthem Blue Cross &

Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (internal citations

omitted). “The moving party has the burden of proving that no claim

exists.” Id.

i. Violation of Fourth and Fourteenth Amendments

Cope argues that Ballard has failed to plausibly allege that

he used excessive force in violation of the Fourth and Fourteenth

Amendments under 42 U.S.C. § 1983.8 (Doc. 15 at 6). “To state a

8 Cope’s immunity arguments are addressed separately below. Cope has not

argued that Ballard’s claim is implausible to the extent that Ballard

claim under § 1983, a plaintiff must allege the violation of a

right secured by the Constitution and laws of the United States,

and must show that the alleged deprivation was committed by a

person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988) (internal citations omitted).

“A seizure is ‘unreasonable’ under the Fourth Amendment if

officers used excessive force.” Puskas v. Delaware Cnty., Ohio,

--- F.4th ---, No. 22-3390, 2023 WL 107973, at *3 (6th Cir. Jan.

5, 2023) (citing Gambrel v. Knox Cnty., 25 F.4th 391, 400 (6th

Cir. 2022)); see also Hicks v. Scott, 958 F.3d 421, 435 (6th Cir.

2020) (“The Fourth Amendment’s prohibition against unreasonable

seizures prohibits the use of excessive force.”) (citing King v.

Taylor, 694 F.3d 650, 662 (6th Cir. 2012)). The Fourth Amendment

applies to the states through incorporation by the Fourteenth

Amendment. Stricker v. Twp. of Cambridge, 710 F.3d 350, 358 (6th

Cir. 2013).

“When a free citizen claims that a government actor used

excessive force during the process of an arrest, seizure, or

investigatory stop, we perform a Fourth Amendment inquiry into

what was objectively ‘reasonable’ under the circumstances.” Coley

v. Lucas Cnty., Ohio, 799 F.3d 530, 537 (6th Cir. 2015) (citing

Graham v. Connor, 490 U.S. 386, 396 (1989); Lanman v. Hinson, 529

has claimed a separate Fourth Amendment violation based on Cope’s

allegedly warrantless entrance of his home, (see Doc. 29 ¶¶ 49–50).

F.3d 673, 680 (6th Cir. 2008)). “The inquiry is highly fact-

dependent, and must take into account the ‘perspective of a

reasonable officer on the scene, including what the officer knew

at the time, not with the 20/20 vision of hindsight.’” Coley v.

Lucas Cnty., Ohio, 799 F.3d 530, 538 (6th Cir. 2015) (quoting

Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). Courts must

account for the fact that officers must often “make split-second

judgments—in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a

particular situation.” Graham, 490 U.S. at 396–97.

In determining the reasonableness of the force used, courts

should consider the totality of the circumstances, including

factors such as the relationship between the need for the use of

force and the amount of force used; the extent of the plaintiff’s

injury; and any effort made by the defendant to limit the amount

of force. Kingsley, 576 U.S. at 397 (citing id. at 396). However,

three factors are critical: (1) the severity of the crime at issue;

(2) whether the suspect posed an immediate threat to the safety of

the officer or others; and (3) whether the suspect was actively

resisting arrest or attempting to evade arrest by flight. Hicks,

958 F.3d at 435.

Here, there is no dispute that, at all relevant times, Cope

was acting under color of state law in his position as Constable

of Kenton County, Kentucky. (Doc. 15 at 5–6; Doc. 35 at 4–5).

Accordingly, the only question is whether Ballard has plausibly

alleged that Cope violated his Fourth Amendment right to be free

from unreasonable seizures by using excessive force while levying

the furniture.

Ballard claims that Cope “brandished a loaded firearm,” which

he stuck through the door of Ballard’s home and pointed at his

torso. (Doc. 29 ¶¶ 32–33). Further, Cope continued to point his

weapon at Ballard, even after he kicked Ballard’s pellet gun away.

(Id. ¶ 36). Ballard also alleges that Cope followed him to his

bedroom, where he confined him for over ten minutes by aiming a

can of pepper spray toward him. (Id. ¶¶ 40–41).

Taking these facts as true and making reasonable inferences

in his favor, Ballard has plausibly alleged that Cope’s use of

force was unreasonable. Although Ballard admits that he told Cope

that he had a weapon while Cope was attempting to enter the home,

(Id. ¶ 29), Ballard said this through the door and, according to

the Complaint, did not point his pellet gun at Cope at any time,

which weakens Cope’s argument that Ballard posed an immediate

threat to his safety and the safety of the individuals around him.

In fact, Cope was the one who “shoulder[ed] his way” into Ballard’s

home, removing the barrier of the door between them, and pointed

his gun at Ballard without attempting to assure Ballard of his

identity as Constable. (Id. ¶¶ 25, 28–29, 33). Further, the

Complaint alleges that Cope continued to point his firearm at

Ballard, even after any threat posed by the pellet gun was removed.

(Id. ¶ 36).

In Mills v. Owsley County Kentucky, a court in this District

held that a claim for excessive force could proceed where the

plaintiffs were neither suspected of a crime nor subject to arrest,

but the defendant forcibly removed them from their home by pointing

guns at them and aggressively handling them. 483 F. Supp. 3d 435,

466 (E.D. Ky. 2020); see also Binay v. Bettendorf, 601 F.3d 640,

648, 650 (6th Cir. 2010) (finding that the plaintiffs had

sufficiently alleged that the defendants used unreasonable force

where they were held at gunpoint and kept handcuffed but had no

criminal record, posed no immediate threat, and did not resist

arrest or attempt to flee). Similarly and critically, here, Ballard

was not suspected of committing a crime and Cope was not attempting

to arrest Ballard when he pointed his gun at him.

Although Cope may have attempted to limit the amount of force

used by switching from a firearm to a can of pepper spray after

following Ballard to his bedroom, it is not clear from the facts

of the Amended Complaint that it was necessary for Cope to follow

Ballard or detain him at all, let alone via the threat of force,

in order to ensure the safety of everyone involved in levying the

furniture. Further, Ballard has alleged that he has suffered and

continues to suffer “great injury” as a result of Cope’s actions.

(Doc. 29 ¶ 44).

Accordingly, the Court finds that Ballard has alleged a

facially plausible claim for violations of the Fourth and

Fourteenth Amendments under § 1983.

ii. Civil Conspiracy

Next, Defendants argue that Ballard has failed to adequately

plead a claim for civil conspiracy to violate his civil rights

under § 1983. (Doc. 15 at 7; Doc. 30 at 11–16). “A civil conspiracy

under § 1983 is ‘an agreement between two or more persons to injure

another by unlawful action.’” Pritchard v. Hamilton Twp. Bd. of

Trs., 424 F. App’x 492, 507 (6th Cir. 2011) (quoting Revis v.

Meldrum, 489 F.3d 273, 290 (6th Cir. 2007)). To successfully plead

such a conspiracy, a plaintiff must allege that: (1) a single plan

existed; (2) the coconspirators shared a conspiratorial objective

to deprive the plaintiff of their constitutional rights; and (3)

an overt act was committed. Id. (citing Revis, 489 F.3d at 273).

