Owner Operator Ind. Drivers Ass'n v. Comerica Bank

• Court: U.S. District Court — Southern District of Ohio
• Writing for the Court: Algenon L. Marbley
• Citation: Owner Operator Ind. Drivers Ass'n v. Comerica Bank, 540 F.Supp.2d 925 (S.D. Ohio 2008)
• Decision Date: 31 March 2008
• Docket Number: Case No. 05-00056.
• Parties: OWNER OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., et al., Plaintiffs, v. COMERICA BANK, Defendant.

540 F.Supp.2d 925

OWNER OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., et al., Plaintiffs, v. COMERICA BANK, Defendant.

Case No. 05-00056.

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

March 31, 2008.

Guy Robert Humphrey, Chester Willcox & Saxbe, Columbus, OH, Lisa Marie Ellis, Reisenfeld & Associates, LPA LLC, Mark Alan Greenberger, Katz Greenberger & Norton, Paul B. Martins, Helmer, Martins, Rice & Popham Co., L.P.A., Cincinnati, OH, Paul D. Cullen, Sr., The Cullen Law Firm, Washington, DC, for Plaintiffs.

Michael Gary Long, Tiffany Strelow Cobb, Alycia N. Broz, Vorys, Sater, Seymour and Pease, LLP, Columbus, OH, for Defendant.

OPINION AND ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

Defendant Comerica Bank ("Comerica") moves to dismiss (docket no. 28) the second amended complaint filed by Plaintiffs Owner-Operator Independent Drivers Association ("OOIDA"), Carl Harp, and Michael Wiese (collectively, "Plaintiffs"). For the reasons set forth below, the Court DENIES Comerica's motion.

II. BACKGROUND

Plaintiffs seek to enforce the final judgment entered by this Court on July 16, 2004, in OOIDA v. Arctic Express, Inc., No. 97-750 (the "Arctic Litigation"). Harp and Wiese are "owner-operators" of trucking equipment and OOIDA is an owner-operator industry association with more than 141,000 members.

In the Arctic Litigation, the Court found that the Plaintiffs had entered into agreements whereby they leased their trucking equipment to Arctic. As part of these lease agreements, Arctic deducted nine cents per mile from the compensation owed to each owner-operator for purposes of repairing and maintaining the leased trucking equipment. This Court held that these "maintenance escrow funds" were subject to the requirements of the federal Truth-in-Leasing regulations, 49 C.F.R. § 376.12, and that Arctic therefore had unlawfully failed to return them to owner-operators upon termination of the lease agreements. This Court certified the case as a class action and granted final approval to a settlement awarding the Class $5,583,084, which equaled the total amount of maintenance escrow funds Arctic owed, plus interest.

On January 16, 2004, Plaintiffs filed this action against Comerica, alleging that Comerica has the maintenance escrow funds owed to Arctic Class members.¹ Plaintiffs allege that Arctic and Comerica entered into two revolving credit loan agreements, one dated May 3, 1993, and the other dated April 29, 1998. At the same time as the loan agreements were in effect, Arctic also maintained certain deposit accounts with Comerica, in which Arctic deposited its earnings. Pursuant to the loan agreements, Arctic borrowed enough money from Comerica to pay Class members' weekly compensation, minus the nine cents per mile deducted for repair and maintenance of the trucking equipment. Plaintiffs allege that Comerica then collected the maintenance escrows from Arctic's depository accounts and applied them toward paying down Arctic's loan obligations to Comerica. Plaintiffs claim that the federal Truth-in-Leasing regulations, 49 C.F.R. § 376.12(k), created a statutory trust over their maintenance escrow fees, and that Arctic Class members are entitled to recover their trust property, whether from Arctic, or the subsequent holder of the trust property, in this case Comerica.

On May 16, 2006, 2006 WL 1339427, this Court granted in part and denied in part Comerica's motion to dismiss the amended complaint. The Court first held that it did have subject matter jurisdiction, contrary to Comerica's argument, because the federal Truth-in-Leasing regulations created a statutory trust over the maintenance escrow fees owed to the Arctic Class members, and therefore gave rise to a federal claim to recover those fees. Second, the Court granted Comerica's motion to dismiss "to the extent [the complaint] referenced the 1993 loan agreement ..." Comerica contended that Plaintiffs could not recover any escrow fees that Comerica transferred out of Arctic's depository accounts in connection with the 1993 loan agreement because Ohio law specified a six-year statute of limitations for "an action ... upon a liability created by statute." Ohio Rev.Code ("O.R.C.") § 2305.07. Plaintiffs argued that O.R.C. § 2305.07 was inapplicable because the maintenance escrow fees constituted a "continuing and subsisting trust," the recovery of which is not subject to any statute of limitations under O.R.C. § 2305.22. This Court held that Plaintiffs failed to satisfy the elements of a "continuing and subsisting trust" and therefore granted Comerica's motion to dismiss as to the 1993 loan agreement.

