OPINION AND ORDER
Defendants Expert Global Solutions, Inc. f/k/a NCO Group, Inc. and NCO Financial Systems, Inc., successor in interest to NCOP Capital II, LLC d/b/a/ NCO Portfolio Management, and NCO Portfolio Management, Inc. (the “NCO Defendants”), and Defendant Javitch, Block & Rathbone, LLC (“JBR”) filed separate motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) (ECF # s 76 and 80). The motions request dismissal of Plaintiff Christopher G. Hrivnak’s complaint, which is premised entirely on the content of a state court complaint seeking to recover an unpaid credit card debt from Plaintiff.
Plaintiff has opposed the motions for judgment on the pleadings, and Defendants have replied. Thus, the motions are ripe for consideration.
For the reasons stated herein, Plaintiffs complaint fails to state a claim upon which relief may be granted. Accordingly, Defendants’ motions for judgment on the pleadings are granted.
I. FACTS
Although this matter has been in litigation for several years, the facts are very simple. On June 4, 2009, Defendant JBR filed a lawsuit against Plaintiff in the Bed-ford Municipal Court. The name “NCO Portfolio Management” appeared in the caption of the Bedford complaint. The complaint sought recovery from Plaintiff on an unpaid credit card debt and sought damages in the amount of $11,481.81. The complaint identified Mr. Hrivnak as the obligated party and provided the original creditor, the nature of the debt, the amount of the debt, the credit card account number, and explained why the monthly credit card statements were not attached to the complaint. The complaint also- contained a copy of an unsigned written credit card agreement.
Plaintiff claims that the filing of the collection action gives rise to certain claims against the NCO Defendants and JBR. Among other claims, Plaintiff alleges that “NCO Portfolio Management,” the name appearing in the caption of the Bedford complaint, was a fiction, without authority to sue in Ohio or elsewhere. Yet Plaintiff alleges also that “[t]here is a similarly named legal entity ‘NCO Portfolio Management, Inc.’ registered with the Ohio Secretary of State.” Plaintiff claims that, in dropping the “Inc.” from the case caption, “NCO concocted and used the similarity in names between ‘NCO Portfolio Management’ and its controlled entity ‘NCO Portfolio Management, Inc.’ to support and accomplish such fraudulent concealment, and to prevent consumers from undertaking efforts to discover the nonexistence of ‘NCO Portfolio Management.’ ” Plaintiff further alleges that Defendants acted in concert to file lawsuits on defaulted consumer debts, and that such lawsuits: were beyond the statute of limitations; were filed with insufficient documentation; were filed despite lack of investigation; were accompanied by false documentation; improperly requested interest and costs; and misrepresented credit information.
Specifically, the Amended Complaint contains 13 counts.
• Counts 1, 7 and 12 assert claims under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”).
• Counts 2, 8 and 13 allege claims under the Ohio Consumer Sales Practices Act, Ohio Revised Code § 1345.01 et seq. (“OCSPA”).
• Counts 4 and 10 assert class and individual civil conspiracy claims for the NCO Defendants and JBR working in concert with one another allegedly to violate federal and state law.
• Count 5 asserts class abuse of process claims.
• Count 6 asserts class defamation claims.
• Count 9 alleges an individual claim for fraud.
• Count 11 is an individual claim for malicious prosecution.
• Count 3, which asserted class claims under the Ohio Deceptive Trade Practices Act, Ohio Revised Code § 4165.01 et seq. (“ODTPA”), has been dismissed with prejudice by the Court (ECF # 91).
All claims under the FDCPA, OCSPA, and common law derive from either: (a) the name “NCO Portfolio Management” appearing in the caption of the Bedford complaint; (b) the timeliness of the suit; (c) the attachment to the Bedford complaint; (d) the prayer for relief in the Bedford complaint; or (e) the use of the Courts to collect bad debts. For the reasons discussed below, none of these claims has merit.
