Saint Torrance v. Firstar, 1:06cv437.

• Decision Date: 30 November 2007
• Docket Number: No. 1:06cv437.,1:06cv437.
• Citation: 529 F.Supp.2d 836
• Parties: SAINT TORRANCE, aka Torrance Smith, Plaintiff(s), v. FIRSTAR, d/b/a U.S. Bank, NA, et. al., Defendant(s).
• Court: U.S. District Court — Southern District of Ohio

529 F.Supp.2d 836

SAINT TORRANCE, aka Torrance Smith, Plaintiff(s), v. FIRSTAR, d/b/a U.S. Bank, NA, et. al., Defendant(s).

No. 1:06cv437.

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

November 30, 2007.

Saint Torrance, Cincinnati, OH, Pro se.

Brian E. Chapman, Weltman Weinberg & Reis Co. LPA, Nicole Lashon Sanders, City of Cincinnati, Cincinnati, OH, Boyd W. Gentry, Jeffrey Charles Turner, Surdyk, Dowd & Turner Co., L.P.A., Dayton, OH, for Defendants.

ORDER

SUSAN J. DLOTT, District Judge.

The Court has reviewed the Report and Recommendations of United States Magistrate Judge Timothy S. Hogan filed on October 19, 2007 (Does. 43 and 44) and filed on October 26, 2,007 (Doc. 46), to whom this case was referred pursuant to 28 U.S.C. § 636(b), and noting that no objections have been filed thereto and that the time for filing such objections under Fed R.Civ.P. 72(b) expired November 8, 2007, and November 15, 2007 respectively, hereby ADOPTS said Report and Recommendations.

Accordingly, Defendant's Motion to Dismiss (Doc. 10) is GRANTED and Plaintiffs Complaint as it pertains to Defendant U.S. Bank is DISMISSED.

Defendant Helvey and Associates' Motion for Summary Judgment (Doc. 15) is GRANTED and Plaintiff's Complaint is DISMISSED as it pertains to Defendant Helvey and Associates.

The City of Cincinnati's Motion for Judgment on the Pleadings (Doc. 25) is GRANTED. Plaintiff's complaint is DIMISSED against Defendant Cincinnati Water Works and to the extent Plaintiffs complaint is construed as against the City, Plaintiffs complaint is DISMISSED against the City of Cincinnati.

This case is hereby TERMINATED from the Court's docket.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION AND ORDER

TIMOTHY S. HOGAN, United States Magistrate Judge.

This matter is before the Court on Defendant U.S. Bank's Motion to Dismiss (Doc. 10); Plaintiffs Opposition to Defendant's Motion to Dismiss (Doc. 11); Plaintiffs Motion to Leave to Amend Complaint [sic] (Doc. 16); US Bank's Objection to Plaintiffs Motion to Amend Complaint (Doc. 18); and Helvey & Associates' Memorandum in Opposition to Plaintiffs Motion to Amend the Complaint (Doc. 21).

BACKGROUND

Plaintiff filed this action pro se asserting claims for fraud, libel and slander, "bankruptcy violations," and intentional tort. (Doc. 2, Complaint, ¶¶ 11-14; 15-19; 25-28; 29-31). Plaintiff alleges that he was the owner and mortgagee of property located at 2521 Rack Court in Cincinnati, Ohio. On January 7, 2002, U.S. Bank's predecessor, Firstar' Bank, filed a foreclosure action against Plaintiff with respect to the Rack Court property. (Id. at ¶ 4). On June 4, 2002, judgment was entered and an Order of Sale was issued on July 2, 2002. See Firstar Bank v. Torrance Smith, et. al. Case No. A0200176 (Ham. Cty.Ct.Com.P1.2004).¹ Defendant U.S. Bank was the successful bidder at the Sheriff sale on August 29, 2002. On September 13, 2002, a Notice of Bankruptcy was filed in the foreclosure action at which point the state action was stayed. Id. A discharge order in the bankruptcy action was issued on January 8, 2003. In re Smith, 02-bk-16796 at Doc. 21 (Bankr. S.D.Ohio)(J. Hopkins). On April 17, 2003, the automatic stay in the state foreclosure action was terminated. Firstar Bank v. Torrance Smith, et al. Case No. A0200176. Thereafter, an entry confirming the sale was entered on May 28, 2003. Id. On August 5, 2003, an order of possession was issued by the Court on behalf of U.S. Bank against Plaintiff. Id. The property was then transferred to U.S. Bank from Plaintiff by Sheriffs deed on May 5, 2004. Id.

Plaintiff filed this action on June 6, 2006 in the Court of Common Pleas for Hamilton County, Ohio. (Docs.1, 2). The case was removed to this Court on July 7, 2006. (Doc. 1). Plaintiff contends the Defendants failed to transfer utility bills with respect to the property at 2521 Rack Court from his name and into U.S. Bank's name.

