Davis v. Lifetime Capital Inc

Filing 1508

DECISION AND ORDER - IT IS THEREFORE ORDERED THAT: 1. The Receiver's Motion for Summary Judgment (Doc. # 1486 ) is GRANTED, and the Clerk of Court is directed to enter Judgment in favor of the Receiver; and 2. Plaintiffs/Intervenors Motion for Leave to Amend Complaint (Doc. #s 1488 , 1490 , 1492 ) are DENIED. Signed by Magistrate Judge Sharon L. Ovington on 3/29/16. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
H. THAYNE DAVIS,

:

Plaintiff,

:

Case No. 3:04cv00059

:

Chief Magistrate Judge Sharon L. Ovington

vs.
LIFETIME CAPITAL, INC.,
Defendant.

:
:

DECISION AND ORDER

I.

Background
Starting in 1997 and continuing for about six years, 4,000 or so people invested in

LifeTime Capital, Inc. At the time of the investments, LifeTime appeared to be in the
legitimate business of selling financial interests in viatical settlements – life insurance
policies sold by terminally ill beneficiaries (viators) for tax-free cash. Investors’ goal was
to obtain large financial gain from their investments in a relatively short amount of time.
Realization of this goal depended on viators dying within the specific time periods
projected by LifeTime, which exposed LifeTime investors to large financial risk.
“[I]nvestors [in viatical settlements] risk a reduction of their return or a complete loss if
the viator does not die within the time projected because the investor must continue to pay
the premiums on the policy as they accrue or the policy will lapse.” United States v.
Svete, No. 3:04CR10/MCR, 2014 WL 941448, at *4 (N.D. Fla. Mar. 11, 2014).

This receivership case arose mainly as a result of the misdeeds of David A. Svete,
a fraudster later convicted (along with others) of numerous federal criminal offenses.1
His criminal activities involved LifeTime and other businesses he incorporated to offer
“financial, office, marketing, and viatical services. [His] control of these corporations
was secreted, thus misleading investors and providing an avenue to launder money taken
by fraud.” Svete, 2014 WL 941448, at *2. Svete an others scammed millions of dollars
from investors. He is presently in federal custody, serving a 200-month sentence.
In February 2004, near the time Svete was indicted, LifeTime faced imminent
financial collapse. Its investors faced the very real danger that they would never see even
a penny of the money they had invested. This dire situation necessitated judicial
intervention, creation of the LifeTime Receivership, and appointment of a Receiver and
an Examiner.
The purpose of the LifeTime Receivership was to obtain the best possible recovery
for LifeTime’s investors, many of whom were characterized during Svete’s sentencing
proceedings as “vulnerable victims,” id. at *1, more than one-third of whom were over
age 65. Id. at *5. Once the Receivership began, years of work followed to locate
LifeTime investors and secure the assets of LifeTime to prevent waste of the assets and to
find and recover money Svete and others laundered through LifeTime and its related

1

Svete’s crimes included multiple counts of mail fraud, conspiracy to engage in money
laundering, money laundering, and interstate transportation of money obtained by fraud. Id 2014 WL
941448, at *2-*3.

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businesses. Although the Receiver recovered millions of dollars, LifeTime investors
faced a harsh reality thanks to Svete and others: The money the Receiver found was
nowhere near enough to return to each investor the total amount he or she had invested in
LifeTime.
Today, all but six of the approximately 4,000 LifeTime investors have either
waived their claims or agreed to settle their claims with the Receiver and thereby obtain a
partial pro rata return on their original investment in LifeTime. The six remaining
investors had multiple opportunities to join a settlement of their claims. They chose not
to.
In March 2014, the six remaining investors were permitted to intervene and they
have since have filed Complaints against the Receiver and the Receivership raising a
claim of conversion. (Doc. #s 1439-1443). Their Complaints are presently pending along
with the Receiver’s Motion for Summary Judgment (Doc. #1486), the six remaining
investor/Plaintiffs’ (Plaintiffs’) Responses (Doc. #s 1489, 1491, 1493, 1495), the
Receiver’s Reply (Doc. #1497), Plaintiffs’ Motions for Leave to Amend Complaint (Doc.
#s 1488, 1490, 1492, 1494), the Receiver’s Memorandum in Opposition (Doc. # 1498),
and the record as a whole.
II.

