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holding that "a plaintiff may not amend her complaint in a memorandum in opposition"
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CASE NO. 4:16CV0693
12-20-2018
JAMILA YASMINE BEY, etc. Plaintiff, v. JOHN REMONDI, et al., Defendants.
JUDGE BENITA Y. PEARSON MEMORANDUM OF OPINION AND ORDER
[Resolving ECF Nos. 17, 22, and 30]
Pending is Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 17). For the reasons set forth in Section III below, the motion is granted.
Also pending is Plaintiff's Motion for Leave to File [Second] Amended Complaint (ECF No. 22). Plaintiff attached the Proposed Second Amended Complaint (ECF No. 22-7) to the motion. For the reasons set forth in Section II below, the motion is denied.
Finally, pending is Plaintiff's Motion for Summary Judgment on Claims Under Fair Debt Collection Practices Act and All Ohio Consumer Protection Laws (ECF No. 30). For the reasons set forth in Section IV below, the motion is denied.
I.
Pro Se Plaintiff Jamila Yasmine Bey f/k/a Karla Denise Seldon claims to be a Moorish American National. See Affidavit of Financial Statement (ECF No. 2); First Amended Complaint (ECF No. 6) at PageID #: 259; Memorandum in Opposition (ECF No. 19) at PageID #: 355; Memorandum in Support (ECF No. 38) at PageID #: 651, 652; see alsoBey v. Meacham,No. 4:16CV0744, 2016 WL 1704358 (N.D. Ohio April 27, 2016) (Adams, J.) (dismissing with prejudice claims of civil conspiracy and estoppel by acquiescence predicated on Plaintiff's alleged status as a Moorish American National and requests for "verified evidence" of debts, also finding that an appeal could not be taken in good faith), appeal dism'd, No. 16-3489 (6th Cir. March 3, 2017); State v. Wyley, No. 102889, 2016 WL 1071430, at *3, ¶ 12 (Ohio App. 8th Dist. March 17, 2016) ("the United States does not recognize the Moorish Nation as a sovereign state" (citations omitted)). She filed the above-entitled action against Defendants John Remondi (CEO at Navient Solutions, Inc. ("Navient")) and Raymond Quinlan (Chairman and CEO of Sallie Mae), alleging various claims regarding her student loans written in a stream of consciousness fashion. The First Amended Complaint (ECF No. 6), which has a jury demand, sets forth claims for (1) default of estoppel by acquiescence; (2) fraud in the factum; (3) violations of the Ohio Corrupt Practices Act, Ohio Rev. Code § 2923.31, et seq. ("Ohio RICO Act") and the Racketeer Influenced and Corrupt Organizations Act ("RICO") chapter of the Organized Crime Control Act of 1970, 84 Stat. 941, as amended (specifically 18 U.S.C. § 1961(1)(B)-(E)); and (4) rescission. Plaintiff, however, does not explicitly lay out the causes of action she asserts, against which defendant she asserts them, and what each defendant did to support each purported cause of action. Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 17) for failure to comply with Fed. R. Civ. P. 8 and 10. In response, Plaintiff filed a Motion for Leave to File an 18-page Second Amended Complaint (ECF No. 22) that Defendants oppose. Plaintiff also filed a Motion for Summary Judgment (ECF No. 33) and discovery requests.
Courts have consistently recognized "'that . . . the Moorish American Nation . . . [is a] notorious organization[ ] of scofflaws and ne'er-do-wells who attempt to benefit from the protections of federal and state law while simultaneously proclaiming their independence from and total lack of responsibility under those same laws.'" Metaphyzic El-Ectromagnetic Supreme-El v. Dir., Dep't of Corr., No. 3:14CV52, 2015 WL 1138246, at *3 (E.D. Va. March 3, 2015) (alterations in original) (quoting Abdullah v. New Jersey, No. 12-4202 (RBK), 2012 WL 2916738, at *5 (D.N.J. July 16, 2012)).