Plaintiffs thereafter moved to amend the complaint a second time. Plaintiffs sought to plead facts showing that they could not have discovered their claim against Comerica until December 2003, and that any applicable statute of limitations did not begin to run until that time. Comerica did not oppose Plaintiffs' motion, and in part on that basis, this Court granted the motion on March 20, 2007.

The second amended complaint contains identical substantive allegations as the prior version, and continues to seek relief in connection with the 1993 loan agreement. The only difference is that the second amended complaint adds new paragraphs twenty-four through thirty, which set forth facts regarding Plaintiffs' discovery of their claim against Comerica. Plaintiffs allege that pursuant to the Lease Agreements between Arctic and Class members, Arctic disclosed to Class members only the amount of maintenance escrow fees it withheld from their compensation, not where or how the fees were maintained. Further, under the escrow provisions of the Truth-in-Leasing regulations, Arctic was not required to hold the maintenance escrow fees in a separate account; according to Plaintiffs, "[f]unds returned to the owner-operator may be drawn from any source available to the carrier." Plaintiffs thus plead that they did not know, and did not have any reason to know, about any arrangements that Arctic made with respect to the maintenance escrow fees, let alone the loan agreements with Comerica. On October 31, 2003, shortly before the trial in the Arctic Litigation was scheduled to begin, Arctic filed a bankruptcy petition, thus halting the Arctic proceedings. Plaintiffs allege that they first learned about Comerica's role in transferring the maintenance escrow fees out of Arctic's depository accounts on December 2, 2003, through testimony given in the bankruptcy case. Six weeks later, on January 16, 2004, Plaintiffs filed an adversary proceeding against Arctic and Comerica in the bankruptcy court, seeking return of their escrow fees.

On April 11, 2007, Comerica moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the second amended complaint. Comerica argues that Plaintiffs have ignored this Court's prior dismissal order and have improperly continued to plead that their entitlement to relief extends from July 1, 1993 to the present. The parties' briefing requires the Court to answer the following questions: (1) whether the Court's prior dismissal order permanently foreclosed any recovery for Plaintiffs in connection with the 1993 loan agreement; (2) whether Plaintiffs should be estopped from arguing that their claim arises out of the federal common law of trusts; and (3) whether Plaintiffs' claim was timely filed. The Court will address each of these issues in turn.

III. STANDARD OF REVIEW

Dismissal is proper under Federal Rule of Civil Procedure 12(b)(6) if a party "fail[s] to state a claim upon which relief can be granted." "On a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint contains `enough facts to state a claim to relief that is plausible on its face.'" United States ex rel. Bledsoe v. Cmty. Health Sys., 501 F.3d 493, 502 (6th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)).

Ordinarily, dismissing claims as untimely under Rule 12(b)(6) is disfavored because plaintiffs have no duty to plead facts negating an affirmative defense, such as the statute of limitations. Hollander v. Brown, 457 F.3d 688, 691 (7th Cir.2006). "However, ... dismissal under Rule 12(b)(6) on the basis of a limitations defense may be appropriate when the plaintiff effectively pleads herself out of court by alleging facts that are sufficient to establish the defense." Id.; Hoover v. Langston Equip. Assoc., Inc., 958 F.2d 742, 744 (6th Cir.1992) (stating that a statute of limitations defense may be brought on a motion to dismiss when it is apparent from the face of the complaint that the time limit for bringing the claim has passed). Further, the plaintiff bears the burden of "plead[ing] circumstances which would indicate why the [cause of action] was not discovered earlier and which would indicate why the statute should lie tolled." Auslender v. Energy Mgmt. Corp., 832 F.2d 354, 356 (6th Cir.1987).

IV. ANALYSIS

A. The Effect of the Court's Prior Dismissal Order

Comerica argues that Plaintiffs are improperly trying to re-litigate a settled issue, that is, their right to recover in connection with the 1993 loan agreement. Comerica insists that because the Court did not expressly state that its partial dismissal of Plaintiffs' claim was without prejudice, the law presumes that the dismissal was with prejudice. See Pratt v. Ventas, Inc., 365 F.3d 514, 523 (6th Cir.2004). Further, Comerica argues that Plaintiffs were well aware of the facts underlying the "discovery" theory of their claim's timeliness when they opposed Comerica's first motion to dismiss, and that they should have presented this theory at that time, rather than relying solely on their "continuing and subsisting trust" theory. Plaintiffs' failure to advance their "discovery" argument in the first round of briefing,...