Topping v. Cohen
| Decision Date | 19 May 2015 |
| Docket Number | Case No: 2:14-cv-146-FtM-29DNF |
| Parties | DALE J. TOPPING, Plaintiff, v. KYLE COHEN, CHARLOTTE MASON, SCOTT OWCZAREK, DIANE SPADONI, NATASHA VARNOVITSKY, JOHN DOES, and other presently unknown parties employed by or affiliated with the U.S. Department of Education, JACQUENETTE THOMPSON, TERESA GULICK, and NICOLE ROVIG, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on review of the following motions: Defendant Assistant United States Attorney Kyle Cohen's Motion to Dismiss (Doc. #73); plaintiff's Motion for Summary Judgment (Doc. #74); defendants Charlotte Mason, Diane Spadoni, Jacquenette Thompson, and Natasha Varnovitsky's Motion to Dismiss (Doc. #76); defendants Charlotte Mason, Diane Spadoni, Jacquenette Thompson, and Natasha Varnovitsky's Amended Motion to Dismiss (Doc. #77); Federal Defendants' Motion for Miscellaneous Relief (Doc. #78); plaintiff's Motion for Sanctions (Doc.#82); and defendants Scott Owczarek, Teresa Gulick, and Nicole Rovig'sMotion to Dismiss (Doc. #85). Plaintiff filed Responses (Doc. #79; Doc. #80; Doc. #81; Doc. #84; Doc. #87), defendants filed Responses (Doc. #83; Doc. # 88), and plaintiff filed a Reply (Doc. #89).
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be "plausible" and "must be enough to raise a right to relief above the speculative level." Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but "[l]egal conclusions without adequate factual support are entitled to no assumption of truth," Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citationsomitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible." Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (internal quotation marks and citations omitted). Thus, the Court engages in a two-step approach: "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.
Contrary to defendant Kyle Cohen's motion (Doc. #73, p. 4), "no heightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke § 1983 expressly in order to state a claim." Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346-47 (2014) (); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) ().
This is plaintiff's third federal lawsuit in Florida in connection with claims that various defendants violated his rights in connection with efforts to collect a disputed student loan issued by Michigan State University (MSU) in February 1982. Plaintiff filed the first case, Topping v. United States Department of Education, Case. No. 2:09-cv-396-FTM-29DNF, on June 9, 2009. On February 8, 2012, the district court dismissed the case, and on February 22, 2013, the Eleventh Circuit Court of Appeals affirmed the dismissal. Topping v. United States Dep't of Educ., 510 F. App'x 816 (11th Cir. 2013). The United States Supreme Court denied certiorari on October 15, 2013. Topping v. Dep't of Educ., 134 S. Ct. 432 (2013).
During the pendency of the appeal, plaintiff initiated an action against the United States pursuant to the Federal Tort Claims Act (FTCA). Topping v. United States, Case No. 2:12-cv-524-FTM-99SPC (M.D. Fla. Sept. 20, 2012). Plaintiff's FTCA action was dismissed as frivolous, and the dismissal was affirmed on appeal. Topping v. United States, Case No. 2:12-cv-524-FTM-99SPC, Doc. #30.
Plaintiff initiated this third action on March 17, 2014, by filing a three-count Complaint against Kyle Cohen, Charlotte Mason, Scott Owczarek, Dianne Spadoni, Natasha Varnovitsky, Jacquenette Thompson, Teresa Gulick, Nicole Rovig, John Doesemployed by or affiliated with the United States Department of Education, and the United States Department of Education. (Doc. #1.) Plaintiff's Third Amended Complaint, filed October 9, 2014, asserts the following claims: (I) deprivation of rights under 42 U.S.C. § 1983 against defendants Gulick, Rovig, and Owczarek; (II) violation of the federal civil Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, against defendants Cohen, Mason, Owczarek, Spadoni, Thompson, and Varnovitsky; and (III) violation of plaintiff's right to due process against defendants Cohen, Mason, Spadoni, Thompson, and Varnovitsky.1 (Doc. #70.) The claims are asserted against the defendants in both their individual and official capacities.2 (Doc. #70, ¶ 3.)
