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Carter v. National City Bank

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

July 23, 2018

ORLANDO CARTER, Plaintiff,
v.
NATIONAL CITY BANK, et al, Defendants.

          Dlott, J.

          ORDER AND REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Orlando Carter brings this pro se action against defendant National City Bank, now known as PNC Bank, N.A., alleging state law claims of civil conspiracy, negligence, gross negligence, negligent misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud, invasion of privacy, breach of contract, and breach of the covenant of good faith and fair dealing, as well as 28 U.S.C. § 2201(a), the Declaratory Judgment Act, and 42 U.S.C. § 1985 and 42 U.S.C. § 1986. (Doc. 4). This matter is before the Court on defendants' motion to dismiss plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Doc. 22), plaintiffs response in opposition (Doc. 29), and defendants' reply memorandum (Doc. 31). This matter is also before the Court on defendants' motion to strike (Doc. 32), plaintiffs response in opposition (Doc. 33), and defendants' reply memorandum (Doc. 34), as well as plaintiffs motion for judicial notice (Doc. 37). This matter is also before the Court on plaintiffs motion for leave to amend his complaint (Doc. 40), defendants' response in opposition (Doc. 44), and plaintiffs reply memorandum (Doc. 53), as well as plaintiffs motion for leave to supplement his complaint (Doc. 43), defendants' response in opposition (Doc. 50), and plaintiffs reply memorandum (Doc. 54).

         I. Background

         In June 2010, the Court sentenced plaintiff to a total of ] 80 months' imprisonment after a jury found him guilty on 11 fraud-related counts. See United States v. Carter, Case No. 1:08-cr-51 (S.D. Ohio Jun. 9, 2010), Doc. 103 at 1-3. Plaintiff remains incarcerated in federal prison in Ashland. Kentucky. (Complaint, Doc. 4 at 67).

         Plaintiff filed this civil lawsuit in July 2017 and was granted leave to proceed in forma pauperis on August 23, 2017. (Docs. 1, 3, 4). In his sixty-seven-page verified complaint, plaintiff alleges that PNC executives misled the Court to believe that a $4, 000, 000 debt existed between PNC Bank and the Dynus Corporation, which led to his criminal conviction. (Complaint, Doc. 4 at ¶¶ 1-2). Plaintiff alleges that on November 14, 2016, PNC Executives sent a letter to the Treasury Department stating that the only debt between PNC and Dynus was a $250, 000 Note originated in 2003. (Id. at ¶ 1). Plaintiff attaches this letter to his complaint as Exhibit E. (Doc. 4-1 at 14). Plaintiff alleges that the letter confirms that PNC executives "1) manufactured and created fake and bogus bank documents to purport the existence of a $4, 000, 000 debt allegedly owed by [himself] and Dynus; 2) provided fake and bogus PNC Bank documents to the U.S. Attorney; and then 3) walked into a federal courtroom and lied under oath to the authentic existence of the $4, 000, 000 debt." (Doc. 4 at ¶ 5). Plaintiff asserts that the United States Treasury Department "confirmed on January 30, 2017 that the 'only debt' between Dynus and PNC was a $250, 000 Note originated in 2003." (Doc. 4 at ¶ 5). Plaintiff attaches a letter from the Treasury Department as Exhibit B. (Doc. 4-1 at 2).

         II. Motion to Dismiss and Fed.R.Civ.P. 12 Standards

         Defendants move to dismiss all counts in plaintiffs complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of standing and for failure to state a claim upon which relief may be granted. (Doc. 22 at 1).

         A. Lack of Subject Matter Jurisdiction

         Under Fed.R.Civ.P. 12(b)(1), a party may attack a complaint for lack of subject matter jurisdiction. There are generally two types of motions challenging subject matter jurisdiction under Rule 12(b)(1). DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004) (citations omitted). A Rule 12(b)(1) motion can attack a party's claim of jurisdiction on its face or the motion can attack the factual basis for a claim of jurisdiction. Id. A facial attack questions the sufficiency of the pleading. Campbell v. Miller, 835 F.Supp.2d 458, 463 (S.D. Ohio 2011) (citing Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir. 1990)). When reviewing this type of challenge to the court's jurisdiction, the court must take the allegations in the complaint as true and construe the complaint in a light most favorable to the non-moving party. Id. (citing United States v. A.D. Roe Co., Inc., 186 F.3d 717, 721-22 (6th Cir. 1999)).

         When a factual challenge is made under Rule 12(b)(1), the court considers evidence to determine if jurisdiction exists. Campbell, 835 F.Supp.2d at 463-64 (citing Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir. 2003)). The trial court must weigh the conflicting evidence to make this determination. Id. (citing Gentek Bldg. Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)). When a factual attack is made, the non-moving party bears the burden of proving that jurisdiction exists. Id. (citing Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005)). In such a case, there is no presumption of truthfulness on behalf of the non-moving party. Id. (citing A.D. Roe Co., Inc., 186 F.3d at 722).

