Byrd v. JPMorgan Chase Bank National Association

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HOUSTON BYRD, Jr., :

:

Plaintiff, :

: CASE NO. 2:21-cv-02447

v. :

: Chief Judge Algenon L. Marbley

JPMORGAN CHASE BANK N.A., : Magistrate Chelsey M. Vascura

:

Defendant. :

OPINION & ORDER

This matter is before the Court on Defendant’s Motion to Dismiss (ECF No. 26) and

Plaintiff’s Objection to Magistrate Judge Order (ECF No. 27), Motion for Reconsideration (ECF

No. 28), Motion for Sanctions (ECF No. 36), Motion for Objection (ECF No. 38), and Motion to

Strike Appellee’s Objections (ECF No. 40). For the reasons stated more fully below, Defendant’s

Motion to Dismiss (ECF No. 26) is GRANTED. Plaintiff’s Objections (ECF Nos. 27, 38) are

OVERRULED, and Plaintiff’s Motion for Reconsideration (ECF No. 28), Motion for Sanctions

(ECF No. 36), and Motion to Strike (ECF No. 40) are DENIED. Plaintiff’s action is DISMISSED

WITHOUT PREJUDICE.

I. BACKGROUND

A. Factual Background

This case arises out of an auto loan that Plaintiff Houston Byrd, Jr., secured in 2006. In

connection to that loan, Plaintiff alleges that Defendant JPMorgan Chase Bank, N.A. (“Chase”)

engaged in various forms of civil and criminal misconduct, including, among other things,

fraudulently fabricating and manipulating entries on legal documents, violating various consumer

protection laws, and committing conspiracy, mail fraud, and theft.

On January 19, 2006, Plaintiff entered into a Retail Installment Contract with Ricart Used

Car Auto of Columbus, Ohio, to finance his purchase of a 2005 Chrysler 300. (ECF No. 4-3). The

amount financed was $28,471.46, to be repaid over 72 months at 7.20% annual percentage rate

(“APR”). (Id.; ECF No. 4-15D). If Mr. Byrd missed a payment by more than 10 days, he would

be charged 5% of the payment or $25, whichever was less. (ECF No. 4-3). Additionally, the

contract included a forced arbitration provision, requiring that “any claim or dispute . . . will be

decided by arbitration and not in court or by a jury trial.” (ECF No. 4-14). The provision also

required Mr. Byrd to give up any rights to participate in a class action dispute. (Id.).

By April 21, 2006, at the latest, the contract was assigned to Chase, which refinanced Mr.

Byrd’s loan to lower his payments from $489.86 per month to $446.51. (See ECF No. 4-7)

(Plaintiff’s first correspondence with Chase about the loan). From February 2006 to September

2010, Plaintiff made regular payments on the loan, though many of the payments were late and

consequently were assessed late charges. (ECF No. 4-2A, -2B). Eleven of the late charges share

the same “Post Date” of May 1, 2007, which Chase attributes to a payment reallocation following

their waiver of Mr. Byrd’s origination fee. (ECF No. 4-2A, -4). Mr. Byrd made payments on his

accumulated late fees seven times, starting in December 2009 through April 2011. (See ECF No.

4-2B) (various entries for “Late Chg Paymnt”).

Between September 2010 and April 2011, Plaintiff failed to make any payments on his

auto loan. (ECF No. 4-2B). Due to these failures, Chase charged off the remainder of the loan on

April 29, 2011, repossessed the 2005 Chevrolet two weeks later, and informed Plaintiff of their

intent to sell the vehicle to recoup the remainder of the loan. (Id.; ECF No. 4-9). Oddly enough,

Chase subsequently sent Plaintiff conflicting correspondence that apparently “enclosed [his]

vehicle title with a signed and stamped confirmation that [he had] paid-off [his] account.” (ECF

No. 4-8). Chase then sent a third letter informing Mr. Byrd that Chase had updated the loan status

to “paid in full charge off,” and notified the credit agencies Experian, Equifax, and TransUnion of

that update. (ECF No. 4-10).

