Carter v. PNC Bank, N.A.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ORLANDO CARTER, Case No. 1:18-cv-706

Plaintiff, Dlott, J.

Litkovitz, M.J.

Vs.

PNC BANK, N.A., et al., ORDER AND REPORT AND

Defendants. RECOMMENDATION

Plaintiff Orlando Carter brings this pro se action against defendant PNC Bank alleging

numerous claims under both federal and state law. (Doc. 1). This matter is before the Court on

defendants’ motion to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Doc.

18), plaintiff's response in opposition (Doc. 22), and defendants’ reply memorandum (Doc. 25).

This matter is also before the Court on several of plaintiff's pretrial motions (Docs. 3, 13, 14, 15,

20, 21, 26, 29, 30, 34).

I. Background and Allegations in the Complaint

PNC’s motion to dismiss characterizes plaintiffs lawsuit as “the fourth of six lawsuits

filed to date by Orlando Carter (or his associates) in a blatant attempt to collaterally attack his

2009 conviction for bank fraud, mail fraud, bankruptcy fraud and making false statements and

oaths (See United States of America v. Orlando Carter, 1:08 CR 0051).” (Doc. 18 at 2), PNC

moves to dismiss plaintiffs complaint under Fed. R. Civ. P 12(b)(6) on the grounds that

plaintiff's claims fail to state a plausible claim for relief, are barred by the doctrines of res

judicata and witness immunity, and are time-barred under the applicable statutes of limitation.

(/d. at 3). Where necessary, the undersigned will refer to the background of plaintiff's litigation

history thoroughly outlined in Magistrate Judge Stephanie K. Bowman’s recent decision of

CBST Acquisition LLC v. PNC Bank, N.A., No. 1:19-cv-06, 2019 WL 2603566 (S.D. Ohio June

25, 2019) (Report and Recommendation), adopted, 2019 WL 4059918 (S.D. Ohio Aug. 28,

2019). Magistrate Judge Bowman’s decision takes judicial notice of the existence of related civil

cases filed by plaintiff and his associates, including by CBST Acquisition,! all of which have

been dismissed, /d. at *3 (citing Related Case Memorandum filed in Civil Case 1:18-cv-162 on

December 13, 2018, Civil Cases 1:17-cv-508, 1:18-cv-162, 1:18-cv-400, 1:18-cv-825; see

also Carter v. United States, Civil Case No. 1:16-cv-530; Carter v. United States, Civil Case No.

1:17-cv-248; Rogers v, PNC Bank, Case No. 1:18-cv-889; Carter v. PNC Financial Servs. Grp.,

Inc., Case No. 3:18-cv-283 (appeal of dismissal of adversary proceeding in bankruptcy court)).

Plaintiff alleges in his present complaint that PNC currently seeks to collect an $18.3

million debt from him. (Complaint, Doc. | at 1). Plaintiff alleges that in May 2018, he

“discovered that PNC Bank created fraudulent documents with the purposeful intent of

embarrassing or harassing [him] regarding an outstanding $18.3 million debt... .” (/d. at 2).

Plaintiff alleges that this claim by PNC was never mentioned to him during or after his 2009

trial.? (/d.). According to plaintiff, “PNC Bank abused the legal process by filing a fake and

fraudulent $18.3 million proof of claim during [his] ongoing bankruptcy proceeding attempting

to pervert the process and cause the court to do something which the court is not empowered to

do.” (/d.). Plaintiff alleges that he has suffered damages not less than $500,000,000 as a result

of “PNC Bank’s fraud by creating a fake and phony $18.3 million debt.” (/d.). Attached to his

complaint as Exhibit A, plaintiff includes a screenshot of the docket from his bankruptcy

proceeding, Case No. 06-30086. (Doc. 1-1). The docket shows that National City Commercial

' Plaintiff Orlando Carter was the majority owner of Dynus Corporation. CBST is a limited liability company that

was operated as a subsidiary of Dynus and that plaintiff has continually referred to as “my company.” CBST

Acquisition, LLC, 2019 WL 2603566, at *2.