“Express agreement among all the conspirators is not necessary to

find the existence of a civil conspiracy [and] [e]ach conspirator

need not have known all of the details of the illegal plan or all

of the participants involved.” Hooks v. Hooks, 771 F.2d 935, 944

(6th Cir. 1985).

Defendants advance three arguments: first, that the intra-

corporate conspiracy doctrine bars Ballard’s claim; second, that

UHR and Maxwell did not act under color of state law; and third,

that Ballard’s claims were not pled with the required degree of

specificity. (Doc. 15 at 7; Doc. 30 at 12–16). The Court will

address each argument in turn.

First, the intra-corporate conspiracy doctrine “states that

if ‘all defendants are members of the same collective entity, there

are not two separate people to form a conspiracy.’” Jackson v.

City of Cleveland, 925 F.3d 793, 817 (6th Cir. 2019) (quoting

Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839–40 (6th Cir.

1994)). Thus, generally, “a corporation cannot conspire with its

own agents or employees.” Hull v. Cuyahoga Valley Joint Vocational

Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991) (citing

Doherty v. Am. Motors Corp., 728 F.2d 334, 339 (6th Cir. 1984)).

The Sixth Circuit has held that the doctrine applies in § 1983

suits. Jackson, 925 F.3d at 818.

Here, Ballard alleges that Cope “was either an agent or

employee of UHR, or had a contractual relationship or agreement

with UHR, where Defendant Cope would provide services for UHR . .

. in return for payment.”9 (Doc. 29 ¶ 60). Similarly, it is

undisputed that Maxwell is an employee of UHR. (Id. ¶ 4).

9 Although Cope argues that Ballard’s allegations regarding Cope’s

relationship with UHR directly contravene the writ of possession, which

ordered him to levy the UHR furniture, (Doc. 15 at 7), and UHR and

Maxwell argue that they could not have conspired with Cope because his

actions were directed by the Boone County District Court, (Doc. 41 at

7), the Court must take the allegations in the Amended Complaint as true

and finds, making reasonable inferences in Ballard’s favor, that it is

plausible that Cope acted pursuant to both the writ and his alleged

Defendants correctly point out that, by virtue of Maxwell’s

undisputed employment relationship, she could not conspire with

UHR under the intra-corporate conspiracy doctrine. (Doc. 30 at 12–

13). However, the Court finds that UHR and Maxwell could conspire

with Cope. Even taking Ballard’s allegations as true, he has

claimed, in the alternative, the Cope was UHR’s agent/employee or

that he had a contractual relationship with UHR. Under the latter

theory, the intra-corporate conspiracy doctrine does not apply, as

Cope and UHR are still separate “people” even if they are parties

to the same contract. Accordingly, because Ballard has alleged at

least one set of facts in which Cope and UHR are separate entities,

the intra-corporate conspiracy doctrine does not bar his claim at

the pleading stage.10

Second, “[i]f a private party has conspired with state

officials to violate constitutional rights, then that party

qualifies as a state actor and may be held liable pursuant to §

1983 . . . .” Cooper v. Parrish, 203 F.3d 937, 952 n.2 (6th Cir.

2000) (citing Wyatt v. Cole, 504 U.S. 158, 168–69 (1992)). Although

the Sixth Circuit recognizes three tests for determining whether

conduct is attributable to the state, those tests are “relevant

only in cases in which there are no allegations of cooperation or

agreement with UHR, as each directed him to do the same thing: recover

the furniture.

10 The Court need not address Ballard’s alternative argument that Cope’s

actions were outside the scope of any employment relationship he had

with UHR. (See Doc. 34 at 14).

concerted action between state and private actors.” Memphis, Tenn.

Area Loc., Am. Postal Workers Union, AFL-CIO v. City of Memphis,

361 F.3d 898, 905 (6th Cir. 2004) (citing Cooper, 203 F.3d at 952

n.2). “Private persons may be held liable under § 1983 if they

willfully participate in joint action with state agents.” Id.

(collecting cases).

As discussed above, it is undisputed that Cope was acting

under color of state law in his position as Constable.11 Further,

Ballard has alleged that UHR and Maxwell, although private parties,

willfully conspired with Cope, a state actor, to deprive him of

his constitutional rights. (Doc. 29 ¶ 58). Thus, they may be held

liable under § 1983 despite their status as private parties.

However, UHR and Maxwell argue that the only alleged activity

attributable to them was the false affidavit Ballard claims Maxwell

submitted and that the doctrine of absolute witness immunity bars

claims based on false testimony. (Doc. 41 at 8). “It is well-

settled that witnesses are granted absolute immunity from suit for

all testimony provided in judicial proceedings.” Spurlock v.

Satterfield, 167 F.3d 995, 1001 (6th Cir. 1999) (citing Briscoe v.

LaHue, 460 U.S. 325, 330–31 (1983)). The Supreme Court gave two

11 Although Cope argues that “[i]t is not plausible for Cope to act under

color of law pursuant to a state court order as a Constable while also

allegedly acting conspiratorially with UHR and Maxwell as private

actors,” (Doc. 15 at 7), that argument is misplaced, as both the Supreme

Court and the Sixth Circuit have held that a state actor can conspire

with private actors. See Wyatt, 504 U.S. at 168–69; Cooper, 203 F.3d at

952 n.2.

rationales for the absolute witness immunity doctrine: (1) that

witnesses might be otherwise reluctant to come forward to testify;

and (2) that once a witness was on the stand, their testimony might

otherwise be distorted by fear of future liability. Briscoe, 460

U.S. at 333.

The Sixth Circuit has held that testimony presented in the

form of an affidavit during an ex-parte proceeding may be protected

under absolute witness immunity. Todd, 434 F.3d at 439–42. However,

“the immunity does not extend to ‘complaining witnesses’—those who

help instigate the judicial process by swearing to tell the truth.”

Gionis v. Javitch, Block, Rathbone, LLP, 238 F. App’x 24, (6th

Cir. 2007) (citing id. at 444); see also Wyatt, 504 U.S. at 160,

164–65 (finding that complaining witnesses who “set the wheels of

government in motion by instigating legal action,” such as by

instituting attachment or replevin proceedings, are not entitled

to absolute immunity in the § 1983 context).

In Todd, the Sixth Circuit found that a defendant was a

complaining witness and was thus not entitled to absolute witness

immunity for statements made in an affidavit that instigated the

legal action of garnishment, which mirrored the instigation of an

action in replevin. 434 F.3d at 444–47. The Todd Court analyzed

the rationales given by the Supreme Court in Briscoe and determined

that withholding absolute immunity for affidavits in garnishment

actions would not cause defendants to stop instituting such

actions, as that would be wholly contrary to their financial

interests, but rather would incentivize them to have reasonable

and unequivocal bases for their affidavits. Id. at 443.