The trade line for this loan was later deleted. (ECF No. 4-13). By that time, however, it

was too late. At some point (the date is not listed), Mr. Byrd had a credit score of 820 from

TransUnion on a 501-to-990 scale. (ECF No. 4-18A). On August 18, 2015, when Mr. Byrd was

denied a loan for $3500 based on factors including “collection action or judgment” and “delinquent

past or present credit obligations with others,” his credit score sat at 659, according to Equifax (on

a scale of 334 to 818). (ECF No. 4-18B, -18C). By January 2017, Mr. Byrd’s credit score had

fallen to 636 on a 250-to-843 scale.

Plaintiff filed numerous complaints about alleged misconduct by Defendant Chase with

regards to his auto loan. The dispute was submitted to arbitration in May 2012, with judgment

granted in favor of Chase. (See ECF No. 1-13). Plaintiff also contacted Chase, the Customer

Assistance Group (“CAG”) of the Office of the Comptroller of the Currency (“OCC”), and Senator

Rob Portman’s office repeatedly. In these communications, Plaintiff stated his allegations that

Chase “asserted fraudulent interest rates, inserted fictitious 5/1 dates, charged excessive late fees,

illegally repossessed [his] vehicle, submitted contradicted [sic] and disputed information to the

credit bureau agency, and violated a variety of consumer laws.” (ECF No. 4-15D). The CAG and

the OCC found no cause for further action. (See ECF No. 4-15A, -15B, -15C, -15D).

B. Procedural Background

Plaintiff, an Ohio resident proceeding pro se, commenced this action in the Court of

Common Pleas for Franklin County, Ohio, on April 5, 2021. (ECF No. 4). Defendant removed

the case to this Court on May 12, 2021, on the basis of original jurisdiction under 28 U.S.C. §

1331, noting that Plaintiff alleges violations of numerous federal statutes. (See ECF No. 1 ¶ 7).

In February 2022, Defendant filed a motion to dismiss for failure to state a claim (ECF No. 26).

Plaintiff has also filed several motions of his own, including two objections (ECF Nos. 27, 38), a

motion for reconsideration (ECF No. 28), a motion for sanctions (ECF No. 36), and a motion to

strike (ECF No. 40). Each motion is ripe for resolution by this Court.

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) operates to test

the sufficiency of the complaint and permits dismissal of a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). For purposes of this motion to dismiss,

the Court must “construe the complaint in the light most favorable to the plaintiff, accept its

allegations as true, and draw all reasonable inferences in favor the plaintiff.” In re Travel Agent

Comm’n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (internal quotations marks omitted).

To survive a motion to dismiss, “the plaintiff must allege facts that, if accepted as true, are

sufficient to raise a right to relief above the speculative level and to state a claim to relief that is

plausible on its face.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)) (internal quotations omitted). A

claim is considered plausible on its face “when the plaintiff pleads 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)). And though the court “must accept all well-

pleaded factual allegations in the complaint as true,” the court “need not accept as true a legal

conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (internal

quotations omitted).

In assessing a Rule 12(b)(6) motion to dismiss, the court’s primary focus will be on the

allegations in the complaint. The court may also consider “any exhibits attached thereto, public

records, items appearing in the record of the case and exhibits attached to the defendant’s motion

so long as they are referred to in the Complaint and are central to the claims contained therein.”

Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).

Pro se complaints are evaluated according to “‘less stringent standards than formal

pleadings drafted by lawyers,’ and therefore should be liberally construed.” Williams v. Curtin,

631 F.3d 380, 383 (6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)).

Nevertheless, “basic pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989). Among such essentials are the obligations under Federal Rule of Civil Procedure

8(a) to provide “a short and plain statement of the grounds for the court’s jurisdiction,” and “a

short and plain statement of the claim showing that the pleader is entitled to relief.”

III. LAW & ANALYSIS

Although lacking in clarity and specificity, Plaintiff’s Complaint asserts six (6) causes of

action against Chase. (See generally ECF No. 4). Defendant has moved to dismiss each of the six

counts, arguing that all of Plaintiff’s claims either rely on statutes without private rights of action

or are barred by applicable statutes of limitation. (See ECF No. 26 at 5–7). Plaintiff has submitted

two objections (ECF Nos. 27, 38), in addition to motions for reconsideration (ECF No. 28), for

sanctions (ECF No. 36), and to strike (ECF No. 40).