? 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.

Capital Corporation? filed a creditor’s claim in the amount of approximately $18.3 million on

August 18, 2006. (/d). On August 21, 2006, National City amended its creditor’s claim to

approximately $8.8 million. (/d.). The description of the creditor’s claim states: “Funding of

lease induced by fraud of Debtor and Debtor’s company.” (/d.). Based on these facts, plaintiff

brings claims under the Fair Debt Collections Practices Act (“FDCPA”), the Ohio Consumer

Sales Practices Act (“OCSPA”), 42 U.S.C. § 1985, 42 U.S.C. § 1986, and 42 U.S.C. § 1981, as

well as various state law tort claims. (Doc. 1 at 19-28).

II. Rule 12(b)(6) Standard

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. /d. (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.” Jd. (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.” Jd. (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.” Jd. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

> As alleged by plaintiff, PNC acquired National City Bank and National City Commercial Capital Corporation.

(Doc. 1 at 3).

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. Plaintiffs complaint is barred by collateral estoppel.

PNC argues that plaintiff's complaint is barred by the doctrine of res judicata as it is the

fourth action that plaintiff has filed against PNC arising from the same set of facts. (Doc. 18 at

7). PNC argues that plaintiff previously alleged many of the same causes of action as he has

alleged in this instant matter in Carter v. National City Bank, No. 1:17-cv-508 (“Carter I’),

which was dismissed on December 20, 2018. (/d.). PNC contends that plaintiff could have

raised the claims in the present complaint in Carter J because they arise from the same events

occurring in 2006. (/d. at 8).

In this case, plaintiff attempts to relitigate the same issues under some different causes of

action and theories; therefore, the Court concludes that the doctrine of issue preclusion, or

collateral estoppel, more appropriately supports dismissal of plaintiff's claims. The doctrine of

issue preclusion provides that “a decision precludes relitigation of the same issue on a different

cause of action between the same parties once a court decides an issue of fact or law necessary to

its judgment.” Duncan v. Peck, 752 F.2d 1135, 1138 (6th Cir. 1985). See also Logan Farms v.

HBH, Inc. DE, 282 F. Supp. 2d 776, 786 (S.D. Ohio 2003) (in contrast to res judicata, collateral

estoppel “dictates that once an issue is actually and necessarily determined by a court of

competent jurisdiction, that determination is conclusive in subsequent suits based on a different

cause of action involving any party to the prior litigation.”). “A federal court sitting in diversity

looks to federal law on collateral estoppel to determine the preclusive effect of a prior federal

judgment.” Logan Farms, 282 F. Supp. 2d at 787 (citing JZG Resources, Inc. v. Shelby Ins. Co.,

84 F.3d 211, 213-14 (6th Cir. 1996)). Collateral estoppel involves consideration of four

elements: |) the issue precluded must be the same one involved in the prior proceeding; 2) the

issue must actually have been litigated in the prior proceeding; 3) determination of the issue must

have been a critical and necessary part of the decision in the prior proceeding; and 4) the prior

forum must have provided the party against whom estoppel is asserted a full and fair opportunity

to litigate the issue. /d. (citing Bills v. Aseltine, 52 F.3d 596, 604 (6th Cir. 1995); Central

Transp., Inc. v. Four Phase Sys., Inc., 936 F.2d 256, 259 (6th Cir. 1991)).

The Court concludes that plaintiff's claims are subject to dismissal under the doctrine of

collateral estoppel. All four elements for the application of collateral estoppel are present in this

case. The crux of this case involving the alleged “fake and fraudulent $18.3 million proof of

claim” has previously been litigated by plaintiff or those in privity with plaintiff—namely,

CBST, the LLC owned by plaintiff. In CBST Acquisition, LLC v. PNC Bank, mentioned above,

plaintiff CBST alleged as one of eight allegations that PNC Bank “wrongfully filed two claims in

bankruptcy court against Carter in 2006, stating that CBST owed PNC $18.3 million and/or $8.8

million. 2019 WL 2603566, at *2. Magistrate Judge Bowman took judicial notice of the

existence of related cases previously litigated by CBST and Carter and his associates, including

