Bradley et al v. Miller et al

Filing 147

ORDER RESOLVING VARIOUS PENDING MOTIONS - The Magistrate Judges Report and Recommendations (Doc. 103 ) is ADOPTED IN PART and NOT ADOPTED IN PART. Specifically, James W. Powells motion to dismiss (Doc. 93 ) is DENIED in its entirety; Plaintiffs 9; motion for leave to file a supplemental memorandum (Doc. 112 ) is DENIED as MOOT; Defendant James W. Powell's motion to strike (Doc. 117 ) is DENIED as MOOT; Defendant James D. Powell's motion for an extension of time and motion to pro perly serve exhibits (Doc. 120 ) is DENIED as MOOT; Defendant Deanna Powell's motion in support of opposition (Doc. 122 ) is DENIED as MOOT; Plaintiffs' objection to the Magistrate Judges Amended Order (Doc. 132 ) is GRANTED; Plaintiffs shall file a motion for entry of default against Defendants Capital Investments, Great Miami Debentures, Great Miami Real Estate, LLC, and Chatsworth Jacobs within 14 days of the date of this Order; and Defendants shall file memoranda in opposition to the pending motion for partial summary judgment (Doc. 111 ) within 21 days of the date of this Order. Signed by Judge Timothy S. Black on 5/30/2013. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DIANA BRADLEY, et al.,
Plaintiffs,
vs.
KEVIN MILLER, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

Case No. 1:10-cv-760
Judge Timothy S. Black
Magistrate Judge Stephanie K. Bowman

ORDER RESOLVING VARIOUS PENDING MOTIONS
This civil action is pending before the Court on: (1) Defendant James W. Powell’s
motion to dismiss (Doc. 93) and the parties’ responsive memoranda (Docs. 97, 98);
(2) the Magistrate Judge’s Report and Recommendations (Doc. 103) and the parties’
objections thereto (Docs. 108, 116, 122); (3) Plaintiffs’ motion for leave to file a
supplemental memorandum (Doc. 112) and the parties’ responsive memoranda
(Docs. 115, 122); (4) Defendant James W. Powell’s motion to strike the affidavit attached
to Plaintiffs’ motion for leave (Doc. 117) and Plaintiffs’ responsive memorandum
(Doc. 143); (5) Defendant James D. Powell’s motion for an extension of time (Doc. 120)
and the parties’ responsive memoranda (Docs. 123, 134, 138); and (6) Plaintiffs’
objection to the Magistrate Judge’s Amended Order (Doc. 139).

I.

FACTUAL BACKGROUND

Plaintiffs Diana and James Bradley 1 and Cora May Pyles 2,were allegedly the
victims of a real estate/securities Ponzi scheme. Mr. and Mrs. Bradley allegedly lost
approximately $134,354.46 and Mrs. Pyles lost approximately $50,000. Plaintiffs filed
this lawsuit in an effort to recover those losses. Defendants who allegedly perpetrated the
fraud include Kevin Miller, James D. Powell, 3 Capital Investments, Great Miami
Debentures, Great Miami Real Estate, LLC, James W. Powell, Curtis Powell, Deanna
Powell, Hubert Rials, and Chatsworth Jacobs. This Court incorporates herein the facts as
explained in detail by the Magistrate Judge. (See Doc. 103).
II.

ANALYSIS

A. Motion to Dismiss
The Magistrate Judge recommended that the motion to dismiss (Doc. 93) be
granted in part as to counts eleven and twelve, but denied as to counts six and seven.
Additionally, the Magistrate Judge recommended that Plaintiffs’ claims against

Mr. Bradley is deceased. (Doc. 125). There is currently a pending motion to substitute Diana
Bradley, his wife, as the fiduciary for Mr. Bradley. (Doc. 126).
1

Mrs. Pyles is approximately 85 years old. Mrs. Pyles is the mother of Diana Bradley and Carol
Biehle. On or about July 22, 1998, Mrs. Pyles formed a revocable living trust. Some or all of
the money she lost to the fraudulent scheme was from the trust. Mrs. Bradley and Mrs. Biehle
are trustees of the trust. Mrs. Pyles has granted power of attorney to Mrs. Bradley and Mrs.
Biehle. Accordingly, Mrs. Biehle is also a Plaintiff in this action.
2

James D. Powell held himself out as the president and owner of Defendants Capital
Investments (“CI”), Great Miami Debentures (“GMD”), and Great Miami Real Estate, LLC
(“GMRE”). He is currently serving a 121 month sentence for conspiracy to commit mail fraud
and wire fraud. (See United States v. Powell, 1:10cr75 at Doc. 17).
3