         B. Failure to State a Claim

         Under Fed.R.Civ.P. 12(b)(6), a party may challenge a complaint for failure to state a claim upon which relief can be granted. In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations as true and make reasonable inferences in favor of the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Only "a short and plain statement of the claim showing that the pleader is entitled to relief is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)). "[T]he statement need only give the defendant fair notice of what the .. . claim is and the grounds upon which it rests.'' Id. (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the plaintiff need not plead specific facts, the "[f]actual allegations must be enough to raise a right to relief above the speculative level" and to "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 555, 570). A plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         It is well-settled that a document filed pro se is "to be liberally construed" and that a pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]" Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized that the Supreme Court's liberal construction case law has not had the effect of "abrogating] basic pleading essentials'" in pro se suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

         III. Resolution

         A. Plaintiffs Count 2 Civil Conspiracy Claim should be dismissed

         Plaintiff alleges in Count II of his complaint that in "conceal[ing] its fake and bogus PNC bank documents which it created to falsely purport the existence of a real and authentic $4, 000, 000 debtor account... PNC maliciously combined with one or more persons or business entities to act with negligent and/or fraudulent intent, to paint [plaintiff] in false light, and to invade his privacy." (Complaint, Doc. 4 at ¶ 160).

         Defendants move to dismiss plaintiffs civil conspiracy claim as barred by the applicable statute of limitations in Ohio. (Doc. 22 at 26-27). Under Ohio law, "[t]he tort of civil conspiracy is a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages." Bradley v. Miller, 96 F.Supp.3d 753, 767 (S.D. Ohio 2015) (quoting Williams v. Aetna Fin. Co., 700 N.E.2d 859, 868 (Ohio 1998)). "An underlying unlawful act is required before a civil conspiracy claim can succeed." Id. As such, "the applicable statute of limitations for filing a civil conspiracy [claim] is the relevant limitations statute for the underlying cause of action." In re Fair Fin. Co., 834 F.3d 651, 679 (6th Cir. 2016) (quoting Davis v. Clark Cty. Bd. of Comm'rs, 994 N.E.2d 905, 909 (Ohio Ct. App. 2013)), As it appears from the face of his complaint, plaintiffs civil conspiracy claim is based upon underlying torts of defamation, invasion of privacy, negligence, and fraud. In Ohio, claims for common-law fraud and negligence must be brought within four years after the cause thereof accrued. Ohio Rev. Code § 2305.09(c)-(d). The statute of limitations for a negligence claim begins when the negligent act is committed or when the actual damage or injury results. Vaughn v. J.C. Penney Co., 822 F.2d 605, 610 (6th Cir. 1987). The statute of limitations for fraud accrues "either when the fraud is discovered, or [when] in the exercise of reasonably diligence, the fraud should have been discovered." Cundall v. U.S. Bank, 909 N.E.2d 1244, 1250 (Ohio 2009). Defamation and false light invasion of privacy claims are subject to a one-year statute of limitations under Ohio Rev. Code § 2305.11(a). Slainbrook v. Ohio Sec y of State, 88 N.E.3d 1257, 1265 (Ohio Ct. App. 2017).[1] "[T]he statute of limitations begins to run when the allegedly defamatory words are first spoken or published regardless of the aggrieved party's knowledge of them." Friedler v. Equitable Life Assur. Soc. of U.S., 86 Fed.Appx. 50, 53 (6th Cir. 2003) (quoting Sabouri v. Ohio Dep't of Job & Family Servs., 763 N.E.2d 1238, 1240-41 (Ohio 2001)).

         Here, plaintiffs claim for civil conspiracy is barred by the statute of limitations under Ohio law for all four of his underlying claims. Plaintiffs criminal trial began in 2009 and plaintiff alleges that PNC executives presented false testimony at the trial about the $4, 000, 000 debt owed by Dynus Corporation. (Doc. 4 at ¶ 2). Plaintiff also alleges in his complaint that as early as 2005, PNC "falsely claimed that [he] and Dynus had a [$]4, 000, 000 debt that it had failed to pay." (Doc. 4 at ¶ 38). Plaintiff did not file his complaint in this action until July 2017-well beyond the four-year statute of limitations for negligence and fraud, as well as the one-year statute of limitations for false light invasion of privacy.

         Plaintiff responds that PNC's "fraudulent concealment" justifies equitable tolling of the statute of limitations until January 30, 2017, or, in the alternative November 14, 2016. (Doc. 29 at 23-27). The November 14, 2016 date is based on a letter where PNC allegedly conceded during a "government investigation" that the "only debt on file" is a $250, 000 Note originated in 2003. (Id. at 27). The January 30, 2017 date represents the "completion of the federal banking investigation by the U.S. Treasury Department." (Id. at 26). Plaintiff also argues that equitable tolling is justified because he acted with diligence in "pursuing his rights and uncovering PNCs fraud." (Mat 28). Plaintiff further argues that extraordinary circumstances "stood in his way preventing the timely filing," including that he was "required to overcome the belief of this Court which had been deceived by PNC and federal government law enforcement officials into believing that an authentic $4, 000, 000 debt existed." (Id.). Plaintiff also argues that "he has been transferred within the federal prison system on numerous occasions causing him to be detained in detention centers for extended periods of time without access to evidentiary and legal material to make his claims based on the appropriate state laws." (Id. at 29).