Carter I, cited by PNC in this case. Because most of CBST’s claims had previously been

litigated by Carter and his associates, the Court recommended dismissal of CBST’s lawsuit based

on the doctrines of issue preclusion and/or claim preclusion, in addition to the statute of

limitations and because CBST’s claims were implausible, wholly incredible, and conclusory. /d.

at *15-21. The Court recommended that PNC’s motion to dismiss be granted, thereby

dismissing CBST’s claims that PNC Bank wrongfully filed two claims in bankruptcy court

against Carter in 2006 involving a $18.3 million and/or $8.8 million debt. The District Judge

adopted the Report and Recommendation over CBST’s objections. 2019 WL 4059918 (S.D.

Ohio Aug. 28, 2019). Thus, plaintiff, in privity with CBST, was given a fair chance to litigate

the issue involving the alleged $18.3 million claim and is precluded from doing so again.

Magistrate Judge Bowman’s recent decision therefore provides sufficient support for concluding

that plaintiff's claims in this present lawsuit are barred by issue preclusion.

B. Plaintiff's claims are barred by the applicable statutes of limitation.

In addition, the Court concludes that many of plaintiffs claims are time-barred. Many of

plaintiff's claims are barred by the applicable statute of limitations for the reasons explained by

the undersigned in Carter I, Carter v. Nat'l City Bank, No. 1:17-cv-508, 2018 WL 3543699

(S.D. Ohio July 23, 2018) (Report and Recommendation), adopted, 2018 WL 6681226 (S.D.

Ohio Dec. 19, 2018) (holding that the following claims were barred by the applicable statutes of

limitation: 42 U.S.C. § 1981 (2 years); 42 U.S.C. § 1985 (2 years); 42 U.S.C. § 1986 (plaintiff

could not sustain this claim because there was no cause of action under § 1985 as it was time-

barred); intentional infliction of emotional distress (4 years); invasion of privacy—intrusion into

seclusion (4 years); invasion of privacy—false light (1 year or 4 years, depending on if the

allegations support both defamation and false light; fraud (4 years)). See also CBST Acquisition,

LLC, 2019 WL 2603566, at *15 (citing to Carter J and holding that CBST’s claims of fraud,

negligent misrepresentation, abuse of process, violations of 42 U.S.C. §§ 1981, 1985, or 1986,

invasion of privacy and defamation, civil conspiracy, and tortious interference with a business

relationship were all barred by the applicable statute of limitations). In addition, plaintiff's claim

under the FDCPA is barred by its one-year statute of limitations. See 15 U.S.C. § 1692k(d).

Plaintiff's claim under the OCSPA is likewise barred by its two-year statute of limitations. Ohio

Rev. Code § 1345.10(C). Plaintiffs claim for “abuse of process” is similarly barred by the four-

year statute of limitations under Ohio law. Stover v. Beam, No. 5:04-cv-1003, 2005 WL

1126753, at *3 (N.D. Ohio Apr. 29, 2005). Plaintiff's allegation in the complaint that he recently

discovered in May 2018 that PNC Bank “created fraudulent documents with the purposeful

intent of embarrassing and harassing Carter regarding an outstanding $18.3 million debt” is

undermined by the bankruptcy court docket attached to his complaint showing that National City

Bank filed creditor’s claims in Carter’s bankruptcy case in August 2006. (Doc. 1-1). Therefore,

any claims relating to filings in bankruptcy court began to run in 2006. See CBST Acquisition,

LLC, 2019 WL 2603566, at *15 (noting that plaintiff CBST’s own complaint reflected a

creditor’s claim filing date of 2006 and plaintiff's allegation that it first learned of any claim in

February 2018 was “simply not credible”).