A. Motion to Dismiss

Plaintiff’s Complaint alleges six counts of misconduct against Defendant Chase: (1)

“Fraudulent and Improper Amortization”; (2) late fee pyramiding; (3) fraudulent insertion of

05/01/2007 entries in the bookkeeping of the loan (and late fees corresponding to the 05/01/2007

entries); (4) violations of the Fair Credit Reporting Act (“FCRA”); (5) charging Plaintiff a higher

APR than written down in the loan agreement; and (6) forcing an unconscionable arbitration

agreement on Plaintiff and not following required arbitration procedures. Specifically, Plaintiff

claims that Defendant Chase has violated, inter alia: the Fair Credit Billing Act (“FCBA”), 15

U.S.C. §§ 1666–1666j; the FCRA, 15 U.S.C. §§ 1681–1681x; 18 U.S.C. §§ 656, 1005–07, 1341,

1349; 12 C.F.R. § 227.15; Ohio Rev. Code § 1345.031(B)(7); Ohio Rev. Code §§ 2711.02,

2711.08, 2711.10, 2711.11, 2711.15; Ohio Rev. Code §§ 2913.02(A)(3), 2923.02.

Defendant argues that Plaintiff relies on federal and state criminal statutes that do not

provide private rights of action. (ECF No. 26 at 5–6). Accordingly, Defendant contends that

Plaintiff fails to state a claim with respect to any conduct that is alleged to have violated 18 U.S.C.

§§ 656, 1005–07, 1341, 1349, 12 C.F.R. § 227.15, or Ohio Rev. Code §§ 2913.02(A)(3), 2923.02.

In general, “a private right of action is not maintainable under a criminal statute.” Am.

Postal Workers Union, AFL-CIO, Detroit Loc. v. Indep. Postal Sys. of Am., 481 F.2d 90, 93 (6th

Cir. 1973). In cases “where there is a ‘bare criminal statute, with absolutely no indication that

civil enforcement of any kind was available to anyone,’ a private cause of action will not be

inferred.” Marx v. Centran Corp., 747 F.2d 1536, 1549 (6th Cir. 1984) (quoting Cort v. Ash, 422

U.S. 66, 80 (1975)). None of the federal criminal statutes cited in Plaintiff’s Complaint

contemplates a private cause of action. See, e.g., Jenkins v. Fid. Bank, 365 F. Supp. 1391, 1399

(E.D. Pa. 1973) (finding that 18 U.S.C. § 656 “provides no civil remedy”); Fed. Sav. and Loan

Ins. Corp. v. Reeves, 816 F.2d 130, 137 (4th Cir. 1987) (agreeing that there is no civil cause of

action arising from 18 U.S.C. § 1006); Official Publ’ns, Inc. v. Kable News Co., 884 F.2d 664, 667

(2d Cir. 1989) (noting that the mail fraud statute does not create a private right of action).

Plaintiff’s claim pursuant to 12 C.F.R. § 227.15 falls flat for the same reason, as there is no private

right of action for enforcement of that statute. See Carter v. Bank of Am., N.A., 888 F. Supp. 2d 1,

16 (D.D.C. 2012); see also 15 U.S.C. § 45(m) (containing no provision for private rights of action

to enforce violations of unfair methods of competition).

The same applies to Ohio criminal statutes. State courts have noted that “[i]n the absence

of a specific provision to the contrary, criminal statutes generally do not create a private cause of

action, but give rise only to a right of prosecution by the state.” Wurdlow v. Turvym, 10th Dist.,

2012-Ohio-4378, 977 N.E.2d 708, 712 (Ohio Ct. App. 2012). Here, there are no specific

provisions indicating that either Ohio Rev. Code § 2913.02(A)(3) or Ohio Rev. Code § 2923.02

incorporate private causes of action, unlike, for example, the state RICO statute. See Ohio Rev.

Code § 2323.34.