II. LEGAL STANDARD
Decisions granting judgment on the pleadings pursuant to Rule 12(c) are reviewed under the same standard applied to motions to dismiss under Rule 12(b)(6). See Kottmyer v. Maas,
The Sixth Circuit has applied the now familiar pleading requirements in Bell Atlantic Corp. v. Twombly,
The plausibility pleading standard set forth in Twombly and Iqbal requires a plaintiff to have pled enough facts to state a claim for relief that is plausible on its face. Iqbal,
III. DISCUSSION
A. Counts 1 Through 10
Rather than directly address the substance of the motions for judgment on the pleadings as to Counts 1 through 10, Plaintiff argues that a prior ruling in the state court precludes the present motions under the “rule of the case” doctrine. Plaintiff is mistaken. The state court previously considered and denied motions to dismiss filed by Defendants, but did so under state law. The state court did not address Mr. Hrivnak’s complaint under the Federal Rules, which apply after removal and govern the motions for judgment on the pleadings currently under consideration. Herron v. Jupiter Transp. Co.,
Given that the law of the case doctrine does not apply here, Plaintiff has offered no viable opposition to the motions for judgment on the pleadings with respect to Counts 1 through 10. The Court is not obligated to salvage Plaintiffs complaint by formulating legal arguments on his behalf. Thus, Counts 1 through 10 remain substantively unopposed, and are dismissed. Counts 1 through 10, and the remainder of Plaintiffs claims, also fail for the reasons explained below.
B. Counts 1, 7 And 12 — FDCPA Claims
To plead a claim under the FDCPA, a plaintiff must show that: “(1) plaintiff is “consumer” as defined by the Act; (2) the “debt” arises out of transac
1. Counts 1, 7 And 12 — Plaintiff Fails To Allege A Consumer Debt
As an initial matter, Plaintiffs Counts 1, 7 and 12 are legally insufficient because Plaintiff neglects to allege anywhere in his complaint that the debt at issue is a consumer debt, as is required to prevail under the FDCPA. Plaintiff does not identify the debt which he allegedly was obligated to pay. Absent allegations of collection activity regarding a consumer debt, the complaint fails as a matter of law. See, e.g., Estep v. Manley Deas Kochalski, LLC,
2. Count 1(a) — Plaintiff’s Claim That The Bedford Lawsuit Was Time-Barred Is Insufficiently Pled
Plaintiff alleges that Defendants commenced and maintained time-barred, invalid, legally incompetent lawsuits against him and others in violation of §§ 1692d, 1692e and 1692f, but does not supply any facts in support of his legal conclusions. Indeed, it is impossible to deduce from the allegations in the complaint when the cause of action accrued, where the original debt was incurred, what statute of limitations should apply, and when the applicable statute of limitations would expire. This is not the “sufficient factual matter” required under Iqbal and Twombly that, if accepted as true, states a claim to relief that is plausible on its face. Thus, dismissal is appropriate. Clark v. Unifund CCR Partners, No. 07cv0266,
3.Count 1(b) — Plaintiff Fails To Allege Express Or Implied Representations That Were Misleading
Plaintiff asserts in Count 1(b) that Defendants violated §§ 1692e and 1692f by making false, misleading and/or unfounded representations in lawsuits as to agreements under which the consumer was allegedly bound. To ultimately prevail on this claim, Plaintiff must show that the lawsuit contained a material misrepresentation that would mislead or deceive the least sophisticated consumer. See Miller v. Javitch, Block & Rathbone,
Mr. Hrivnak’s Brief in Opposition incorrectly alleges that Defendants should be liable under the FDCPA for making the “false statements” that supporting documents regarding Mr. Hrivnak’s debt exist. Essentially, Mr. Hrivnak is argues that original supporting materials should have been attached to the state court complaint. This simply is not the case. Mr. Hrivnak fails to point to any law in Ohio that
4. Counts 1(c) And 12(d) — Defendants Did Not Make An Improper Demand For Costs And Interest
Plaintiff alleges that by demanding interest at the statutory rate from the date of judgment and court costs in the collection complaint, Defendants violated the FDCPA. However, the collection complaint only contained a prayer for relief, not a demand for payment, which stated:
WHEREFORE, the Plaintiff prays for a Judgment against the Defendant(s) in the amount of $11,481.84, with statutory interest from the date of judgment, costs of this action, and such other and further relief as the Court deems just and proper under the circumstances.