Here, the Court finds that, as in Todd, the doctrine of

absolute witness immunity does not apply to Maxwell’s allegedly

false affidavit, which was submitted in support of an ex-parte

writ of possession. Just as in garnishment or replevin actions,

here, Maxwell’s affidavit “set the wheels of government in motion,”

as it was required for the Boone County District Court to issue

the writ and it thus instigated the legal action. See K.R.S. §

425.076(1). Just as in Todd, here, the Briscoe rationales support

this conclusion, as withholding immunity will not cause parties

like UHR to stop seeking writs of possession, which would be

contrary to their financial interests, but would rather

incentivize them to have reasonable and unequivocal bases for the

affidavits necessary to obtain them. Thus, Maxwell was a

complaining witness and, as such, neither she nor UHR is entitled

to absolute witness immunity for the statements contained in her

affidavit.

Finally, “‘[a]lthough circumstantial evidence may prove a

conspiracy, it is well-settled that conspiracy claims must be pled

with some degree of specificity and that vague and conclusory

allegations unsupported by material facts will not be sufficient

to state such a claim under § 1983.’” Marvaso v. Sanchez, 971 F.3d

599, 606 (6th Cir. 2020) (quoting Heyne v. Metro. Nashville Pub.

Sch., 655 F.3d 556, 563 (6th Cir. 2011)).

Ballard has alleged that a single plan existed to use force,

intimidation, and/or threats against him in order to harass him

and “strike fear into [his] heart” and that Defendants’ objective

was to deprive him of his rights to freedom of speech and to be

free from excessive force and unlawful seizures. (Doc. 29 ¶¶ 58,

134, 138). Ballard has alleged that Maxwell, on behalf of UHR,

committed an overt act in furtherance of the conspiracy when she

submitted an affidavit containing materially false

representations, which all Defendants were aware provided no legal

basis for Cope’s entrance to Ballard’s home. (Id. ¶¶ 59, 72).

Further, Cope participated in the conspiracy when he entered

Ballard’s home pursuant to an agreement with UHR to retrieve the

furniture in exchange for payment. (Id. ¶ 60).

Accordingly, the Court finds that Ballard’s § 1983 civil

conspiracy claim is sufficient to survive Defendants’ Motions to

Dismiss.

iii. First Amendment Retaliation

Cope also argues that Ballard has failed to plausibly state

a claim for First Amendment retaliation. (Doc. 15 at 8). In order

to succeed on such a claim under § 1983, Ballard must show that:

(1) he engaged in constitutionally protected conduct; (2) an

adverse action was taken against him that would deter a person of

ordinary firmness from continuing to engage in such conduct; and

(3) the adverse action was motivated at least in part by his

protected conduct. Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir.

2005) (internal citations omitted).

Here, Ballard has alleged that he made protected statements

voicing his displeasure with Cope and his unwillingness to grant

Cope entry to his home and that, in part because of those

statements, Cope unlawfully forced his way into the home,

threatened him with a weapon, and unlawfully detained him. (Doc.

29 ¶¶ 80–81). Further, Ballard claims that Cope’s conduct would

deter others from making similar statements. (Id. ¶ 82).

Cope’s sole argument in support of dismissing the claim is

that the speech Ballard claims was protected actually constituted

an unprotected threat. (Doc. 15 at 8). The Court agrees with Cope’s

position that “true threats” of violence are outside the scope of

the First Amendment’s protection. Unprotected “‘[t]rue threats’

encompass those statements where the speaker means to communicate

a serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals.”

Virginia v. Black, 538 U.S. 343, 359 (2003) (internal citations

omitted).

While Cope correctly notes that Ballard admitted that he told

Cope he had a weapon, which may constitute a “true threat,” Cope

ignores Ballard’s allegation, which must be taken as true at this

stage, that Cope retaliated against statements in which Ballard

voiced his displeasure with Cope and explained that he was

unwilling to grant Cope entry to his home, not against his separate

statement that he had a weapon. (See Doc. 29 ¶¶ 80–81).

Because Cope does not argue that the alleged statements upon

which Ballard’s claim rests are unprotected, Cope has not met his

burden of proving that no plausible First Amendment retaliation

claim exists.

iv. Assault, Battery, and False Imprisonment

Next, Cope argues that Ballard has failed to state claims for

assault, battery, and false imprisonment. (Doc. 15 at 10–11). Cope

advances two arguments in support of dismissing these claims:

first, that K.R.S. §§ 503.050 and 503.085 bar such claims; and

second, that Ballard’s claims are entirely conclusory. (Id.).

K.R.S. § 503.050(1) states that “[t]he use of physical force

by a defendant upon another person is justifiable when the

defendant believes that such force is necessary to protect himself

against the use or imminent use of unlawful physical force by the

other person.” K.R.S. § 503.085(1) provides that “[a] person who

uses force as permitted in KRS 503.050 . . . is justified in using

such force and is immune from criminal prosecution and civil action

for the use of such force . . . .” K.R.S. § 503.085(3) also provides

that the court should award immune defendants any attorney’s fees

and costs incurred in defending a such a civil action.

Cope argues that, because Ballard admitted that he informed

Cope that he possessed a weapon, any subsequent force Cope used

thereafter was justified and he is therefore immune from civil

action. (Doc. 15 at 10). However, taking the facts in the Amended

Complaint as true, the Court finds that, just as with the excessive

force claim, Ballard has plausibly pled facts that lead to the

conclusion that Cope did not believe the force he used was

necessary to protect himself. See King, 694 F.3d at 664 (finding

that summary judgment was inappropriate as to the application of

K.R.S. § 503.085 where there was a genuine dispute as to whether

an officer believed the use of force was necessary for protection).

Such facts include that Ballard did not point his pellet gun at

Cope at any time, Cope “shoulder[ed] his way” into the home and

thereby removed the door between them, Cope continued to point his

firearm at Ballard even after kicking away Ballard’s pellet gun,

and Cope thereafter detained Ballard for an additional ten minutes

in his bedroom using a can of pepper spray. (Doc. 29 ¶¶ 28, 36,

40–41).

While not dispositive at this stage, Ballard’s argument that

Cope has been criminally convicted of unlawful imprisonment and

official misconduct for his actions is persuasive, as Cope would

have been immune from prosecution for his use of force under K.R.S.

§ 503.085(1) if such force was justified. (See Doc. 35 at 15–16).

Therefore, the Court cannot conclude at the motion to dismiss stage

that K.R.S. §§ 503.050 and 503.085 bar Ballard’s claims.

Cope’s second argument, that Ballard’s claims are entirely

conclusory and without any supporting substantive facts, is

similarly unavailing. Under Kentucky law, “‘[a]ssault is a tort

which merely requires the threat of unwanted touching of the

victim, while battery requires an actual unwanted touching.’”

Woosley v. City of Paris, 591 F. Supp. 2d 913, 922 (E.D. Ky. 2008)

(quoting Banks v. Fritsch, 39 S.W.3d 474, 480 (Ky. Ct. App. 2001)).