Somsak Chivavibul (CFO for Navient) and Steven J. McGarry (Executive VP and CFO for Sallie Mae) were dropped as parties defendant in the First Amended Complaint (ECF No. 6).
Rule 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 10(b) requires the plaintiff to "state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set of circumstances."
Thereafter, the Court granted without opposition Defendants' Motion for Expedited Ruling Staying Proceedings Pending Ruling on Motion to Dismiss (ECF No. 33). Order (ECF No. 37). Further proceedings in the within cause, including discovery and additional motion practice, were stayed until the Court resolves (1) Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 17) and (2) Plaintiff's Motion for Leave to File a Second Amended Complaint (ECF No. 22).
II.
Plaintiff previously filed a Second Amended Complaint (ECF No. 20). It was stricken from the file pursuant to Fed. R. Civ. P. 12(f) because Plaintiff did not obtain leave of court or Defendants' written permission to file her amended pleading as required by Rule 15(a)(2). Order (ECF No. 21).
Plaintiff argues "[t]hree pivotal events have transpired since Plaintiff's Original complaint" that justify granting her leave to file the Proposed Second Amended Complaint (ECF No. 22-7): (1) "Plaintiff's original complaint was too long and wordy and needed to be more concise and clear and typos needed corrected for a better comprehension of the Complaint;" (2) the First Amended Complaint (ECF No. 6) failed to comply with Fed. R. Civ. P. 8 and 10; and, (3) "Plaintiff did not have adequate time to learn the rules of 'Leave' to come into compliance with rules 8 and 10 to refile an amended complaint after a defendant filed a motion to dismiss." ECF No. 22 at PageID #: 390-91. However, none of these "events" changed Plaintiff's ability to file a proper complaint in the first instance. Indeed, Plaintiff's repeated failure to cure deficiencies by her previous amendment supports denial of ECF No. 22. See, e.g., IDFA, L.L.C. v. Wilson, No. 07-11622, 2009 WL 10680511 (E.D.Mich. Nov. 18, 2009) (denying a motion for leave when plaintiffs failed to cure deficiencies in their complaint with a previous amendment). Plaintiff's assertion that she did not have adequate time to learn the applicable rules lacks merit because pro se litigants are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see alsoClapper v. Clark Dev., Inc., No. 14-3500, 2015 WL 13688415, at *3 (6th Cir. April 29, 2015) ("Pro se litigants must comply with the procedural rules that govern civil cases.").
The Proposed Second Amended Complaint (ECF No. 22-7), which also has a jury demand and requests rescission, sets forth claims for (1) default of estoppel by acquiescence (Count I); (2) fraud in the factum (Count II); (3) violations of the Ohio RICO Act and the RICO chapter of the Organized Crime Control Act of 1970, 84 Stat. 941, as amended (specifically 18 U.S.C. § 1961(1)(B)-(E)) (Count III); and, (4) defamation (Count IV). According to Defendants, similar to the First Amended Complaint (ECF No. 6), the Proposed Second Amended Complaint (ECF No. 22-7) "is so confusing and difficult to follow that it is nearly impossible for Defendants to ascertain exactly what Plaintiff is alleging or even the legal basis for her claims." ECF No. 26 at PageID #: 485.
A.
Leave to amend a complaint should be freely given when justice so requires after a responsive pleading has been filed. Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006). It is an abuse of discretion for the district court to deny a plaintiff leave to amend her complaint without any justifying reason. Foman, 371 U.S. at 182. A district court does not abuse its discretion if it denies a plaintiff permission to amend her complaint without reason when the plaintiff has already amended once and then subsequently fails to file a proper motion justifying another amendment. Pulte Homes, Inc. v. Laborers' Int'l Union of N. Am., 648 F.3d 295, 305 (6th Cir. 2011); see alsoBegala v. PNC Bank Ohio Nat'l Ass'n, 214 F.3d 776, 784 (6th Cir. 2000) (holding that "the [District] Court did not permit Plaintiffs to amend the complaint because they did not [properly] move to do so" and that was not an abuse of discretion).