A prayer for court costs or interest in a state court complaint cannot be characterized as a false representation or unfair practice. There are at least two reasons why.
First, a prayer for relief is required by the Ohio Rules of Civil Procedure. Lee v. Javitch, Block & Rathbone,
Second, a prayer for relief does not constitute a representation that the defendant must pay the amount listed, nor that the creditor is entitled to these additional amounts. The prayer for relief is not a demand to the debtor himself. Rather, the prayer for relief is what it purports to be — a prayer or request directed to the court. The FDCPA does not extend protection to communications to courts. See, e.g. O’Rourke v. Palisades Acquisition XVI, LLC,
5. Counts 1(d) And 12(e) — Plaintiff Fails To Allege Any Facts To Support That False Credit Information Was Reported
In Counts 1(d) and 12(e), Plaintiff alleges that Defendants violated § 1692e(8) by reporting or causing to report inaccurate credit information regarding the “illegally filed lawsuits” which was known or should have been known to be false. Assuming “illegally filed lawsuits”
6. Count 1(e) — Plaintiff’s Claim For “Inadequate Investigations” Fails
In Count 1(e), Plaintiff complains that Defendants violated 15 U.S.C. §§ 1692e, 1692f and 1692d when employing a pattern and practice of filing invalid lawsuits, with inadequate investigation of the debt before filing the lawsuit, with the use of false documents and false representations, and with the improper motive of cheating unsuspecting or unsophisticated consumers.
Plaintiffs claim fails as a matter of law because the FDCPA does not impose a duty of investigation on debt collectors. Richeson v. Javitch, Block & Rathbone, LLP,
Regarding the claim that Defendants have used false documents and made false representations, the complaint contains no facts upon which the Court or Defendants might assess what documents and representations were false. For these reasons, Count 1(e) is dismissed.
7. Count 12(a)-(c) — Defendants Did Not Improperly Use A Fictitious Name
Count 12(a)-(c) relates to the allegation that NCO Portfolio Management (rather than NCO Portfolio Management, Inc.) was the named plaintiff in the suit against Mr. Hrivnak, and that name was not registered as a fictitious name with the Ohio Secretary of State. Plaintiff alleges that Defendants used a deceptive name to initiate the suit, purportedly in violation of FDCPA §§ 1692d, 1692e and 1692f, and did so intentionally so as to deceive alleged debtors regarding what entity was attempting to collect the debt.
Plaintiffs claims under Count 12(a)-(c) are insupportable, for several reasons. First, NCO Portfolio Management is not a fictitious name as defined by R.C. § 1329.01. In relevant part, that section defines a fictitious name as one that “does not include the name of record” of any “foreign corporation that is registered pursuant to Chapter 1703. of the Revised Code.” Plaintiff concedes that NCO Portfolio Management, Inc. was, at all times material, registered as a foreign corporation with the Ohio Secretary of State. Thus, the captioned name “NCO Portfolio Management” includes the identifying moniker of the registered entity, “NCO Portfolio Management, Inc.,” and is not a fictitious name.
Moreover, even if Plaintiffs claims in Count 12(a)-(c) fail for no other reason, they fail because the fictitious name registration statute — R.C. § 1329.10(B) — does not apply to the use of Ohio courts to collect debts.
