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Carter v. PNC Bank, N.A.

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

September 5, 2019

ORLANDO CARTER, Plaintiff,
v.
PNC BANK, N.A., 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 PNC Bank alleging numerous claims under both federal and state law. (Doc. 1). This matter is before the Court on defendants' motion to dismiss plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 18), plaintiffs response in opposition (Doc. 22), and defendants' reply memorandum (Doc. 25). This matter is also before the Court on several of plaintiff s pretrial motions (Docs. 3, 13, 14, 15, 20, 21, 26, 29, 30, 34).

         I. Background and Allegations in the Complaint

         PNC's motion to dismiss characterizes plaintiffs lawsuit as "the fourth of six lawsuits filed to date by Orlando Carter (or his associates) in a blatant attempt to collaterally attack his 2009 conviction for bank fraud, mail fraud, bankruptcy fraud and making false statements and oaths (See United States of America v. Orlando Carter, 1:08 CR 0051)." (Doc. 18 at 2). PNC moves to dismiss plaintiffs complaint under Fed. R. Civ. P 12(b)(6) on the grounds that plaintiffs claims fail to state a plausible claim for relief, are barred by the doctrines of res judicata and witness immunity, and are time-barred under the applicable statutes of limitation. (Id. at 3). Where necessary, the undersigned will refer to the background of plaintiff s litigation history thoroughly outlined in Magistrate Judge Stephanie K. Bowman's recent decision of CBST Acquisition LLC v. PNC Bank, N.A., No. 1:19-cv-06, 2019 WL 2603566 (S.D. Ohio June 25, 2019) (Report and Recommendation), adopted, 2019 WL 4059918 (S.D. Ohio Aug. 28, 2019). Magistrate Judge Bowman's decision takes judicial notice of the existence of related civil cases filed by plaintiff and his associates, including by CBST Acquisition, [1] all of which have been dismissed. Id. at *3 (citing Related Case Memorandum filed in Civil Case 1:18-cv-162 on December 13, 2018, Civil Cases l:17-cv-508, l:18-cv-162, l:18-cv-400, l:18-cv-825; see also Carter v. United States, Civil No. 1:16-cv-530; Carter v. United States, Civil No. 1:17-cv-248; Rogers v. PNC Bank, No. 1:18-cv-889; Carter v. PNC Financial Servs. Grp., Inc., No. 3:18-cv-283 (appeal of dismissal of adversary proceeding in bankruptcy court)).

         Plaintiff alleges in his present complaint that PNC currently seeks to collect an $18.3 million debt from him. (Complaint, Doc. 1 at 1). Plaintiff alleges that in May 2018, he "discovered that PNC Bank created fraudulent documents with the purposeful intent of embarrassing or harassing [him] regarding an outstanding $18.3 million debt. . . ." (Id. at 2). Plaintiff alleges that this claim by PNC was never mentioned to him during or after his 2009 trial.[2] (Id.). According to plaintiff, "PNC Bank abused the legal process by filing a fake and fraudulent $18.3 million proof of claim during [his] ongoing bankruptcy proceeding attempting to pervert the process and cause the court to do something which the court is not empowered to do." (Id.). Plaintiff alleges that he has suffered damages not less than $500, 000, 000 as a result of "PNC Bank's fraud by creating a fake and phony $18.3 million debt." (Id.). Attached to his complaint as Exhibit A, plaintiff includes a screenshot of the docket from his bankruptcy proceeding, No. 06-30086. (Doc. 1-1). The docket shows that National City Commercial Capital Corporation[3] filed a creditor's claim in the amount of approximately $18.3 million on August 18, 2006. (Id.). On August 21, 2006, National City amended its creditor's claim to approximately $8.8 million. (Id.). The description of the creditor's claim states: "Funding of lease induced by fraud of Debtor and Debtor's company." (Id.). Based on these facts, plaintiff brings claims under the Fair Debt Collections Practices Act ("FDCPA"), the Ohio Consumer Sales Practices Act ("OCSPA"), 42 U.S.C. § 1985, 42 U.S.C. § 1986, and 42 U.S.C. § 1981, as well as various state law tort claims. (Doc. 1 at 19-28).