The elements of a claim for false imprisonment are that (1) a

defendant acted by force or threat of force and (2) with intent

caused the plaintiff to be confined to an area certain. Id. at 923

(citing Columbia Sussex Corp. v. Hay, 627 S.W.2d 270, 278 (Ky. Ct.

App. 1981)).

Ballard has alleged that Cope threatened an unwanted touching

by pointing both a firearm and pepper spray at him, that Cope

intentionally and offensively touched him on multiple occasions

using both his body and physical manipulation of Ballard’s door

and other property, and that Cope intentionally kept him confined

to his bedroom by threatening him with a firearm and pepper spray

for over ten minutes. (Doc. 29 ¶¶ 40, 94, 101, 107–109).

Accordingly, the Court finds that Ballard has stated

plausible claims for assault, battery, and false imprisonment.

v. Intentional Infliction of Emotional Distress

Defendants also argue that Ballard has failed to state a claim

for intentional infliction of emotional distress (“IIED”).12 (Doc.

15 at 10–11; Doc. 30 at 16–18). In order to recover on a claim for

IIED under Kentucky law, a plaintiff must show that: (1) the

defendant’s conduct was intentional or reckless; (2) the

defendant’s conduct was so outrageous and intolerable that it

offends generally accepted standards of decency and morality; (3)

there is a causal connection between the defendant’s conduct and

the plaintiff’s emotional distress; and (4) the plaintiff’s

emotional distress was severe. Osborne v. Payne, 31 S.W.3d 911,

913–14 (Ky. 2000).

UHR and Maxwell contend that they did not “instigate” Cope’s

allegedly unlawful actions and that the sole allegation against

them, that Maxwell acted intentionally and recklessly by providing

false information in her affidavit, is inadequate to establish an

IIED claim. (Doc. 30 at 17). Further, they argue that the Boone

County District Court’s order disrupts any line of causation

between their conduct and Cope’s conduct. (Id. at 18).

While Ballard has not alleged that UHR and Maxwell caused

Cope to engage in particular actions, he has alleged that Maxwell,

12 Cope also argues that K.R.S. §§ 503.050 and 503.085 bar Ballard’s

intentional infliction of emotional distress claim, (Doc. 15 at 10), but

for the same reasons discussed above, this argument fails.

on behalf of UHR, intentionally and recklessly submitted a false

affidavit with the knowledge that it would cause an invalid writ

of possession to issue which would “violate [his] security in his

dwelling.”13 (Doc. 29 ¶¶ 72, 119–121). This is particularly true

because the writ at issue here was ex-parte, meaning that Ballard

was denied the opportunity for notice and a demand for the

property. (Doc. 34 at 18).

Although UHR and Maxwell claim that the statements were

“innocuous ” in light of Ballard’s admission that he failed to pay

for or return the furniture, (Doc. 30 at 17–18), this is in direct

contravention to the allegations in the Amended Complaint, which

must be taken as true, that the ex-parte writ was issued based, at

least in part, on Maxwell’s failure to disclose Ballard’s request

that the furniture be repaired so that he could bring his payments

up to date and that he signed a lease renewal, (Doc. 29 at ¶¶ 12–

15).

This is sufficient, at the pleading stage, to establish a

plausible claim for outrageous and intolerable conduct that

offends generally accepted standards of decency and morality. See

In re Tomlin, No. 15-20852, 2016 WL 1317412, at *23–24 (Bankr.

E.D. Ky. Mar. 31, 2016) (denying a motion to dismiss an IIED claim

13 As discussed above, Defendants’ arguments that Maxwell is entitled to

absolute witness immunity for her statements and that K.R.S. § 425.081

bars his claims in this Court fail.

under analogous Florida law where defendants filed foreclosure

actions to attempt to collect a debt that was not past due).

Similarly, that the state court issued the writ does not sever

the chain of causation between the allegedly false affidavit and

the severe distress and anguish claimed by Ballard, and Defendants

have not cited case law for the proposition that it does. Ballard

has specifically alleged that the Boone County District Court

issued the writ based on Maxwell’s false statements. (Doc. 29 ¶

12). Additionally, K.R.S. § 425.076(1) requires that an affidavit

show “that great or irreparable injury” would otherwise result

before a judicial officer may issue an ex-parte writ of possession,

which supports a reasonable inference that the court would not

have issued the writ but for Maxwell’s allegedly false statements.

As Defendants readily admit, “[b]efore the court’s order, Cope

could not, and would not levy the writ on the property,” (Doc. 30

at 17), and thus violate Ballard’s sense of security. Therefore,

the Court finds that Ballard has plausibly alleged a causal

connection between Maxwell’s conduct on behalf of UHR and his

emotional distress.

Ballard has also plausibly stated an IIED claim against Cope.

Ballard has specifically alleged that Cope, without authority,

intentionally attempted to pick the lock on his home, “shoulder[ed]

his way into [the] home,” threatened to kill him, pointed a loaded

firearm at him, and confined him against his will for over ten

minutes using a can of pepper spray. (Doc. 29 ¶¶ 27–28, 30 32–33,

36, 40–41). These allegations, taken as true, state a claim that

Cope engaged in outrageous and intolerable conduct. Ballard has

also alleged that Cope’s conduct caused him psychological and

emotional injuries, along with mental anguish, suffering, and

distress. (Id. ¶ 118).

Thus, Ballard’s IIED claim is sufficient to survive

Defendants’ Motions to Dismiss.

vi. Negligence Per Se

Defendants’ next argument is that Ballard has failed to state

a claim against them for negligence per se. (Doc. 15 at 11–12;

Doc. 30 at 19–20). “Through KRS 446.070, ‘Kentucky has codified

the common law negligence per se doctrine and created an avenue by

which an individual may seek relief even where a statute does not

specifically provide a private remedy.’” Hickey v. Gen. Elec. Co.,

539 S.W.3d 19, 23 (Ky. 2018) (quoting Vanhook v. Somerset Health

Facilities, LP, 67 F. Supp. 3d 810, 817 (E.D. Ky. 2014)). Under

K.R.S. § 446.070, a plaintiff may sue for a violation of the

statutory standard of care if: (1) the statute is penal in nature

or provides no inclusive civil remedy; (2) the plaintiff is within

the class of people the statute is intended to protect; and (3)

the plaintiff’s injury is of the type that the statute was designed

to prevent. Id. at 23–24 (citing Vanhook, 67 F. Supp. 3d at 819).

Here, Ballard alleges that Defendants violated K.R.S. §§

509.030 et seq., 522.030 et seq., 425.046 et seq., and 425.091 et

seq. (Doc. 29 ¶ 126). K.R.S. §§ 509.030 and 522.030, respectively,

provide that unlawful imprisonment in the second degree and

official misconduct in the second degree are misdemeanors, while

K.R.S. § 425.046 lists the required contents of a writ of

possession when issued by a judicial officer. K.R.S. § 425.091

provides the process for taking custody of property pursuant to a

writ of possession and specifically states that if the levying

officer “reasonably believes that entry and seizure of the property

will involve a substantial risk of death or serious bodily harm to

any person he shall refrain from seizing the property and shall

promptly make a return to the court . . . .”

