Cox v. The New York Racing Association

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

WELBY THOMAS COX, JR.,

Plaintiff, Case No. 1:25-cv-529

v. Judge Michael R. Barrett

NEW YORK RACING ASS’N, et al.,

Defendants.

ORDER

This matter is before the Court on the Report and Recommendation (“R&R”) filed

by the Magistrate Judge on August 18, 2025. (Doc. 7). Proper notice was given to

Plaintiff (who proceeds pro se) under Fed. R. Civ. P. 72(b), including notice that he may

forfeit rights on appeal if he failed to file objections to the R&R in a timely manner.1 United

States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Berkshire v. Dahl, 928 F.3d 520, 530

(6th Cir. 2019). Plaintiff has filed timely objections. (Doc. 8-1).

Standard. When objections to a magistrate judge’s report and recommendation

are received on a dispositive matter, the assigned district judge “must determine de novo

any part of the magistrate judge’s disposition that has been properly objected to.”

Fed. R. Civ. P. 72(b)(3) (emphasis added). After review, the district judge “may accept,

reject, or modify the recommended disposition; receive further evidence; or return the

matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).

General objections are insufficient to preserve an issue for review. “A general

objection to the entirety of the magistrate[ judge]’s report has the same effects as would

1 (Doc. 7 PAGEID 42).

a failure to object. The district court’s attention is not focused on any specific issues for

review, thereby making the initial reference to the magistrate [judge] useless.” Howard v.

Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see Aldrich v. Bock,

327 F. Supp. 2d 743, 747 (E.D. Mich. 2004) (“An ‘objection’ that does nothing more than

state a disagreement with a magistrate[ judge]’s suggested resolution, or simply

summarizes what has been presented before, is not an ‘objection’ as that term is used in

this context.”); Renchen v. Comm’r of Soc. Sec., No. 1:13-cv-752, 2015 WL 1097349, at

*6 (S.D. Ohio Mar. 11, 2015) (plaintiff’s objection “is an almost verbatim recitation of the

argument presented to and considered by the Magistrate Judge” and therefore need not

be reconsidered) (citing Howard, 932 F.2d at 508–09).

Plaintiff’s Verified Complaint. Plaintiff sues The New York Racing Association,

United Tote Company, and unknown (“John Doe”) computer-assisted wagering (“CAW”)

entities, alleging, in overall terms, that their participation “has fundamentally altered the

fairness of pari-mutuel wagering systems[2] across state lines, including Ohio.” (Doc. 6

PAGEID 31). This case, he asserts, “implicates federal issues regarding consumer

deception, wire transmissions in interstate wagering pools, and the denial of due process

to retail bettors.” (Id. ¶ 2). Plaintiff invokes federal question subject-matter jurisdiction

under 28 U.S.C. § 1331. (Id. ¶ 1).3 His claims are labelled “Unfair and Deceptive Trade

Practices” (Count I) and “Denial of Equal Access and Due Process”) (Count II).

2 As the Sixth Circuit recently explained, “[p]ari-mutuel wagers differ from ordinary wagers. Rather than

betting against the racetrack, each bettor bets against all other bettors. Bettors stand to win a share of the

total pool of money wagered. The payout for each winning wager is determined by dividing the pools

based on a set formula. After the Kentucky Horse Racing Commission's appointed stewards declare the

race ‘official,’ bettors ‘exchange their winning ticket for the money due to them.’ As compensation for

administering the wagers, the racetrack receives the ‘takeout,’ a fixed percentage of the money wagered.”

Mattera v. Baffert, 100 F.4th 734, 736 (6th Cir. 2024) (citations to the record omitted).

3 Plaintiff also invokes 28 U.S.C. § 1337, which provides (in part): “The district courts shall have original

jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or

protecting trade and commerce against restraints and monopolies[.] . . .”

(Id. ¶¶ 14–16, ¶¶ 17–19).

Summary of the R&R. As to Count I, the Magistrate Judge observes that Plaintiff

cites to no federal or state statute in support. (Doc. 7 PAGEID 39–40). The federal statute

that outlaws unfair or deceptive acts or practices “in or affecting commerce” is § 5 of the

Federal Trade Commission Act (“FTCA”), codified at 15 U.S.C. § 45. (Id. PAGEID 40).

However, “courts have uniformly held that a private right of action does not exist under

§ 5 of the FTCA.” (Id. (quoting Morales v. Walker Motors Sales, Inc., 162 F. Supp. 2d

786, 790 (S.D. Ohio 2000))). A private right of action does exist under Ohio’s Deceptive

Trade Practices Act4, but this Court lacks diversity (of citizenship) subject-matter

jurisdiction because the complaint fails to plead the $75,000 amount-in-controversy

requirement. (Id. (quoting 28 U.S.C. § 1332(a)). In fact, Plaintiff’s Prayer for Relief only

seeks an award of nominal damages in the amount of $1.00. (Id.).

As to Count II, the Magistrate Judge matter-of-factly states that she “is unable to

discern a legal basis” for Plaintiff’s “claim of the denial of ‘equal access’ under the laws

or constitution of the United States.” (Doc. 7 PAGEID 39). Concerning his due process

claim, the Magistrate Judge notes that none of the defendants are state actors as required

under 42 U.S.C. § 1983. (Doc. 7 PAGEID 37–38). But even if Plaintiff sufficiently alleged

state action for § 1983 purposes, he failed to plead, as a predicate, “that state remedies

for redressing the wrong are inadequate.” (Id. PAGEID 38 (quoting Victory v. Walton,

721 F.2d 1062, 1066 (6th Cir. 1983))). As the Magistrate Judge explains, “[a] plaintiff

‘may not seek relief under [42 U.S.C. §] 1983 without first pleading and proving the

inadequacy of state or administrative processes and remedies to redress [his] due

process violations.’” (Id. (quoting Jefferson v. Jefferson Cty. Pub. Sch. Sys., 360 F.3d

4 See Ohio Rev. Code §§ 4165.01 et seq.

583, 588 (6th Cir. 2004))).

