NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0380n.06 No. 11-3121 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

TERRY R. K

RUK EMYER, P laintif f-App ellant,

v. JAMES S. FORCU M, Defendan t-Appellee, and DAVID G . JACK SON, Defendan t. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APP EAL F ROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E NORTHERN DISTRICT OF OHIO M E M O R A N D U M O P I N I O N

BEFORE: BA TC HE LD ER , C hi e f Judge; McK EAGU E, Circuit Jud g e ; a nd QU I ST , Se ni o r District Judge. * McK EAGU E, Circuit Judge. Plaintiff Terr y R. Kruke my er is the biologica l fathe r of L ena Rosalie Kruke my er, who was born in Bow ling Gre en, Ohio, on April 2, 1994. That Kruke my er is 1 L ena’ s biologica l father

was c onfirmed by

DNA testing on October 30, 2007. Kruke my er did not lear n he is L ena’ s fathe r until some th i rt ee n y ear s afte r L ena’ s birth, as the mother, J essica R.

Honora ble Gordon J

. Quist, United States Senior District J udg e for the Western District of * Michig an, sitting by

desig nation. The fac ts summarized here in are taken substantially from the alleg ations of the complaint, 1 ac cepted as true for purposes of revie w of the district court’s dismiss al under Fe d. R. Civ. P

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J ackson, did not info rm h i m o f ei t h er the conce ption or the birth. I n April 1998, L ena had been adopted under Indiana law by David G. J ackson, who was marrie d to J essica fr o m J une 1996 to Aug ust 2008. Approxim ately five months afte r David and J essica J ackson wer e divorce d, Kruke my er marrie d J essica J ackson. Kruke my er’ s pater nity and adoption of L ena wer e established under Ohio law in J uly 2009. The three—Kr ukemy er, J ess i ca , an d L ena—have continued to live toge ther a s a fa

mily ever since. Yet, the reunited family ’s happiness is not complete. Kruke my er commence d this action in J anuary 2 010 in the Norther n District of Ohio. Named as defe ndant, in rele vant part, is J ames S. For cum, the attorney who repr esente d David J ackson in the I ndiana adoption proce eding s. All the claims stem from defe ndant For cum’s alleg ed failure to c o mp ly w it h c e r ta in proce dural require ments of I ndiana law. For cum’s nonfea sance alleg edly had the eff ect of denying Kruke my er notice of the impending adoption, there by contributing to the prolong ation of his ignor ance of L ena’ s exis tence

. On J anuar y 3, 2011, the district court g rante d For cum’s motion to dismiss the complaint under Fe d. R. Civ. P . 12(b)( 6) for

failure to state a va lid claim. Krukemy er a ppeals. I The district court’s dismiss al for failure to state a valid claim for relief is revie wed de novo. Frank v. Dana Corp. , 646 F.3d 954, 958 (6th Cir. 2011). Under Rule 12(b)( 6 ), the complaint is viewed in the light most favor able to plaintiff, the alleg ations are acc epted as true, and all rea sonable infere nces are draw n in plaintiff’s favor. Bassett v. Nat’l Collegiate Athletic Ass’ n , 528 F.3d 426, 430 (6th Cir. 2008). Howeve r, “a leg al conclusion couche d as a fac tual alleg ation” need not be

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Krukemy er v. Forc um

acc epted as true. Bell Atl. C o r p . v. Twombly , 550 U.S. 544, 555 (2007). Plaintiff’s obligation to provide the “g rounds” for his claimed entitlement to relie f “r eq uires more than labels and conclusions, and a formulaic recitation of t he elements of a cause of action will n o t d o.” Id. The fac tual alleg ations must “ra ise the rig ht to relief above the specula tive level.” Id. The compl ai n t must state a claim that is plausible on its fac e; i.e., the court must be able to draw a “re asonable infere nce that the defe ndant is liable for the misconduct alleg ed.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009). II I n Count I , Kruke my er a lleg es his due proc ess rig hts were violated as a result of F orcum’s failure to comply with state law proce dural require ments in the adoption proce eding s. Specifica lly , For cum’s alleg ed failure to make a diligent sear ch for the fathe r and serve notice of the adoption proce eding s in the county of the fathe r’s last known addre ss is said to have deprive d Kruke my er of eleve n y ear s’ enjoy

