Binks v. Collier

• Decision Date: 21 December 2020
• Docket Number: Case No. 1:20-cv-78
• Parties: ANDREW BINKS, Plaintiff, v. KAREN L. COLLIER, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

ANDREW BINKS, Plaintiff, v. KAREN L. COLLIER, et al., Defendants.

Case No. 1:20-cv-78

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

December 21, 2020

McFarland, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Plaintiff Andrew Binks brings this action pro se against defendants Karen and Tomas Collier¹ alleging breach of contract, fraud, obstruction, witness tampering, malicious prosecution, perjury, violations under the Racketeer Influenced and Corrupt Organizations Act (RICO), wire fraud, and mail fraud. (Doc. 1).² This matter is before the Court on defendants' motion to dismiss (Doc. 21), plaintiff's response in opposition (Doc. 28), plaintiff's motion for sanctions (Doc. 29), and defendants' reply memorandum (Doc. 30).

I. Facts

Plaintiff makes the following allegations in his complaint: Plaintiff and defendant Karen Collier were formerly married. (Doc. 1 at PAGEID 3). Defendant Tomas Collier is defendant Karen Collier's current husband. (Id.). Plaintiff alleges that on or about January 27, 2016, he and Karen Collier entered into an "agreement" in a domestic relations court in Ohio. (Id. at PAGEID 4). As best the Court can discern, the agreement plaintiff references is an "Agreed Entry" from the Butler County, Ohio Domestic Relations court arising from plaintiff anddefendant Karen Collier's divorce. (Doc. 28, Exh. 1, at PAGEID 243).³ The "agreement" states, in pertinent part, that defendant Karen Collier, "shall cooperate fully to dismiss with prejudice the pending domestic violence case pending in Area II Court." (Doc. 28, Exh. 1, at PAGEID 244). Plaintiff alleges that on May 19, 2016, defendant Karen Collier breached this agreement by informing the prosecutor that she wished to proceed with the pending case. (Doc. 1 at PAGEID 4). Plaintiff further alleges that in February 2019, defendant Karen Collier entered into an agreement "where she would contact the prosecutor in writing and state, she had no objection to a new trial being conducted." (Id.).⁴ Plaintiff states that on February 19, 2019, defendant breached the agreement by not appearing to oppose a new trial. (Id.). Plaintiff asserts defendant Karen Collier communicated to her family members that she only entered the agreement for the money, and never intended to follow its terms. (Id. at PAGEID 6). The Court will discuss additional facts as necessary in the evaluation of plaintiff's individual causes of action.

II. Standard of Review

Defendants move the Court to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. (Doc. 21). 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 ofthe 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 a 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)).

"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Ashcroft, 556 U.S. 662, 678. "Put another way, bare assertions of legal conclusions are not sufficient." Sollenberger, 173 F. Supp. 3d at 618. And, "[t]o survive a 12(b)(6) motion to dismiss, a plaintiff must provide more than labels and conclusions, and a formulaic recitation of the elements of a cause of action is not enough." Id. at 617.

The Court must accept all well-pleaded factual allegations as true, but need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although a complaint need not contain "detailed factual allegations," it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557.

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 "abrogat[ing] basic pleading essentials" in pro se suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

III. Resolution

a) RICO, Mail Fraud, and Wire Fraud (Counts VIII, IX, and X)⁵

In his eighth, ninth, and tenth causes of action, plaintiff presents a RICO claim against both defendants, and what appears to be a criminal cause of action for mail and wire fraud only against defendant Karen Collier. In support of his causes of action, plaintiff alleges defendants constituted an enterprise, "repeatedly lied" in court in criminal and civil cases, used their influence to obstruct and tamper with witness testimony in pending criminal and civil litigation, and profited from their tampering and lying in court. (Doc. 1 at PAGEID 8-9). Plaintiff further alleges that defendant Karen Collier contacted the Maryland Motor Vehicle Administration (MMVA) by telephone, lied about her identity, and changed plaintiff's mailing address to her attorney's mailing address in Ohio. (Id. at PAGEID 11).

Mail and wire fraud are criminal statutes that do not, by themselves, give rise to a private civil cause of action. See Morganroth & Morganroth v. DeLorean, 123 F.3d 374, 386 (6th Cir. 1997); see also Saro v. Brown, 11 F. App'x 387, 388 (6th Cir. 2001) (holding that violations of mail and wire fraud sections of the federal criminal code do not give rise to independent causesof action). Mail and wire fraud may however be asserted as predicate acts in a civil RICO claim. Heinrich v. Waiting Adoption Serv., Inc., 668 F.3d 393, 404 (6th Cir. 2012). To state a RICO claim based on predicate acts of mail and/or wire fraud, a plaintiff must "adequately allege[] a scheme to defraud, the use of the mail or wires in furtherance of the scheme, and a sufficient factual basis from which to infer scienter." Id. at 409.

Plaintiff's RICO claim is a separate and factually distinct claim from his mail and wire fraud causes of action. That is, plaintiff's mail and wire fraud causes of actions focus on the single act of defendant Karen Collier allegedly contacting the MMVA by telephone and changing the mailing address of plaintiff. Plaintiff's RICO claim, however, is based upon defendants' "enterprise" where both defendants allegedly lied in court and used their influences and threats of violence to obstruct witness testimony. Plaintiff claims that defendants "have profited by [their] use of influence, violence, and threats of violence to affect witness testimony." (Doc. 1 at PAGEID 9). But plaintiff makes no attempt to explain to the Court or defendants how the single act of one defendant contacting the MMVA has any connection to, or acts as a predicate offense for, his RICO claim.

Plaintiff's complaint provides no factual content or context from which the Court may reasonably infer that a) the defendants engaged in conduct of an enterprise through a pattern of racketeering activity, b) defendant Karen Collier used the postal service or other interstate mail carrier to carry out fraudulent acts, so as to constitute mail fraud, and/or c) defendant Karen Collier used wire communications in the existence of a scheme to defraud, and that the scheme was intended to deprive plaintiff of money or property. Iqbal, 556 U.S. at 678; McCormick, 2020 WL 4334886, at *5. Plaintiff presented the Court with no facts to suggest that there existed a "scheme to defraud" and the use of mail was "in furtherance of the scheme." United States v.Jamieson, 427 F.3d 394, 402 (6th Cir. 2005). Further, plaintiff's allegations in support of his RICO, mail, and wire fraud claims are unsupported by specific facts and amount to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

Plaintiff's "unadorned, the defendant-unlawfully-harmed-me accusation[s]" cannot survive a motion to dismiss. Iqbal, 556 U.S. at 677-78. Accordingly, plaintiff's eighth, ninth, and tenth causes of action fail to state a claim upon which relief may be granted and should be dismissed.

b) Breach of Contract and Fraud (Counts I and III)

In his first and third causes of action, plaintiff alleges breach of contract and fraud against defendant Karen Collier. (Doc. 1). Plaintiff alleges that he and Karen Collier entered into a written contract on January 27, 2016 in a domestic relations court in Ohio. (Id. at PAGEID 4). Plaintiff alleges he made the requisite payment in accordance with the agreement, but Karen Collier failed to honor her agreement to assist the state prosecutor in dismissing a criminal case against plaintiff. (Id.). Plaintiff alleges Karen Collier breached the agreement when on May 19, 2016, she changed her position and told the prosecutor she wanted to proceed with the case. (Id.)....