Defendant argues that the remainder of Plaintiff’s claims are time-barred. (ECF No. 26 at

7). In Counts 1, 4, and 5, Plaintiff alleges violations of the FCBA, FCRA, and TILA. Any action

to enforce liability created under the FCRA must be brought within “(1) 2 years after the date of

discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the

date on which the violation that is the basis for such liability occurs.” 15 U.S.C. § 1681p. The

FCBA amends the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601–1667f, and is governed by

the one year statute of limitations set forth in the TILA. See 15 U.S.C. § 1640(e). For allegations

of fraud brought pursuant to TILA (and, therefore, for allegations of fraud pursuant to FCBA),

“the one year period will begin to run when the borrower discovers or had reasonable opportunity

to discover the fraud involving the complained of TILA violation.” Jones v. TransOhio Sav. Ass’n,

747 F.2d 1037, 1041 (6th Cir. 1984). The alleged violations in this case occurred between

February 27, 2006, and April 29, 2011, almost 10 years before Plaintiff filed his Complaint. (See

ECF No. 4-2A, -2B) (showing Chase’s records of the loan with the alleged fraud, inserted

05/01/2007 dates, and late fees). And Plaintiff discovered the alleged violations in Chase’s

bookkeeping by 2012 at the very latest, when he submitted his claims to arbitration. (See ECF No.

4-15A). In short, Plaintiff’s claims under the FCBA, FCRA, and TILA are all time-barred.

In Count 2, Plaintiff alleges violations of state laws prohibiting residential mortgage

suppliers from “[c]harging a late fee more than once with respect to a single late payment.” Ohio

Rev. Code § 1345.031(B)(7). Beyond the fact that Plaintiff’s claim pursuant to this section of the

Ohio Revised Code is unrelated to residential mortgages, his claim is also time-barred, as all such

claims must be brought “not . . . more than two years after the occurrence of the violation which

is the subject of the suit, or more than one year after the termination of proceedings by the attorney

general with respect to the violation, whichever is later.” Id. § 1345.10(C). As mentioned earlier,

the alleged violations occurred nearly 10 years prior to the filing of Plaintiff’s Complaint.

Finally, in Count 6, Plaintiff claims that the forced arbitration provision in the loan

agreement was substantively unconscionable and that the arbitration did not adhere to the Ohio

Arbitration Act, specifically Ohio Rev. Code §§ 2711.02, .08–.11, 2711.15. This, too, is time-

barred. Motions to vacate, modify, or correct an arbitration award must be served within three

months, see Ohio Rev. Code § 2711.13, and breach of contract claims must be brought within eight

(8) years at the time Plaintiff’s Complaint was filed. Ohio Rev. Code § 2305.06 (2012).

Plaintiff’s Response (ECF No. 35) largely fails to address the arguments raised by

Defendant’s Motion to Dismiss. Instead, the bulk of Plaintiff’s Response focuses on his arguments

that Defendant is in default and did not timely remove this action. (See generally id.). Neither

contention has merit. See infra Part III.B. To the extent that Plaintiff addresses the question of

whether his claims are time-barred, he notes only that he has received a letter from Chase dated

May 4, 2020. (ECF No. 35 at 7). As this correspondence provides no factual basis for conspiracy

nor for any of Plaintiff’s other allegations, its presence does not rescue Plaintiff’s claims.

Accordingly, given Plaintiff’s claims all rely on criminal statutes that do not give rise to

private causes of action or are time-barred, Defendant’s Motion to Dismiss (ECF No. 26) is

GRANTED on all counts.

B. Objections

This Court next turns to various other pending motions filed by Plaintiff, including

Plaintiff’s Objection to Magistrate Judge’s Order on Motion for Default Judgment (ECF No. 27)

and Plaintiff’s Motion for Objection, Findings R. 52 and en banc Reconsideration to the Appellee’s

February 22, 2022, Responses (ECF No. 38). Plaintiff filed a Motion for Default Judgment on

February 7, 2022 (ECF No. 24). The Magistrate Judge denied the Motion, noting at the time that

the deadline for Defendant’s answer had not yet passed “such that Defendant is not in default” and

that “Plaintiff did not first apply for and obtain an entry of default from the Clerk.” (ECF No. 25

at 1). Plaintiff timely filed objections to the Magistrate Judge’s Order. (ECF No. 27). Plaintiff

later filed an additional motion (ECF No. 38) that simply contains a discursive restatement of

various disagreements Plaintiff has with this Court’s decisions and those of the Magistrate Judge.

In keeping with the liberal construction afforded to pro se filings, this Court construes the motion

as an additional objection to the Magistrate Judge’s Order.