ment of his fathe r-da

ug hter rela tionship with L ena. The district court dismiss ed the claim for

lack of an alleg ation that For cum was a g overnme ntal actor

. I ndeed, there is no constitutional rig ht to be fre e from harm inflicted by private actor s. A due proce ss claim lies only ag ainst a g overnme ntal defe ndant. I t is well-settled that a lawy er repr esenting

a private client is not a state actor acting “under color of law.” See Polk Cnty. v. Dotson , 454 U.S. 312, 318 n.7 (1998); Powers v. Hamilton Cnty. Pub. Defende r Comm’n , 501 F.3d 592, 611 (6th Cir. 2007); Catz v. Chalker , 142 F.3d 279, 289 (6th Cir. 1998), amende d on denial ofreh’g , 243 F.3d 234 (6th Cir. 2001); Horton v. Martin , 137 F. App’x 773, 775 (6th Cir. 2005); Dallas v. Holmes , 137 F.

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Krukemy er v. Forc um App’x 746, 752 (6th Cir. 2005). Kruke my er has not identified any contra ry authority

. Nor does the complaint contain alleg ations from which it could be rea sonably inf er re d that For cum’s alleg ed nonfea sance was attributable to the state. We find no err or in the district court’s dismiss al of the due proce ss claim. III Count I I of the complaint sets forth a claim ag ainst For cum for leg al malprac tice. Kruke my er alleg es that For cum’s brea ch of duty owed to his client David J ackson resulted in his, Kruke my er’ s, loss of eleve n y ear s’ worth of fathe r-da ug hter rela tionship with L ena. The district c ourt dismiss ed the claim, corr ectly observing that I ndiana law permits rec overy for mal p ractice “only if there is privity of contra ct or if the neg lige nt pr ofessional had actual knowledge that the plaintiff would be aff ecte d.” Querry & Harrow, Ltd. v. Transcon. Ins. Co. , 861 N.E.2d 719, 7 2 1 (I nd. App. 2007) (empha sis added) ( quotation omitt ed). 2 Kruke my er arg ues t h at For cum s hould have known his failure to g ive proper not ice of the adoption proce eding could aff ect Kruke my er’ s rig hts as biologica l fathe r. As the district court

rec og nized, howeve r, the actua l-knowledg e exception is not expansively applied under I ndiana law. I n Essex v. Ryan , 446 N.E.2d 368, 371 (I nd. App. 1983), for instance, the court reje cted the

succe ssor-in-title plaintiff s ’ a r g u me nt that they could sue their prede cessor ’s survey or for neg lige nce beca use they wer e among the limit ed g roup of persons for whose benef it the survey was made. The court conclude d that “Ry an owed no duty to the Essexes beca use he had no knowledg e they would

The pa rties ag ree that Kruke my er’ s state law c laims are g overne d by I ndiana law

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Krukemy er v. Forc um rely upon his survey and beca use he was not in privity with them.” Id

. at 374 (empha sis added)

. The court drew a “distinction betwee n knowledge that a third party will rely on the [services] g iven and

an expe ctation that unidentified others might rely on it.” Id. at 372

. The Essex court thus reje cted a theory of l iability arguably rec og nized by the Restateme nt ( Second ) of Torts , § 552, beca

use t he plaintiffs wer e “unable to tie their theory to any mooring s in I ndiana law.” Id. at 371. This narr ow construction of the actual-knowledg e ex ception remains the l aw in I ndiana. See Thomas v. L ewis Eng’g, Inc. , 848 N.E.2d 758, 760-62 (I nd. App. 2006) (obser ving that “t h e actua l knowledg e exception to the privity rule has been applied only wh er e t h er e has been contac t betwee n the profe ssional and the third party ”); U.S. Bank, N.A. v. Integrity Land Titl e Corp. , 929 N.E.2d 742, 747 (I nd. 2010) (c iting Thomas with approva l). Kruke my er’ s complaint does not contain al l egations from which it could be rea sonably inferr ed that For cum ever had co n t ac t with Kruke my er or had actua l knowledg e of Kruke my er’ s identity

