NOT RECOMMENDED FOR PUBLICATION File Name: 22a0471n.06
Case No. 22-5219
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Nov 22, 2022 ) DEBORAH S. HUNT, Clerk TIMOTHY JOSEPH MCILWAIN, ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN ALLEN P. DODD, III; ELIZABETH DODD; ) DISTRICT OF KENTUCKY ALLEN M. DODD, ) Defendants-Appellees. ) OPINION )
Before: SUTTON, Chief Judge; COLE and GRIFFIN, Circuit Judges.
COLE, Circuit Judge. Timothy McIlwain and Brooke Berry are the parents of minor child
H.D.M. In March 2019, McIlwain and Berry began custody proceedings in Kentucky state court,
during which Berry retained Elizabeth Dodd as her attorney. In June 2021, McIlwain filed suit
against Elizabeth Dodd, Allen P. Dodd, III, and Allen M. Dodd alleging, inter alia, conspiracy to
deprive McIlwain of his rights under 42 U.S.C. § 1985(3), malicious prosecution, and negligent
infliction of emotional distress. The Dodds moved to dismiss the complaint, McIlwain responded,
and the Dodds replied. McIlwain then moved to amend his complaint, realleging the conspiracy
and malicious prosecution claims and converting the negligent infliction of emotional distress
claim into an intentional infliction of emotional distress claim. The district court determined that
the motion to amend would be futile. Accordingly, the district court denied McIlwain’s motion to Case No. 22-5219, McIlwain v. Dodd, et al.
amend and granted the Dodds’ motion to dismiss. Because we agree that McIlwain failed to allege
facts sufficient to support his claims, we AFFIRM.
I. BACKGROUND
A. Facts
Timothy McIlwain and Brooke Berry are parents to minor child H.D.M. McIlwain and
Berry raised H.D.M together until February 2019 when both parties filed for custody in Kentucky.
In March 2019, the Kentucky court granted McIlwain and Berry joint legal custody. McIlwain
alleges that between February and April 2019, Berry prevented McIlwain from seeing his daughter
during prescribed visitation periods. In April 2019, McIlwain filed a motion to make up the lost
visitation time. Around the same time, Berry retained Elizabeth Dodd (“Elizabeth”) to represent
her in the custody proceedings. McIlwain alleges that the Dodds “undoubtedly counseled” Berry
to engage in a parent alienation protocol to prevent H.D.M from seeing her father. In May 2019,
Elizabeth filed a response to McIlwain’s outstanding motion to make up the visitation time and
filed a motion for a protective order, also referred to as a domestic violence order (“DVO”).
McIlwain alleges that the motion for the protective order was filed based on false information from
Berry. In May 2019, the Kentucky court entered the DVO, preventing McIlwain from coming
within 500 feet of Berry.
After the DVO was entered, McIlwain maintains that Elizabeth created situations meant to
force McIlwain into violating the DVO. For example, McIlwain alleges that Elizabeth arranged
for Berry to arrive an hour early to pick up H.D.M from school so that Berry and McIlwain would
cross paths.
On August 6, 2019, Berry was deposed at the office of Doug Haynes, McIlwain’s family
law attorney. A judicial order prohibited McIlwain from being present at this deposition.
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Allegedly advised by his attorney to get a transcript of the court’s rulings, McIlwain went to the
courthouse that afternoon. McIlwain states that the deposition ended at 3:00 PM, and he arrived
at the courthouse at 4:20 PM to avoid contact with Elizabeth and Berry. McIlwain avers that Berry
and Elizabeth went to the courthouse following the deposition and waited there for McIlwain.
Once McIlwain had arrived, Elizabeth “ran” to get the sheriff and made allegedly false statements
that McIlwain violated the DVO and followed them to the courthouse. The sheriff arrested
McIlwain, who then spent the night in jail before being released.
McIlwain alleges that prosecutors reviewed courthouse video showing that Elizabeth and
Berry were “lying in wait.” (Proposed Am. Compl., R. 24-2, PageID 292.) Ultimately, the charges
against McIlwain were dropped following his stipulation to probable cause for the arrest.
McIlwain maintains that this stipulation was limited and did not extend to Elizabeth.
Later in August 2019, McIlwain’s time in jail following his arrest at the courthouse was
used as one reason for a complaint filed against him with Kentucky Child Protective Service.
According to McIlwain’s proposed amended complaint, Child Protective Service found none of
the allegations against him to be true or worthy of action.
