United States District Court, S.D. Ohio, Western Division
JOSHUA D. ROSS, Plaintiff,
PENNYMAC CORP., Defendant.
OPINION AND ORDER
Michael R. Barrett, United States District Court Judge
matter is before the Court on Defendant's Motion for
Judgment on the Pleadings (Doc. 11). Plaintiff has filed a
response (Doc. 13) and Defendant has filed a reply (Doc. 15).
This matter is now ripe for disposition.
November 12, 2014, Plaintiff entered into a Contract to
Purchase (hereinafter referred to as the
“Contract”) a home (hereinafter referred to as
the “Property”). (Doc. 4, PageID 27 at ¶ 4).
Plaintiff purchased the property from Defendant, PennyMac,
with the understanding that Defendant had “acquired the
property by foreclosure, deed-in-lieu of foreclosure,
forfeiture, tax sale, or similar process and consequently,
[Defendant] has little or no direct knowledge concerning the
condition of the property.” (Doc. 7-1, PageID 65). As
such, Plaintiff agreed to purchase the Property in “as
is” condition. (Id.)
entering into the Contract, Plaintiff “performed a
comprehensive property inspection that revealed multiple
issues with the Property, all of which Plaintiff was aware in
negotiating the bargained-for price to be paid for the
Property.” (Doc. 4, PageID 28 at ¶ 5). Indeed,
Plaintiff agreed that he was purchasing the Property in
reliance upon his own inspection, and not based upon any
information provided by Defendant. (Doc. 7-1, PageID 66).
Plaintiff also acknowledged that mold could be present in or
around the Property, and accepted full responsibility for all
hazards that resulted from the presence of mold.
Plaintiff alleges the Property was constructed in a manner to
conceal mold, a fact which Plaintiff alleges was known to
Defendant. He brings the following claims: 1) fraud; 2)
breach of contract; 3) negligence; 4) claim pursuant to Ohio
Revised Code § 5302.30; and 5) punitive damages.
Defendant moves for judgment on the pleadings, asserting it
is entitled to judgment on all of Plaintiff's claims.
motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) is analyzed using the same standards
applicable to a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Tucker v. Middleburg-Legacy Place,
LLC, 539 F.3d 545, 549 (6th Cir. 2008) (citing
Sensations, Inc. v. City of Grand Rapids, 526 F.3d
291, 295 (6th Cir. 2008)). “[T]o survive a motion to
dismiss[, ] a complaint must contain (1) ‘enough facts
to state a claim to relief that is plausible, ' (2) more
than ‘a formulaic recitation of a cause of action's
elements, ' and (3) allegations that suggest a
‘right to relief above a speculative level.'”
Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478,
488 (6th Cir. 2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007)). A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). Although the
plausibility standard is not equivalent to a
“‘probability requirement, ' . . . it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting
Twombly, 550 U.S. at 556).
reviewing a motion to dismiss, the Court must “construe
the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Bassett v.
Nat'l Collegiate Athletic Ass'n, 528 F.3d 426,
430 (6th Cir. 2008) (quoting Directv, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). Federal Rule
of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing the pleader is entitled
to relief.” “Specific facts are not necessary;
the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests.'” Sensations, Inc. v. City of Grand
Rapids, 526 F.3d 291, 295 (6th Cir. 2008) (quoting
Erickson v. Pardus, 551 U.S. 89, 93 (2007)).
brings a claim for “fraud in the inducement and/or the
tort of constructive fraud.” (Doc. 4, PageID 28 at
¶ 12). Federal Rule of Civil Procedure 9(b) requires a
party alleging fraud to “state with particularity the
circumstances constituting fraud or mistake.”
Fed.R.Civ.P. 9(b). The rule requires a plaintiff to: 1)
specify the allegedly fraudulent statements; 2) identify the
speaker; 3) plead when and where the statements were made;
and 4) explain what made the statements fraudulent.
Republic Bank & Trust Co. v. Bear Stearns &
Co., 683 F.3d 239, 247 (6th Cir. 2012) (citing Ind.
State Dist. Council of Laborers and Hod Carriers Pension and
Welfare Fund v. Omnicare, Inc., 583 F.3d 935, 942-43
(6th Cir.2009)). The pleading requirement for fraud claims is
heightened because such claims present “a high risk of
abusive litigation.” Republic Bank, 683 F.3d
at 247 (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 569 n. 14 (2007)).
alleges the following in his Complaint related to his fraud
6. Unknown to Plaintiff was that the Property was constructed
in a manner to specifically conceal mold damage that ...