. The alleg ations sug g est only that For cum had an expe ctation that an un i d enti fied third party , the unnamed biologic al fathe r (alleg edly known to the mother, but not identified by her to For cum), ha d an intere st in the adoption proce eding and mi g ht have relied in som e manne r on the lack of proper notice. This is insufficient to support a third party ’s claim for leg al malprac tice under I ndiana law . Acc ording ly , we f ind no error

in the district court’s dismissal of Count I I

.

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IV I n Count I V of the complaint, Kruke my er asser ts a claim for fra

ud, alleg ing For cum made 3 materia l misrepre sentations to the I ndiana court in the adoption proce eding with the intent to defr aud h i m o f his pater

nal rig hts. The district court held this claim fails for lack of an alleg ation t h at Kruke my er had detrimentally relied on any misrepre sentation by For cum. The court cited Adoptive Parents of

M.L.V. and A.L.V. v. W

ilkens , 598 N.E.2d 1054, 1058 (I nd. 1992), for the proposition that, under I ndiana law, “[t] o maintain an action for fra ud, there must be a materia l misrepre sentation of past or existi ng fac t made with knowledg e of or rec kless disreg ard f

or the fa lsity

of the stateme nt; and the misrepre sentation must be relied upon t o t h e d et ri m ent of the rely ing party .” The court observe d that Kruke my er’ s alleg atio n s arguably made out a claim that fra ud had been perpetrate d

on the Indiana court, b u t h eld that they failed to make out a claim on which Kruke my er could

rec over. Kruke my er acknow ledg es that his relianc e on For cum’s alleg ed misrepre sentation is an essential element of his fra ud claim. Yet, he fails to identify in the complain t any alleg ation of misrepre sentation (or even of silence in the fac e of a duty to speak) by For cum to Krukemy er on which Kruke my er relied to his injury

. Kruke my er strug g les to contort the fac ts into a form meeting
t h e required elements of a fra ud claim. He insists For cum’s actionable fra ud consists of his inaction—i.e., his failu re t o i n s t ru ct L ena’ s mother that she had a duty to inform Kruke my er of

C o u nt I I I sets forth a claim for rec overy for alienation of aff ection. Kruke my er h as n o t 3 challeng ed the dismissal of this claim and any objection is deeme d forf eited. - 6 -No. 11-3121

Krukemy er v. Forc um

L ena’ s exis tence , and his fai l ure to proper ly publish notice of the adoption proce eding

. By virtue of this inaction, Kruke my er contends, “re liance was imposed” on him by operation of law by virtue of his having rema ined ignor ant of the adoption proce eding and failing to exercise his rig ht to object. To be sure, if For cum and Kruke my er wer e in a rela tionship by virtue of which F orcum ha d

a duty to speak to Kruke my er, then For cum’s alleg ed silence or inaction in derog ation of that duty , if detrim en t ally relied upon by Kruke my er, could conce ivably amount to actionable fra ud. See Allison v. Union Hosp., Inc. , 883 N.E.2d 113, 122-23 (I nd. App. 2008). Howeve r, For cum and Kruke my er wer e in no such relationship. They did not know eac h other and had not had any contac t with eac h other. There is no alleg ation that For cum had knowledge o f t h e b i o l og ical fathe r’s identity