The Jordan Policies and Plaintiffs’ Claims
Plaintiffs are Johnnie C. Ivy, Nena Ellison, Ernest Storms, Jacquelyn Storms, Jane

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Ivy-Stevens, and Robert Burgess.2 Their conversion claims concern the Receiver and the
Receivership’s handling of death benefits from life-insurance policies from LifeTime
viator, Mr. Jordan.
Plaintiffs state in their Complaints that they obtained their interests in the proceeds
of Mr. Jordan’s life insurance policies while Mr. Jordan was still alive. Mr. Jordan died
on February 4, 2004, about two weeks before the Lifetime Receivership was created. On
the date Mr. Jordan died, LifeTime owned two $3,000,000.00 life insurance policies
concerning Mr. Jordan. (Doc. #1112, PageID #12231). Plaintiffs were among the
LifeTime investors whose investments were allocated to the Jordan policies.
Due to the imminent financial collapse LifeTime in February 2004, this Court took
exclusive jurisdiction and possession of LifeTime’s assets, “including, without limitation,
all viatical and life settlement insurance policies, including beneficial interests therein and
proceeds thereof ....” (Doc. #5). LifeTime’s assets thus became Receivership assets in
February 2004. The Receiver at this time was authorized, in part, “to receive and collect
any and all sums of money due and/or owing to LifeTime, whether the same are now due
or shall hereafter become due and payable, and is authorized to incur such expenses and
make such disbursements as are necessary and proper for the collection, preservation,
maintenance and operation of the Receivership Assets.” (Doc. #6, ¶11).
2

The Complaints also assert identical claims of negligence against the Examiner. The Court
previously found those claims legally insufficient and struck them from the record. (Doc. #1444, PageID
#s 15070-71; Doc. #1449). As a result, Plaintiffs’ proposed Amended Complaints do not contain
negligence claims against the Examiner.

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In May 2004, Mr. Jordan’s life insurance company paid the Receivership the
benefits from his life insurance policies, equaling $6,048,786.00. Because of this, and
because Mr. Jordan died before the Receivership was created, a dispute arose in the
Receivership action over who was entitled to the proceeds from Mr. Jordan’s policies.
Did the proceeds belong to the more than 200 investors – including Plaintiffs – whose
investments with LifeTime were allocated to the Jordan policies? Or, did the proceeds
belong to the Receivership (subject to later distribution)?
After extensive briefing of the ownership issues, the Jordan Investors’ claims
proceeded to mediation in March 2006, which resulted in a settlement agreement between
nearly all of the Jordan Investors and the Receiver. Under the agreement, the Receiver
would pay 62.5% of the total amount each Jordan Investor originally invested in LifeTime
that was allocated to the Jordan policies.3 The Jordan Investors would, in return, release
their claims against the Receivership concerning their original LifeTime investment and
the Jordan-policy proceeds. After a fairness hearing, which Plaintiffs did not attend (Doc.
#1207, PageID# 12948), the Court approved the settlement (Doc. #543).
Nearly all of the Jordan Investors returned a claim form or a release concerning
their respective portions of the Jordan-settlement proceeds. As of March 2010, only
thirteen Jordan Investors, including Plaintiffs, had not. The Receiver therefore filed a
motion for instructions, asking for leave to send a final notice to the remaining Jordan
3

“In comparison, general investors in LifeTime were only to receive 16.6392% of their original
investment.” (Doc. #1207, PageID at 12948).

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Investors informing them that if they did not return a completed claim form within 30
days, the Receiver would file a motion to disallow their claims. After two separate
hearings, the Receiver’s motion was granted.
The final notice then issued and additional Jordan Investors responded. As
explained and anticipated by the final notice, the Receiver filed a motion to disallow the
claims of the remaining Jordan Investors who did not return a claim or release. The
matter was set for a fairness hearing on August 23, 2010. (Doc. #1139).
Before the fairness hearing, the Court received letters (which were docketed in the
case record) from the remaining investors, now Plaintiffs. They explained that they did
not accept the Jordan settlement agreement, and they continued to claim their full share of
the Jordan-policy benefits. (Doc. #1141, PageID at 12460; Doc. #1142, PageID at
12462; Doc. #1143, PageID 12465). Additional similar letters from Plaintiffs followed
(and were docketed). (Doc. #s 1147-56).
After the fairness hearing, and consideration of Plaintiffs’ letters, this Court
granted the Receiver’s Motion to Disallow their claims. Because Plaintiffs apparently
received bad advice from a non-party and because they faced losing the percentage they
were entitled to under the Jordan settlement – and, thus, all of their original investment –
the Court provided them another opportunity to join, within thirty days, the Jordan
settlement. (Doc. #1207; Doc. #1304, PageID at 13892). The Order proving this further
opportunity to Plaintiffs further directed that after the thirty-day period expired (plus