2

Defendants Chatsworth Jacobs, Capital Investments, Great Miami Debentures, and Great
Miami Real Estate, LLC be dismissed for failure to prosecute.
1. Counts eleven (fraudulent transfer) and twelve (conspiracy)
Counts eleven and twelve allege that the Defendants (collectively) engaged in
conduct that amounts to a fraudulent transfer under Ohio’s Uniform Fraudulent Transfer
Act (“UFTA”), as well as a violation of Ohio’s civil conspiracy law concerning that Act.
(Doc. 46 at ¶¶ 231, 233). These Counts are based upon the transfer of the Midwest
Trailer Park property.
Ohio’s Uniform Fraudulent Transfer Act was enacted to “create a right of action
for a creditor to set aside an allegedly fraudulent transfer of assets.” Esteco, Inc. v.
Kimpel, No. 07-co-3, 2007 Ohio App. LEXIS 6323, at *4 (Ohio Ct. App. Dec. 20, 2007).
Defendant James W. Powell argues that Plaintiffs’ UFTA claims are barred by the
applicable four-year statute of limitations. Specifically, the deed that reflects the transfer
of the Midwest Trailer Park back to him and/or Curtis Powell was publicly recorded on
August 20, 2007, but the amended complaint naming him was not filed until May 17,
2012 (more than four years later). Plaintiffs do not dispute these dates, but argue that a
one-year discovery savings clause should be applied. Plaintiffs maintain that they did not
learn that the Midwest Trailer Park had been transferred to James W. Powell until
“January or February of 2012, when they discovered the transfer on the Butler County
Recorder’s website.” (Doc. 97 at 16 citing Doc. 46 at ¶ 176).

3

There is a one-year discovery rule for fraudulent transfer claims. Ohio Rev. Code
§ 1336.09(A). Ohio’s UFTA specifically contemplates “constructive discovery” by
permitting actions brought outside the four-year period only if they are brought “within
one year after the transfer…was or reasonably could have been discovered.” In re
Spitaleri, No. 05-94988, 2006 Bankr. LEXIS 4155, at *2 (N.D. Ohio May 9, 2006). See
also Adcor Indus., Inc. v. Bevcorp, LLC, 411 F. Supp. 2d 778, 785-86 (N.D. Ohio 2005)
(stating that the Ohio discovery rule imposes a duty to inquire and that a party is charged
with the knowledge he would have acquired with reasonable inquiry). 4 In determining
whether a party should have discovered wrongful conduct, the relevant inquiry is whether
the facts known “would lead a fair and prudent man, using ordinary care and
thoughtfulness, to make further inquiry.” Hambleton v. R.G. Barry Corp., 465 N.E.2d
1298, 1300-01 (Ohio 1984). If the party has such knowledge and fails to make an inquiry
“he is chargeable with knowledge which by ordinary diligence he would have acquired.”
Id. at 1301.
In sum, because the deed to the trailer park was filed on August 20, 2007, the
relevant question is whether, prior to August 20, 2011, Plaintiffs discovered, or by the
exercise of reasonable diligence, should have discovered that Defendants fraudulently
transferred the Midwest Trailer Park property. Based on the relevant evidence articulated

See also Jones v. TransOhio Savs. Ass’n, 747 F.2d 1037, 1039 (6th Cir. 1984) (“Repeatedly
throughout our judicial history, the Supreme Court has approved the application of equitable
tolling to statutes of limitations to prevent unjust results.”).
4

4

in detail below, this Court concludes that Plaintiffs, three ordinary citizens, did employ
reasonable diligence to uncover such alleged fraudulent transfer. 5
This lawsuit was filed on October 29, 2010. (Doc. 1). Based on the 120 day limit,
Plaintiffs had until March 8, 2011 to complete service. Fed. R. Civ. P. 4(m). At the time,
Defendant James D. Powell was in the middle of his criminal proceedings, sentencing,
and restitution hearings. While James D. Powell was sentenced for the acts that gave rise
to this lawsuit on September 28, 2010, the restitution hearing was not held until
December 7, 2010, and he was not incarcerated until January 2, 2011. United States v.
Powell, 1:10cr75 (S.D. Ohio) (Doc. 22). Service upon the Defendants was perfected by
March 28, 2011. (Doc. 12). On May 19, 2011, Plaintiffs issued subpoenas to several
banks to investigate possible claims. (Doc. 108, Ex. 20 at ¶ 7). In June 2011, the banks
responded to the subpoenas. (Id. at ¶ 9). On July 27, 2011, Plaintiffs issued three more
subpoenas. (Docs. 17, 18, 19). 6 On October 11, 2011, Plaintiffs issued another subpoena
asking for additional financial records. (Doc. 108 at 4). Shortly thereafter, on October
21, 2011, Plaintiffs issued subpoenas to eight additional financial institutions requesting