In September 2019, the Kentucky court overseeing the custody suit denied McIlwain’s
motions for a hearing and immediate visitation, allegedly due to Elizabeth’s misrepresentations to
the judge’s secretary regarding McIlwain’s statements. In January 2020, McIlwain agreed to new,
“unfavorable” visitation terms to reestablish contact with his daughter.
Finally, McIlwain alleges that Elizabeth and Berry made sexually explicit videos with
H.D.M to gain an advantage in the custody dispute, accused McIlwain of sexually abusing his
daughter, and enlisted H.D.M.’s pediatrician to make false claims about H.D.M.’s health that
would prevent McIlwain from seeing his daughter. In his original complaint, McIlwain also
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alleged that in October or November 2019, Elizabeth and Berry sent his daughter to a “handpicked
New York therapist to get evidence to block the child from the father permanently.” (Compl., R.
1, PageID 31.)
B. Procedural History
On June 22, 2021, McIlwain filed a complaint against Elizabeth Dodd, Allen P. Dodd, and
Allen McKee Dodd (“Dodds”) alleging conspiracy to violate his rights under 42 U.S.C. § 1985(3),
false imprisonment, malicious prosecution, abuse of process, fraud-deceit, negligent
misrepresentation, negligent infliction of emotional distress, and negligent supervision and
training. The Dodds moved to dismiss all counts pursuant to Federal Rule of Civil Procedure
12(b)(6). McIlwain filed a response which addressed the arguments concerning the malicious
prosecution, negligent infliction of emotional distress, and § 1985(3) conspiracy claims. The
Dodds replied. On December 12, 2021, McIlwain moved to amend his complaint. His new
complaint realleged claims of conspiracy under 42 U.S.C. § 1985(3), false imprisonment,
malicious prosecution, abuse of process, and fraud-deceit, made no mention of the negligent
misrepresentation or negligent supervision and training claims, converted the negligent infliction
of emotional distress into an intentional infliction of emotional distress claim, and added additional
claims against new defendants Brooke Berry, Leah Berry, and John Doe Sheriffs.
The district court denied the motion to amend, finding that the claims against the new
defendants failed because of lack of notice and failure to file the motion to amend within 120 days
of the original complaint. See Fed. R. Civ. P. 15(c). The district court also determined that the
claims in the proposed amended complaint were futile because these claims would not survive a
motion to dismiss. Accordingly, the district court denied McIlwain’s motion to amend the
complaint and granted the Dodds’ motion to dismiss. McIlwain appeals.
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II. ANALYSIS
On appeal, we address only the claims alleging conspiracy under 42 U.S.C. § 1985(3),
malicious prosecution, and intentional infliction of emotional distress. The district court properly
dismissed as abandoned the remaining negligence claims that were neither addressed in
McIlwain’s response to the motion to dismiss nor mentioned in the proposed amended complaint.
See Bazinski v. JPMorgan Chase Bank, Nat’l Ass’n., 597 F. App’x 379, 380–81 (6th Cir. 2015)
(per curiam). Additionally, on appeal McIlwain addresses neither the lower court’s dismissal of
his abuse of process, fraud-deceit, and false imprisonment claims nor the denial of the motion to
amend to add new claims against new defendants. We consider those claims abandoned. Doe v.
Michigan State Univ., 989 F.3d 418, 425 (6th Cir. 2021).
We review de novo dismissals pursuant to Rule 12(b)(6). In re NM Holdings Co., LLC,
622 F.3d 613, 618 (6th Cir. 2010). “In reviewing a motion to dismiss, we must accept non-
conclusory allegations of fact in the complaint as true and determine if the plaintiff has stated a
plausible claim for relief.” Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 846 (6th Cir.
2012). But, “[a] pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted).
We also review de novo the denial of a motion to amend based on futility. Doe, 989 F.3d
at 426. Denying a motion to amend because it is futile is a determination that the claims in the
proposed amended complaint would not survive a motion to dismiss. Williams v. City of
Cleveland, 771 F.3d 945, 949 (6th Cir. 2014). Therefore, the pertinent question on appeal is
whether the amended complaint alleges sufficient facts to state a plausible claim for relief. Id.
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A. Conspiracy Pursuant to 42 U.S.C. § 1985(3)
1. Statute of Limitations
In Kentucky, the statute of limitations for a conspiracy claim brought under 42 U.S.C
§ 1985(3) is one year. Because § 1985(3) does not provide a statute of limitations, this court looks
to the law of the state where the cause of action arose to provide the applicable limitations period.
