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Richardson v. Law Offices of Daniels

United States District Court, S.D. Ohio, Western Division

February 28, 2017

HOMER L. RICHARDSON, Plaintiff,
v.
LAW OFFICES OF DANIELS, NORELLI, SCULLY & CECRE, P.C., et al., Defendants.

          DLOTT, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Plaintiff, proceeding pro se, [1] paid the requisite filing fee and initiated this litigation on May 17, 2016, alleging that the Defendants violated the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and the Ohio Consumer Sales Protection Act (OSPA). Pursuant to local practice, this case has been referred to the undersigned magistrate judge for initial consideration and a report and recommendation on any dispositive motions. After answering the complaint, the Defendants jointly moved for judgment on the pleadings. Defendants' motion should be granted.

         I. Background

         Plaintiff's complaint seeks monetary damages from two Defendants under the FDCPA, the FCRA, and the OSPA. The identified Defendants are a New York law firm and one of its individual members, Meredith E. Unger.[2] All of the following allegations are drawn from Plaintiff's complaint, and are assumed to be true solely for the purpose of the pending motion.

         Plaintiff alleges that beginning in June of 2013, the Defendant law firm contacted Plaintiff by telephone and by letter in an attempt to collect a credit card debt for its client. Plaintiff alleges that he and the law firm exchanged communications concerning the alleged debt in June and July of 2013, with additional written communications dated February, March, and April of 2014. On August 26, 2014, Plaintiff received a notice from the law firm that its “client has authorized a settlement on your account.” (Doc. 1 at ¶24, PageID 4). Plaintiff responded by letter dated May 6, 2015, inquiring about the terms of the settlement. On May 20, 2015, the law firm informed Plaintiff that to consummate the settlement, “A payment of $3, 000.00 must be received by this office on or before May 29, 2015.” (Id. at ¶26, PageID 5). In addition to the referenced correspondence, Plaintiff alleges that the law firm obtained his consumer credit reports on July 2, 2013, August 25, 2014, December 22, 2014 and May 19, 2015 “with no permissible purpose.” (Id. at ¶36, PageID 6).

         Plaintiff alleges that he followed up with final correspondence directed to the law firm dated June 18 and September 17, 2015, but that the Defendants did not respond to those two letters. He alleges that the Defendants' actions between “July 3, 2013 …until the time Defendants made the settlement offer” on May 20, 2015 have caused him financial harm, “resulting in a reduction of his credit score, cancellation of credit cards, credit delays, inability to apply for credit, loss of use of funds, mental anguish, emotional distress, humiliation, a loss of reputation and expenditures for fees and costs.” (Id. at ¶¶ 37-38).

         Plaintiff has articulated six claims based upon the actions taken by Defendants from June or July of 2013 through May 20, 2015. In Count I, Plaintiff's complaint alleges that Defendants are debt collectors who violated the FDCPA by “falsely representing the character, amount, or legal status” of the alleged debt, by “communicating or threating [sic] to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed, ” and through “the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.” In Counts II-V, Plaintiff alleges that the Defendants' communications violated the FDRA when Defendant law firm “obtained the TransUnion consumer credit report for Plaintiff with no permissible purpose” on four dates. In Count VI, Plaintiff alleges that Defendants violated the OCSPA by “claiming[, ] attempting or threatening to enforce a debt when such persons knew that the debt was not legitimate.” Plaintiff alleges that Defendants' alleged FDCPA violations are “automatically” violations of the OCSPA. Plaintiff further alleges in County VI that Defendants “knowingly made a misleading statement or opinion on which Plaintiff was likely to rely to Plaintiff's detriment.”

         II. Analysis

         A. Standard of Review

         The standard for a motion for judgment on the pleadings is the same as the standard for a motion to dismiss under Rule 12(b)(6). See Morgan v. Church's Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987). When ruling on a defendant's Rule 12(c) motion, a district court “must construe the complaint in the light most favorable to the plaintiff [and] accept all of the complaint's factual allegations as true.” Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 512 (6th Cir.2001) (citations omitted). In ruling on a motion for judgment on the pleadings, a court may not consider material outside of the pleadings. Fed.R.Civ.P. 12(c); see also Hickman v. Laskodi, 45 F.App'x 451, 454 (6th Cir.2002).

         Although a plaintiff's pro se complaint must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers, ” the complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation omitted)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). A complaint need not contain “detailed factual allegations, ” but must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.

         B. Plaintiff's Responses in Opposition to Defendants' Motion

         Defendants filed their motion for judgment on the pleadings on September 12, 2016. Under the rules of civil procedure, Plaintiff was entitled to file one responsive memorandum in opposition to Defendants' motion. Plaintiff has filed a total of four documents, including a motion to strike, that could be viewed as successive responses to Defendants' motion for judgment on the pleadings. In light of Plaintiff's pro se status and the fact that dismissal of his claims is recommended, the undersigned has generously considered three of the four responses.

         The only document not considered is an “affidavit with exhibits” that Plaintiff filed in support of his claim on October 3, 2016, which was docketed as a “complaint affidavit and exhibits in support of claim.” (Doc. 15). In a later filed “supplemental memorandum, ” Plaintiff clarifies that this particular affidavit and exhibits were not intended to be a response in opposition to the pending motion for judgment on the pleadings, but instead were intended to “support” the claims presented in his original complaint. (Doc. 19 at 2, PageID 224).

         There is no procedural mechanism by which it would be appropriate for the Court to consider Plaintiff's tendered evidentiary “support” of his previously filed complaint. Nor will the Court construe the documents as a newly amended complaint, since an amended complaint may not be filed without leave of Court. Thus, the undersigned declines to further consider the “affidavit and exhibits” filed on October 3, 2016.

         On October 11, 2016, Plaintiff filed a second document that is more responsive to Defendants' pending motion for judgment on the pleadings, despite being captioned as a “motion to strike” the Defendants' motion. (Doc. 17). Defendants filed a response in opposition to Plaintiff's motion to strike, to which Plaintiff filed a reply on November 17, 2016. (Doc. 21). Plaintiff confirms in a later-filed memorandum that he intended his October 11 “motion to strike” to be his response in opposition to Defendants' motion for judgment on the pleadings. (Doc. 19 at ¶5, PageID 224).

         In the motion to strike, Plaintiff argues that this Court should deny Defendants' motion for procedural reasons, because it is not supported “with any deposition, admission or affidavit….” (Doc. 17 at 3, PageID 203). As discussed above, review of the pending motion under Rule 12(b)(1) and Rule 12(c) is limited to the pleadings. In contrast to review of a dispositive motion filed under Rule 56, the submission of evidence is neither required nor generally appropriate to support a motion for judgment on the pleadings. Plaintiff makes additional arguments in favor of striking the Defendants' motion, which - while difficult to follow - appear to be equally without merit.[3]

         The fourth document filed by Plaintiff that appears responsive to Defendants' motion for judgment on the pleadings was filed on October 20, 2016, captioned as a “response and reply” to Defendants' motion, and docketed as a “Supplemental Memorandum” in opposition. (Doc. 19). In his supplemental response, Plaintiff raises an additional procedural objection to Defendants' motion for judgment on the pleadings. Specifically, he asserts that Defendants' motion is procedurally improper because such a motion cannot be filed “until the pleadings are closed.” (Doc. 19 at 3, PageID 225). However, the record flatly refutes Plaintiff's contention that Defendants' motion ...


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