Defendant argues that Plaintiffs’ 2012 discovery of the 2007 transfer of the Midwest Trailer
Park cannot be viewed as “reasonable.” The Magistrate Judge points out that “very little
transpired” after Plaintiffs first filed suit in October 2010. (Doc. 21). Ultimately, the Magistrate
Judge agreed with Defendant James W. Powell that “Plaintiffs should not be permitted to sleep
on their rights for some 17 months, then invoke the discovery rule to saddle defendants with the
costs of defending otherwise stale claims.” (Doc. 98 at 9). Specifically, the Magistrate Judge
found that Plaintiffs “offered no evidence that they undertook [a] timely or reasonable inquiry
concerning the 2007 transfer.” (Doc. 103, 23). In response to the Magistrate Judge’s Report and
Recommendations, Plaintiffs submitted compelling evidence to the contrary.
5

Plaintiffs first attempted service on Defendants James D. Powell, CI, GMD, and GMRE on
January 19, 2011. (Doc. 22 at 3). Plaintiffs attempted service again on March 25, 2011. (Id.)
Although Defendants were properly served, they simply did not answer.
6

5

additional documents related to six potential new defendants. (Id. at 4). On October 31,
2011, Plaintiffs issued yet another subpoena asking for additional financial documents.
(Doc. 26).
At this point in the litigation, a Rule 26(f) report had yet to be filed because all
parties had yet to answer. A scheduling order was finally docketed on January 5, 2012.
(Doc. 35). In February and March 2012, based on the review of financial documents
from sixteen subpoenas, Plaintiffs sent letters to seven potential defendants who appeared
to have financial involvement in James D. Powell’s fraudulent conduct. (Doc. 108, Ex.
20 at ¶¶ 13-14). Plaintiffs’ counsel then engaged in significant communication with the
potential defendants’ lawyers. (Doc. 108 at 5). On March 23, 2012, while discussions
were ongoing, Plaintiffs sent a subpoena to Bayview Loan Servicing requesting financial
documents related to the Midwest Trailer Park. (Id., Ex. 20 at ¶ 15). On April 3, 2012,
Plaintiffs learned that the Midwest Trailer park had an appraised value of $1,050,000.
(Id. at ¶ 17). Based on the information acquired on April 3, 2012, Plaintiffs finally had
sufficient information to bring a fraudulent transfer claim against James W. Powell and
Curtis Powell related to the Midwest Trailer Park. (Id. at ¶ 20). The first amended
complaint and jury demand with the fraudulent transfer claim was filed shortly thereafter
on May 17, 2012. (Id. at ¶ 21).
Given the facts, specifically Defendant James D. Powell’s lengthy criminal
proceedings, the failure of multiple Defendants to answer, sixteen third party subpoenas,

6

and the review of significant financial documents, the Court finds that Plaintiffs were
diligent in their prosecution and investigation. 7
Accordingly, the Court declines to adopt the Report and Recommendations
dismissing the claims for fraudulent transfer and conspiracy. This Court finds that
Plaintiffs have submitted sufficient facts to show that the savings clause may apply.
Unlike the Magistrate Judge, this Court finds that significant discovery did transpire after
Plaintiffs filed suit in October 2010. The fact that Plaintiffs did not serve a subpoena on
Silver Hill concerning the Midwest Trailer Park until March of 2012 appears reasonable
given the amount of third party financial discovery. Still, disputed issues of fact remain
concerning whether Plaintiffs knew or should have discovered the allegedly fraudulent
nature of the transfer on an earlier date, and whether the savings clause applies is an issue
of fact to be determined by the jury. See, e.g., United States v. Green, No. 100-cv-637
(S.D. Ohio June 15, 2007). 8
2. Counts six (Ohio RICO violation) and seven (conspiracy to violate
Ohio RICO)
Count six alleges a violation of Ohio’s Pattern of Corrupt Activity Act, which is
analogous to the federal RICO Act. In order to prevail under Ohio Rev. Code § 2923.31,
et seq., a plaintiff must establish: “(1) that the 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
7

The fact that Plaintiffs are represented by a solo practitioner is also relevant to this analysis.

