Fleurimond

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION ~- CINCINNATI

RICARDO FLEURIMOND, Case No. 1:25-cv-246

Plaintiff, Judge Matthew W. McFarland

FIDELITY INVESTMENTS, et al.,

Defendants.

ORDER AND OPINION

This matter is before the Court on the Magistrate Judge’s Report and

Recommendation (Doc. 10). Plaintiff filed Objections (Doc. 11) to the Report and

Recommendation. Additionally, Plaintiff's Motion for Reconsideration of Transfer (Doc.

8) has since been denied as moot by the Magistrate Judge. (See Order, Doc. 12.) This matter

is now ripe for the Court's review.

LAW AND ANALYSIS

The Court conducts de novo review of any portions of the Report and

Recommendation properly objected to by a party. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.

72(b)(3). “The filing of vague, general, or conclusory objections,” however, “does not

meet the requirement of specific objections and is tantamount to a complete failure to

object.” Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001); see also Arteaga v. Cinram-

Technicolor, No. 3:19-CV-349, 2022 WL 1256659, at *1 (M.D. Tenn. Apr. 27, 2022)

(distinguishing between properly specified objections and general objections).

Magistrate Judge Karen L. Litkovitz prepared a Report and Recommendation that

recommends dismissing the claims within Plaintiff's pro se Complaint. (Report, Doc. 10.)

Now, Plaintiff objects to dismissal of certain claims. On the whole, Plaintiff’s Objections

(Doc. 11) convey a common theme: the Complaint should be liberally construed in light

of Plaintiff's pro se status. At the same time, however, the Sixth Circuit has demarcated

certain “limits” to this command of liberal construction. Erwin v. Edwards, 22 F. App’x

579, 580 (6th Cir. 2001). For instance, a court need not “conjure allegations on a litigant’s

behalf, and a pleading must provide notice to the opposing party of the relief sought.” Id.

(citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Vector Rsch., Inc. v. Howard &

Howard Attorneys P.C., 76 F.3d 692, 697 (6th Cir. 1996)). With this framework in mind, the

Court addresses Plaintiff's objections in turn.

i. Breach of Contract Claim

The Magistrate Judge concluded that Plaintiff failed to state a claim for breach of

contract because the Complaint merely makes a “threadbare assertion” about a contract

claim without pleading the required elements. (Report, Doc. 10, Pg. ID 16-17.) Plaintiff

objects to this conclusion but relies on additional allegations not included within the

Complaint. (Objections, Doc. 11, Pg. ID 23-24.) The allegations within the operative

Complaint frame the Court's inquiry at this juncture. And, after considering the operative

Complaint’s allegations, the Court agrees with the Magistrate Judge’s conclusion that

they fail to satisfy the required elements for plausibly stating a breach of contract claim:

“(1) a contract existed; (2) the plaintiff performed under the contract; (3) the defendant

breached the contract; and (4) the plaintiff suffered damages from the breach.” Dean v,

Chamberlain Univ., LLC, No. 21-3821, 2022 WL 2168812, at *2 (6th Cir. June 16, 2022) (citing

Pavlovich v. Nat'l City Bank, 435 F.3d 560, 565 (6th Cir. 2006) (interpreting Ohio law)). Thus,

Plaintiff's first objection is overruled.

ii. Truth in Lending Act Claim

Plaintiff next argues that the Magistrate Judge overlooked key allegations in the

Complaint and did not apply a liberal, pro-se pleading standard. (Objections, Doc. 11, Pg.

ID 24-25.) Though Plaintiff brings up additional allegations as to the Truth in Lending

Act claim, not all of these allegations are found within the four corners of the Complaint.

And, while Plaintiff did cite to particular provisions of the Truth in Lending Act in the

Complaint’s jurisdictional section, the Complaint lacks adequate factual allegations to

state a plausible claim under these provisions. Accordingly, the Court agrees with the

Magistrate Judge’s conclusion that the Complaint fails to explain how Defendants

violated the Truth in Lending Act or the specific disclosures that Defendants failed to

make. (Report, Doc. 10, Pg. ID 17.) Thus, Plaintiff’s second objection is overruled.

iii. Trademark Claim

The Magistrate Judge found that, even liberally construing the Complaint, Plaintiff

failed to provide any factual allegations as to why he would be entitled to relief regarding

his trademark claim. (Report, Doc. 10, Pg. ID 19.) In an attempt to rebut this finding,

Plaintiff once again points to allegations not included in the Complaint. Although

Plaintiff suggests that “additional factual details about specific instances of infringement

could readily be developed through discovery” (Id. at Pg. ID 27), the Court agrees with

the Magistrate Judge’s conclusion that the Complaint—as it stands—fails to plausibly

allege a trademark-based claim. This objection is therefore overruled.

iv. Allegations of Harm

Plaintiff next objects that the Magistrate Judge did not properly consider the

alleged harms in the Complaint. (Objections, Doc. 11, Pg. ID 28-30.) But, the Court does

not find this argument persuasive. At the end of the day, a plaintiff must put forth

sufficient factual allegations to plausibly state a claim for relief. Plaintiff's objections as

to the alleged harms do not demonstrate how any of the previously discussed claims

were sufficiently alleged in this Complaint. Thus, this final objection is overruled.

Vv. Leave to Amend

In the event that the Court finds Plaintiff's Complaint inadequate, Plaintiff seeks

leave to amend. (Objections, Doc. 11, Pg. ID 32-33.) Plaintiff does not provide a proposed

amended complaint. “The problem with the lack of a motion or proposed amendment is

that[,] without viewing the proposed amendment, it is impossible for the district court to

determine whether leave to amend should [be] granted.” United States ex rel. Harper v.

Muskingum Watershed Conservancy Dist., 739 F. App’x 330, 335 (6th Cir. 2018) (cleaned up);

see also Kuyat v. BioMimetic Therapeutics, Inc., 747 F.3d 435, 444 (6th Cir. 2014) (“A request

for leave to amend almost as an aside to the district court ina memorandum in opposition

to the defendant's motion to dismiss is not a motion to amend.”) (cleaned up). However,

Plaintiff does hint at additional factual allegations. (See Objection, Doc. 11, Pg. ID 30-33.)

“Dismissal with prejudice and without leave to amend is not appropriate unless it is clear

on de novo review that the complaint could not be saved by amendment.” Newberry v.

Silverman, 789 F.3d 636, 646 (6th Cir. 2015) (quotation omitted).

Accordingly, if Plaintiff desires to amend the Complaint, any motion to amend □

along with any proposed amended complaint — must be filed within thirty (30) days of

this Order. See Barnett v. Kroger Co., No. 1:22-CV-544, 2023 WL 5899836, at *6 (S.D. Ohio

Sept. 11, 2023).

CONCLUSION

Upon review, Plaintiff's Objections (Doc. 11) are not well taken and are therefore

OVERRULED. Accordingly, the Court ORDERS the following:

(1) The Report and Recommendation (Doc. 10) is ADOPTED WITH

MODIFICATIONS;

(2) This matter is DISMISSED WITHOUT PREJUDICE;

(3) Plaintiff shall have the opportunity to file a motion to amend the Complaint;

however, any such motion must be paired with a proposed amended

complaint and must be filed within thirty (30) days of this Order; and

(4) The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a) that an appeal of this

Order would not be taken in good faith and therefore DENIES Plaintiff leave

to appeal in forma pauperis. Plaintiff remains free to apply to proceed in forma

pauperis in the Court of Appeals.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Mad. WHS fehy

By: ‘ 1

JUDGE MATTHEW W. McFARLAND