Burnett v. Grattan, 468 U.S. 42, 49 (1984). We previously determined that claims brought under
§ 1985(3) fall within the one-year limitations period defined in Kentucky Revised Statutes
§ 413.140(1). Bowden v. City of Franklin, 13 F. App’x 266, 272 (6th Cir. 2001) (per curiam). The
Bowden court determined “that Section 413.140 ‘is the most analogous to § 1985(3) in that it is
directed at conspiracies.’” Id. (quoting Bedford v. Univ. of Louisville Sch. of Med., No. 88-6423,
1989 WL 123143, at *3 (6th Cir. Oct. 19, 1989) (table op.)). Therefore, a claim for relief under
§ 1985 must be brought within one year of the date of accrual.
McIlwain’s argument that the five-year limitations period from Kentucky Revised Statutes
§§ 413.120(2), (6) should apply is unavailing. McIlwain supports this argument only by advancing
his own interpretation of sections 413.120(2) and (6). He fails to direct the court to—and the court
has been unable to find—any case law supporting his view.
We are also unpersuaded by McIlwain’s arguments that the district court erred in its
determination of the accrual date for the claim under § 1985(3). Though state law determines the
limitations period, federal law determines when a cause of action accrues. Sevier v. Turner,
742 F.2d 262, 272 (6th Cir. 1984). A cause of action under a civil rights statute accrues “when the
plaintiff knows or has reason to know of the injury that is the basis of his action.” Id. at 273.
Under the “last overt act” doctrine, a claim accrues on the date of the last overt act by the
defendants that caused injury to the plaintiff. See, e.g., United States ex rel. Griffith v. Conn,
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117 F. Supp. 3d 961, 987 (E.D. Ky. 2015) (discussing Sixth Circuit precedent regarding
application of the last overt act doctrine to civil conspiracies).
Here, McIlwain alleges that the Dodds and Berry undertook a series of actions aimed at
depriving him of his fundamental right to parent. Reviewing both the amended complaint and the
original complaint, the last act undertaken by Elizabeth that caused injury to McIlwain occurred
either in August or September 2019 when Dodd allegedly made misrepresentations to the family
court judge, or in October or November 2019, when H.D.M, was sent to a “handpicked New York
therapist to get evidence to block the child from the father permanently.” (Compl., R. 1, PageID
31.) The original complaint was filed in June 2021, more than a year after either of these events.
Dismissal of the charge alleging violation of the DVO cannot be a basis for accrual because
dismissal of this charge against McIlwain was neither an act undertaken by the Dodds, nor did it
cause injury to McIlwain. Therefore, his claim under § 1985(3) was untimely.
2. Merits
Independent of the statute of limitations, the district court properly dismissed McIlwain’s
claim under § 1985(3) because McIlwain failed to establish both that he is a member of a protected
class and that the Dodds’ actions were motivated by class-based animus.
To plead a claim under § 1985(3), a plaintiff must show
(1) a conspiracy involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws and (3) an act in furtherance of the conspiracy (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. Plaintiff must also establish that the conspiracy was motivated by a class- based animus.
Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994) (citations omitted).
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Both the Supreme Court and this court have reiterated that class-based animus is an element
of a § 1985(3) conspiracy claim. See, e.g., Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)
(“[T]here must be some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.”); United Brotherhood of Carpenters & Joiners Local 610
v. Scott, 463 U.S. 825, 835–38 (1983) (reaffirming Griffin’s interpretation of § 1985(3)); Post v.
Trinity Health-Michigan, 44 F.4th 572, 580 (6th Cir. 2022) (“We have held that § 1985(3) reaches
only conspiracies targeting a person based on a classification (like racial discrimination) that would
receive heightened scrutiny under the Supreme Court’s equal-protection framework.”). Given this
consistent precedent, McIlwain’s argument that it is unnecessary to prove class membership to
succeed on a claim brought under § 1985(3) fails.