         In this case, plaintiff has not plausibly alleged that he is entitled to tolling of the statute of limitations based upon fraudulent concealment. "To survive a motion to dismiss on the ground that a claim is time-barred, a plaintiff relying on the doctrine of fraudulent concealment must plausibly plead: (1) the defendant wrongfully concealed its actions; (2) the plaintiff failed to discover the cause of action before the expiration of the limitations period; and (3) plaintiff exercised due diligence." Burd v. Manley Deas Kochalski PLLC, No. 2:13-cv-593, 2014 WL 12572908, at *2 (S.D. Ohio Mar. 31, 2014) (citing Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 475 (6th Cir. 2013)). Here, plaintiff has failed to plausibly plead that he did not discover the cause of action before the expiration of the limitations period or that he exercised due diligence. As stated above, plaintiff acknowledges on the face of his complaint that he believed PNC claimed a "false" debt against him as early as 2005 (and he clearly knew about it during his criminal trial in 2009). The Court is unpersuaded that plaintiff did not discover any wrongdoing until an alleged government investigation in November 14, 2016 or January 30, 2017 when he, himself, believed the debt to be "false" for over ten years. The Supreme Court of Ohio has stated:

[Constructive knowledge of facts, rather than actual knowledge of their legal significance, is enough to start the statute of limitations running under the discovery rule. A plaintiff need not have discovered all the relevant facts necessary to file a claim in order to trigger the statute of limitations. Rather, the "cognizable event" itself puts the plaintiff on notice to investigate the facts and circumstances relevant to her claim in order to pursue her remedies.

Flowers v. Walker, 589 N.E.2d 1284, 1287-88 (Ohio 1992) (internal citations omitted). Thus, the cognizable event triggering the statute of limitations occurred in 2005-the earliest year when plaintiff alleges he first knew of the $4, 000, 000 debt-or in 2008 or 2009-the time of his criminal investigation and subsequent trial. Plaintiff is also not entitled to equitable tolling based on his confinement because "a prisoner's pro se incarcerated status, lack of knowledge regarding the law, and limited access to the prison's law library or to legal materials do not provide a sufficient justification to apply equitable tolling of the statute of limitations." Alls v. Warden, Belmont Corr. Inst., No. 16-cv-1001, 2018 WL 369151, at *3 (S.D. Ohio Jan. 11, 2018), adopted, 2018 WL 708378 (S.D. Ohio Feb. 2, 2018).[2] Accordingly, plaintiffs civil conspiracy claim should be dismissed.

         B. Plaintiffs Count 3 Negligence. Count 4 Gross Negligence, and Count 5 Negligent Misrepresentation Claims should be dismissed

         Plaintiff alleges in his Count 3 negligence claim that PNC "had an affirmative duty and/or legal obligation to conduct itself in a manner free of negligence and/or wrongdoing governed by its own internal standard operating procedures ... and those standards imposed, recognized and generally accepted by and in the banking industry in general as establishing that level of care required of one so situated." (Id. at ¶ 164). Defendants argue that plaintiffs negligence claim should be dismissed for lack of duty. (Doc. 22 at 27). Specifically, defendants contend that PNC cannot be held liable for negligence as a matter of law because there is no fiduciary relationship between the parties. (Id. at 27-28) (quoting Ohio Rev. Code § 1109.15(E)). Defendants also maintain that plaintiff has not alleged "the existence of a writing between he and PNC in which PNC expressly agreed to a fiduciary relationship." (Id., at 28) (citing Wells Fargo Bank, N.A. v. Perkins, No. 10AP-1022, 2011 WL 4790766, at *5 (Ohio Ct. App. 2011)).

         "To establish actionable negligence, one must show in addition to the existence of a duty, a breach of that duty and injury resulting proximately therefrom." Mussivand v. David,544 N.E.2d 265, 270 (Ohio 1989). Insofar as plaintiff argues that defendants breached their fiduciary duty to him, "it is well settled that the relationship of a bank and its customer, in the absence of special circumstances, is not a fiduciary relationship, as a bank and its customer ordinarily stand at arm's length." Baghani v. Charter One Bank F.S.B., No. 91373, 2009 WL 280399, at *3 (Ohio Ct. App. 2009) (citing Groob v. KeyBank,843 N.E.2d 1170 (Ohio 2006)). Moreover, as established under Ohio law, "[u]nless otherwise expressly agreed in writing, the relationship between a bank and its obligor, with respect to any extension of credit, is that of a creditor and debtor, and creates no fiduciary or ...


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