OPINION

The crux of Plaintiffs claim is that Defendants are unjustly charging Plaintiff for utility bills. Apparently, Plaintiff alleges that Defendant U.S. Bank is to blame for the failure to transfer the property from Plaintiffs name, thereby causing utility bills for said property to remain under Plaintiffs name. Plaintiff brings causes of action in fraud, libel and slander, bankruptcy violations and intentional tort against Defendant U.S. Bank. (Doc. 2, Complaint, 111111-14; 15-19; 25-28; 29-31).

Defendant U.S. Bank's Motion to Dismiss Should Be Granted

Defendant U.S. Bank contends that Plaintiff has failed to exhaust his administrative remedies and therefore, has failed to state a claim upon which relief may be granted. While couched in terms of failure to state a claim, Defendant's argument is, in reality, premised on lack of subject matter jurisdiction. Under a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, defendants can attack the complaint's jurisdictional allegations even though they are formally sufficient. Baker v. Siemens Energy and Automation, Inc., 838 F.Supp. 1227, 1229 (S.D.Ohio 1993)(Spiegel, J.). When the Court reviews a factual attack on subject matter jurisdiction, no presumption of truthfulness applies to the factual allegations of the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). The Court may rely on affidavits or any other evidence properly before it and has wide latitude to collect evidence to determine the issue of subject matter jurisdiction. Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir.1986). The Court is entitled to resolve factual disputes and is free to weigh the affidavits, documents and other evidentiary matters presented and satisfy itself as to its power to hear the case. Ritchie, 15 F.3d at 598. The Court must consider factual issues in a manner that is fair to the nonmoving party. Rogers, 798 F.2d at 915. Plaintiff must demonstrate jurisdiction in order to survive the motion. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3).

Ohio. Revised Code § 4905.04 grants to the Ohio Public Utilities Commission ("PUCO") the power and jurisdiction to supervise and regulate public utilities. Ohio Revised Code § 4905.26 provides in pertinent part,

Upon complaint in writing against any public utility by any person, ..., that any rate, ..., charge, ..., or service, ..., or service rendered, charged, demanded, exacted, or proposed to be rendered, charged, demanded, or exacted, is in any respect unjust, unreasonable, ..., or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, ... in any respect unreasonable, unjust, ..., if it appears that reasonable grounds for complaint are. stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof. Such notice shall be served not less than fifteen days before hearing and shall state the matters complained of. The commission may adjourn such hearing from time to time.

"The Commission has exclusive jurisdiction over various matters involving public utilities, such as rates and charges, classifications, and service, effectively denying to all Ohio courts (except [the Ohio Supreme Court]) any jurisdiction over such matters." State ex. rel., the Illuminetting Company v. Cuyahoga Court of Common Pleas, et. al., 97 Ohio St.3d 69, 776 N.E.2d 92, 96 (2002)(quoting State ex. rel. Cleveland Elec. Illum. Co. v. Cuyahoga Court of Common Pleas, 88 Ohio St.3d 447, 727 N.E.2d 900, 903 (2000)). While courts retain limited subject matter jurisdiction over pure common-law tort' and certain contract actions involving utilities regulated by the commission, see e.g. State ex. rel., the Illuminating Company, 776 N.E.2d at 97, Plaintiffs claim for fraud does not arise under these types of actions. Plaintiffs fraud claim in Count I of his Complaint stems from U.S. Bank's alleged failure to transfer the utility accounts for 2521 Rack Court from Plaintiffs name into Defendant's, thereby causing Plaintiff to be billed in error. In other words, Plaintiff disputes that he is the responsible party on the accounts with Cinergy and Cincinnati Water Works. Such a claim is clearly within the exclusive jurisdiction of PUCO and we are, therefore, without jurisdiction over Plaintiffs fraud claim.

Defendant further argues that Plaintiffs claims against Defendant U.S. Bank and the other Defendants are dependent upon whether or not the utility companies are justly seeking payment from him of the debt for utility services on the Rack Court property. Although, as previously noted, the Courts retain limited subject matter jurisdiction over pure common law tort actions involving utilities regulated by the commission, simply "[c]asting the allegations in the complaint to sound in tort or contract is not sufficient to confer jurisdiction upon a trial court' when the basic claim is one that the commission has exclusive jurisdiction to resolve." The Illuminating Company, 776 N.E.2d at 97 (quoting Higgins v. Columbia. Gas of Ohio, Inc., 136 Ohio App.3d 198, 736 N.E.2d 92, 95 (2000)). In the present case, Plaintiffs claims against U.S. Bank are clearly based on his belief that he is being unjustly charged for utility bills with respect to the Rack Court property. Simply put, Plaintiff disputes that he is the responsible party on the accounts with Cinergy and Cincinnati Water Works. Thus, although presented as claims sounding in tort, Plaintiffs claims against Defendant U.S. Bank are, in fact, service related complaints and are within the exclusive jurisdiction of PUCO. Accordingly, for the reasons stated above, we find that Defendant's Motion to Dismiss Counts I, II and V of...