The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court is the motion to dismiss of Defendants City of Cleveland, Tennessee (Cleveland) and Brian Smith (Smith) pursuant to Federal Rule of Civil Procedure 12(b)(6) (Court File No. 9), as well as the supporting memorandum (Court File No. 10), Plaintiff's response (Court File No. 14), and Defendants' subsequent reply (Court File No. 15). Defendants Bradley Equipment Rentals and Sales, Inc. (BERS) and Hale Y. Roe (Roe) have no pending motions before this Court.
After considering the above motions and briefs, and for the following reasons, this Court will DISMISS the claims under 42 U.S.C. §§ 1983 and 1985 against Defendants City of Cleveland, Tennessee and Brian Smith; will DISMISS the claim under 11 U.S.C. § 362 against Defendants City of Cleveland, Tennessee and Brian Smith; and will REMAND the remaining state claims against Defendants City of Cleveland, Tennessee and Brian Smith to the Circuit Court of Bradley County, Tennessee.
In reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court construes the complaint in the light most favorable to the plaintiff, Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998), accepts the complaint's factual allegations as true, Broyde v. Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994), and determines whether the plaintiff has pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, -- U.S.--, 127 S.Ct. 1955, 1974 (May 21, 2007) (rejecting traditional Fed. R. Civ. P. 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court may not grant a 12(b)(6) motion based upon its disbelief of a complaint's factual allegations, Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995), nor should the Court weigh the evidence or evaluate the credibility of witnesses, id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The question is not whether the plaintiff will ultimately prevail but whether "the claimant is entitled to offer evidence to support the claims." Kroll v. United States, 58 F.3d 1087 (6th Cir. 1995); Ecclesiastical Order of the Ism of Am., Inc. v. Internal Revenue Serv., 725 F.2d 398, 403 (6th Cir. 1984). At the same time, bare assertions of legal conclusions are insufficient, and the complaint "must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988).
Plaintiff Thomas E. Crowe, Jr., is a resident of Tennessee (Court File No. 1, Exhibit B, Complaint, at ¶ 1). BERS is a Tennessee corporation conducting business in Tennessee (Id. at ¶ 2).
Roe, the owner, officer, and director of BERS, is a resident of Tennessee (Id. at ¶ 3). Smith is a detective employed by Cleveland (Id. at ¶ 4). Cleveland is a municipality in the State of Tennessee (Id. at ¶ 5).
On July 24, 2002, Plaintiff rented construction equipment from BERS (Id. at ¶ 6). Plaintiff returned the equipment on September 5, 2002, but did not pay the rental fee (Id.). Roe, on behalf of BERS, filed a civil suit against Plaintiff seeking payment of the rental fee on September 16, 2002 (Id.). Plaintiff filed for bankruptcy on September 19, 2002 and a discharge order was entered on January 2, 2003 (Id. at ¶ 6, 7). BERS was listed as a creditor in the bankruptcy case; however, BERS did not file any objection to the discharge of Plaintiff's debt (Id. at ¶ 7). As a result of the bankruptcy order, the Civil Division of the Bradley County General Sessions Court dismissed BERS's civil suit against Plaintiff (Id. at ¶ 8).
On May 1, 2003, Roe, acting on behalf of BERS, filed a police report against Plaintiff alleging Plaintiff committed a theft under state law in failing to pay the rental fee (Id. at ¶ 9). Defendant Smith filed an Affidavit of Complaint in the Criminal Division of the General Sessions Court of Bradley County (Id.). Plaintiff was arrested, taken to jail, booked, and then released on bond (Id.). Bradley County Judge Andrew Bennett dismissed the criminal charges after being advised the debt had been discharged in bankruptcy (Id.).
On August 1, 2003, Roe wrote to Smith again, informing him Plaintiff had not paid the rental fee. (Id. at 10). Plaintiff was again arrested, taken to jail, booked, and released on bond (Id.). The District Attorney voluntarily dismissed the charges on March 29, 2004 (Id.).
On September 8, 2004, Smith again testified before the Bradley County Grand Jury (Id. at ¶ 11). Plaintiff was charged with theft for the third time concerning the rental from BERS (Id.).
Plaintiff was arrested, taken to jail, booked, and released on bond (Id.). The District Attorney voluntarily dismissed the charges on September 26, 2006 (Id.).
After Plaintiff's third indictment, but prior to its dismissal, Plaintiff filed a complaint with this Court, on December 13, 2005 (Case #1:05-cv-345, Court File No. 1) (2005 Complaint). The 2005 complaint asserted the claims of malicious prosecution, abuse of procedure, violation of the Tennessee Constitution, Art. 1, Sec. 18, false arrest and imprisonment, outrage, and federal actions under 42 U.S.C. §§ 1983 and 1985 (Id.). However, the 2005 complaint did not include any facts arising from Plaintiff's third indictment on September 8, 2004 (Id.) Defendants in the 2005 case, i.e. BERS, Roe, and Cleveland, filed motions to dismiss (Case #1:05-cv-345, Court File Nos. 2, 4). Plaintiff failed to respond to any of those motions (Case #1:05-cv-345, Court File No. 6). On February 13, 2006, this Court dismissed with prejudice the federal claims under §§ 1983 and 1985 as they were barred by the statute of ...