The facts alleged in the Third Amended Complaint are summarized as follows:
A. Background
In February 1982, plaintiff Dale Topping (Topping or plaintiff) took out a student loan in the amount of $2662.00 to fund his undergraduate studies at MSU. After plaintiff withdrew from school due to an administrative error, the loan was refunded to the lender. (Doc. #70, ¶ 15.)
Despite the fact that the 1982 loan had been refunded, Topping received a billing statement in April 1986 listing that loan. (Id. ¶¶ 15-16.) Plaintiff contacted the servicer of the loan, Wachovia Services, to inform them that the loan had been refunded. (Id.) Wachovia acknowledged the error and returned the loan to the Michigan Guaranty Agency (MGA) for investigation and resolution. (Id. ¶ 17.)
Topping made monthly, on-time payments on his other student loans, beginning in June 1986 and ending with the final payment in April of 1991. (Id. ¶ 19.) The first seven payments, however, were not accounted for by the MGA, causing plaintiff to make six additional (over)payments. (Id. ¶ 20.)
In October 1992, plaintiff and his attorney attended a conference with an Assistant Attorney General for the State of Michigan and George Lamb (Lamb) of the Michigan Department of Education regarding false credit reporting, accounting errors, and failure to acknowledge the refunded loan. (Id. ¶ 21.) At this meeting, plaintiff provided all of his documentation relating tothe disputed student loan. (Id. ¶ 22.) Plaintiff asserts it was agreed that plaintiff owed nothing, and Lamb stated that he would correct any errors. (Id.) Approximately ten days later, however, plaintiff's attorney advised plaintiff that the Michigan Department of Education had decided to litigate the matter. (Id. ¶¶ 22-23.)
On or about October 7, 1993, plaintiff received a letter from the MGA stating that the United States Department of Education (DOE) held a claim against him for a defaulted loan, although no specific loan was identified. (Id. ¶ 24.) Plaintiff responded to the MGA's correspondence by filling out a form requesting a hearing, but never received a response. (Id. ¶¶ 23-26.)
In January 1996, plaintiff began receiving letters from the DOE regarding the defaulted loan. Plaintiff spoke with a DOE employee on several occasions, and again requested a hearing. (Id. ¶ 27.) On August 28, 1996, plaintiff received a letter from the DOE stating that his request for a hearing had been granted; however, there was an error on the letter that referred to plaintiff as "Toppina" rather than "Topping." No corrected hearing notice was ever sent to plaintiff, and despite plaintiff's numerous requests, a hearing was never held. (Id. ¶¶ 28-29.)
In November 1996, plaintiff contacted his congresswoman to investigate these events. (Id. ¶ 30.) Defendant Diane Spadoni (Spadoni), an employee of the DOE, was ultimately assigned toresolve the matter. (Id. ¶ 33.) Topping contends that Spadoni received but refused to evaluate documentation that demonstrated he did not owe the MSU loan, that he did not complete that spring term at MSU, and that the unpaid account was clear. (Id. ¶¶ 34-36.)
On or about March 27, 2002, plaintiff received a letter from NCO Systems, a contractor for the DOE, stating that it intended to collect the debt for which the DOE had received a judgment. (Id. ¶ 40.) Plaintiff sent NCO Systems several letters demanding a copy of the "judgment," but one was never provided. (Id. ¶ 40.) In September 2002, plaintiff sent the DOE a certified letter regarding the letter he received from NCO Systems, and once again requested a hearing. (Id. ¶ 41.)
Instead of being scheduled for a hearing, on or about November 13, 2002, plaintiff received a garnishment hearing decision from the DOE's office in Atlanta, Georgia. (Id. ¶ 42.) The DOE, however, had failed to inform plaintiff that such a hearing would be held. (Id. ¶ 42.) Topping alleges that in a January 2003 telephone conversation, the DOE could not explain why his requests for a hearing were not in the DOE records. (Id. ¶ 43.)
From 2002 until 2009, plaintiff received notices from...
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