Rule 15 permits amendment after 21 days after service "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). In that situation, the rule advises that courts "should freely give leave when justice so requires." Id. In determining whether to grant leave to amend, courts should consider "'[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.'" Coe v. Bell,161 F.3d 320, 341 (6th Cir. 1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). When a district court denies leave to amend as futile, "the basis for its denial of the motion is its purely legal conclusion that the proposed amendment 'could not withstand a Rule 12(b)(6) motion to dismiss.'" Williams v. City of Cleveland, 771 F.3d 945, 949 (6th Cir. 2014) (quoting Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010)).
Plaintiff correctly acknowledges leave to amend may be denied where "the deficiencies of the complaint could not be cured by amendment." ECF No. 22 at PageID #: 392 (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
The motion for leave to amend in the case at bar is problematic because allowing Plaintiff to file the proposed amended complaint would be futile. Moreover, the Proposed Second Amended Complaint (ECF No. 22-7) fails to correct the deficiencies from the First Amended Complaint (ECF No. 6), and ultimately fails to state a claim upon which relief can be granted or comply with the basic pleading requirements established in the Federal Rules of Civil Procedure. See, e.g., Hess v. City of Huber Heights, No. 3:13-cv-312, 2014 WL 3341346 (S.D. Ohio July 8, 2014) (denying pro se plaintiff's motion for leave to file an amended complaint as futile because the proposed amendment fails to cure legal and pleading deficiencies), report and recommendation approved, No. 3:13-cv-312, 2014 WL 3795563 (July 31, 2014).
B.
The Proposed Second Amended Complaint (ECF No. 22-7) still fails to comply with Fed. R. Civ. P. 8 and 10. The proposed amended complaint does not allege sufficient facts or provide any legal basis for her allegations that Defendants John Remondi and Raymond Quinlan, in their respective executive capacities, are somehow personally liable to her for any reason. Plaintiff does not assert that she had any interaction with either Defendant, and she fails to provide even a cursory recital of the facts necessary to support her claims.
Plaintiff contends that "[t]he proposed amended complaint does not . . . set forth any new claims, or raise any new legal theories." ECF No. 22 at PageID #: 391. On the contrary, Plaintiff seeks leave to add a new claim for defamation of character (Count IV). "Plaintiff alleges that the Defendants ruined the [Plaintiff's] credit report by placing negative statements and points at all three credit bureaus without court order or proof of the debt or alleged (sic)." ECF No. 22-7 at PageID #: 419, ¶ 78. In any event, this new theory of recovery fails to state a claim.
In order for a claim for defamation to survive a motion to dismiss, a plaintiff must demonstrate: "(1) a false and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the part of the defendant; and (5) that was either defamatory per se or caused special harm to the plaintiff." Davis v. Jacobs, 126 Ohio App.3d 580, 582 (1998) (quoting Gosden v. Louis, 116 Ohio App.3d 195, 206 (1996)). Plaintiff has not met this burden in the Proposed Second Amended Complaint (ECF No. 22-7) in several ways. Nowhere in the proposed amended complaint does Plaintiff assert that any alleged comments were in any way false or otherwise explain how the comments are defamatory. Indeed, Plaintiff does not even describe the content or substance of the alleged "negative statements." This claim fails as a matter of law under the proposed amended complaint's alleged facts. SeeSeminatore v. Dukes, No. 84032, 2004 WL 2756225, at *4-6, ¶¶ 24-35 (Ohio App. 8th Dist. Dec. 2, 2004) (granting defendants' motion to dismiss plaintiff's defamation claim where the plaintiff "cannot identify. . . the content of the statements").
