United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
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).
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).
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).
Motion to Dismiss and Fed.R.Civ.P. 12 Standards
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).
Lack of Subject Matter Jurisdiction
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)).
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).
Failure to State a Claim
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)).
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).
Plaintiffs Count 2 Civil Conspiracy Claim should be
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).
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). "[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)).
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.
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).
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
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). Accordingly, plaintiffs civil conspiracy
claim should be dismissed.
Plaintiffs Count 3 Negligence. Count 4 Gross Negligence,
and Count 5 Negligent Misrepresentation Claims should be
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)).
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