UHR and Maxwell argue that Ballard has not plausibly alleged

that they violated any of the cited statutes and the Court agrees.

Ballard does not dispute that UHR and Maxwell never unlawfully

imprisoned him or engaged in official misconduct. (See Doc. 34 at

24–25). While Ballard does argue that UHR and Maxwell violated

K.R.S. §§ 425.046 and 425.091, that argument fails. Ballard has

not claimed that UHR and Maxwell were or could have been

responsible for drafting the writ of possession so that it complied

with K.R.S. § 425.046 or for levying the furniture pursuant to the

process outlined in K.R.S. § 425.091. Thus, the duty of care

outlined in those statutes was not theirs to uphold and they cannot

be liable for violating them. Accordingly, the Court will dismiss

Ballard’s negligence per se claim against UHR and Maxwell.

As to Ballard’s negligence per se claim against Cope, the

Court similarly finds that Ballard has failed to allege that Cope

was responsible for drafting the writ and, thus, he also cannot be

held liable for violating K.R.S. § 425.046. However, Ballard has

plausibly claimed that Cope violated K.R.S. §§ 509.030, 522.030,

and 425.091.

While the Court need not decide whether Cope is collaterally

estopped from denying civil liability in connection with his Alford

pleas to violations of K.R.S. §§ 509.030 and 522.030 at the

pleading stage, (see Doc. 35 at 11–13; Doc. 39 at 6–8), Ballard’s

allegation that Cope was criminally convicted under these statutes

is sufficient to state a plausible claim that he violated them.

Although Cope argues that Ballard has not presented

sufficient facts to show a violation of K.R.S. § 425.091, the

Amended Complaint contains several facts that would support a

reasonable inference that Cope, as the levying officer,

“reasonably believe[d] that entry and seizure of the property

[would] involve a substantial risk of death or serious bodily harm”

to Ballard, including Cope’s own statement that he would kill

Ballard and that Cope pointed his gun at Ballard, (Doc. 29 ¶¶ 30,

33, 36), but chose to seize the furniture anyway.

The Court finds that Ballard has sufficiently alleged the

violation of two criminal statutes, which are penal in nature, and

one civil statute that do not provide private remedies for their

violation and that Ballard is a member of the class of people the

above-referenced statutes were designed to protect, as a member of

the public and a defendant subject to the levy of a writ of

possession. However, Cope argues that Ballard has failed to

demonstrate that the claimed violations caused his damages. (Doc.

15 at 11–12). Nonetheless, the Court finds that Ballard has

plausibly alleged that Cope caused Ballard mental pain, anguish,

and emotional distress, among other damages, by unlawfully

imprisoning him, engaging in official misconduct, and creating a

substantial risk that Ballard would die or be seriously injured

while Cope levied the furniture. (See Doc. 29 ¶ 127). These are

the types of injuries the statutes were enacted to prevent.

Accordingly, the Court will deny Cope’s Motion to Dismiss

Ballard’s negligence per se claim against him.

vii. Abuse of Process

Defendants also argue that Ballard has failed to state a claim

against them for abuse of process.14 (Doc. 30 at 20–22). A defendant

14 Although Cope does not specifically argue that Ballard has failed to

state a plausible claim for abuse of process against him, his Motion to

Dismiss adopts the citations of law, arguments, and conclusions set forth

by UHR and Maxwell’s Motion. (Doc. 31 at 2). Therefore, the Court will

also analyze the plausibility of Ballard’s abuse of process claim against

Cope.

commits abuse of process under Kentucky law when they “use[] a

legal process, whether criminal or civil, against another

primarily to accomplish a purpose for which that process is not

designed . . . .” Sprint Commc’ns Co., L.P. v. Leggett, 307 S.W.3d

109, 113 (Ky. 2010) (citing Restatement (Second) of Torts § 682

(1977)). Abuse of process has two elements: (1) an ulterior purpose

and (2) a willful act in the use of the process that is not proper

in the regular conduct of the proceeding. Garcia v. Whitaker, 400

S.W.3d 270, 276 (Ky. 2013) (citing Simpson v. Laytart, 962 S.W.2d

392, 394 (Ky. 1998)). “[T]here is no liability where the defendant

has done nothing more than carry out the process to its authorized

conclusion even if we assume arguendo bad intentions.” Simpson,

962 S.W.2d at 395.

Assuming that Ballard’s allegation that Defendants acted for

the purposes of “intimidation, harassment, retaliation, and to

strike fear into [his] heart,” (Doc. 29 ¶ 134), satisfies the first

element, Ballard still has not stated facts to satisfy the second.

Generally, Kentucky courts find that the second element has been

met where the defendant has used the process “‘to obtain a

collateral advantage,’” in other words, as “‘a form of extortion

. . . in the course of negotiation.’” Simpson, 962 S.W.2d at 395

(quoting W. Prosser, Handbook of the Law of Torts, § 121 (4th ed.

1971)); see also Sprint, 307 S.W.3d at 119 (finding evidence of a

“willful act” where a company filed a lawsuit that grossly

overstated its authority to condemn property in order to induce a

property owner to negotiate more generously for the sale of land);

Mullins v. Richards, 705 S.W.2d 951, 952 (Ky. Ct. App. 1986)

(finding no abuse of process where the defendants had not attempted

to use indictments against the plaintiff outside the criminal

proceeding and had not had contact with the plaintiff between the

date of the indictment and the date of the trial).

In Zeltiq Aesthetics, Inc. v. Medshare, Inc., a court found

that, even assuming that the defendant’s pending claims in another

action were completely without merit and that they had only been

filed to disrupt the plaintiff’s business and intimidate its

employees, the second element of an abuse of process claim could

not be satisfied. No. 3:14-CV-213-CRS, 2015 WL 3447612, at *4 (W.D.

Ky. May 28, 2015); see also Kinslow v. Fifth Third Bank, Inc., 529

F. App’x 467, 473 (6th Cir. 2013) (“Kentucky courts have declined

to find that a plaintiff has stated a claim for abuse of process

where the defendant has done nothing more than file a lawsuit that

lacked any legal basis for the purpose of retaliation.”) (internal

citations omitted).

Similarly, in McIlwain v. Dodd, a court dismissed an abuse of

process claim even though the defendant allegedly had improper

motives and made false representations in connection with criminal

proceedings because she did not use the threat of arrest for a

purpose outside the criminal process, such as to secure a monetary,

proprietary, or other benefit from the plaintiff. No. 3:21-CV-406-

RGJ, 2022 WL 492986, at *11 (W.D. Ky. Feb. 17, 2022), aff’d, No.

22-5219, 2022 WL 17169006 (6th Cir. Nov. 22, 2022); see also Trent

v. Trulock, No. 1:19-CV-00005-GNS-HBB, 2021 WL 848642, at *3 (W.D.

KY. Mar. 5, 2021) (dismissing an abuse of process claim where the

plaintiff merely alleged that the defendants attempted to punish

and retaliate against him by instituting criminal charges, not

that they acted to obtain a collateral advantage).