McIlwain insufficiently pleaded both membership in a protected class and that the
conspiracy was undertaken because of discriminatory animus. First, McIlwain argues that he is
part of the protected class of “single fathers.” There is no case law supporting the notion that
single fathers constitute a protected class for purposes of a claim under § 1985(3). Indeed, several
district courts have considered the issue and found the opposite. See Nielson v. Legacy Health
Sys., 230 F. Supp. 2d 1206, 1211 (D. Or. 2001) (declining to find that a single father is a member
of a protected class for the purposes of a claim under § 1985(3)); Humphrey v. Court of Common
Pleas, 640 F. Supp. 1239, 1243 (M.D. Pa. 1986) (same); Darian v. Cashe, No. 17-52, 2017 WL
3326976, at *7 (M.D. La. July 17, 2017) (same); Walsh v. Krantz, No. 1:07-CV-0616, 2008 WL
2329130, at *4–5 (M.D. Pa. June 4, 2008) (same); see also Borlawsky v. Town of Windham, 115
F. Supp. 2d 27, 29 (D. Me. 2000) (finding single mothers do not constitute a protected class in the
§ 1985(3) context).
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None of the cases cited by McIlwain to support his argument establish that single parents
of either gender are a protected class for the purposes of a claim under § 1985(3). Rather, these
cases establish a fundamental right to parent for the purposes of procedural and substantive due
process. See Stanley v. Illinois, 405 U.S. 645 (1972); Meyer v. Nebraska, 262 U.S. 390 (1923);
Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion). Stanley v. Illinois held that a single
father’s parental rights cannot be terminated without a hearing to determine parental fitness. 405
U.S. at 649. Meyer v. Nebraska confirmed that parents have the right to direct the education of
their children. 262 U.S. at 400. Troxel v. Granville considered an as-applied challenge to a
Washington state statute that a plurality of the Supreme Court determined violated a mother’s right
to direct the upbringing of her children. 530 U.S. at 74–75. In other words, none of these cases
establish that single fathers are a protected class for the purpose of a claim under § 1985(3).
Even if McIlwain had established that single fathers constitute a protected class, he has
failed to allege facts that show the conspiracy was undertaken because he is a single father.
Nothing in the record indicates that the Dodds acted out of animus towards single fathers as a
group nor that they treated McIlwain differently because of his status as a single father. See Hills
& Dales Gen. Hosp., 40 F.3d at 839.
McIlwain fails to plead facts sufficient to support a claim under § 1985(3). Even if he had,
the claim was untimely. We affirm the district court’s dismissal of this claim.
B. State Law Claims
McIlwain also alleges several state law claims. As a preliminary matter, McIlwain asserts
that this court has jurisdiction to hear the state law claims under 28 U.S.C. § 1332 because he and
the Dodds are citizens of different states. But, the amended complaint includes facts that suggest
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McIlwain, like the Dodds, is a citizen of Kentucky. If McIlwain is a citizen of Kentucky, this
would defeat diversity jurisdiction. See 28 U.S.C. § 1332.
But, regardless of McIlwain’s state citizenship, this court can exercise supplemental
jurisdiction over the state law claims under 28 U.S.C. § 1367(a) because McIlwain’s state law
claims and federal claim originate from a common nucleus of operative fact. See Kubala v. Smith,
984 F.3d 1132, 1137–38 (6th Cir. 2021). The allegations underlying the malicious prosecution
claim and the intentional infliction of emotional distress claim, discussed below, are part of the
alleged conspiracy to violate McIlwain’s civil rights under § 1985(3), and so, supplemental
jurisdiction is appropriate.
1. Malicious Prosecution
McIlwain filed a malicious prosecution claim against Elizabeth for her actions in bringing
about his arrest for the alleged violation of the DVO. To prevail on a malicious prosecution claim
in Kentucky, a plaintiff must prove that:
1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff; 2) the defendant acted without probable cause; 3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based; 4) the proceeding . . . terminated in favor of the person against whom it was brought; and 5) the plaintiff suffered damages as a result of the proceeding.
Martin v. O’Daniel, 507 S.W.3d 1, 11–12 (Ky. 2016).
Factor two—whether Elizabeth acted without probable cause in informing arresting
officers of McIlwain’s alleged violation of the DVO—and factor four—whether the underlying
proceeding terminated in McIlwain’s favor—are at issue here.
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First, McIlwain failed to allege facts sufficient to show that Elizabeth acted without
probable cause. Under Kentucky law, a general stipulation to probable cause in the underlying
proceeding forecloses an individual’s later malicious prosecution claim. Broaddus v. Campbell,
911 S.W.2d 281, 283–84 (Ky. Ct. App. 1995). In Broaddus, the Kentucky Court of Appeals
affirmed the dismissal of a malicious prosecution action in part because the plaintiff stipulated to
probable cause in the underlying action. Id. at 284. Even though the plaintiff “strenuously
contend[ed] that it was his intent” that the stipulation did not extend to the defendant in the
malicious prosecution case, the Broaddus court found no such limitation and explained that it
would have been easy to construct the stipulation to reflect this type of limitation. Id.
