MEMORANDUM & ORDER
Before the Court is Defendant Thomas & Thomas Attorneys & Cоunselors at Law, LLC’s Motion for Judgment on the Pleadings. (Doc. 9.) This Motion has been fully briefed and is ripe for adjudication. For the reasons articulated below, Defendant’s Motion for Judgment on the Pleadings is GRANTED, and this matter is DISMISSED.
I. BACKGROUND
A. Factual Background
Unless otherwise noted, the following facts are undisputed:
On November 30, 2007, Defendant Thomas & Thomas Attorneys & Counselors at Law, LLC (“T & T”) filed a complaint against Plaintiff Patricia Dudek (“Dudek”) in the Lorain County Court of Common Pleas on behalf of its client, LVNV Funding LLC (“the State Court Complaint”). (Doc. 4 at ¶¶ 5, 11.) In the State Court Complaint, T & T alleged that LVNV Funding, as the predecessor in interest to the original creditor, Providian Financial Corporation, owned a credit card debt allegedly owed by Dudek. (Id. at 12 (State Court Complaint at ¶ 1).) T & T further alleged that, despite demand for payment, Dudek refused to pay the balance owed. (Id.) T & T attached to the State Court Complaint an affidavit signed by Heather Robertson, an authorized representative of LVNV Funding, attesting that Dudek owed LVNV Funding the amount of $2196.29, plus interest accruing at a rate of 10% from July 22, 2002, on her account number ending in 3065. (Doc. 9-1 at ¶¶ 2,5.) 1
In response to the State Court Complaint, Dudek filed an answer in which she: (1) denied the allegations contained therein; and (2) asserted several affirmative defenses, including a statute of limitations defense. Dudek did not identify which state’s statute of limitation she was invoking. During the course of discovery in the state court action, counsel discussed Dudek’s position that the case was time-barred. (Doc. 4 at ¶ 17; Doc. 8 at ¶ 12.) On September 3, 2008, immediately before the trial was scheduled to begin, T & T dismissed the State Court Complaint without prejudice. (Doc. 4 at ¶ 19; Doc. 11 at 3.)
B. Procedural History and Jurisdiction
1. Federal Court Proceedings
On September 9, 2008, Dudek filed the instant suit against T & T alleging violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692,
et seq.
(Doc. 4.)
2
Specifically, in the single cause
In her Complaint, Dudek asserts that this Court has jurisdiction pursuant to 15 U.S.C. § 1692(d) and 28 U.S.C. § 1387. 3 (Id. at ¶ 2.) The FDCPA specifically provides for federal jurisdiction over claims made pursuant to the act. See 15 U.S.C. § 1692k(d). Accordingly, the Court has federal question jurisdiction under 28 U.S.C. § 1331.
On November 25, 2008, T & T filed an answer denying liability but admitting, among other things, that the debt allegedly owed by Dudek is a consumer debt, and that, under the facts of this case, T & T quаlifies as a “debt collector” as defined in the FDCPA. (Doc. 8 at ¶¶4, 9.) T & T asserted several affirmative defenses, including a bona fide error defense pursuant to 15 U.S.C. § 1692k(c). (Id. at ¶2.)
2. T & T’s Motion for Judgment on the Pleadings
Subsequently, on March 5, 2009, T & T filed a Motion for Judgment on the Pleadings (Doc. 9), on the basis that its conduct in filing the State Court Complaint against Dudek did not violate the FDCPA because its state law claim was not time-barred. Specifically, T & T argues that: (1) its state court collection action against Dudek was timely filed within the applicable Ohio statute of limitations; (2) Ohio’s borrowing statute, O.R.C. § 2305.03(B), was not in effect at the time the breach of contract claim accrued, and, therefore, Dudek cannot borrow the limitations period from any other state; and (3) even if Ohio’s borrowing statute did apply, analysis under the statute still requires application of Ohio’s statute of limitations. On April 30, 2009, Dudek filed a Response in Opposition to Defendant’s Motion for Judgment on the Pleadings (Doc. 11). Although the Complaint is silent with respect to which state’s statute of limitations applies to the state court action, in her briefing, Dudek clarifies her position that, pursuant to the choice of law provision in the underlying credit card agreement, New Hampshire’s three-year limitations period applies. T & T filed a Reply in support of its Motion on May 11, 2009. (Doc. 12.) 4 Dudek does not premise her FDCPA claim on any alleged wrongdoing by T & T other than the filing of what Dudek asserts was a time-barred collection actiоn.