8. Count 7 — Plaintiff’s Claim That Defendants Misrepresented The Amount And Character Of The Debt Is Insufficiently Pled
Plaintiffs Count 7 fails to state a claim upon which relief may be granted. In Count 7, Plaintiff alleges that “Defendants falsely represented the amount and character of the alleged debt by falsely stating, in the Original Complaint, that Mr. Hrivnak owned “11,481.84 ‘on the contract’ ” in violation of § 1692e(2)(A).
To begin, credit card agreements are written contracts, formed through the issuance and use of the card. Bank One, Columbus N.A. v. Palmer,
Moreover, whether or not the “contract” was attached to the complaint, and whether or not the Defendants had possession of the “contract” at the time the suit was filed, does not constitute a violation of the FDCPA. See Washington v. Roosen, Varchetti & Oliver, PPLC,
To the extent that Plaintiff alleges that the amount of the debt is incorrect, Plaintiff pleads no facts to support this conclusion. Therefore, the claim is insufficiently pled. Craig v. Vision Financial Corp., 1:12CV697,
C. Counts 2, 8 And 13 — OCSPA Claims
1. Plaintiff Fails To Plead Facts Independent Of Dismissed FDCPA Claims
As shown above, Plaintiff has failed to state a claim under the FDCPA. Plaintiffs OCSPA claims in Counts 2, 8 and 13 depend upon the same facts (or lack thereof pled to support Plaintiffs FDCPA claims. Because Plaintiff has failed to support his OCSPA claims with additional facts, these claims fail as a matter of law. Lewis v. ACB Business Services, Inc.,
2. Plaintiff Fails To Allege Elements Necessary For A Violation Of The OCSPA
To maintain an action under the OCSPA, Plaintiff must establish that he is a “consumer” who engaged in a “consumer transaction” with a “supplier”, as is required by R.C. § 1345.09. Culbreath v. Golding Ents., L.L.C.,
As recently noted by the Supreme Court of Ohio, “suppliers” under the OCSPA are those that cause a consumer transaction to happen or that seek to enter into a consumer transaction. Anderson v. Barclay’s Capital Real Estate, Inc., 136 Ohio St.3d
Further, Plaintiffs OCSPA claims fails because Plaintiff has failed to state a claim based on any unfair, deceptive or unconscionable practices by Defendants in connection with any “consumer transaction.” The Court has found that the NCO Defendants did not improperly use a fictitious name to attempt to collect the subject debt. Moreover, Ohio courts have expressly found that the failure to register a fictitious name with the secretary of state as required by R.C. § 1329.10 is not an unfair or deceptive act for which a party can obtain relief under the OCSPA. Crull v. Maple Park Body Shop,
3. Plaintiff Lacks Standing To Seek Injunctive Relief
Plaintiffs Counts 2, 8, and 13 fail for the additional reason that Plaintiff lacks standing to seek injunctive relief.
D. Counts 4, 6 And 10 — Common Law Claims For Civil Conspiracy And Defamation
Plaintiffs common law claims for civil conspiracy (Counts 4 and 10) and defamation (Count 6) must be dismissed for several reasons. Chief among them is that Plaintiffs vague and conclusory claims do not satisfy the pleading standard under Federal Rule of Civil Procedure 8.
In addition, a claim for civil conspiracy cannot survive without an underlying unlawful act. Gosden v. Louis,
Further, Plaintiffs allegations are devoid of any reference to factual events in support of a defamation claim, including that there was an unprivileged publication to a third party that amounted at least to negligence on the part of the publisher. Vaughn v. Lake Metropolitan Hous. Auth.,
E. Count 5 — Common Law Abuse Of Process Claim
To succeed on an abuse of process claim, a plaintiff must establish that: (1) a legal proceeding has been set in motion in proper form with probable cause; (2) the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A.,
Here, the complaint alleges the lawsuit was time-barred, without any accompanying facts. The Court has held that this allegation is inadequately pled as a matter of law.