Here, just as in Zeltiq and McIlwain, Ballard has not alleged

that UHR and Maxwell used the ex-parte writ of possession to secure

a collateral advantage, such as a monetary benefit, or to extort

something from him. In fact, just as in Mullins, Ballard has not

alleged that he had any contact with UHR or Maxwell after they

obtained the writ. On the contrary, he has merely claimed that

they instituted the proceedings to intimidate, harass, and

retaliate against him. Even assuming that Maxwell made false

representations in order to obtain the writ and that Defendants

had improper motivations, the Court cannot conclude that they have

done anything more than carry out the judicial process to its

authorized conclusion of obtaining the writ and levying the

furniture.

Similarly, even if the Court finds that Cope used a legal

process against Ballard for an ulterior purpose when he levied the

furniture, Ballard has not alleged that Cope did so to obtain a

collateral advantage or as a form of extortion in the course of

negotiation. Rather, he merely carried out the judicial process to

its authorized conclusion by repossessing the furniture.

Therefore, the Court will dismiss Ballard’s abuse of process

claim.

viii. Respondeat Superior/Vicarious Liability

Finally, UHR argues that Ballard’s respondeat superior claim

against it fails because Ballard has failed to plead a viable claim

under state law against its employee, Maxwell. (Doc. 30 at 22).

Ballard responds that he has sufficiently pled claims for IIED,

abuse of process, and negligence per se against Maxwell and that

UHR may thus be held vicariously liable for her actions. (Doc. 34

at 22). But because, as discussed above, the Court has dismissed

Ballard’s claims against Maxwell for abuse of process and

negligence per se, his respondeat superior claim must rise or fall

with his IIED claim.

In assessing a claim under the doctrine of respondeat

superior, the crux of the matter “is whether the employee or agent

was acting within the scope of his employment at the time of his

tortious act.” Osborne, 31 S.W.3d at 915. Under Kentucky law,

“[g]enerally, intentional torts are committed outside the scope of

the employment.” Booker v. GTE.net LLC, 350 F.3d 515, 518 (6th

Cir. 2003). Nonetheless intentional conduct can sometimes be found

within the scope of employment if it is closely related to an

employee’s job. Id. The Sixth Circuit has developed four guideposts

to assess whether conduct is within the scope of employment under

Kentucky law: (1) whether the conduct was similar to that which

the employee was hired to perform; (2) whether the action occurred

within the authorized spacial and temporal limits of the

employment; (3) whether the action was in furtherance of the

employer’s business; and (4) whether the conduct, though

unauthorized, was expectable in view of the employee’s duties. Id.

at 518–19 (citing Coleman v. United States, 91 F.3d 820, 824 (6th

Cir. 1996)).

Kentucky courts typically focus on the motive of the employee

in determining whether they were acting within the scope of their

employment. See Papa John’s Int’l, Inc. v. McCoy, 244 S.W.3d 44,

52 (Ky 2008) (finding that a pizza delivery driver was not acting

within the scope of his employment when he made a false statement

to the police about a customer); Patterson v. Blair, 172 S.W.3d

361, 363, 372 (Ky. 2005) (finding that an automobile dealership

employee was acting within the scope of his employment when he

shot the tires out of a car in an attempt to repossess it).

At this stage of the case, before discovery has been

completed, it is difficult to determine what duties Maxwell was

hired by UHR to perform. However, the Court can reasonably infer,

based on the alleged facts, that it was part of her job to

participate in legal proceedings to repossess UHR-owned furniture.

Unlike in Papa John’s, where making a false statement about a

customer failed to help sell pizzas, see 244 S.W.3d at 52, here,

it is reasonable to infer that the alleged conduct which forms the

basis of Ballard’s IIED claim, making false representations in an

affidavit, furthered UHR’s business interests by allowing it to

regain custody of its furniture. Just as in Patterson, Maxwell’s

conduct was “at least incidental” to authorized conduct and there

are no allegations that Maxwell falsified the affidavit for

personal purposes. See 172 S.W.3d at 372.

Accordingly, Ballard’s respondeat superior claim is

sufficient to survive UHR’s Motion to Dismiss.

C. Qualified Immunity and Qualified Official Immunity

Defendants also argue that Cope is protected from Ballard’s

federal claims by qualified immunity and from Ballard’s state law

claims by Kentucky’s qualified official immunity doctrine. (Doc.

15 at 12–17; Doc. 30 at 22–23).

i. Qualified Immunity

Under the federal standard, “[i]n order to overcome a

defendant’s qualified immunity defense at the motion to dismiss

stage, a plaintiff must plausibly allege facts showing ‘(1) that

the official violated a statutory or constitutional right, and (2)

that the right was clearly established at the time of the

challenged conduct.’” Marvaso v. Sanchez, 971 F.3d 599, 605 (6th

Cir. 2020) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

However, “[t]his is a low bar, given that granting qualified

immunity at the motion to dismiss stage is usually disfavored.”

Id.; see also Courtright v. City of Battle Creek, 839 F.3d 513,

518 (6th Cir. 2016) (“‘Although an officer’s entitlement to

qualified immunity is a threshold question to be resolved at the

earliest possible point, that point is usually summary judgment

and not dismissal under Rule 12.’”) (quoting Wesley v. Campbell,

779 F.3d 421, 433–34 (6th Cir. 2015)).

Here, Ballard’s federal claims against Cope include violation

of the Fourth and Fourteenth Amendments under § 1983, civil

conspiracy under § 1983, and First Amendment retaliation. As

discussed above, the Court finds that Ballard has plausibly alleged

the relevant violations for these claims and, thus, the only

question remaining is whether the rights were clearly established

at the time of Cope’s conduct.

In answering this question, courts must “consider the right

at issue ‘in light of the specific context of the case, not as a

broad general proposition.’” Revis, 489 F.3d at 285 (quoting Lyons

v. City of Xenia, 417 F.3d 565, 571 (6th Cir. 2005)). The analysis

depends on “‘whether the right is so clearly established that a

reasonable official would understand that what he is doing violates

that right.’” Id. (quoting Charvat v. E. Ohio Reg’l Wastewater

Auth., 246 F.3d 607, 616 (6th Cir. 2001)).

The Sixth Circuit has held that “there is no doubt that Graham

v. Connor clearly establishes the general proposition that use of

force is contrary to the Fourth Amendment if it is excessive under

objective standards of reasonableness.” Binay, 601 F.3d at 652

(internal quotation marks omitted). Thus, the Sixth Circuit held

that, as of 2007, officers were on notice that the use of excessive

force in executing a search warrant would constitute a Fourth

Amendment violation. Id.; see also Mills, 483 F. Supp. 3d at 467

(finding that plaintiffs who were removed from an investigative

scene had a clearly established right in 2017 to be free from

unnecessary and excessive force). Further, a reasonable officer

would know that, in the absence of a warrant, individuals have “a

clearly established right to be free from law enforcement’s non-

consensual, forcible entry into [their] home.” Mills, 483 F. Supp.