. At all times pertinent, For cum was in an attorney -client rela tionship with David J ackson. For cum was thus in a fiduciar y relationship with J ackson by virtue of which he owed cer tain duties to J ackson. And in repr esenting J ackson as an “off icer of the court,” For cum had ce rt ai n d u t i es under I ndiana law. Yet, none o f t h es e duti es was owed to Kruke my er personally , such t hat he , in the event of a brea ch there of, could sue For cum for fra ud. Acc ording ly , the fra

ud claim was proper ly dismiss ed. V Finally , in Count V, Kruke my er asser ts a claim for inte n ti o n a l in f li c ti o n o f e mo ti o n a l d is tr e s s . The district court proper ly identified the elements of such a claim as requiring Kruke my er to alleg e that For cum enga g ed in extreme and ou t ra g eous conduct which int entionally or recklessly cause d him sever e emotional distress. See Culli son v. Medle y , 570 N.E.2d 27, 31 (I nd. 1991 ). I t is the

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intent to harm the plaintiff emotionally which constitutes the basis for the tort of intentional infliction of emotional distress. Id. I n the appropr iate case , the “extreme and outrag eous” question

can be decide d as a matter of law. Lindsey v. De Groot , 898 N.E.2d 1251, 1264 (Ind. App. 2009). The district court held that Kruke my er’ s claim fails for lack of alleg ation of conduct by For cum that can be rea sonably

char acte rized as “e x treme a nd outrag eous.” F urther, the court he ld implausibl e the alleg ation that For cum failed to comply with the proce dural require ments of the law with intent to cause Kruke my er se vere emotional distress. We ag ree . Our survey of I ndiana case law shows that t h e I n d i an a courts have not construed the intentional-infliction-of-e mot io n a l- d is tr e s s c a u s e o f a c ti o n , newly rec og nized in Cullison , so broadly

as to encompa ss fac ts such as those alleg ed here

. See e.g. , Curry v. W hitaker , 943 N.E.2d 354, 361 (I nd. App. 2011) (noting that the require ments to prove this tort are “rig orous”) ; Beauc hamp v. City of Noblesville, Ind ., 320 F.3d 7 3 3 , 7 4 7 (7t h Cir. 2003) (obser ving that the I ndiana courts have sustained summary judgme nt f or defe ndants in more extreme case s); Colli ns v. Purdue Univ. , 703 F. Supp. 2d 862, 871-73 (N.D. I nd. 2010) (collec ting case s and rec og nizi ng that I ndiana courts have require d “conduc t so outrag eous in char acte r, and so extreme in deg ree , as to g o bey ond all possible bounds of dece ncy , and to be reg arde d as atroc ious, a nd utterly intolerable in a

civiliz ed socie ty ”). W h er e t h e al l eged tortious conduct consists essentially of an adoptive father’s attorney ’s failure to ensure in 1998 that proper public notice was g iven in the county of the presumed biologica l fathe r’s last known addre ss; and the biologica l fathe r was not even awa re that he may have fathe red the child or even that she exis ted until 2007; and the attorney ’s nonfea sance was ostensibly

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consonant with the wi s h es o f the child’s mother (wife of the attorney ’s client), who had never disclosed the conce ption or birth of the child to the biologica l fathe r; and there is no alleg ation that the attorne y

knew of the biologic al father’s ide ntity or knew whether the biologica l f ather had any potential interest in asser ting his pater

nal ri gh t s ; and the attorney ’s alleg ed nonfea sance in 1998

cause d no conce ivable emotional distress to the biolog ical father before 2007, when he lear ned of his role in the child’s conce ption from the mother; we hold that the alleg ed fac ts do not make out the sort of extreme and outrag eous conduct that can be deeme d, under In d i an a l aw , t o have been undertaken intentionally or rec klessly to inflict emotional harm on the b i o logic al fathe r. We there fore find no err or in the district court’s dismiss al of the i ntentional-infliction-of- emotionaldistress claim. VI None of the fore g oing should be construed as condoning the alleg ed misfeasa nce of Attorney For cum i n his handling of t he 1998 adoption proce eding s. We find simply , on de novo revie w of the district court’s order o f d i s m i s sal, that none of the claims for relief asser ted by plaintiff Kruke my er states a valid claim on which relief can be g rante d under the g overning substantive law. The district cour

t’s order is theref ore AF F IRMED

.

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