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reasonable mailing time), “the Receiver shall disallow the participation or claim of any
remaining Jordan Investor in the settlement agreement approved by the Court on April 4,
2006.” (Doc. #1207, 12958-59). This Court also explained, “nothing in this Order is
intended to either require their participation in the Jordan settlement or limit the right of
any remaining Jordan Investor to pursue any independent legal action that may be
available to them should they decide not to participate.” Id. at 12956. Plaintiffs chose
not to participate in the Jordan settlement.
Several remaining Jordan Investors appealed the Court’s disallowance Order
without success. In September 2014, the U.S. Court of Appeals for the Sixth Circuit
affirmed the disallowance Order, finding no abuse of discretion and no denial of due
process. (Doc. #s 1304, 1305).
In March 2014, this Court granted Plaintiffs’ Motion to Intervene. (Doc. #1384).
In October 2014, Plaintiffs were granted leave to file pleadings in compliance with Fed.
R. Civ. P. 24(a). (Doc. #1430). Those pleadings are Plaintiffs’ presently pending
Complaints. Plaintiffs allege in support of their conversion claim:
18. The funds [the Receiver] and/ the LifeTime Receiverhip did not
belong to LifeTime or the receivership created as of February 20, 2004.
The Jordan policy proceeds were not assets of LifeTime. Accordingly, [the
Receiver’s] possession, dominion and control of the Jordan policy proceeds
was without valid legal basis and wrongful.
19. [The Receiver’s] and/or the LifeTime Receivership’s use and
dissipation of the Jordan policy proceeds constitutes the unauthorized and
wrongful assumption and exercise of dominion and control over the
proceeds, which are the personal property of [Plaintiffs].
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20. As a result of the wrongful assumption and exercise of dominion and
control over the Jordan policy proceeds, [Plaintiffs have] sustained
damages, for which [they are] entitled to recover from ... the Receiver
and/or the LifeTime Receivership. LifeTime and [the Receiver] are each
liable to [Plaintiffs].
(Doc. #s 1439-1443). Plaintiffs assert that the Receiver is personally liable to them for
compensatory and exemplary damages.
The Receiver and Receivership seek summary judgment in their favor on
Plaintiffs’ conversion claim.
III.

Motions for Summary Judgment
A party is entitled to summary judgment if there is no genuine dispute over any

material fact and if the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Barker v.
Goodrich, 649 F.3d 428, 432 (6th Cir. 2011).
To resolve whether a genuine issue of material fact exists, the Court draws all
reasonable inferences in the light most favorable to the non-moving party. Richland
Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 520 (6th Cir. 2009) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)).
With these reasonable inferences in the forefront, “[t]he central issue is ‘whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.’” Jones v. Potter, 488 F.3d
397, 402-03 (6th Cir. 2007) (quoting, in part, Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 251-52 (1986) and citing Matsushita, 475 U.S. at 587). “Accordingly, ‘[e]ntry of
summary judgment is appropriate ‘against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.’” Whitfield v. Tennessee, 639 F.3d 253, 258
(6th Cir. 2011) (citations omitted).
IV.

Discussion
Plaintiffs’ pro se Complaints assert jurisdiction under 28 U.S.C. §1332 based on

diversity of citizenship. Plaintiffs do not identify or cite to a particular state’s law in
support of their conversion claim.
The Receiver contends that summary judgment is warranted on Plaintiffs’
conversion claim because their claim is time barred under the applicable Oklahoma twoyear statute of limitations. The Receiver notes that each Plaintiff is a citizen of Texas,
and he, the Receiver, is a citizen of Oklahoma. He correctly relies on the principle that a
federal court sitting in diversity must apply the choice-of-law rules of the state in which it
sits, Ohio in this case. See Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941);
Muncie Power Products, Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.
2003). He then journeys through Ohio’s choice-of-law rules to arrive in Oklahoma and
apply its two-year statute of limitations to find Plaintiffs’ conversion claim time barred.
Plaintiffs further contend that Oklahoma’s law does not recognize a cause of action for
conversion of money.