Finally, Plaintiff incorrectly asserts that "Defendants will in no way be prejudiced if the changes are allowed at this point in the proceedings." ECF No. 22 at PageID #: 390. If Plaintiff were granted leave to file a Second Amended Complaint, Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 17) would be moot due to the filing of the amended pleading. SeeCalvert v. GNC Corp., No. 4:13CV1697 (N.D. Ohio Oct. 30, 2013) (Pearson, J.). ECF No. 17 would predate the Second Amended Complaint, which would supersede the First Amended Complaint (ECF No. 6) to which the motion is directed. SeeClark v. Johnston, 413 Fed.Appx. 804, 811 (6th Cir. 2011) (citing 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2010) (stating that "[a] pleading that has been amended under Rule 15(a) supersedes the pleading it modifies" and that "[o]nce an amended pleading is interposed, the original pleading no longer performs any function in the case")); see alsoDrake v. City of Detroit, Michigan, 266 Fed.Appx. 444, 448 (6th Cir. 2008) (stating that a prior "complaint is a nullity, because an amended complaint [supersedes] all prior complaints"). Therefore, Defendants would have to file another motion to dismiss to argue that the Second Amended Complaint is also deficient.
C.
Count II of the Proposed Second Amended Complaint (ECF No. 22-7) alleges fraud in the factum. Fed. R. Civ. P. 9(b) requires that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." United States v. Walgreen Company, 846 F.3d 879, 880-81 (2017); Thompson v. Bank of America, N.A., 773 F.3d 741, 751 (6th Cir. 2014). "In order to allege fraud with particularity, the plaintiffs, at a minimum, must allege the time, place, and content of the alleged misrepresentation on which [they] relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud." Heinrich v Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir. 2012) (internal quotation marks and citations omitted); see alsoBender v Southland Corp., 749 F.2d 1205, 1216 (6th Cir. 1984) (upholding dismissal of RICO claims where the complaint failed to plead fraud with particularity). In furtherance of this particularity requirement, a complaint must allege (1) the specific statements claimed to be false; (2) the time and place the statements were made; and, (3) which defendant made the false statements. Pollock v Kanter, 68 Ohio App.3d 673, 681-82 (1990). Count II fails to comply with Rule 9(b) because Plaintiff fails to plead even the most basic facts concerning her fraud claim.
D.
For the reasons set forth herein and those that have been articulated in the memorandum of the points and authorities on which Defendants rely in opposition to the motion (ECF No. 26), Plaintiffs' Motion for Leave to File [Second] Amended Complaint (ECF No. 22) is denied.
III.
Defendants move to dismiss the First Amended Complaint (ECF No. 6) due to Plaintiff's failure to comply with Fed. R. Civ. P. 8(a)(2) and 10(b). ECF No. 17. In response to Defendants' Motion, Plaintiff concedes the First Amended Complaint (ECF No. 6) does not meet minimum filing requirements, seeECF No. 22 at PageID #: 387, and filed a Motion for Leave to File [Second] Amended Complaint (ECF No. 22).
Defendants served Plaintiff with a copy of the Motion to Dismiss by regular U.S. Mail. SeeECF No. 17-1 at PageID # 346. As soon as Defense counsel received Plaintiff's fax request for an electronic copy of the Motion to Dismiss (ECF No. 17), an electronic copy of the motion was immediately provided by email to Plaintiff. ECF No. 23 at PageID #: 422 n. 3. Therefore, Plaintiff's argument that Defendants failed to serve a copy of the Motion to Dismiss, ECF No. 19 at PageID #: 353, is without merit.
A.
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must take all well-pleaded allegations in the complaint as true and construe those allegations in a light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). A cause of action fails to state a claim upon which relief may be granted when it lacks "plausibility in th[e] complaint." Twombly, 550 U.S. at 564. A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Iqbal , 556 U.S. at 677-78 (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff is not required to include detailed factual allegations, but must provide more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. It must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557 (brackets omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). The Court "need not accept as true a legal conclusion couched as a factual allegation or an unwarranted factual inference." Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012) (citations and internal quotation marks omitted). Pleadings filed by pro se litigants are liberally construed. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). However, this lenient treatment has limits, as "courts should not have to guess at the nature of the claim asserted." Wells, 891 F.2d at 594. Finally, a plaintiff may not amend her complaint in a memorandum in opposition. SeeCar Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) ("[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss" and "it may have been questionable for the district court to have relied on the plaintiffs' briefs to embellish the conclusory allegations of the complaint.").