Plaintiff’s Objections. Plaintiff first contends, without citation to any authority,

that sua sponte dismissal “is a ‘drastic remedy’ and should be applied cautiously[.]”

(Doc. 8-1 PAGEID 53). Not so. The federal statute in question, 28 U.S.C.

§ 1915(e)(2)(B)(ii)5, mandates that a district court dismiss a case when the causes of

action pled fail to state a claim on which relief may be granted. So-called “matters of

public interest,” (see Doc. 8-1 PAGEID 53), do not mitigate this responsibility. Nor does

a perfunctory assertion that the complaint “can be cured through amendment.” (Id.). “It

is well-established that parties cannot amend their complaints through briefing or oral

advocacy.” Forrester v. Am. Sec. & Prot. Serv. LLC, No. 21-5870, 2022 WL 1514905, at

*2 (6th Cir. May 13, 2022) (quoting in a parenthetical S. Walk at Broadlands Homeowner's

Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013)).6

Plaintiff doubles down on his fairness argument, insisting that CAW “syndicates”

are “granted access and advantages not available to ordinary bettors” and “distort odds

at the last possible moment, leaving retail bettors disadvantaged.” (Doc. 8-1 PAGEID

54). He adds that some racetracks “have acknowledged and curtailed CAW privileges to

protect retail bettors.” (Id.). But, critical here, he neglects to address any of the legal

authority presented by the Magistrate Judge to justify dismissal. He only disagrees with

her proposed resolution, which is an improper objection under Aldrich and Renchen.

5 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss

the case at any time if the court determines that the action . . . fails to state a claim on which relief may be

granted[.]” 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added).

6 See generally Gonzalez v. Kovacs, 687 F. App'x 466, 470 (6th Cir. 2017) (“[A]n informal request

contained in a brief in opposition to a motion to dismiss is not deemed a Rule 15 motion to amend.”)

(citing Begala v. PNC Bank, 214 F.3d 776, 784 (6th Cir. 2000)).

As to his “equal access” claim, Plaintiff comments that “[t]his case is about

fairness in a regulated market.” (Doc. 8-1 PAGEID 54). “Just as Brown v. Board of

Education held that ‘separate but equal’ is inherently unequal, pari-mutuel wagering that

grants privileges to CAW bettors while denying them to the public is inherently unfair.”

(Id.). To say the least, this analogy is inapt.

The question presented in Brown v. Board of Education asked whether

“segregation of children in public schools solely on the basis of race, even though the

physical facilities and other ‘tangible’ factors may be equal, deprive the children of the

minority group of equal educational opportunities?” 347 U.S. 483, 493 (1954) (emphasis

added). “We believe that it does.” Id. Then-Chief Justice Earl Warren prefaced the

Court’s ruling with this comment:

Today, education is perhaps the most important function

of state and local governments. Compulsory school attendance

laws and the great expenditures for education both demonstrate our

recognition of the importance of education to our democratic society.

It is required in the performance of our most basic public

responsibilities, even service in the armed forces. It is the very

foundation of good citizenship. Today it is a principal instrument

in awakening the child to cultural values, in preparing him for later

professional training, and in helping him to adjust normally to his

environment. In these days, it is doubtful that any child may

reasonably be expected to succeed in life if he is denied the

opportunity of an education. Such an opportunity, where the state

has undertaken to provide it, is a right which must be made available

to all on equal terms.

Id. (emphasis added). Betting on horse races is a recreational activity, a “sport” Plaintiff

“has followed and supported for over sixty years.” (Doc. 6 PAGEID 31). While states

may regulate this sport, they don’t “provide” it as they do public education. Thus, the

notion of retail-bettors-as-a-protected-class is totally misplaced.

Finally, and presumably in response to falling short of the amount-in-controversy

requirement for diversity jurisdiction, Plaintiff clarifies that he “further seeks damages

representing the loss suffered from distorted pool returns.” (Doc. 8-1 PAGEID 54).

Without more, the Court cannot presume these additional losses amount to the necessary

$75,000 threshold.

Conclusion. Upon review, the Court hereby OVERRULES Plaintiff’s objections,

(Doc. 8-1), and ACCEPTS and ADOPTS the Magistrate Judge’s R&R (Doc. 7) in full.

Plaintiff’s complaint (Doc. 6) is DISMISSED (pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)),

because it fails to state a claim upon which relief may be granted. In this regard, any

state law claims Plaintiff purports to allege within his complaint are DISMISSED without

prejudice. Additionally, the Court CERTIFIES (pursuant to 28 U.S.C. § 1915(a)(3)) that

an appeal of this order would not be taken in good faith and DENIES Plaintiff leave to

proceed in forma pauperis on appeal. See Fed. R. App. P. 24(a)(3)(A). Pursuant to

Fed. R. App. P. 24(a)(5), however, Plaintiff—a non-prisoner—remains free to apply to

proceed in forma pauperis in the Sixth Circuit Court of Appeals. See Callihan v.

Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States

Postal Serv., 105 F.3d 274, 277 (6th Cir. 1997).

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Court