Further, the complaint lacks any allegations that Defendants sought to achieve something that the court was powerless to order. The only alleged “ulterior purpose” could be that Defendants sought to collect money; however, the court had the power to assess an award. Havens-Tobias v. Eagle,
F. Count 9 — Common Law Fraud Claim
Plaintiff fails to plead his allegations of fraud with sufficient particularity to meet the requirements under Federal Rule of Civil Procedure 9(b).
G. Count 11 — Malicious Civil Prosecution Claim
Plaintiff cannot establish essential elements of a malicious prosecution claim. First, Plaintiff fails to show termination of the prior action in his favor. Crawford v. Euclid Natl. Bank,
IV. CONCLUSION
For all of the foregoing reasons, Plaintiffs complaint fails to state a plausible claim for relief. Defendants’ motions for judgment on the pleadings are granted.
IT IS SO ORDERED.
OPINION AND ORDER
Following the Court’s January 28, 2014 dismissal of his Complaint for failure to state a claim, Plaintiff Christopher Hrivnak concedes that his Complaint was not properly pled. Now, nearly four years after this action was removed to this Court, Plaintiff argues that he has not had a “reasonable opportunity” to plead his case. He moves the Court to alter or amend the dismissal and permit him leave to file an amended complaint. For the reasons that follow, Plaintiffs Motion is DENIED.
Plaintiff brings the present Motion to Alter or Amend Judgment under Rule 59(e) of the Federal Rules of Civil Procedure. Under Rule 59, a court may alter or amend judgment based on: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change of controlling law; or (4) a need to prevent manifest injustice. Leisure Caviar; LLC v. U.S. Fish & Wildlife Serv.,
As an initial matter, Plaintiffs request to amend the Complaint at this juncture is denied because Plaintiff has unduly delayed making this request. Since 2010, Plaintiff has had an abundance of opportunities to request leave to amend his Complaint. These include:
*905 1. in April of 2010, after the case was removed;
2. anytime after April of 2010, when a motion for judgment on the pleadings was filed, which was later stayed pending appeal;
3. during the September 23, 2013 status conference at which Defendants specifically requested and were granted leave to file motions for judgment on the pleadings (ECF #74);
4. after Defendants filed their motions for judgment on the pleadings (ECF # s 76, 80);
5. during the December 4, 2013 status conference; and
6. in Plaintiffs motion for leave to amend his Complaint to dismiss his Ohio Deceptive Trade Practices Act claim.
Instead of seeking to amend the Complaint at any of these opportunities since 2010, Plaintiff opposed Defendants’ motions for judgment on the pleadings, never requested leave to include the proposed amendments, and waited until after judgment was granted to make this request. Indeed, not only did Plaintiff fail to seek amendment at an earlier date, he vigorously asserted in response to Defendants’ motions for judgment on the pleadings that his Complaint was adequately pled. Now Plaintiff completely reverses his position, admits that his complaint was inadequately pled, and asks leave of this Court to amend. It is simply too late. Having had four years to make this request and instead choosing to stand by his deficient Complaint, Plaintiffs request to amend must be denied due to his undue delay.
Moreover, Plaintiff fails to demonstrate that this Court committed an error of law in failing to apply the “law of the case” doctrine and dismissing his Complaint. As this Court previously held, and as Defendants have argued on numerous occasions, the law of the case doctrine relied upon by Plaintiff is inapplicable because: (a) the state court did not address the sufficiency of the Complaint under the federal rules as interpreted by Iqbal, Twombly and their progeny; (b) the law of the case doctrine does not foreclose issues not previously addressed; and (c) the sufficiency of the pleading filed March 15, 2010 in state court, and removed to this Court, was never challenged in state court prior to removal.