To determine whether Dudek’s Complaint states a claim under the FDCPA, the Court must ascertain whether the underlying state court action was filed within the applicable statute of limitations. Resolution of this issue depends, at least in part, on whether the choice of law provision in the credit card agreement between the parties requires application of New Hampshire’s statute of limitations. Neither party attached a copy of the underlying agreement to their briefing, and the parties’ briefing does not provide the Court with the specific language used in the choice of law provision.
At the CMC held on December 17, 2009, the parties agreed to file a stipulated copy of the relevant choice of law provision. Accordingly, in the Case Management Plan (Doc. 17), Magistrate Judge McHargh ordered the parties to submit the choice of law provision as a joint exhibit. On March 11, 2010, the parties submitted a copy of the relevant card member agreement: Providian’s VISA Classic First Deposit National Bank Account Agreement (“the Agreement”). (Doc. 24-1.) The parties stipulate that the Agreement is the contract applicable to Dudek’s credit card account. (Doc. 24.) Section 16 of the Agreement states: “No matter where you live, this Agreement and your Credit Card Account are governed by federal law and by New Hampshire law.” (Id. at 3.) 5
II. STANDARD OF REVIEW
The standard for a motion for judgmеnt on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is the same as the standard applicable to a motion to dismiss under Rule 12(b)(6).
E.E.O.C. v. J.H. Routh Packing Co.,
It is well-established that a complaint need not set forth in detail all of the particularities of the plaintiffs claim.
See Myers v. Delaware Co.,
No. 2:07-cv-844,
To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must plead facts sufficient “to state a claim for relief that is
plausible
on its face.”
Twombly,
A district court considering a motion for judgment on the pleadings must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded allegations in the complaint as true.
See Grindstaff v. Green,
In ruling on a Rule 12(c) motion, the court considers all available pleadings, including the complaint and the answer.
See
Fed.R.Civ.P. 12(c). The court can also consider: (1) any documents attаched to, incorporated by, or referred to in the pleadings; (2) documents attached to the motion for judgment on the pleadings that are referred to in the complaint and are central to the plaintiffs allegations, even if not explicitly incorporated by reference; (3) public records; and (4) matters of which the court may take judicial notice.
Whittiker v. Deutsche Bank National Trust Co.,
In her briefing in response to T
&
T’s Motion for Judgment on the Pleadings, Dudek argues that the Court must disregard exhibits attached to the pleadings. (Doc. 11 at 5.) Ironically, Dudek actually attached the State Court Complaint, its accompanying exhibits, and her stаte court answer as exhibits to her Complaint. These documents are referred to in Dudek’s Complaint and are central to her allegations. In addition, the court filings are admissible as public records.
See New England Health Care Employees Pension Fund v. Ernst & Young, LLP,
Unlike Ohio Rule of Civil Procedure 10(D), the Federal Rules do not require
III. ANALYSIS
The parties do not dispute that, for purposes of this case, T & T is a “debt collector” whose litigation activity is subject to the FDCPA.
(See
Doc. 4 at 6; Doc. 8 at 4.) The sole count in Dudek’s Complaint alleges that T
&
T violated Section 1692e of the FDCPA by filing the state court action to collect upon a time-barred debt. (Doc. 4 at ¶ 23.) Section 1692е provides that a debt collector “may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. A debt collector violates § 1692e by, among other things, falsely representing “the character, amount, or legal status of any debt.”
See
§ 1692e(2)(A). As courts in other jurisdictions have pointed out, “[cjommon sense dictates that whether a debt is time-barred is directly related to the legal status of that debt.”
Gervais v. Riddle & Assocs., P.C.,
Similarly, § 1692f prohibits a debt collector from using any “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. Filing a lawsuit to collect upon a time-barred debt, “without first determining after a reasonable inquiry that the limitations period is due to be tolled, constitutes an unfair and unconscionable practice offensive to § 1692f.”
Kimber v. Federal Fin. Corp.,
The parties agree that resolution of T
&
T’s Motion for Judgment on the Pleadings turns on which state’s statute of limitations applies to the underlying state court action. If, as Dudek argues in her briefing, New Hampshire’s three-year statute of limitations applies, and the period was not tolled, then Dudek has stated a claim in this case with respect to T & T’s untimely filing of the state court suit. Conversely, if T & T is correct, and either Ohio’s fifteen-year limitations period for written con
For the reasons articulated below, the Court finds that: (1) the state court action was governed by Ohio’s statute of limitations; (2) Ohio’s borrowing statute does not apply because the underlying breach of contract action accrued prior to the statute’s effective date; and (3) T & T’s state court breach of contract action against Dudek was not time-barred. Accordingly, the Court finds that T & T is entitled to judgment on the pleadings on Dudek’s FDCPA claim.