3d at 473 (citing Cummings v. City of Akron, 418 F.3d 676, 687

(6th Cir. 2005)).

Similarly, here, because Ballard has plausibly alleged that

Cope used objectively unreasonable force in executing the writ of

possession and that Cope entered his home forcibly and without his

consent or a valid warrant in 2021, he has also plausibly alleged

that Cope violated his clearly established Fourth Amendment

rights.

Although Cope argues that he acted in an objectively

reasonable manner because he relied on the writ of possession,

which had been issued by the Boone County District Court and

directed him to enter Ballard’s home “by any force necessary,”15

(Doc. 15 at 13–17; Doc. 15-1 at 1), that argument fails at the

pleading stage. Cope relies on Revis v. Meldrum, 489 F.3d at 286,

for its finding that “the language of the writs themselves” can

support the proposition that a reasonable officer would not have

understood that what he was doing violated the plaintiff’s rights.

(See Doc. 15 at 13–14). However, that same case provides that

“[q]ualified immunity sweeps broadly, affording state officials

ample room for mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.” Revis, 489

F.3d at 286 (internal quotation marks omitted).

Here, Ballard has plausibly alleged that Cope knowingly

violated the law because he was convicted under K.R.S. § 509.030

15 Although Ballard argues that the writ of possession, which Defendants

have filed with their Motions, is not admissible, (see Doc. 34 at 3;

Doc. 35 at 3), that argument is inapposite. Courts may consider certain

matters outside the pleadings, such as matters of public record, orders,

and documents that a defendant attaches to a motion to dismiss if they

are referred to in the complaint and are central to the claims therein,

without converting the motion into one for summary judgment. Amini v.

Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (internal citations

omitted). Here, the writ of possession is an order issued by a state

court. Although it is not attached to Ballard’s Amended Complaint, it

is referred to throughout Ballard’s claims and is central to them. (See

Doc. 29 ¶¶ 11–12, 22–24). Thus, this Court may properly consider the

writ without converting Defendants’ Motions to Dismiss to motions for

summary judgment.

for “knowingly and unlawfully restraining another person” and

under K.R.S. § 522.030 for “knowingly” engaging in an unauthorized

exercise of his official functions, refraining from performing a

duty imposed by his office, or violating a statute, rule, or

regulation relating to his office.

Further, Cope relies on Marvaso v. Sanchez to support his

immunity argument. (Doc. 15 at 16–17). In that case, the Sixth

Circuit held that “where the alleged Fourth Amendment violation

involves a search or seizure pursuant to a warrant, the fact that

a neutral magistrate has issued a warrant is the clearest

indication that the officers acted in an objectively reasonable

manner or, as we have sometimes put it, in objective good faith.”

Marvaso, 971 F.3d at 610 (internal quotation marks omitted). But

the Marvaso Court also noted that there is an important exception

to that general rule: “‘an officer cannot rely on a judicial

determination of probable cause if that officer knowingly makes

false statements and omissions to the judge such that but for these

falsities the judge would not have issued the warrant.’” Id.

(quoting Yancey v. Carroll Cnty., 876 F.2d 1238, 1243 (6th Cir.

1989)).

Although the state court’s writ of possession is not a warrant

and does not purport to include a determination of probable cause,

to the extent that it operates similarly to a warrant for the

purposes of immunity analysis, Cope is likewise barred from relying

on it if he knew that it was issued because of false statements or

omissions. While Ballard has not alleged that Cope himself made

the false statements that gave rise to the writ, he has alleged

that all Defendants, including Cope, knew that it was obtained

through material false representations and omissions in Maxwell’s

affidavit and knew that it provided no legal basis for Cope’s entry

into his home. (Doc. 29 ¶ 72). Accordingly, taking these

allegations as true, the Court cannot conclude that Cope acted in

an objectively reasonable manner by relying on a writ that he knew

was obtained through false statements.

While the parties do not focus on Ballard’s claims for First

Amendment retaliation and civil conspiracy under § 1983, the Court

finds that Ballard has also plausibly alleged that Cope violated

his clearly established rights by sufficiently alleging the

elements of those claims. See Myers v. City of Centerville, Ohio,

41 F.4th 746, 766 (6th Cir. 2022) (finding that “whether a speech-

retaliation claim is clearly established at the pleadings stage

rises and falls with whether the claim was sufficiently alleged”)

(internal citation omitted); Peterson v. Heymes, 931 F.3d 546, 556

(6th Cir. 2019) (denying qualified immunity where the plaintiff’s

claim that defendants conspired to deprive him of constitutional

rights was supported by factual assertions); Scott v. Churchill,

377 F.3d 565, 572 (6th Cir. 2004) (finding that where a defendant

was not entitled to qualified immunity on the plaintiff’s

constitutional claim, he was not entitled to qualified immunity on

the plaintiff’s civil conspiracy claim).

Thus, qualified immunity does not bar Ballard’s federal

claims at the pleading stage.

ii. Qualified Official Immunity

Ballard’s state law claims must be analyzed under the Kentucky

standard for qualified official immunity. “When a public officer

or employee is sued in his or her individual capacity, that officer

or employee may enjoy qualified official immunity ‘which affords

protection from damages liability for good faith judgment calls

made in a legally uncertain environment.’” Ritchie v. Turner, 559

S.W.3d 822, 831 (Ky. 2018) (quoting Yanero v. Davis, 65 S.W.3d

510, 522 (Ky. 2001)). “Qualified official immunity applies to the

negligent performance by a public officer or employee of (1)

discretionary acts or functions . . . ; (2) in good faith; and (3)

within the scope of the employee’s authority.” Yanero, 65 S.W.3d

at 522.

Even if the Court assumes that Cope was engaging in a

discretionary act when he decided how much force to use to execute

the writ of possession, see Smith v. Norton Hosps., Inc., 488

S.W.3d 23, 31 (Ky. Ct. App. 2016) (finding that “the determination

of the amount of force required to effect the investigatory stop

or arrest is . . . a discretionary act”), Ballard has plausibly

alleged that Cope neither acted in good faith nor within the scope

of his authority as a Kenton County Constable.

Bad faith “can be predicated on a violation of a

constitutional, statutory, or other clearly established right

which a person in the public employee’s position presumptively

would have known was afforded to a person in the plaintiff’s

position, i.e., objective unreasonableness; or if the officer or

employee willfully or maliciously intended to harm the plaintiff

or acted with a corrupt motive.” Yanero, 65 S.W.3d at 523.

Because the Court has concluded, as discussed above, that

Ballard has plausibly alleged that Cope violated his clearly

established Fourth and First Amendment rights despite his

admission that he had a weapon, Ballard has also plausibly alleged

that Cope acted in bad faith for state law immunity purposes. See

Browning v. Edmonson Cnty., Ky., 18 F.4th 516, 530–31 (6th Cir.