Further, Plaintiff has not provided new evidence that would warrant permission to amend the Complaint. Rather, Plaintiffs failure to move to amend his Complaint amounts to a “delay resulting from a failure to incorporate previously [] available evidence ...which the Sixth Circuit has held warrants denial of a motion to amend. Leisure Caviar,
Plaintiff argues that leave to amend must be granted post-judgment due to “the changef ][in] procedural rules and pleading standards” which occurred when the case was removed from federal court. However, what Plaintiff fails to mention is that he was well aware that this case would be removed to federal court when he filed the March 15, 2010 Complaint, and that federal law would apply to these proceedings. In the Cuyahoga Court of Common Pleas, defendant Javitch, Block & Rathbone, LLC filed a Motion to Realign Parties, requesting the- court to designate Mr. Hrivnak as the Plaintiff and to require
Finally, there is no danger that “manifest injustice” will occur if Plaintiff is denied the opportunity to amend. First, as discussed, Plaintiff had an abundance of opportunities to amend before judgment was entered, but chose the alternate path of standing by his deficient Complaint. Second, Plaintiff has failed to provide any cogent identification of “critical facts” unavailable to Plaintiff prior to dismissal. Third, in claiming manifest injustice, Plaintiff misrepresents and confuses the caption of the state court complaint and Plaintiffs own prior arguments. Further, a side by side comparison of the proposed amended complaint with the dismissed Complaint shows that Plaintiff is seeking to: (a) re-litigate issues already decided, and (b) pursue a new theory of liability for the alleged failure to adhere to the requirements of R.C. § 1319.12, which is not premised on newly-acquired evidence, and was not previously advanced. A Rule 59(e) motion cannot be used to advance new theories, claims or arguments for the first time, or to reargue issues already advanced and rejected. Engler,
Even without considering whether Plaintiffs proposed amendment would be futile, the foregoing considerations compel the denial of Plaintiffs Motion. For all of these reasons. Plaintiffs Motion to Alter or Amend Judgment Filed on January 28, 2014 (ECF # 97) is DENIED.
IT IS SO ORDERED.
Notes
. The background procedural facts are set forth in the Court’s memorandum opinion dated July 19, 2010 (ECF #31),
. Plaintiff appears to claim that the documents attached to the complaint do not evidence a claim for $11,481.84. This fact, even if true, does not make the prayer for relief false. Plaintiff fails to identify the false component of the prayer for relief.
. The state court complaint stated, "The account records are not attached hereto because, upon information and belief: (a) Plaintiff is not the original creditor and does not have possession, custody or control of said records; (b) copies were sent monthly to Defendants), and are or were in Defendant(s)' possession, custody or control; and/or (c) said account records may be voluminous.”
. To support his claim that the state court plaintiff should have sued under a different
. Moreover, the least sophisticated consumer would not research the presence or absence of state registrations to find out if the entity he is dealing with has properly registered its name, and cannot pursue an FDCPA claim premised on the manufactured findings of such an investigation. Stricklin v. First Nat. Collection Bureau, Inc., No. 3:10-CV-01027,
. R.C. § 1329.10(B) provides, "No person doing business under a trade name or fictitious name shall commence or maintain an action in the trade name or fictitious name in any court in this state or on account of any contracts made or transactions had in the trade name or fictitious name until it has first complied with section 1329.01 of the Revised Code and, if the person is a partnership, it has complied with section 1777.02 of the Revised Code, but upon compliance, such an action may be commenced or maintained on any contracts and transactions entered into prior to compliance.” (Emphasis supplied.)
. In his opposition, Plaintiff contends that "NCO Portfolio Management” was not the "real party in interest” in the Bedford lawsuit because NCO Capital II, LLC was the owner of the assigned credit card account. Plaintiff's complaint fails to set forth any facts to support this assertion.
. It appears that, on appeal, Plaintiff represented that he was seeking injunctive relief alone under the OSCPA.
. Plaintiff fails to provide any opposition to Defendants' claim that Plaintiff lacks standing to seek injunctive relief.
. Plaintiff offers no response to Defendants' argument that Plaintiff failed to plead fraud with particularity.