B.
Plaintiff does not precisely lay out the causes of action she asserts, against which Defendants she asserts them, and what each defendant did to support each purported cause of action. In Count I of the First Amended Complaint (ECF No. 6) (Default of Estoppel by Acquiescence), Plaintiff appears to allege that Defendants John Remondi (CEO at Navient) and Raymond Quinlan (Chairman and CEO of Sallie Mae) are liable because she requested certain information by serving an "Affidavit of Fact Notice of Default Judgement," but Defendants did not answer, which Plaintiff interprets to constitute fraud. ECF No. 6 at PageID #: 244-48; ECF No. 19 at PageID #: 353. It is unclear what duty to provide information Plaintiff believes either Defendant, both individually named corporate officers, owed to her (because there is none), or what misconduct either Defendant allegedly personally committed to give rise to liability. Plaintiff does not allege that she had any conversations or interactions with either Defendant, and she does not explain how either Defendant is personally liable to her for "default of estoppel by acquiescence." See, e.g., Rizzo v. Goode, 423 U.S. 362, 371 (1976) (liability cannot be established absent a clear showing that the defendants were personally involved in the activity forming the basis of the alleged unconstitutional behavior).
Plaintiff, however, submits a document demonstrating that Navient did respond to her "affidavits." See Letter dated October 1, 2015 from Navient to Plaintiff (ECF No. 1-6 at PageID #: 79).
C.
Count II (Fraud in the Factum) seems to basically allege the same conduct as in Count I, i.e. that Defendants failed to respond to her requests for information. ECF No. 6 at PageID #: 248-55. But, Plaintiff fails to allege exactly what conduct Defendants committed. Plaintiff must prove: (1) a representation or, where there is a duty to disclose, concealment of a fact; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) a resulting injury proximately caused by the reliance. Ford v. New Century Mortg. Corp., 797 F. Supp.2d 862, 873 (N.D. Ohio 2011). Plaintiff fails to plead even the most basic facts concerning her fraud claim, such as any specific representations made by either Defendant. Johnson v. J.B. Hunt Transport, Inc., No. 3:09CV1352, 2009 WL 4282941, at *4 (N.D. Ohio Nov. 30, 2009) (Carr, C.J.) (granting defendant's motion to dismiss in part for failure to plead the elements of fraud with particularity). Plaintiff's self-serving and unsupported factual allegations in her Memorandum in Opposition (ECF No. 19) are insufficient to cure the deficiencies of her First Amended Complaint (ECF No. 6) (and her Proposed Second Amended Complaint (ECF No. 22-7)). SeeTretola v. Tretola, No. 2:13-cv-358, 2013 WL 3147958, at *2 n. 1 (S.D. Ohio June 19, 2013) (finding the court cannot consider the allegations set forth in a memorandum in opposition to motions to dismiss as informing the motions to dismiss).
In Count II, Plaintiff also references "unjust enrichment," statements "clearly made to cover up the fraud," and "Affidavit of Facts-Notice of Default Judgement(s)." ECF No. 6 at PageID #: 250, ¶ 8; 251, ¶ 8; 250, ¶ 7. However, Plaintiff does not provide factual support for any of these claims.
D.