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Plaintiffs counter (in part) that the Receiver has failed to show that Oklahoma law
applies and has not specified when the Jordan Investors’ conversion claim accrued.
Plaintiffs contend that Ohio law applies and that their conversion claim is timely under
Ohio’s four-year statute of limitations. Returning to Oklahoma law, Plaintiffs argue that
even if there can be no conversion of money under Oklahoma law, another cause of
action under Oklahoma law – namely, a “thing in action” – supports their claim to recover
money. They thus seek to amend their Complaints to add a “thing in action” claim. With
this added claim, they conclude that their Complaints state a claim upon which relief can
be granted.
The parties’ first present their choice-of-law contentions followed by their focus
on Plaintiffs’ conversion and thing-in-action claims. In some cases, the better course of
action, is to first determine which state’s law apply rather than addressing claims on their
merits under different state law. E.g., Maxum Indem. Co. v. Drive W. Ins. Servs., Inc.,
No. 15-3199, 2015 WL 7292722, at *4 (6th Cir. Nov. 18, 2015). In the instant case,
however, there are overwhelming reasons to address Plaintiffs’ conversion and thing-inaction claims on the merits. First, the parties’ appear to overlook that the LifeTime
Receivership was created in Ohio and that the Orders appointing the Receiver and
granting the Receiver with power to protect LifeTime’s assets for the benefit of investors
were issued by this Court in Ohio. The Receivership, moreover, remains subject to this
Court’s Orders in Ohio. Because the parties have not addressed these central facts in

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their choice-of-law contentions, further briefing would be required to determine where
the alleged conversion occurred and to otherwise promote a thorough consideration of
which state’s law applies to Plaintiffs’ conversion claim.
Second, the parties do not address whether any choice-of-law provisions exist in
the contracts Plaintiffs entered with LifeTime or its agents or related businesses
concerning their investments with LifeTime and in the Jordan viatical settlement. While
this might not be pertinent to the choice-of-law analysis because Plaintiffs raise tort
claims, rather than a breach-of-contract claim, Plaintiffs’ tort claims arise from their
asserted ownership interest to the Jordan-policy benefits, which arises by operation of
contract. Given this complication, which the parties have not addressed, any present
determination of which state’s law applies would not be well informed.
Third, Plaintiffs’ conversion and thing-in-action claims are so lacking in legal
basis that it is more practical and efficient, and better case management, to address them
now in substance rather than order further briefing on choice-of-law issues and imposing
additional delay and expense upon Plaintiffs and the Receivership.
Turning to Plaintiffs’ conversion claim, the Receiver is correct that under
Oklahoma law, conversion is not generally based on a monetary loss and, instead, is
based on converted “tangible personal property.” See Shebester v. Triple Crown Insurers,
826 P.2d 603, 608 (Okla. 1992). Oklahoma law considers conversion based on monetary
loss to involve “intangible personal property.” Id. Plaintiffs seek to recover such

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intangible personal property, money from their ownership interests in the Jordan-policy
benefits. Because conversion under Oklahoma law is in general based on tangible, rather
than intangible, personal property, Plaintiffs’ conversion claim fails as a matter of
Oklahoma conversion law. See id. at 608 and n.16 (quoting 60 O.S. 1981 §312 (“A thing
in action is a right to recover money or other personal property, by judicial
proceedings.”)) (other citations omitted); see also Childs v. Unified Life Ins. Co., 781 F.
Supp.2d 1240, 1249 (N.D. Okla. 2011) (and cases cited therein).
Additionally, Oklahoma law requires proof of ownership to establish both
conversion and thing-in-action claims. See Brown v. Oklahoma State Bank & Trust Co.
of Vinita, 960 P.2d 230, 233 and n. 4 (Okla. 1993) ("For simplicity...," characterizing a
chose-in-action to recover money as a conversion claim); see also United States v.
Lowrance, 2002 WL 31689525 at *2 (N.D. Okla., Oct. 17, 2002). In Oklahoma, “Before
the issue of conversion can be decided, ownership must be established.” Brown, 960 P.2d
at 233. Similarly, in Ohio, “[u]nder Ohio law, conversion is ‘the wrongful exercise of
dominion over property to the exclusion of the rights of the owner, or withholding it from
his possession under a claim inconsistent with his rights.’” McCaughey v. Garlyn
Shelton, Inc., 208 F. App'x 427, 435 (6th Cir. 2006) (quoting, in part, Joyce v. Gen.
Motors Corp., 49 Ohio St.3d 93, 551 N.E.2d 172, 175 (1990)).
Plaintiffs assert that they obtained ownership interest in the Jordan-policy proceeds
upon the death of Mr. Jordan two weeks before the Receivership was created. The issue