When a statute of limitations accrues is a factual question for the jury to decide, and courts,
like this one, are hesitant to dismiss a case on such grounds. Adcor Indus, 411 F. Supp. at 786.

8

7

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 that exists separate and
apart from the defendant.” Hall v. CFIC Home Mtg., 888 N.E.2d 469, 477 (Ohio Ct.
App. 2008).
In his motion to dismiss, Defendant James W. Powell argues that Plaintiffs have
failed to adequately allege the first two elements – that he engaged in “two or more”
criminal offenses sufficient to constitute “predicate acts,” or that he engaged in a
“pattern” of corrupt activity sufficient to state a claim under Ohio’s RICO law. For the
reasons stated in the Report and Recommendations, the Court finds that Plaintiffs have
adequately pled that Defendant James W. Powell engaged in “two or more” “predicate
offenses” and engaged in a “pattern” of corrupt activity. (See Doc. 103 at 12-19).
Count seven alleges a claim of conspiracy to violate Ohio’s RICO law. Ohio Rev.
Code §§ 2923.31(l), 2923.34(A). Because it is broader than the federal RICO statute,
Ohio imposes a type of “strict liability” on persons who are guilty of participating in,
“directly or indirectly,” “two or more incidents of corrupt activity…that are related to the
affairs of the same enterprise.” State v. Siferd, 783 N.E.2d 591, 603 (Ohio Ct. App.
2002). Based on the concept of “strict liability” Plaintiffs are not required to prove that
James W. Powell himself committed two or more predicate acts in order to prove the
conspiracy offense alleged in count seven. Plaintiffs need only show that he cooperated
in a “common plan.” Nat’l Century Fin. Enter., Inc. v. J.P. Morgan Chase Bank, 604 F.
Supp.2d 1128, 1157 (S.D. Ohio 2009). As fully explained in the Report and
Recommendations (Doc. 103 at 19-20), Plaintiffs’ allegations “sufficiently alleged that
8

some members of the enterprise engaged in the predicate offense of ‘Tampering with
Records’ in violation of Ohio law.”
Accordingly, the Court adopts the Report and Recommendations with respect to
counts six and seven.
3. Failure to prosecute
“[D]ismissal for failure to prosecute is a harsh sanction which the court should
order only in extreme situations.” Wu v. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005).
A district court should not dismiss for failure to prosecute unless there is a “clear record
of contumacious conduct by the plaintiff.” Id. While this Court certainly recognizes the
age of this case, it also acknowledges the completion of significant third party discovery.
Ultimately, in considering the requisite factors to dismiss for failure to prosecute, the
Court finds that Plaintiffs were not given adequate warning of dismissal as required. See,
e.g., Wu, 420 F.3d at 644. Moreover, this Court seeks to decide cases on the merits and
not procedural defaults. See Foman v. Davis, 371 U.S. 178 (1962). However, Plaintiffs
have now been sufficiently warned, and this Court will not permit further delays.
Plaintiffs shall file for entry of default against Defendants CI, GMD, GMRE, and
Chatsworth Jacobs within 14 days of the date of this Order. Failure to do so will result in
dismissal of the parties for failure to prosecute and failure to comply with a Court

9

Order. 9
B. Objection to Amended Order
On May 6, 2013, while Plaintiffs’ objections to the Report and Recommendations
were pending, the parties and the Magistrate Judge engaged in a totally unrelated
discovery conference. (Docs. 118, 129). On May 8, 2013, when the Magistrate Judge
issued an Order on the disputed discovery issues, she circled back to the March 28, 2013
Report and Recommendation, recommending that, in addition to the parties already
recommended for dismissal, James D. Powell should also be dismissed because Plaintiffs
had not served him with a copy of the first amended complaint and jury demand. (Doc.
132 at 1).
Plaintiffs perfected service on James D. Powell pursuant to Fed. R. Civ. P. 4, after
having the Monongalia County Sheriff served him with a summons and complaint at the
Morgantown Federal Correctional Institution. (Doc. 7). Once Defendant was served
with the summons and complaint, the rules of service change from Rule 4 to Rule 5. The
amended complaint was a “pleading filed after the original complaint.” Fed. R. Civ. P.
9