In Count IV (violations of the Ohio RICO Act and the RICO chapter of the Organized Crime Control Act of 1970, 84 Stat. 941, as amended (specifically 18 U.S.C. § 1961(1)(B)-(E)), Plaintiff seems to allege fraud, mail fraud, and conspiracy to commit a fraud. ECF No. 6 at PageID #: 255-58. In order to state an Ohio RICO Act violation, the following elements must be pled: "(1) that conduct of the defendant involves the commission of two or more specifically prohibited state or federal criminal offenses, (2) that the prohibited criminal conduct of the defendant constitutes a pattern of corrupt activity, and (3) that the defendant has participated in the affairs of an enterprise or has acquired and maintained an interest in or control of an enterprise." Canterbury v. Columbia Gas of Ohio, No. C2-99-1212, 2001 WL 1681132, at *11 (S.D. Ohio Sept. 25, 2001). Importantly, all of these elements must be pled with specificity. Id.
The First Amended Complaint (ECF No. 6) does not have a Count III.
In general, the Ohio RICO Act prohibits the collection of "unlawful debt" and engaging in patterns of "corrupt activity." SeeOhio Rev. Code § 2923.31, et seq. For a debt to be unlawful under the Act, the debt must be "legally unenforceable in [Ohio] in whole or in part because the debt was incurred or contracted in violation of any federal or state law relating to the business of gambling activity or related to the business of lending money at an usurious rate." Ohio Rev. Code § 2923.31(L). The First Amended Complaint (ECF No. 6) fails to allege how Defendants engaged in a pattern of corrupt practices, conduct that is limited to criminal and other offenses as defined by the Ohio Revised Code. SeeOhio Rev. Code § 2923.31(I).
To the extent Plaintiff alleges in Count IV that Defendants failed to provide information or committed fraud, her claim fails to comply with the basic pleading requirements as outlined above. To the extent Count IV is based on Plaintiff's claims that Defendants committed "verbal and written threats" or other "phone harassment," ECF No. 6 at PageID #: 257, Plaintiff again fails to identify what verbal or written threats each Defendant allegedly made, and when. Count IV of the First Amended Complaint (ECF No. 6) fails to state a claim for relief that is plausible on its face and is dismissed as a matter of law.
E.
Count VI requests rescission and seeks a declaratory judgment that her loans and all accompanying loan documents are invalid. ECF No. 6 at PageID #: 258-59. Indeed, Count VI appears to contain as many as ten additional counts within Paragraphs 19 and 20. The Court will not attempt to articulate claims for rescission for Plaintiff nor will the Court parse through the record searching for facts to support the claims. SeeLidoChem, Inc. v. Stoller Enterprises, Inc., 500 Fed.Appx. 373, 388 (6th Cir. 2012) (stating that courts need not engage in a self-directed inquiry of facts).
The First Amended Complaint (ECF No. 6) also does not have a Count V.
F.
For the reasons set forth herein and those that have been articulated in the memoranda of the points and authorities on which Defendants rely in support of the motion (ECF Nos. 17-1 and 23), Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 17) is granted because Plaintiff fails to (1) comply with the applicable pleading requirements and (2) state a claim upon which relief can be granted.
IV.
Plaintiff seeks summary judgment on her claims under the Fair Debt Collection Practices Act and all Ohio Consumer Protection Laws. Initially, it is to be noted that neither the First Amended Complaint (ECF No. 6) nor the Proposed Second Amended Complaint (ECF No. 22-7) sets forth claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. In addition, Plaintiff does not identify what she means by "all Ohio Consumer Protection Laws." Filing a motion for summary judgment in response to a motion to dismiss is also inappropriate. SeeWilliams v. Kentucky Bd. of Med. Licensure, No. 3:07CV-486-R, 2008 WL 4329925, at *1 (W.D. Ky. Sept. 12, 2008) (denying pro se plaintiff's motions for summary judgment because "Plaintiff's motions are more in the nature of responses to Defendants' motions to dismiss").
V.
Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 17) is granted.
Plaintiffs' Motion for Leave to File [Second] Amended Complaint (ECF No. 22) is denied.
Plaintiff's Motion for Summary Judgment on Claims Under Fair Debt Collection Practices Act and All Ohio Consumer Protection Laws (ECF No. 30) is denied.
IT IS SO ORDERED. December 20, 2018
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge