Carter v. Nat'l City Bank
| Decision Date | 23 July 2018 |
| Docket Number | Case No. 1:17-cv-508 |
| Parties | ORLANDO CARTER, Plaintiff, v. NATIONAL CITY BANK, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Litkovitz, M.J.
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 plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Doc. 22), plaintiff's 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), plaintiff's response in opposition (Doc. 33), and defendants' reply memorandum (Doc. 34), as well as plaintiff's motion for judicial notice (Doc. 37). This matter is also before the Court on plaintiff's motion for leave to amend his complaint (Doc. 40), defendants' response in opposition (Doc. 44), and plaintiff's reply memorandum (Doc. 53), as well as plaintiff's motion for leave to supplement his complaint (Doc. 43), defendants' response in opposition (Doc. 50), and plaintiff's reply memorandum (Doc. 54).
In June 2010, the Court sentenced plaintiff to a total of 180 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 US 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).
Defendants move to dismiss all counts in plaintiff's 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).
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).
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 "abrogat[ing] basic pleading essentials" in pro se suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
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 plaintiff's 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, plaintiff's 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 fraudaccrues "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). Stainbrook 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 F. App'x 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, plaintiff's claim for civil conspiracy is barred by the statute of limitations under Ohio law for all four of his underlying...
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