Unfortunately, both motions lack clarity, and neither provides any arguments beyond

Plaintiff’s bare assertion that the Magistrate Judge’s Order was incorrect. (Id.; ECF No. 27).

Under Federal Rule of Civil Procedure 72(a), a party may object to a Magistrate Judge’s pretrial

order on nondispositive matters. This Court “must consider timely objections and modify or set

aside any part of the order that is clearly erroneous or is contrary to law.” Fed R. Civ. P. 72(a).

Review under Rule 72(a) provides “considerable deference to the determinations of magistrates.”

In re Search Warrants Issued Aug. 29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995) (quoting 7

Moore’s Federal Practice ¶ 72.03). But with respect to a Magistrate Judge’s legal conclusions,

“this Court must exercise its independent judgment” and may “overturn any conclusions which

contradict or ignore applicable precepts of law.” Gandee v. Glasser, 785 F. Supp. 684, 686 (S.D.

Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir.1994).

Defendant’s answer was not due until February 18, 2022, after Plaintiff had already filed

his Third Motion for Default Judgment (ECF No. 24). In other words, Defendant could not have

been in default at the time of Plaintiff’s motion. In fact, after Plaintiff submitted his Third Motion

for Default Judgment (ECF No. 24), Defendant did timely file its motion to dismiss (ECF No. 26)

on February 15, 2022. Moreover, as the Magistrate Judge accurately noted:

Plaintiff did not first apply for and obtain an entry of default from the Clerk. . . . By

asking only for a default judgment, Plaintiff has failed to follow the sequential

procedure set forth in Rule 55. See Brantley v. Runyon, No. C-1-96-842, 1997 WL

373739, at *1 (S.D. Ohio June 19, 1997) (“In order to obtain a default judgment

under Rule 55(b)(2), there must first be an entry of default as provided by Rule

55(a).” (citation omitted)). The Court therefore cannot enter a default judgment

under Rule 55(b). Cf. O.J. Distrib., Inc., 340 F.3d at 352 (“Rule 55 permits the clerk

to enter a default when a party fails to defend an action as required. The court may

then enter default judgment.” (emphasis added)) (quoting Weiss v. St. Paul Fire &

Marine Ins. Co., 283 F.3d 790, 794 (6th Cir. 2002)).

(ECF No. 25).

Lastly, Plaintiff again asserts that Defendant’s Notice of Removal was untimely, even

though this was not the subject of the Magistrate Judge’s Order. (See ECF No. 27 at 3). This

contention has already been addressed — and rejected. (See ECF No. 23, Opinion & Order, at 4–

5). As this Court stated previously: “Plaintiff acknowledges that Defendant was served with the

Complaint on April, 2021. This Court’s docket reflects Defendant’s Notice of Removal was filed

in this Court on May 12, 2021, exactly 30 days later.” (Id. at 4 (internal citations omitted)). Since

any “notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt

by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the

claim for relief upon which such action or proceeding is based,” 28 U.S. C. § 1446(b)(1),

Defendant’s Notice of Removal was timely.

In summary, Defendant’s removal of this action and motion to dismiss were proper and

timely; additionally, Defendant was not in default. As a result, Plaintiff’s Motion for Default

Judgment was properly denied. Plaintiff’s Objections (ECF Nos. 27, 38) are OVERRULED and

the Magistrate Judge’s Order (ECF No. 25) is ADOPTED.

C. Motion for Reconsideration

Contemporaneous with his Objection to Magistrate Judge Order (ECF No. 27), Plaintiff

also submitted a Motion for Reconsideration. (ECF No. 28). Motions to reconsider are generally

construed as motions to alter or amend judgment pursuant to Federal Rules of Civil Procedure

59(e). Inge v. Rock Fin. Corp., 281 F.3d 613, 617 (6th Cir. 2002). A motion to alter or amend

judgment is permissible only if the movant can show that there is “(1) a clear error of law; (2)

newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent

manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing

GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). It is not, however,

an opportunity for an unsatisfied litigant to re-argue the same issue in an effort to procure a

different result. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.

1998).

