Allen v. Nationwide Mutual Insurance Company et al
ORDER denying 33 Plaintiff's Motion for Leave to File First Amended Complaint; denying 36 Plaintiff's Motion for Default Judgment; granting 23 Defendant's Motion for Judgment on the Pleadings. Signed by Judge George C. Smith on 4/13/18. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
JOHN DALE ALLEN,
Case No. 2:17-cv-561
JUDGE GEORGE C. SMITH
Magistrate Judge Deavers
NATIONWIDE MUTUAL INSURANCE
COMPANY, et al.,
OPINION AND ORDER
This matter is before the Court upon Defendants Nationwide Mutual Insurance
Company’s (“Nationwide”) and JPMorgan Chase & Co.’s (“Chase”) Motion for Judgment on the
Pleadings (Doc. 23). Plaintiff John Dale Allen has not filed a direct opposition to the Motion,
but filed a one-page Motion to Strike Defendants’ Motion (Doc. 25) and has sought leave to
amend his Complaint (Doc. 33). For the following reasons, Defendants’ Motion for Judgment
on the Pleadings is GRANTED and Allen’s Motion for Leave to File First Amended Complaint
In December 2016, Allen, a citizen of Ohio, filed pro se a purported nationwide class
action in this Court against Nationwide and Chase. In his 2016 Complaint, Plaintiff claimed that
Defendants violated the Stored Communication Act when Nationwide allegedly issued a “bad
check” that was subsequently refused by Chase. Allen v. Nationwide Mut. Ins., No. 2:16-cv1178, 2017 WL 1929970 (S.D. Ohio Jan. 10, 2017). On May 9, 2017, this Court dismissed that
case for failure to state a claim on which relief may be granted. Allen v. Nationwide Mut. Ins.,
No. 2:16-cv-1178, 2017 WL 1881456 (S.D. Ohio May 9, 2017).
Following the Court’s ruling, Plaintiff filed the instant case in state court, again pro se,
alleging an identical set of facts and purporting to bring another nationwide class action against
Defendants. (Doc. 9). Plaintiff now claims that Defendants are liable for fraudulent conversion,
unjust enrichment, breach of contract, and breach of fiduciary duty arising from a one-day delay
in cashing Plaintiff’s insurance check, during which time Chase allegedly benefited from the
overnight federal funds rate to accrue interest on Nationwide’s check. (Id. at 3–4).
On June 27, 2017, Defendants removed this matter to federal court pursuant to the
provisions of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. §§ 1332(d) and 1453.
(Doc. 1.) Allen attempted to amend his Complaint to restrict the purported class to Ohio
residents and sought remand on the basis of the “home state controversy” exception to CAFA,
but never properly filed the amended complaint with this Court. On November 2, 2017, this
Court denied Allen’s motion for remand because, even if Allen had properly amended his
complaint, federal subject matter jurisdiction existed at the time of removal. (Doc. 28).
Defendants have both filed Answers to Allen’s original Complaint (Docs. 17–18) and
now move for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). (Doc.
23). Allen also seeks leave to amend his original Complaint in order to restrict the purported
class to Ohio residents.
The proposed Amended Complaint is otherwise
substantively unchanged from the original.
Having apparently mistakenly believed that
Defendants became obligated to respond to Allen’s proposed Amended Complaint when he filed
his motion for leave, Allen also now moves for default judgment against Defendants. (Doc. 36).
STANDARD FOR JUDGMENT ON THE PLEADINGS
Defendants bring this motion pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to
delay trial—a party may move for judgment on the pleadings.” The standard of review for a
motion for judgment on the pleadings under Rule 12(c) is the same as that used to address a
motion to dismiss under Rule 12(b)(6). Id.; Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007).
Rule 12(b)(6) permits dismissal of a lawsuit for “failure to state a claim upon which relief
can be granted.” To meet this standard, a party must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading will
satisfy this plausibility standard if it contains “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). In considering whether a complaint fails to state a claim upon which
relief can be granted, the Court must “construe the complaint in the light most favorable to the
plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the
plaintiff.” Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d
829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)).
However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to
threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading
must still contain facts sufficient to “provide a plausible basis for the claims in the complaint;” a
recitation of facts intimating the “mere possibility of misconduct” will not suffice. Flex Homes,
Inc. v. Ritz-Craft Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at
In sum, “[f]or purposes of a motion for judgment on the pleadings, all well-pleaded
material allegations of the pleadings of the opposing party must be taken as true, and the motion
may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)).
Even casting the facts in the light most favorable to Allen, he has alleged no more than a
routine banking transaction that complied with all applicable statutes, regulations, and common
law duties. Defendants’ Answers and attached exhibits demonstrate that Nationwide issued the
check on September 22, 2016; that the check was presented to Chase the same day; and that the
funds were released on September 23, 2016. (Doc. 18-3, Negotiated Check; Doc. 18-4, Bank
Statement). Allen did not allege in his Complaint when the funds were made available, but he
has not disputed Defendants’ timeline, and his proposed Amended Complaint states that
“[w]hether Defendants use people’s money for one minute or one day for Defendants’ financial
gain, it is unlawful conversion, theft and unjust enrichment.” (Doc. 33-1, Proposed Am. Compl.
¶ 21). Allen’s sole claimed injury is therefore that the funds for a check issued by Nationwide
were not made available by Chase until one day after the check was presented to Chase.
The timeframe for making check funds available is governed by 12 C.F.R. § 229.12.
That regulation provides that “a depository bank shall make funds deposited in an account by a
check available for withdrawal not later than the second business day following the bank day on
which funds are deposited in the case of a local check.” 12 C.F.R. § 229.12(b)(1). By making
the funds available after only one business day, Chase complied with this regulation.
Given that federal banking regulations expressly permit banks to release check funds up
to two days after presentment, and that the check funds in question were released within one day,
Allen cannot establish that Nationwide or Chase were unjustly enriched, breached a fiduciary
duty, unlawfully converted any funds, or issued a bad check. Nor has Allen identified any
contract whose provisions have been breached by the one-day delay in releasing the funds.
Defendants are therefore entitled to judgment on the pleadings on all of Allen’s claims.
Finally, Allen’s proposed Amended Complaint would not cure the deficiencies in his
claims. The only proposed substantive amendment is to limit the purported class to Ohio
residents. But this would not change the fact that none of his claims are viable, whether brought
on behalf of an Ohio-only or a nationwide class. Moreover, as already stated by this Court in
Allen’s previous case, Allen’s pro se status renders him an inadequate class representative. Allen
v. Nationwide Mut. Ins., No. 2:16-CV-1178, 2017 WL 1929970, at *3 (S.D. Ohio Jan. 10, 2017)
(quoting Ziegler v. Michigan, 90 Fed. App’x 808, 810 (6th Cir. 2004) (“[N]on-attorneys
proceeding pro se cannot adequately represent a class.”)). Therefore, because the proposed
amendment would be futile, the Court denies Allen’s request to amend his Complaint. Kottmyer
v. Maas, 436 F.3d 684, 692 (6th Cir. 2006). And because Defendants never became obligated to
respond to Allen’s proposed Amended Complaint, Allen’s motion for default judgment is also
For the foregoing reasons, Defendants’ Motion for Judgment on the Pleadings is
GRANTED; Allen’s Motion for Leave to File First Amended Complaint is DENIED; and
Allen’s Motion for Default Judgment is DENIED. The Clerk shall remove Documents 23, 33,
and 36 from the Court’s pending motions list and close this case.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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