2021) (finding that where a defendant used excessive and

objectively unreasonable force in violation of the plaintiff’s

clearly established constitutional rights, the defendant did not

act in good faith and was thus not entitled to qualified official

immunity under Kentucky law); Mills, 483 F. Supp. 3d at 476–77

(finding that allegations that a defendant used excessive and

unreasonable force equated to allegations of bad faith under

Kentucky qualified official immunity law).

Further, Ballard has plausibly alleged that Cope was

convicted under K.R.S. § 509.030 for “knowingly and unlawfully

restraining another person,” that he violated K.R.S. § 425.091

because he “reasonably believe[d] that entry and seizure of the

property [would] involve a substantial risk of death or serious

bodily harm” to Ballard but seized the furniture anyway, and that

he intentionally and maliciously acted for the corrupt motives of

intimidation, harassment, retaliation, and “to strike fear into

[Ballard’s] heart.” (Doc. 29 ¶¶ 46, 126, 134). The only case Cope

relies on for his argument that he acted in good faith, Dunn v.

Felty, is wholly inapplicable as it focuses on whether a police

officer had reasonable grounds to believe that the plaintiff

committed an arrestable offense. See No. 2004-CA-001029-MR, 2005

WL 736596, at *2 (Ky. Ct. App. Apr. 1, 2005). Accordingly, Ballard

has sufficiently pled that Cope acted in bad faith.

Although Ballard’s allegations of bad faith are enough to

preclude the application of qualified official immunity for the

purposes of Defendants’ Motions to Dismiss, Ballard has also

alleged that Cope did not act within the scope of his authority.

Critically, Ballard has alleged that Cope was convicted under

K.R.S. § 522.030 for official misconduct, which includes knowingly

engaging in an unauthorized exercise of his official functions,

refraining from performing a duty imposed by his office, or

violating a statute, rule, or regulation relating to his office.

Further, under Section 101 of the Kentucky Constitution,

constables’ “jurisdictions shall be coextensive with the counties

in which they reside” and thus, Ballard has plausibly alleged that

Cope’s authority as a Kenton County Constable did not extend to

Boone County, where Ballard’s home is located.16 (Doc. 29 ¶ 7).

Thus, qualified official immunity does not apply to bar

Ballard’s state law claims.17

D. Plaintiff’s Motion Pursuant to Rule 56(d)

Finally, Ballard has moved to stay the Court’s ruling on the

pending Motions to allow him to conduct discovery under Federal

Rule of Civil Procedure 56(d).18 (Doc. 20). Federal Rule of Civil

Procedure 56 applies to motions for summary judgment and Rule 56(d)

provides that “[i]f a nonmovant shows by affidavit or declaration

that, for specified reasons, it cannot present facts essential to

justify its opposition, the court may: (1) defer considering the

motion or deny it; (2) allow time to obtain affidavits or

16 The Court need not further address the parties’ arguments regarding

whether the Boone County District Court properly appointed Cope as a

special bailiff. (See Doc. 35 at 13–14; Doc. 39 at 5).

17 Because the Court concludes that Cope is not entitled to qualified

immunity or qualified official immunity at this stage of the case, UHR

and Maxwell’s arguments that Cope’s immunity bars Ballard’s claims

against them, (Doc. 30 at 22–23), also fail.

18 Although Defendants argue that Ballard’s Rule 56(d) Motion was mooted

when he filed his Amended Complaint, (Doc. 41 at 1–2), the Court will

analyze the arguments it contains because Ballard has incorporated those

arguments by reference in his Responses to Defendants’ current Motions

to Dismiss. (See Doc. 34 at 1–2; Doc. 35 at 1).

declarations or to take discovery; or (3) issue any other

appropriate order.”

Although Defendants’ present Motions are styled as “Motions

to Dismiss,” Ballard nonetheless argues that they should be

construed as motions for summary judgment under Federal Rule of

Civil Procedure 12(d) because Defendants have presented facts

outside the pleadings in support of their Motions. (Doc. 27 at 1).

Federal Rule of Civil Procedure 12(d) states that “[i]f, 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.”

Ballard argues that Cope’s claims that he acted reasonably

including by holstering his firearm, reasonably relied on the writ

of possession, was not instrumental in the acquisition of the writ,

and was in fear for his safety and the safety of others are outside

the allegations in the pleadings. (Doc. 20 at 2–3; Doc. 27 at 2–

3). Similarly, Ballard argues that UHR and Maxwell’s contentions

that they followed the statutory requirements of requesting the

writ, that Ballard refused to perform his obligations, and that

they attempted to work with Ballard for months are also outside

the pleadings. (Doc. 20 at 3; Doc. 27 at 3; Doc. 34 at 3).

However, the Court has not relied on Defendants’ claims, but

rather, has only based its rulings on the allegations in the

Amended Complaint. Regarding the two claims that the Court has

dismissed, negligence per se against UHR and Maxwell and abuse of

process against all Defendants, it is what Ballard has failed to

plausibly allege, namely that UHR and Ballard violated a cited

statute and that Defendants used a legal process to obtain a

collateral advantage, that necessitates this outcome rather than

any citations to unsubstantiated facts Defendants may have

introduced. Accordingly, to the extent Defendants have raised

matters outside the pleadings, they have been excluded by the Court

and thus, pursuant to Rule 12(d), do not convert Defendants’

Motions to Dismiss under 12(b)(6) to motions for summary judgment

under Rule 56.

Although Ballard argues that the writ of possession is not

admissible at the pleading stage, (see Doc. 20 at 4; Doc. 34 at 3;

Doc. 35 at 3), that argument fails, as addressed above. The Court’s

consideration of the writ, an order issued by a state court that

is attached to Defendants’ Motions to Dismiss and is referred to

in Ballard’s Amended Complaint because it is central to his claims,

does not convert Defendants’ Motions to Dismiss to motions for

summary judgment. See Amini, 259 F.3d at 502.

Because there are no pending motions for summary judgment

under Rule 56, Ballard is not entitled to discovery under Rule

56(d) before the Court issues its ruling.

Conclusion

Therefore, for the reasons stated above, IT IS ORDERED that:

(1) Defendants’ Motions to Dismiss the original Complaint

(Doc. 14; Doc. 15) be, and are hereby, DENIED AS MOOT;

(2) UHR and Maxwell’s Motion to Dismiss the Amended Complaint

(Doc. 30) be, and is hereby, GRANTED IN PART and DENIED IN PART

consistent with this opinion;

(3) Cope’s Motion to Dismiss the Amended Complaint (Doc. 31)

be, and is hereby, GRANTED IN PART and DENIED IN PART consistent

with this opinion;

(4) Plaintiff’s Motion pursuant to Rule 56(d) (Doc. 20) be,

and is hereby, DENIED; and

(5) The parties shall confer no later than February 17, 2023,

to consider the nature and basis of their claims and defenses and

the possibilities for a prompt settlement or resolution of the

case, to make or arrange for the disclosures required by Rule

26(a) (1), and to develop a proposed discovery plan. Such proposed

plan shall be filed no later than March 3, 2023.

This day of February 2023.

SOR Signed By:

(0) Wiviam 0. Bertetsman □□

“Gime United States District Judge

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