A. Ohio’s Statute of Limitations Applies to the State Court Action.
T & T argues that the Ohio state court would apply Ohio’s statute of limitations to the underlying state court action, even if it had to apply another state’s substantive law. (Doc. 9 at 5.) Although Dudek initially argues that, pursuant to the choice of law provision in the Agreement, the state court had to apply New Hampshire substantive law and choice of law principles, she ultimately concedes that contractual choice of law provisions apply only to substantive law. (Doc. 11 at 6; Doc. 22 at 2.) The Court finds that Ohio’s choice of law principles govern, and the Ohio state court would apply Ohio’s statute of limitations, regardless of which state’s law provides the substantive right of recovery.
The Ohio Supreme Court has adopted the Restatement (Second) of Conflict of Laws to govern conflict of law issues.
Cole v. Mileti,
As a general rule, parties are free to select which state’s law will govern their agreements.
Phelps v. McClellan,
As previously noted, Section 16 of the Agreement simply provides: “No matter where you live, this Agreement and your Credit Card Account are governed by federal law and by New Hampshire law.” The Agreement does not contain an express statement that the parties intended to include New Hampshire’s statute of limitations in the choice of law provision. The Court finds, therefore, that the Ohio state court would have applied Ohio’s statute of limitations, even if, pursuant to the parties’ agreement, it had to apply New Hampshire’s substantive law.
B. Ohio’s Borrowing Statute Does Not Apply to T & T’s State Court Claim.
A borrowing statute “is a legislative exceрtion from the general rule that the forum always applies its statute of limitation.”
See Combs v. Int’l Ins. Co.,
Borrowing statutes address the situation where a plaintiff fails to sue within the time period allotted by the state where the action accrued, and then files suit in another state’s court to avoid the time bar.
See Combs,
Ohio’s borrowing statute, codified at O.R.C. § 2305.03, provides, in part, that:
No civil action that is based upon a cause of action that accrued in any other state, territory, district, or foreign jurisdiction may be commenced and maintained in this state if the period of limitation that applies to that action under the laws of that other state, territory, district, or foreign jurisdiction has expired or the period of limitation that applies to that action under the laws of this state has expired.
O.R.C. § 2305.03(B). Therefore, if еither Ohio’s statute of limitations or the limita
Ohio’s borrowing statute went into effect on April 7, 2005. The parties appear to agree that T & T’s breach of contract claim against Dudek accrued on July 22, 2002. Nonetheless, Dudek argues that Ohio’s borrowing statute applies to the state court action and requires application of New Hampshire’s three-year statute of limitations. According to Dudek, because the parties selected New Hampshire law to govern the Agreement, T & T’s breach of contract claim necessarily accrued in New Hampshirе. (Doc. 11 at 7-8.) 9 As a result, Dudek argues, Ohio’s borrowing statute requires application of New Hampshire’s shorter three-year limitations period. (Id.) 10
To the contrary, T & T submits that, because Ohio’s borrowing statute did not become effective until April 7, 2005, application of the statute to its breach of contract claim, which accrued in 2002, would be impermissibly retroactive. The Court finds T & T’s argument well-taken.
1. There is No Evidence the Ohio General Assembly Intended its Borrowing Statute to Apply Retroactively.
The Ohio Constitution provides: “The General Assembly shall have no power to pass retroactive laws.” Ohio Const. art. II, § 28. The Ohio Supreme Court has held that “[w]hen the retroactive application of a statute of limitation operates to destroy an accrued substantive right, such application conflicts with Section 28, Article II of the Ohio Constitution.”
Gregory v. Flowers,
Nothing in the language of O.R.C. § 2305.03(B) demonstrates that the Ohio General Assembly intended the statute to apply retroactively.
11
The Court has not located any case law suggesting that the
2. Application of Ohio’s Borrowing Statute to the State Court Action Would Destroy an Accrued Substantive Right.
T & T cites to
D.A.N. Joint Venture v. Armstrong
for the proposition that Ohio’s borrowing statute does not apply retroactively to a cause of action that accrued prior to April 7, 2005. (Doc. 9 at 7.) In
D.A.N.,
the plaintiff filed suit in Ohio to collect upon a debt.
D.A.N.,
Dudek attempts to distinguish D.A.N. on the grounds that, in that case, unlike here, the complaint was filed prior to the borrowing statute’s effective date. (Doc. 11 at 11.) As a result, Dudek argues, O.R.C. § 2305.03(B) could not be applied retroactively in D.A.N. “because the right to sue was vested when the complaints were filed.” (Id.) Because the borrowing statute was in effect by the time T & T filed the State Court Complaint in 2007, Dudek alleges that the statute applies and requires application of New Hampshire’s statute of limitations.
