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Polzin v. Barna and Co.

December 11, 2007


The opinion of the court was delivered by: Thomas W. Phillips United States District Judge


This matter is presently before the court on the following motions filed by plaintiff:

1. Motion to alter or amend judgment of dismissal [Doc. 33]; and

2. Motion to amend complaint [Doc. 36].

The issues raised have been exceptionally well briefed by the parties [see Docs. 35, 36, 38, 39, 40, and 41]*fn1 so that this matter is now ripe for adjudication.*fn2 For the reasons that follow, plaintiff's motions will be denied.


This action arises out of the 2004 purchase of a log home package and related services for the home's construction by plaintiff Susan L. Ostrander Polzin, an Ohio attorney. More specifically, the record reflects that plaintiff, on April 10, 2007, filed a forty-four page complaint against five Tennessee defendants and three Ohio defendants, alleging a total of thirty-eight causes of action, many of which are pursuant to various Ohio statutes [see Doc. 1]. As is apparent from the complaint, complete diversity between plaintiff and the defendants does not exist; rather, the sole basis for federal jurisdiction is set forth in Count XXXIV, which alleges violations of the Racketeer Influenced and Corrupt Organizations Act (civil RICO), 18 U.S.C. § 1962(c) [see id., pp.38-40].

In response to the complaint, defendants Barna and Company, Barna and Company, d/b/a Jim Barna Log Systems, and Log Home Builders, Inc. (the Barna defendants), on May 23, 2007, filed a motion to dismiss [Doc. 19] and a supporting memorandum [Doc. 20]. Also, on that same day, defendants Bryan Mason and Bryan Mason, d/b/a Mason Construction, filed a similar motion to dismiss, adopting the Barna defendants' supporting memorandum [see Doc. 21]. The very next day, defendants Eric Thompson, Karen Thompson, and Valley View Cabins, Inc., filed an identical motion to dismiss, likewise adopting the Barna defendants' brief [see Doc. 22]. On June 12, 2007, plaintiff timely responded to defendants' motions, filing a fifteen page brief in opposition [see Doc. 23]. Plaintiff did not, however, file any attachments or affidavits to her response [see id.].

In the meantime, on June 6, 2007, the trial judge originally assigned to this case, the Honorable James H. Jarvis, II, passed away. This case was then randomly reassigned to the undersigned on June 21, 2007, by order of Chief Judge Curtis L. Collier [see Doc. 24].

Because of the influx of dozens of other cases from Judge Jarvis' docket and because of the already heavy demands of this court's civil and criminal dockets, this court was unable to consider the merits of defendants' motions for several months. Nevertheless, on September 14, 2007, this court filed a nineteen page memorandum opinion [Doc. 26] and order [Doc. 27] which dismissed with prejudice plaintiff's civil RICO cause of action and dismissed without prejudice the remaining thirty-seven state law causes of action. In particular, this court determined that dismissal of the civil RICO action was appropriate pursuant to Fed. R. Civ. P. 9(b) for plaintiff's failure to set forth specific acts of fraudulent behavior by these defendants and also proper pursuant to Fed. R. Civ. P. 12(b)(6) for her failure to set forth facts sufficient to show a threat of continuing criminal activity, having neither alleged continuity from a "close-ended" perspective nor from a "open-ended" perspective. To reiterate, even though defendants' motions had been pending for almost four months when this case was dismissed, there was no motion filed by plaintiff seeking leave to supplement her response by any further filings. Neither did plaintiff file a motion to amend her deficient complaint.

However, that was certainly not the case after this court issued its September 14th opinion. Exactly nine working days after the dismissal, plaintiff timely filed her motion to alter or amend the judgment of dismissal pursuant to Fed. R. Civ. P. 59(e) [see Doc. 33] and her corresponding motion to amend the complaint [see Doc. 36]. The most amazing dimension of this filing is that plaintiff, in that short period of time, was able to attach eleven complaints filed in Tennessee, Ohio, Alabama, North Carolina, and South Carolina which, according to plaintiff, comprise similar allegations against these defendants, all in an attempt to circumvent the previous findings of this court in the September 14th opinion [see Doc. 35-5 through 35-14].


It is well settled that a judgment may generally be altered or amended for one of four reasons: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; and (4) to prevent manifest injustice. GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (citations omitted). Here, plaintiff contends that these eleven complaints brought by various individuals in these five states against numerous defendants*fn3 constitute the extraordinary circumstance of "newly discovered evidence" of the civil RICO violation alleged in this case. The court is of a different mindset, however.

First, the court is inclined to agree with the defendants that these eleven other complaints are not even evidence, much less "newly discovered evidence." Rather, these complaints contain only allegations and allegations are not evidence. See Fed. R. Civ. P. 7(a); Gooden v. City of Memphis Police Dept., 67 Fed. Appx. 893, 895 (6th Cir. 2003) (holding that conclusory allegations and unsubstantiated assertions "are not evidence"). Moreover, many of the complaints relied on by plaintiff are not verified; in fact, one complaint is unsigned [see Doc. 35-9, p.12]. Consequently, since an unverified complaint "may not be used as evidence to consider at the summary judgment stage," it likewise may not be used as evidence at the Rule 12 motion stage. Jones v. Barnett, 2007 WL 522705, at *2 (E.D. Mich. 2007) (citing Schroeder ...

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