Here, McIlwain was arrested and charged with violating the DVO after Elizabeth informed
courthouse sheriffs of the suspected violation. The charge against McIlwain was dismissed after
he stipulated to probable cause. Despite McIlwain’s assertions to the contrary, the state court
dismissal reflects no limitation on the probable cause stipulation. The court is permitted to
consider this state court record because it is a public record, it was attached to the Dodds’ motion
to dismiss, it is central to the alleged claims, and the dismissal is referred to in the complaint. See
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Additionally, when
a document in the pleadings contradicts facts alleged in the complaint, the document prevails. In
re Flint Water Cases, 960 F.3d 303, 329 (6th Cir. 2020). Here, the state court dismissal reflects
no limitations on McIlwain’s probable cause stipulation, making the facts of his case nearly
identical to those in Broaddus. Thus, under Kentucky law, McIlwain has failed to establish that
Elizabeth acted without probable cause in alerting the sheriffs to the suspected violation of the
DVO.
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Because we conclude that the general stipulation to probable cause forecloses the malicious
prosecution claim under Broaddus, we do not consider whether McIlwain’s allegations that
Elizabeth and Berry were “lying in wait” at the courthouse would establish that Elizabeth acted
without probable cause.
Irrespective of probable cause, McIlwain fails to allege a claim for malicious prosecution
because he cannot establish that the underlying proceedings terminated in his favor. The Broaddus
court held “that as a matter of law one may not elect to settle a criminal action, stipulate probable
cause and maintain that the action was favorable to him on the merits.” Broaddus, 911 S.W.2d at
285. The court rested its reasoning on the Second Restatement of Torts, which explains that a
dismissal resulting from compromise does not qualify as a favorable termination for the purposes
of a malicious prosecution action because dismissal by compromise leaves open the question of
the accused’s guilt or innocence. Id. at 284–85 (citing Restatement (Second) of Torts § 660 (Am.
L. Inst. 1977)). Here, the charges against McIlwain were dismissed following his stipulation to
probable cause. This is precisely the type of dismissal that the Broaddus court determined was
insufficient to establish that the underlying proceedings terminated in the plaintiff’s favor, and thus
foreclosed a malicious prosecution claim.
We are not persuaded by McIlwain’s argument that, following the Supreme Court’s
decision in Thompson v. Clark, 142 S. Ct. 1332 (2022), a plaintiff only needs to show a termination
other than conviction to establish favorable termination. The Supreme Court’s holding in
Thompson applies narrowly to Fourth Amendment claims under 42 U.S.C. § 1983 alleging
malicious prosecution. 142 S. Ct. at 1337. It is true that the Supreme Court examined analogous
state malicious prosecution claims as these claims existed in 1871 to guide its interpretation of
Fourth Amendment malicious prosecution claims brought under § 1983. Id. at 1338–40. But, the
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Court did so only to decide the “narrow dispute” in front of it and to discern “the elements of a
constitutional claim under § 1983.” Id. at 1337. Here, McIlwain brought his malicious prosecution
claim pursuant to state tort law against private individuals, not under federal law against state
actors. So, Thompson’s narrow holding does not extend to McIlwain’s case.
McIlwain did not sufficiently allege essential elements of his malicious prosecution claim:
namely, that Elizabeth acted without probable cause and that the underlying proceeding terminated
in his favor. We affirm the district court’s dismissal of this claim.
2. Intentional Infliction of Emotional Distress
In Kentucky, to prevail on a claim for intentional infliction of emotional distress, a plaintiff
must prove that (1) the wrongdoer’s conduct was intentional or reckless; (2) this conduct was
outrageous, intolerable, and offended standards of decency; (3) this conduct caused the plaintiff’s
emotional distress; and (4) the emotional distress suffered was severe. Osborne v. Payne,
31 S.W.3d 911, 913–14 (Ky. 2000).
The district court found that “fabricating violations of domestic restraining orders and
falsely accusing plaintiff of child abuse” does not qualify as extreme and outrageous conduct. (Op.
& Order, R. 25, PageID 339 (quoting Am. Compl., R. 24-2, PageID 313).) We disagree.