         II. Rule 12(b)(6) Standard

         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. Butter, 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 complaint is barred by collateral estoppel.

         PNC argues that plaintiffs complaint is barred by the doctrine of res judicata as it is the fourth action that plaintiff has filed against PNC arising from the same set of facts. (Doc. 18 at 7). PNC argues that plaintiff previously alleged many of the same causes of action as he has alleged in this instant matter in Carter v. National City Bank, No. 1:17-cv-508 ("Carter F), which was dismissed on December 20, 2018. (Id.). PNC contends that plaintiff could have raised the claims in the present complaint in Carter /because they arise from the same events occurring in 2006. (Id. at 8).

         In this case, plaintiff attempts to relitigate the same issues under some different causes of action and theories; therefore, the Court concludes that the doctrine of issue preclusion, or collateral estoppel, more appropriately supports dismissal of plaintiff s claims. The doctrine of issue preclusion provides that "a decision precludes relitigation of the same issue on a different cause of action between the same parties once a court decides an issue of fact or law necessary to its judgment." Duncan v. Peck, 752 F.2d 1135, 1138 (6th Cir. 1985). See also Logan Farms v. HBH, Inc. DE, 282 F.Supp.2d 776, 786 (S.D. Ohio 2003) (in contrast to res judicata, collateral estoppel "dictates that once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving any party to the prior litigation.")- "A federal court sitting in diversity looks to federal law on collateral estoppel to determine the preclusive effect of a prior federal judgment." Logan Farms, 282 F.Supp.2d at 787 (citing JZG Resources, Inc. v. Shelby Ins. Co., 84 F.3d 211, 213-14 (6th Cir. 1996)). Collateral estoppel involves consideration of four elements: 1) the issue precluded must be the same one involved in the prior proceeding; 2) the issue must actually have been litigated in the prior proceeding; 3) determination of the issue must have been a critical and necessary part of the decision in the prior proceeding; and 4) the prior forum must have provided the party against whom estoppel is asserted a full and fair opportunity to litigate the issue. Id. (citing Bills v. Aseltine, 52 F.3d 596, 604 (6th Cir. 1995); Central Transp., Inc. v. Four Phase Sys., Inc., 936 F.2d 256, 259 (6th Cir. 1991)).

         The Court concludes that plaintiffs claims are subject to dismissal under the doctrine of collateral estoppel. All four elements for the application of collateral estoppel are present in this case. The crux of this case involving the alleged "fake and fraudulent $18.3 million proof of claim" has previously been litigated by plaintiff or those in privity with plaintiff-namely, CBST, the LLC owned by plaintiff. In CB ST Acquisition, LLC v. PNC Bank, mentioned above, plaintiff CBST alleged as one of eight allegations that PNC Bank "wrongfully filed two claims in bankruptcy court against Carter in 2006, stating that CBST owed PNC SI 8.3 million and/or $8.8 million. 2019 WL 2603566, at *2. Magistrate Judge Bowman took judicial notice of the existence of related cases previously litigated by CBST and Carter and his associates, including Carter I, cited by PNC in this case. Because most of CBST's claims had previously been litigated by Carter and his associates, the Court recommended dismissal of CBST's lawsuit based on the doctrines of issue preclusion and/or claim preclusion, in addition to the statute of limitations and because CBST's claims were implausible, wholly incredible, and conclusory. Id. at * 15-21. The Court recommended that PNC's motion to dismiss be granted, thereby dismissing CBST's claims that PNC Bank wrongfully filed two claims in bankruptcy court against Carter in 2006 involving a $18.3 million and/or $8.8 million debt. The District Judge adopted the Report and Recommendation over CBST's ...


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