United States District Court, M.D. Tennessee, Nashville
CRENSHAW CHIEF JUDGE
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY U.S. MAGISTRATE JUDGE
before the Court is the Defendant John L. McLemore's
Motion to Dismiss (Docket No. 8) along with supporting
memorandum of law (Docket No. 9). The Pro Se Plaintiff has
filed a document styled Motion to Quash the 17 July 2017
Motion to Dismiss this Case by John McLemore which the court
will treat as a response to the Motion to Dismiss. Docket No.
10. For the reasons stated herein, the undersigned recommends
that the Defendant's Motion to Dismiss be GRANTED.
John C. McLemore, was appointed Trustee by the Bankruptcy
Court for the Middle District of Tennessee following the
filing of a Chapter 7 bankruptcy filed by Pro Se Plaintiff
Owen Bell (Docket No. 1, p. 3). Thereafter, Plaintiff filed
several lawsuits in this court pro se against attorneys and
other parties to a 2014 judgment obtained against Bell in the
United States District Court for the Middle District of
Tennessee. McLemore, in his capacity as a trustee, intervened
in those actions as the real party in interest and according
to the complaint recommended dismissal of the lawsuits. To
date, two of the actions, 3:16-cv-02064 and 3:17-cv-00642
have been dismissed. The compliant in this action alleges
that the Trustee failed to properly administer the bankruptcy
estate by not pursuing the civil actions related to the 2014
judgment. Docket No. 1.
asserts that under the Barton doctrine the court
lacks subject matter jurisdiction because the Plaintiff
failed to obtain permission from the bankruptcy court before
bringing suit against the trustee for issues related to the
trustee's official actions. Docket No. 8. Further,
Defendant asserts that the complaint fails to state a claim
for relief for any of the named causes of action.
response to the Motion to Dismiss, Plaintiff filed a Motion
to Quash the Motion to Dismiss wherein he asserts that there
is no immunity for obstruction of justice and that the
bankruptcy court has no jurisdiction over such a claim.
Docket No. 10, p. 2. Plaintiff further argues that the
Barton doctrine does not apply because the U.S.
Trustee Program and Bankruptcy Court have acted as
“co-conspirators in collusion with John McLemore. . .
.” Id. at p. 3.
Motion to Dismiss for failure to state a claim pursuant to
Federal Rules of Civil Procedure 12(b)(6) the Court is
required to construe the complaint in the light most
favorable to the plaintiff and to accept all well-pleaded
allegations of fact as being true. Collins v. Nagle,
892 F.2d 489, 493 (6th Cir. 1989). Despite the Court's
responsibility to liberally construe the complaint in the
plaintiff's favor, “more than bare assertions of
legal conclusions is ordinarily required to satisfy federal
notice pleading requirements.” Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.
1988). Accordingly, the Court does not have to accept as true
mere legal conclusions and unwarranted inferences of fact.
Morgan v. Churchs Fried Chicken, 829 F.2d 10, 12
(6th Cir. 1987). “If the court determines at any time
that it lacks subject matter jurisdiction the court must
dismiss the action.” Federal Rules of Civil Procedure
12(h)(3). A trial court has wide discretion to review
affidavits and other documents to resolve disputed
jurisdictional facts. By considering affidavits and other
documents, a motion to dismiss is not converted to a summary
judgment motion where it does not impact the merits of the
Plaintiff's claim. See, Gentek Building Products,
Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th
motion hinges upon whether Pro Se Plaintiff's claims
against the Defendant are precluded by the Barton
doctrine due to the related bankruptcy actions. In Barton
v. Barbour, 104 U.S. 126, 26 L.Ed. 672 (1981), the
United States Supreme Court stated the requirement that
“leave of the appointing forum must be obtained by any
party wishing to institute an action in a non-appointing
forum against a trustee, for acts done in the trustee's
official capacity and within the trustee's authority as
an officer of the court.” In re DeLorean Motor
Co., 991 F.2d 1236, 1240 (6th Cir.
1993)(citing In re Baptist Medical Center, 80 B. R.
637, 643 (Bankr. E. D. N.Y.1987)). The purpose of the
requirement is to “enable [ ] the bankruptcy court to
maintain better control over the estate.” Id. at
enacted a limited exception to the Barton doctrine
Trustees, receivers or managers of any property, including
debtors in possession, may be sued, without leave of the
court appointing them, with respect to any of their acts or
transactions in carrying on business connected with such
property. Such actions shall be subject to the general equity
power of such court so far as the same may be necessary to