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
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).
Background and Allegations in the Complaint
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,  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)).
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. (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 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
Rule 12(b)(6) Standard
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)).
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 complaint is barred by collateral
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).
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)).
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 ...