In a recent 2009 decision in the Southern District of Ohio, the court addressed the same issue presented here: whether Ohio’s borrowing statute applies retroactively to clаims that accrued
before
the statute was enacted even though the complaint was filed
after
the statute’s April 7, 2005 effective date.
Executone of Columbus, Inc.,
The
Executone
court, agreeing with the
Ormond
court’s analysis, found that the plaintiffs promissory estoppel claims accrued — and therefore vested — prior to the borrowing statute’s effective date.
Executone,
The Court finds the analysis in
Executone
and
Ormond
persuasive, and this case is sufficiently analogous to warrant the same result. Here, as discussed in greater detail below, T & T’s breach of contract claim accrued, and therefore vested, in 2002 — prior to the borrowing statute’s 2005 effective date. Application of O.R.C. § 2305.03(B) to the state court action would render T
&
T’s claim time-barred and, in doing so, would destroy an accrued substantive right.
See Executone,
Since the borrowing statute does not apply, Ohio law supplies the relevant statute of limitations.
14
See D.A.N.,
2007-
C. Under Ohio’s Limitations Periods, T & T’s Breach of Contract Action was Timely-Filed.
In Ohio, an action for breach of a written contract must be filed within fifteen years after the cause of action accrued. O.R.C. § 2805.06. It is well-established that a causе of action for breach of contract accrues when the breach occurs.
Turner v. Retirement Plan of Marathon Oil Co.,
Where the contract at issue is a credit card agreement, and the parties have not submitted evidence of the cardholder’s signature on an application for the card, it is not clear that the contract qualifies as a “contract in writing” for statute of limitations purposes.
Unifund CCR Partners v. Childs,
No. 23161,
As was the case in Childs and Hemm, the Agreement submitted to the Court in this case does not reflect Dudek’s signature. Although the parties do not specifically brief this issue, it is not clear that the Agreement qualifies as a written contract for statute of limitations purposes. Perhaps recognizing this potential issue, T & T mentions, for the first time in its supplemental briefing, that the state court action was timely filed within six-years of Dudek’s breach, and therefore the statutes of limitations for both oral and written contracts are satisfied. (Doc. 18 at 1.) The Court agrees with T & T and finds that, even if the Agreement does not qualify as a contract in writing, which Dudek does not allege, T & T’s state law action was not time barred.
T & T submits, and Dudek does not dispute, that the relevant date for purposes of accrual of the state court action is July 22, 2002 — the date upon which Dudek’s obligation to pay under the credit card agreement became due and owing. Since the state court action was commenced on November 30, 2007, less than six years later, it falls within Ohio’s fifteen-
IV. CONCLUSION
For the foregoing reasons, the Court finds that T & T is entitled to judgment on the pleadings: because T & T’s underlying State Court Complaint was not time-barred under Ohio’s statute of limitations, Dudek cannot premise an “untimeliness” claim under the Fair Debt Collection Practices Act on that filing. Accordingly, Defendant Thomas & Thomas Attorneys & Counselors at Law, LLC’s Motion for Judgment on the Pleadings (Doc. 9) is GRANTED. This case, therefore, is DISMISSED.
IT IS SO ORDERED.
Notes
. Although Dudek attached a copy of the State Court Complaint and the accompanying exhibits to her Complaint in this case, the copy of Heather Robertson’s affidavit was improperly scanned and is difficult to read. T & T provided a legible copy of the affidavit as an attachment to its Motion for Judgment on the Pleadings, to which the Court cites herein.
. In the Complaint, Dudek alleges that this action is:
brought by an individual consumer for Defendant's violations of the Fair Debt Collection Practices Act, codified as 15 U.S.C.A. § 1692 et seq. and the Ohio Revised Code § 1343.03, et seq., both of which prohibit debt collectors from engaging in abusive, deceptive and unfair practices.
(Doc. 4 at VI.) Although Dudek mentions O.R.C. § 1343.03, the sole count in the Complaint alleges a FDCPA claim. No Ohio state law claims are alleged.
. Because it is clear that thе Court has federal question jurisdiction under § 1331, it is unnecessary to address whether jurisdiction is proper under § 1337.