Plaintiff’s Motion for Reconsideration is wide-ranging but appears primarily to re-state his

claims that Defendant was in default and that Defendant’s Notice of Removal was untimely. (See

ECF No. 28 at 3, 4). Plaintiff includes a number of additional arguments, namely that this Court

lacks subject matter jurisdiction over this action, Defendant failed timely to plead in state and

federal court, and Defendant violated Federal Rules of Civil Procedure 11 by representing that it

had timely removed this action. (See id. at 2–4). This Court has previously found all of these

contentions without merit. (See ECF No. 23, Opinion & Order, at 4–5). Plaintiff has not put

forward any newly discovered evidence, demonstrated any injustices that must be corrected, or

pointed to any changes in the controlling law, or errors of law. Accordingly, Plaintiff’s Motion

for Reconsideration (ECF No. 28) is DENIED.

D. Motion for Sanctions

Plaintiff also seeks to sanction opposing counsel for violations of Federal Rules of Civil

Procedure 11 and for perjury. (ECF No. 36). This is Plaintiff’s second motion for sanctions. (ECF

No. 14). Plaintiff’s previous motion for sanctions was denied by the Magistrate Judge. (See ECF

No. 15). Rule 11 sanctions are warranted if “a reasonable inquiry discloses the pleading, motion,

or paper is (1) not well grounded in fact, (2) not warranted by existing law or a good faith argument

for the extension, modification or reversal of existing law, or (3) interposed for any improper

purpose such as harassment or delay.” Merritt v. Int’l Ass’n of Machinists and Aerospace Workers,

613 F.3d 609, 626 (6th Cir. 2010). “The standard for determining whether to impose sanctions is

one of objective unreasonableness.” Neighborhood Rsch. Inst. v. Campus Partners for Cmty. Urb.

Dev., 212 F.R.D. 374, 378 (S.D. Ohio 2002) (citing First Bank of Marietta v. Hartford

Underwriters Ins. Co., 307 F.3d 501, 517 (6th Cir. 2002)).

In denying Plaintiff’s first motion for sanctions, the Magistrate Judge wrote that because

“[t]his Court has already determined that this Court has subject-matter jurisdiction and thus was

properly removed . . . the Court cannot conclude that Defendants’ conduct in removing this action

was objectively unreasonable.” (ECF No. 15) (citations omitted)). For the same reasons,

Plaintiff’s renewed Motion for Sanctions (ECF No. 36) is DENIED.

E. Motion to Strike Appellees’ Objections

Finally, Plaintiff argues that this Court should strike Defendant’s responses to Plaintiff’s

various motions for objections and sanctions (ECF Nos. 32, 37, 39). (ECF No. 40). Plaintiff does

not specify what basis, if any, he has for this motion. Instead, he simply re-states his arguments

that Defendant is in default and failed timely to remove this action in support of his Motion to

Strike. (ECF No. 40 at 2–6). If Plaintiff seeks to rely on Federal Rules of Civil Procedure 12(f),

that reliance is misplaced. Rule 12(f) permits the “court [to] strike from a pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter,” Fed. R. Civ. Proc. 12(f),

but Defendant’s responses are not pleadings and thus cannot be struck pursuant to that rule.

Moreover, Plaintiff’s same arguments about default and timeliness of removal, previously raised

in several other motions, have been rejected repeatedly. (See, e.g., ECF No. 23, Opinion & Order).

They are rejected here on the same basis as they were before. Defendant, who timely filed its

Notice of Removal (ECF No. 1) and Motion to Dismiss (ECF No. 26), was never in default; this

Court has federal question subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331

due to the numerous federal statutes cited by Plaintiff in his Complaint. (See ECF No. 4 at 2).

Plaintiff’s inability to accept these facts, despite repeated decisions from the Magistrate Judge and

this Court, does not alter this Court’s finding today. Accordingly, Plaintiff’s Motion to Strike

(ECF No. 40) is DENIED.

IV. CONCLUSION

For the reasons discussed above, Defendant’s Motion to Dismiss (ECF No. 26) is

GRANTED. Plaintiff’s Objections (ECF Nos. 27, 38) are OVERRULED, and Plaintiff’s Motion

for Reconsideration (ECF No. 28), Motion for Sanctions (ECF No. 36), and Motion to Strike (ECF

No. 40) are DENIED. Plaintiffs action is DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED.

bo MARBL UZ

CHIEF UNITED STATES DISTRICT JUDGE

DATED: September 21, 2022

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