United States of America v. Ridenour

Filing 17

OPINION AND ORDER re 5 MOTION to Dismiss is DENIED. Signed by Magistrate Judge Norah McCann King on 7/19/11. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.

Case. No. 2:11-CV-0151
Magistrate Judge King

ROBERT RIDENOUR,
Defendant.
OPINION and ORDER
The United States of America [“plaintiff”] alleges that Robert
Ridenour [“defendant”] is in default on a promissory note (“the
promissory note”) executed and delivered by defendant on June 26,
2001.

Complaint, Doc. No. 2, ¶ 3. Plaintiff seeks recovery of unpaid

principal and interest in the total amount of $100,867.31.

Attached

to the Complaint is a photocopy of the promissory note, Exhibit A, and
of a document denominated “Certificate of Indebtedness,”

Exhibit B.

In response, defendant, who is proceeding without the assistance of
counsel, filed an answer in which he expressly denies executing the
promissory note.

Answer, Doc. No. 6, pp. 1-2.

Defendant

characterizes the signature that appears on the promissory note
attached to the Complaint as a forgery.

Id., p. 2.

Defendant has

also attached to the Answer his affidavit, in which he avers that he
has “not signed any Promissory Note for a student loan for more than
twenty years.”

Affidavit,

¶ 7, Exhibit A attached to Answer.

Defendant’s affidavit also denies that he has authorized “anyone . . .
to sign [his] name on any loan agreement or Promissory Note for any

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purpose.”

Id., ¶8.

With the consent of the parties, see 28 U.S.C.

§636(c), this matter is now before the Court on defendant’s Motion to
Dismiss, Doc. No. 5.

Attached to the Motion to Dismiss is the same

affidavit attached to the Answer.
In response to defendant’s Motion to Dismiss, plaintiff has
submitted the Declaration of Delfin M. Reyes, a Loan Analyst for the
United States Department of Education, who avers that the agency’s
records indicate that the proceeds of the promissory note referred to
in the Complaint were used to pay off defendant’s defaulted Federal
Family Education Loan Program Consolidation loan in 2001.

Id., ¶¶ 20-

22, attached to United States of America’s Memorandum Contra
Defendant’s Motion to Dismiss, Doc. No. 8.

Plaintiff contends that

discovery is necessary to explore the circumstances surrounding the
execution of various loans taken out in defendant’s name, to determine
whether the disbursement of proceeds under the promissory note
benefitted defendant notwithstanding his defense of fraud and forgery,
and to generally explore the defenses set forth in the Answer.

Id. at

2.
Both parties have submitted evidentiary materials – attached to
both the pleadings and their filings in connection with the Motion to
Dismiss.

The Federal Rules of Civil Procedure provide that “if, on a

motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).1
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Because defendant also attached his affidavit to his Answer, the issue
arises whether that affidavit constitutes a “matter outside the pleading”
within the meaning of Fed. R. Civ. P. 10(c)("A copy of a written instrument
that is an exhibit to a pleading is a part of the pleading for all purposes”).

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Moreover, although all parties are entitled to “notice and reasonable
opportunity to respond to all the issues to be considered by the
court,” Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69
F.3d 98, 105 (6th Cir. 1995), where both parties submit evidentiary
materials fully addressing the issue for resolution, “they ha[ve]
sufficient notice that the district court could consider this outside
material when ruling on the issues presented. . . . Id., at 932.
Rule 56(a) of the Federal Rules of Civil Procedure provides that
a court must grant summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” However,“summary judgment will not
lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986).
Because, at this juncture, the record presents a material
question of fact regarding the authenticity of defendant’s purported
signature on the relevant promissory note, summary judgment is
unwarranted.

WHEREUPON defendant’s Motion to Dismiss, Doc. No. 5, is DENIED.

Whether an affidavit constitutes a “written instrument” for purposes of Rule
10(c) within the Sixth Circuit is not entirely clear. See Song v. City of
Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993)(parties’ affidavits attached
to complaint, which “did nothing more than verify the complaint,” were
properly considered on motion to dismiss). Nevertheless, because plaintiff has
submitted evidentiary material in its response to the Motion to Dismiss, which
material is clearly “outside the pleadings,” the Court need not resolve this
issue.

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S/ Norah McCann King
Norah McCann King
United States Magistrate Judge
July 19, 2011

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