After filing objections to the Magistrate Judge’s Report and Recommendations (Doc. 108),
Plaintiffs subsequently filed a motion for leave to file a supplemental memorandum with
additional objections/facts. (Doc. 112). Given that this Court hereby denies dismissal of the four
Defendants based on the original objections (Doc. 108), Plaintiffs’ motion is DENIED as
MOOT. Accordingly, Defendant James W. Powell’s motion to strike (Doc. 115) is DENIED as
MOOT and Defendant Deanna Powell’s motion in support of opposition (Doc. 122) is DENIED
as MOOT. Defendants’ motions to strike only reference the Diana Bradley affidavit that was
filed as an attachment to the motion for leave to file a supplemental memorandum. (See Doc.
117 at 1 referencing Doc. 112). Accordingly, the Court presumes that counsel does not object to
the affidavit filed in support of Plaintiffs’ objections to the Report and Recommendation. Even
if Defendants intended to file a motion to strike the first affidavit (See Doc. 108, Ex. 20), the
Court would deny the motions and simply convert the motion to dismiss to one for summary
judgment. Fed. R. Civ. P. 12(d). See also Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.
1989).
10

5(a). Rule 5 states that service of a pleading after the original complaint may be
completed by “mailing it to the person’s last known address – in which event service is
complete on mailing.” Fed. R. Civ. P. 5(b)(2)(C).
Therefore, the issue is whether Plaintiffs served James D. Powell at his “last
known address.” Fed. R. Civ. P. 5(b)(2)(C). At the time Plaintiffs filed their amended
complaint, James D. Powell had moved from the Morgantown FCI to the Elkton FCI in
Lisbon, Ohio. (Doc. 40). By reviewing the Certificate of Service on Plaintiffs’
complaint, the Court confirms that Plaintiffs served the amended complaint at the Elkton
FCI in Lisbon, Ohio. (Doc. 46 at 32). When they served the amended complaint,
Plaintiffs also included a cover letter with the same Lisbon address. (Doc. 108, Ex. 4,
Appendix D at 11).
Accordingly, pursuant to Rule 5, Plaintiffs’ service of the amended complaint was
“complete upon mailing.” Fed. R. Civ. P. 5(b)(2)(C). Moreover, Defendant James D.
Powell has “participated extensively in the litigation” and therefore “forfeited his
defense” to any alleged defective service. King v. Taylor, 694 F.3d 650, 658-59 (6th Cir.
2012). (See also Docs. 41, 42, 43).
III.

CONCLUSION

As required by 29 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court does
determine that:

11

1. The Magistrate Judge’s Report and Recommendations (Doc. 103) is
ADOPTED IN PART and NOT ADOPTED IN PART. Specifically, James
W. Powell’s motion to dismiss (Doc. 93) is DENIED in its entirety;
2. Plaintiffs’ motion for leave to file a supplemental memorandum (Doc. 112) is
DENIED as MOOT;
3. Defendant James W. Powell’s motion to strike (Doc. 117) is DENIED as
MOOT;
4. Defendant James D. Powell’s motion for an extension of time and motion to
properly serve exhibits 10 (Doc. 120) is DENIED as MOOT;
5. Defendant Deanna Powell’s motion in support of opposition (Doc. 122) is
DENIED as MOOT;
6. Plaintiffs’ objection to the Magistrate Judge’s Amended Order (Doc. 132) is
GRANTED;
7. Plaintiffs shall file a motion for entry of default against Defendants Capital
Investments, Great Miami Debentures, Great Miami Real Estate, LLC, and
Chatsworth Jacobs within 14 days of the date of this Order 11; and
8. Defendants shall file memoranda in opposition to the pending motion for
partial summary judgment (Doc. 111) within 21 days of the date of this Order.
IT IS SO ORDERED.
Date: 5/30/13

s/ Timothy S. Black
Timothy S. Black
United States District Judge

Defendant James D. Powell’s motion to properly serve exhibits is DENIED as MOOT given
Plaintiffs’ subsequent service of the exhibits. (Doc. 138).
10

This Court acknowledges Plaintiffs’ argument for holding a motion for default judgment (on
damages) in abeyance pending the conclusion of discovery. Nonetheless, Plaintiffs must still file
a motion for entry of default within 14 days. The discovery deadline is June 14, 2013, by which
time Plaintiffs should have gathered all information necessary to file a motion for default
judgment (as to damages). Therefore, Plaintiff’s motion for default judgment (damages) shall be
filed on or before July 8, 2013.
11

12