Kentucky courts have found the following to be examples of extreme and outrageous
conduct: (1) continuous surveilling of a woman, making threats to put her husband in jail, and
driving so as to force her car into oncoming traffic; (2) intentionally failing to warn a plaintiff that
a building in which he was working contained asbestos; (3) sale of a plaintiff’s beloved horses for
slaughter after agreeing to care for the horses; (4) repeatedly subjecting a plaintiff to daily racial
indignities over seven years; and (5) engaging in a carefully constructed plan involving fraud,
deceit, and slander. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 789–90 (Ky. 2004)
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(collecting cases), overruled on other grounds by Toler v. Süd-Chemie, Inc., 458 S.W.3d 276 (Ky.
2014). In contrast, Kentucky courts have determined the following conduct did not rise to the
level of extreme and outrageous behavior: (1) refusing to pay medical expenses following a
worker’s compensation claim; (2) negligently permitting a vehicle to leave the road resulting in
the death of a child; (3) telling a patient to “shut up” following the death of her stillborn child; and
(4) displaying a “billboard referencing defendant’s status as a convicted child molester.” Id. at
790–91 (collecting cases).
The district court relied particularly on the latter two examples in reaching its determination
here. Allen v. Clemons, 920 S.W.2d 884 (Ky. Ct. App. 1996), the case involving the sign
referencing an individual’s conviction for child sexual abuse, is the most analogous to the present
matter. But the Allen court’s determination that displaying the sign was not extreme or outrageous
relied on the fact that the individual’s conviction for child sexual abuse was public information
and had previously been discussed by local news outlets. Allen, 920 S.W.2d at 886.
Unlike in Allen, there is no evidence here that McIlwain was criminally charged with or
convicted of child abuse. Indeed, McIlwain asserted that the Kentucky Cabinet for Health and
Family Services dismissed a Child Protective Service complaint against him. Here, McIlwain
alleges that Elizabeth and Berry fabricated claims of sexual child abuse. Accepting these
statements as true, as we must during a 12(b)(6) analysis, McIlwain’s amended complaint does
allege facts sufficient to establish extreme and outrageous conduct.
But McIlwain did not adequately plead severe emotional distress. His amended complaint
does nothing more than restate this element of the tort without providing any additional factual
support, which is insufficient. See Iqbal, 556 U.S. at 678. Though custody proceedings
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undoubtedly can cause emotional distress, McIlwain provides no facts that demonstrate how any
emotional distress has manifested, nor that this distress is severe.
In sum, while we disagree with the district court’s determination regarding extreme and
outrageous conduct, we affirm the district court’s denial of the motion to amend as futile because
McIlwain failed to allege facts to support severe emotional distress.
C. Rooker-Feldman Doctrine
Finally, the Dodds reassert their argument that the Rooker-Feldman doctrine prevents
federal jurisdiction over this matter. McIlwain responded that this argument was waived because
it was not cross appealed. But were we to dismiss the suit due to a lack of jurisdiction under
Rooker-Feldman, it would merely be an alternate ground for dismissal. Ruling on these grounds
would neither enlarge the Dodds’ rights nor diminish McIlwain’s rights under the judgment,
meaning that a cross-appeal would be unnecessary. See Smith v. Kentucky State Univ., 97 F. App’x
22, 25–26 (6th Cir. 2004); see also Bullard v. Sercon Corp., 846 F.2d 463, 467–68 (7th Cir. 1988)
(explaining that appellees defending the dismissal of the action have not been required to cross-
appeal additional jurisdictional arguments); 15A Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 3904 (3d ed. Sept. 2022 update).
Even so, the district court was correct that the present matter does not fall within the narrow
boundaries of the Rooker-Feldman doctrine. In Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
the Supreme Court limited the Rooker-Feldman doctrine’s applicability to cases that mirrored the
procedural posture of the cases from which the doctrine originated. 544 U.S. 280, 291–93 (2005).
The doctrine only applies to cases where “the losing party in state court filed suit in federal court
after the state proceedings ended, complaining of an injury caused by the state-court judgment and
seeking review and rejection of that judgment.” Id. at 291. Here, McIlwain does not ask this court
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to review a state court judgment, nor does he claim that his injuries arise from a state court
judgment. Rather, his asserted injuries arise from the allegedly impermissible actions taken by the
Dodds in connection with their representation of Berry. Thus, the Rooker-Feldman doctrine does
not bar McIlwain’s claims.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of the Dodds’ motion to
dismiss and its denial of McIlwain’s motion to amend.
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