. At the Case Management Conference (“CMC”) held on December 17, 2009 in front of Magistrate Judge Kenneth S. McHargh ("Judge McHargh”), the parties discussed the Court’s jurisdiction in light of T & T’s repeated citations and references to case law involving a federal court sitting in diversity. At the CMC, Judge McHargh requested that the parties submit supplemental briefing on the question of whether the fact that the Court has federal question jurisdiction, rather than diversity jurisdiction, has any impact on the Court’s choice of law analysis. (Doc. 17.) T & T submitted a supplemental brief on January 4, 2010 clarifying its position that the Court “must determine what statute of limitations wоuld have been applied by the trial court in the State Court Action filed in 2007.” (Doc. 18 at 2.) Although Judge McHargh gave Dudek fourteen (14) days from the date of T & T's supplemental briefing to file a response, Dudek did not file a responsive brief until March 10, 2010 (Doc. 22). While the Court could refuse to consider Dudek’s untimely filing, T&T has not asked that it do so and there appears to be no prejudice to T & T from Dudek’s delay; the Court has, thus, considered all briefing.
. The Agreement further states, in pertinent part, that: “We may delay or waive enforcement of any provision of this Agreement without losing our right to enforce it or any other provision later. You waive: ... any applicable statute of limitations.’’ (Doc. 24-1 at 3, § 15.) T & T has neither mentioned this provision nor made any argument that it is valid and enforceable. Absent argument from the parties on this issue, the Court will not assume its validity and enforceability, particularly since jurisdictions have different views on the enforceability of provisions waiving statute of limitations defenses. See 51 Am. Jur.2d Limitation of Actions § 376 (2010). The parties do not brief this issue, and the Court does not address it. It is worth noting, however, that in the state court action there may have been a basis for T & T to argue that Dudek waived, and therefore could not assert, a statute of limitations defense.
. It is unclear why the parties seemed reluctant to file the Agreement and did not do so until March 11, 2010. Neither party has alleged that it is improper for the Court tо consider the terms of the choice of law provision, nor can they, particularly since the validity of Dudek's FDCPA claim turns on whether the underlying state court action was governed by Ohio or New Hampshire's statute of limitations.
. Although the Sixth Circuit has not directly addressed the issue, courts in other jurisdictions have found that a debt collector violates the FDCPA by filing a lawsuit to collect on a time-barred debt.
See Harvey v. Great Seneca Financial Corp.,
. Section 142 of the Restatement was revised in 1988. Despite this revision, Ohio courts continue to apply the original version of § 142.
See Ormond v. Anthem, Inc.,
No. 05-cv-1908,
. Dudek cites no authority for the proposition that a cause of action necessarily accrues in the state the parties selected in their choice of law provision.
. Dudek suggests that Ohio's borrowing statute applies and that it requires the Court to look to New Hampshire law to determine where the breach accrued for purposes of the borrowing statute. (Doc. 11 at 7-8.) Simply put, Dudek is wrong on the law. If the Court were to find that Ohio’s borrowing statute applies, the Court would apply Ohio law "to make the initial determination
where
the cause of action accrued.”
CMACO Automotive Systems, Inc. v. Wanxiang America Corp.,
. Dudek argues that there is some significance to the General Assembly's use of the word "accrued” rather than “accrues” in the statute. (Doc. 11 at 10.) Specifically, Dudek suggests that the legislature intentionally selected the past tense because it "intended the statute to be applied retroactively, e.g. in the past.”
(Id.)
Taken to its logical extreme, Dudek’s statutory construction would mean that the borrowing statute applies
only
to actions that accrued in the past. Because a statute
. In
Executone,
the court distinguished two cases from the Northern District of Ohio in which the courts employed Ohio's borrowing
. In light of the Court’s conclusion that Ohio's borrоwing statute does not apply retroactively to T & T’s breach of contract claim, the Court need not address T & T's alternative argument that, assuming the statute does apply, it nonetheless requires application of Ohio’s statute of limitations.
. Because the Court concludes that Ohio’s statutes of limitation control, the Court also does not address T & T’s alternative argument that, if New Hampshire’s statute of limitations applies, it was tolled. (See Doc. 12 at 6-7.) The New Hampshire statute of limitations for an action on a credit card is three years. N.H.Rev.Stat. Ann. § 508:4(1) (2009). This statutory period is tolled, however, if a defendant is absent from and residing outside of the state when the cause of action accrued. See N.H.Rev.Stat. Ann. § 508:9 ("If the defendant in a personal action was absent from and residing out of the state at the time the cause of action accrued, or afterward, the time of such absence shall be excluded in computing the time limited for bringing the action.”).
It is not clear that New Hampshire’s tolling statute would even apply to cases such as this, where the defendant never resided in New Hampshire and therefore the limitations period could be indefinitely tolled.
Compare Gaisser v. Portfolio Recovery Assoc., LLC,