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of who owned the Receivership, however, was effectively resolved in April 2006 by the
Jordan settlement, after a fairness hearing. By approving the Jordan settlement, the Court
and the parties to the settlement effectively recognized the ownership interests of all the
Jordan Investors. That is why so much care was taken to notify the Jordan investors that
they could participate in, or challenge the fairness of, the Jordan settlement agreement.
During the years after the Court approved the Jordan settlement agreement, persons with
ownership claims to the Jordan-policy proceeds were given repeated and ample notice of
the Jordan settlement and a lengthy amount of time to submit a claim and thus establish
their ownership interests in the Jordan settlement. Plaintiffs did not do so. They instead
held fast to their conclusion that they were entitled to receive the entire amount of their
ownership interests in the Jordan-policy proceeds.
Their conclusion, however, overly focuses on the matured status of the Jordan
policies and blindly dismisses the fact that some LifeTime investors rescued, albeit
temporarily, LifeTime from financial collapse. Again, the culprit was Svete and others.
The district court in Svete’s criminal case explained:
[LifeTime] Investors were ... told that an independent investment
servicing company maintained a premium reserve account for the purpose
of underwriting the policies. This company was created and controlled by
Defendant and lacked sufficient funds to pay premiums on purchased
policies as they came due when the viators lived longer than expected.
Investors were thus obligated to make additional premium payments in
order to avoid a total loss of their investment.
United States v. Svete, 2014 WL 941448, at *5 (N.D. Fla. Mar. 11, 2014). Com-mingling

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of funds set aside for servicing the life insurance policies also occurred. For example,
premiums due for one group of life insurance policies would be made with money taken
from sub-accounts dedicated to another group of policies. Svete and others thus robbed
Peter to pay Paul, a strategy designed for failure once LifeTime stopped soliciting new
investors and new cash stopped propping up LifeTime’s rickety financial structure. See
Doc. #82, PageID 1009. The commingling occurred so extensively that it eventually
became impossible to sort out which particular Investors had staved off LifeTime’s
collapse for the benefit of all Investors, including the Jordan Investors. What can be
sorted out is the fact that without the help of some Investors, LifeTime would have
collapsed or faced imminent collapse before Mr. Jordan died. If that had occurred, the
Jordan Policies would have lapsed and the Jordan Investors would have lost their entire
investments.4
These aspects of the fraud and resulting financial condition of LifeTime made it
equitable for the Receivership to distribute assets to remaining Investors on a pro rata
basis. See Liberte Capital Group, LLC v. Capwill, 148 F. App'x 426 (6th Cir. 2005).
This was accomplished by Court approval of various settlement agreements between the
Receiver and nearly all Investors. Those Investors who joined the settlement agreement
regarding the Jordan Policies obtained a pro rata distribution of 62.5% of their original
investments. This was about three times more than the return Investors in non-matured

4

Plaintiffs’ original investments ranged from $3,000 to $7,500. (Doc. #878, Exhibit 8 at 7-8).

