The opinion of the court was delivered by: Judge Sara Lioi
MEMORANDUM OPINION AND ORDER
While the Court had cross-motions for summary judgment under advisement, on September 22, 2011, it raised sua sponte the question of whether plaintiff's complaint should be dismissed for failure to state a claim because it seeks civil damages for an alleged violation of a criminal statute. Pursuant to Fed. R. Civ. P. 56(f)(2), the Court gave notice of this issue to the parties and permitted them to file briefs by October 7, 2011. Those briefs have been filed and considered. (Doc. Nos. 56 and 57.)
For the reasons discussed below, plaintiff's entire complaint is DISMISSED for failure to state a claim,*fn1 as is the first claim for relief in the Counterclaim/Third-Party Complaint and the third claim for relief (civil conspiracy) premised on the dismissed first claim. Defendant's motion to dismiss or, in the alternative, for summary judgment (Doc. No. 41) is, therefore, DENIED AS MOOT.*fn2 Plaintiff's motion for summary judgment (Doc. No. 42) is DENIED. The case shall proceed to trial solely on the second claim for relief in the defendant's Counterclaim/Third-Party Complaint (unjust enrichment).*fn3
Plaintiff filed a Complaint against Select Comfort on October 3, 2009 (Doc. No. 1) alleging a single cause of action under Ohio's Consumer Sales Practices Act ("OCSPA"), O.R.C. § 1345.01, et seq. Jurisdiction was based on diversity of citizenship. After defendant filed a motion to dismiss, plaintiff filed an Amended Complaint on May 14, 2010 (Doc. No. 13). In the Amended Complaint, plaintiff alleged that a $6,500.00 consumer transaction in May 2005, carried out in his name, resulted from defendant's aiding and abetting a third-party's violation of Ohio's criminal identity fraud statute, O.R.C. § 2913.49(B) and (C), and further constituted a civil conspiracy to violate that statute. Although the OCSPA was mentioned in the introductory paragraph to the Amended Complaint, the parties filed a joint stipulation agreeing to the withdrawal as moot of defendant's pending motion to dismiss because "the Amended Complaint does not assert any claim under the OCSPA." (Doc. No. 14, ¶ 2.)
On May 28, 2010, defendant filed its Answer and Counterclaim, plus a Third-Party Complaint against Lisa Gottschalt ("Gottschalt"). (Doc. No. 16.)*fn4 Gottschalt was eventually served by publication (see Doc. No. 33); however, she has never made an appearance in the case.*fn5
In 2005, Gottschalt, Richeson's live-in girlfriend of about seven years, purchased a bed from Select Comfort and had it delivered to the home that Richeson and Gottschalt shared.*fn6 At the time, Richeson had turned over to Gottschalt all responsibility for the household finances, believing that she was a Certified Public Accountant. Gottschalt used information supplied by Richeson to prepare his annual tax returns and used income from their joint earnings to pay household bills. Richeson had absolutely no involvement in their finances. (Richeson Dep. at 12-13, 36-39). On one occasion, Richeson executed a limited power of attorney to allow Gottschalt to engage in a financing transaction for the purchase of a home. (Id. at 12.) Richeson never even reviewed his own mail and he never questioned Gottschalt regarding her purchases or her handling of the finances. (Richeson Dep. at 38-39, 115-17, 239-40.)
According to Select Comfort's customer service records, on May 14, 2005, a person from Richeson's household inquired about the availability of "one year same as cash" financing. (McDuffie Decl. ¶¶ 5, 7 and Att. 1.) Such financing was available at the time through a credit account offered by GE Money Bank that was co-branded with Select Comfort. (Id. ¶ 9.) On or about May 21, 2005, Gottschalt visited the Select Comfort store in Youngstown, Ohio and presented a signed application for the GE Money Bank account. The application was purportedly made by Richeson as it had his name and address and other information about him.*fn7 (Resp. to Interrog. 2; Richeson Dep. at 156, 184-87, 228-32 and Ex. 10.) Richeson claims that Select Comfort failed to check a driver's license in the course of approving the application. For purposes of the instant motions, Select Comfort does not dispute that neither Richeson nor his driver's license were in the store on May 21, 2005.
GE Money Bank authorized a $6,500.00 credit limit in Richeson's name for the purchase of merchandise at Select Comfort. Gottschalt then purchased a queen-size Sleep Number mattress, a Precision Adjustable bed foundation, and bedding (Counterclaim, Doc. No. 16, ¶ 10), which was delivered to Richeson's home. According to Richeson, this purchase was consistent with Gottschalt's normal conduct; it raised no red flags and precipitated no particular discussion between them. (Richeson Dep. at 88.)
On June 30, 2005, Select Comfort was contacted by someone at the Richeson home who claimed that the bedding purchased did not fit the mattress and requested an exchange. (McDuffie Decl. ¶ 8.) The exchange was authorized and the bedding was delivered; however, the original bedding was never returned and the new bedding was never paid for. (Id.). The bed and bedding was then used for the remainder of 2005, 2006, 2007, 2008, 2009, and 2010. All the merchandise still remains in Richeson's home.*fn8 (Admis. 1-9, Doc. No. 41-5.)
In the summer of 2006, Gottschalt and Richeson's relationship ended. Gottschalt left the home with the minor children and never returned. (Richeson Dep. at 42-45; 182-84.) Richeson then began taking responsibility for his own mail and bills. He claims that this was the first he learned about the GE Money Bank credit account. (Id. at 179-84.) In August 2006, Richeson wrote to GE Money Bank disputing the account and asking for proof of his obligation. (Id. at 210-15 and Ex. 26.) GE Money Bank supplied Richeson with a copy of the signed application. Richeson wrote again in October 2006. (Id., Ex. 27.)
On January 9, 2007, the fraud department of GE Money Bank concluded that Richeson's claim of fraud was a matter between Richeson and a third party, that the charges were not fraudulent or unauthorized, and that Richeson remained liable for the balance on the account. (Richeson Dep. at 199-203 and Ex. 20.) Various debt collectors attempted to collect the debt; but Richeson has never paid a penny on the debt and does not intend to pay it. (Id. at 167-70.)
In all of his correspondence with GE Money Bank and the various debt collectors, Richeson never identified Gottschalt as the person who had fraudulently incurred the debt in his name. (Richeson Dep., Ex. 23-28.) He never contacted the police to report Gottschalt's alleged identity fraud and, aside from this lawsuit, has lodged no formal complaint or report. (Id. at 137.) There is no evidence in the record that anyone has ever been prosecuted or convicted of identity fraud with respect ...