Plaintiff has failed to plausibly allege that he is entitled to tolling of the statute of

limitations based upon fraudulent concealment. As the undersigned explained in Carter J:

To survive a motion to dismiss on the ground that a claim is time-barred, a plaintiff

relying on the doctrine of fraudulent concealment must plausibly plead: (1) the

defendant wrongfully concealed its actions; (2) the plaintiff failed to discover the

cause of action before the expiration of the limitations period; and (3) plaintiff

exercised due diligence. Burd v. Manley Deas Kochalski PLLC, No. 2:13-cv-593,

2014 WL 12572908, at *2 ($.D. Ohio Mar. 31, 2014) (citing Lutz v. Chesapeake

Appalachia, L.L.C., 717 F.3d 459, 475 (6th Cir. 2013)).

Carter I, 2018 WL 3543699, at *4. Here, by plaintiffs own admission, he has failed to plausibly

plead that he did not discover the cause of action before the expiration of the limitations period

or that he exercised due diligence. Plaintiff's own “Exhibit A”—the bankruptcy docket attached

to his complaint—shows that National City Commercial Capital Corporation made a creditor’s

claim of $18.3 million on August 18, 2006 and an amended creditor’s claim of $8.8 million on

August 21, 2006. Plaintiff certainly had constructive knowledge of these facts as early as 2006,

and the Court is therefore not persuaded plaintiff discovered the alleged “fake and fraudulent

$18.3 million proof of claim” in May 2018. Carter I, 2018 WL 3543699, at *4-5. See also

CBST Acquisition, LLC, 2019 WL 2603566, at *16.

Accordingly, because plaintiff's claims are barred by collateral estoppel and the

applicable statutes of limitations, PNC’s motion to dismiss (Doc. 18) should be GRANTED.

IV. All remaining motions should be denied as moot (Docs. 3, 13, 14, 15, 20, 21, 26, 29, 30,

As the Court has determined that all of plaintiff's claims should be dismissed and PNC’s

motion to dismiss should be granted, the Court need not consider these motions. The Court

determines that the following motions are considered moot: plaintiff's motion for summary

judgment (Doc. 3), plaintiff's motion for a TRO/to show cause (Doc. 13), plaintiff's motion for a

preliminary injunction (Doc. 14), plaintiff's motion for an emergency hearing (Doc. 15),

plaintiff's motion to expedite ruling on motion for summary judgment (Doc. 20), plaintiff's

motion to hold matter in abeyance (Doc. 21), plaintiff's motion for hearing (Doc. 26), plaintiff's

request for reconsideration (Doc. 29), defendants’ motion for leave to file a sur-reply (Doc. 30),

and plaintiff's motion for production of documents (Doc. 34).

VI. Conclusion

Based on the foregoing, it is RECOMMENDED that:

1. Defendants’ motion to dismiss (Doc. 18) be GRANTED.

2. Plaintiff's motion for summary judgment (Doc. 3) be DENIED as MOOT.

3. Plaintiff's motion for a TRO/to show cause (Doc. 13) be DENIED as MOOT,

4. Plaintiffs motion for a preliminary injunction (Doc. 14) be DENIED as MOOT.

It is ORDERED that:

1. Plaintiff's motion for an emergency hearing (Doc. 15) is DENIED as MOOT.

2. Plaintiff's motion to expedite ruling on motion for summary judgment (Doc. 20) is

DENIED as MOOT.

3. Plaintiff's motion to hold matter in abeyance (Doc. 21) is DENIED as MOOT.

4, Plaintiff's motion for a hearing (Doc. 26) is DENIED as MOOT.

5. Plaintiff's request for reconsideration (Doc. 29) is DENIED as MOOT.

6. Defendants’ motion for leave to file a sur-reply to plaintiff's reply to defendants’

opposition for hearing (Doc. 30) is DENIED as MOOT.

7. Plaintiff's motion for production of documents is DENIED as MOOT.

pue_9/s/o Ftster Xtiheoute

Karen L. Litkovitz

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ORLANDO CARTER, Case No: 1:18-cv-706

Plaintiff, Dlott, J.

Litkovitz, M.J.

VS.

PNC BANK, N.A., et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

10