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policies received. No Investor received more than their respective pro rata distribution
because of how massively unfunded LifeTime was at the start of the Receivership. In this
way, the LifeTime Receivership is similar to typical receiverships. See Liberte Capital
Grp., LLC v. Capwill, 462 F.3d 543, 552 (6th Cir. 2006) (“The inability of a receivership
estate to meet all of its obligations is typically the sine qua non5 of the receivership.”).
Despite these realities, Plaintiffs held fast to their belief that they were due the
original amount of their investment in the matured Jordan policies. The Court’s Order on
November 11, 2011 (Doc. #1207) disallowed Plaintiffs’ claims to the Jordan settlement,
after giving Plaintiffs another thirty days to join the settlement. By granting the
Receiver’s Motion to Disallow, the Court granted the Receiver’s request to allocate the
remaining Jordan-policy proceeds “‘among the Investors whose claims have been
previously confirmed and approved by the Court.’” (Doc. #1207, PageID 12958). The
effect of this was the distribution of the remaining Jordan-policy proceeds to the Jordan
Investors who participated in the settlement. Although Plaintiffs chose not to join the
Jordan settlement, neither this Court nor the Court of Appeals limited their right “to
pursue any independent legal action that may be available to them ....” (Doc. #1207,
PageID# 12956; Doc. #1304, PageID# 13894).
Plaintiffs’ present Complaints and claims of conversion and thing-in-action have
generated a “independent legal action.” But, is it one “that may be available to them” to
5

Sine qua non (“without which not”) refers to “an indispensable condition or thing; something
on which something else necessarily depends.” Sine qua non, Black’s Law Dictionary (8th ed. 2004).

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recover their entire ownership interest in the Jordan-policy proceeds? In other words, is
there a legal basis for Plaintiffs’ conversion and thing-in-action claims?
“In Ohio, a conversion claim requires a plaintiff to demonstrate not only that the
defendant dispossessed the plaintiff of its property and caused the plaintiff damage, but
also that the defendant’s interference with the plaintiff’s property rights was ‘wrongful.’”
Kehoe Component Sales Inc. v. Best Lighting Products, Inc., 796 F.3d 576, 592 (6th Cir.
2015) (citing Dice v. White Family Cos., 173 Ohio App.3d 472, 878 N.E.2d 1105, 1109
(2007). Oklahoma law requires similar wrongful conduct control of another’s personal
property. See Courtney v. Oklahoma ex rel., Dep't of Pub. Safety, 722 F.3d 1216, 1228
(10th Cir. 2013) (quoting, in part, Welty v. Martinaire of Okla., Inc., 867 P.2d 1273, 1275
(Okla. 1994)). Under both states’ law, Plaintiffs’ conversion/thing-in-action claims fail
as matter of law because neither the Receiver or the Receivership wrongfully exercised
dominion over Plaintiffs’ ownership interest in the Jordan-policy proceeds. Upon his
appointment, the Receiver became an officer of the Court. Liberte Capital Grp., LLC v.
Capwill, 462 F.3d 543, 551 (6th Cir. 2006). His power to receive and secure the Jordanpolicy benefits as the LifeTime Receiver was established by the Court Orders appointing
him to be the Receiver. (Doc. #s 6, 23). He managed the Jordan-policy proceeds and
settled the ownership dispute in his role as Receiver and with Court approval. Plaintiff’s
Complaints and proposed Amended Complaints fail to allege facts sufficient to raise an
inference that the Receiver acted wrongfully by receiving, managing, and distributing the

16

Jordan-policy benefits as ordered by the Court. As a result, their allegation that the
Receiver acted wrongfully and thus converted the Jordan-policy benefits is conclusory.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (labels and conclusion
insufficient to raise a plausible claim for relief). Given this, and because the Receiver
acted within his court-appointed authority, Plaintiffs’ allegations do not support plausible
claims of conversion under Ohio or Oklahoma law or thing-in-action under Oklahoma
law. See Ashcroft v. Iqbal, 556 U.S. 662, 678- (2009) (considering allegations in context,
a Complaint must raise non-speculative, plausible claim to relief).
Lastly, without a plausible claim for a thing-in-action, Plaintiffs’ proposed
amended Complaints are futile. Their Motions for Leave to Amend therefore lack merit.
See Miller v. Calhoun Cty., 408 F.3d 803, 817 (6th Cir. 2005).
IT IS THEREFORE ORDERED THAT:
1.

The Receiver’s Motion for Summary Judgment (Doc. #1486) is
GRANTED, and the Clerk of Court is directed to enter Judgment in favor
of the Receiver; and

2.

Plaintiffs/Intervenors’ Motion for Leave to Amend Complaint (Doc. #s
1488, 1490, 1492) are DENIED.

March 29, 2016
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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