McClain v. Cavalry SPV I, LLC et al

Filing 18

DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. Defendants Motion For Judgment On The Pleadings RE 8 is converted to a Motion for Summary Judgment; and 2. Plaintiff must file his evidence, if any, in support of his claims and in opposition t o Defendants Motion for Summary Judgment by July 12, 2019.Plaintiff is placed on notice that in the event he does not timely respond to this Order, Defendants Motion may be granted and his case dismissed. Signed by Magistrate Judge Sharon L. Ovington on 6/11/19. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TED MCCLAIN,
Plaintiff,
vs.
Defendants.

CAVALRY SPV I, LLC, et al.,

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Case No. 3:18-cv-00197
District Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington

DECISION AND ENTRY
Defendant Cavalry SPV I, LLC, through its attorneys with Defendant Levy &
Associates, LLC, previously brought a case in the Champaign County, Ohio Municipal
Court attempting to collect a debt that Plaintiff Ted McClain allegedly owed. The debt,
Defendants said, was in connection with an account Plaintiff held with Synchrony
Back—specifically, a “‘Care Card’ Account for healthcare and related goods and
services.” (Doc. # 1, ¶ 8). Defendants state that the Municipal Court case was
voluntarily dismissed before trial. (Doc. #8, PageID #345).
Plaintiff asserts in the present case that Defendants’ actions in attempting to
collect on the Care Card Account violated his rights under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 (FDCPA) and Ohio law. The case is presently pending
on Defendants’ Motion For Judgment On The Pleadings, Plaintiff’s Memorandum In
Opposition, Defendants’ Reply (Doc. #s 8, 12, 14), and the record as a whole.
Defendants seek judgment on the pleadings in their favor under Fed. R. Civ. P. 12(c).

The parties disagree about whether the Court may rely on documents attached to
Defendants’ Amended Answer at this stage of the case. Defendants contend that the
Court may grant their Rule 12(c) Motion in light of the information provided in those
records because they are public records from their case against Plaintiff in Municipal
Court. Plaintiff argues that the Court should not take judicial notice or consider the
documents Defendants have attached to their Amended Answer.
If a Rule 12(c) motion presents materials outside the pleadings and the court
considers them, “the motion must be treated as one for summary judgment under Rule
56.” Fed. R. Civ. P. 12(d).
Plaintiff alleges in his Complaint that Defendants filed their Complaint in
Municipal Court “with knowledge that it did not have the documents necessary to prove
that Calvary SPV I, LLC had ownership of the debt.” (Doc. #1, ¶ 69). Defendants
counter that the Court can consider the public records from their case in Municipal Court,
including documents containing sworn testimony with supporting business records to
show Defendant Calvary owned the Account.
“In general, the majority of the cases which do not allow a court to take judicial
notice of the contents of a public record do so because there is no way for an opposing
party, prior to the issuance of the court’s decision, to register his or her disagreement with
the facts in the document of which the court was taking notice. Thus, in order to preserve
a party’s right to a fair hearing, a court, on a motion to dismiss [or a Rule 12(c) motion],
must only take judicial notice of facts which are not subject to reasonable dispute.”
Passa v. City of Columbus, 123 F. App’x 694, 697 (6th Cir. 2005) (internal citation
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omitted).
Defendants’ reliance on the Business Records Affidavit and attached documents to
establish their ownership of the debt requires conversion of their Rule 12(c) Motion to a
motion for summary judgment under Rule 56. Defendants filed these documents in the
Municipal Court that case was voluntarily dismissed. There is no indication by either
party in this case that the Municipal Court found Defendants’ documents authentic or
otherwise admissible. And there is no indication that Plaintiff, who proceeded in the
Municipal Court as a pro se Defendant, had a reasonable opportunity in that Court to
challenge the assertions advanced in Defendants’ [there Plaintiffs’] evidence.
In this situation, an Order converting Defendants’ Rule 12(c) Motion to a Rule 56
motion for summary judgment is warranted.
IT IS THEREFORE ORDERED THAT:
1.

Defendants’ Motion For Judgment On The Pleadings is converted to a
Motion for Summary Judgment; and

2.

Plaintiff must file his evidence, if any, in support of his claims and in
opposition to Defendants’ Motion for Summary Judgment by July 12,
2019.

Plaintiff is placed on notice that in the event he does not timely respond to
this Order, Defendants’ Motion may be granted and his case dismissed.

June 11, 2019

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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