1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TIMOTHY H. COOPER, 

 

 Plaintiff, 

 

 Case No. 2:12-cv-825 

v. Judge Frost 

 Magistrate Judge King 

THE COMMERCIAL SAVINGS BANK, 

et al., 

 

 Defendants. 

 

 

OPINION AND ORDER 

 This matter is before the Court on Plaintiff Timothy Cooper’s 

Motion for Leave to Amend Complaint, Doc. No. 34, and Plaintiff 

Timothy Cooper’s Supplement to Motion for Leave to Amend ComplaintInstanter, Doc. No. 35 (collectively, “Motion for Leave to Amend”).1

 

I. BACKGROUND 

 Plaintiff, a resident of Delaware County, Ohio, filed the 

original Complaint, Doc. No. 1, on behalf of himself and a class of 

plaintiffs, alleging that defendants, a bank, the bank’s attorney, 

Sean A. Martin, and a confessing attorney, Charles L. Bartholomew, 

fraudulently obtained cognovit judgments against bank customers in a 

Wyandot County court that lacked subject matter jurisdiction because 

 

1 Plaintiff’s original motion for leave to amend, Doc. No. 34, appears to 

contain a filing error in that it attached only one page. Plaintiff’s 

supplemental motion, Doc. No. 35, is comprised of a one-page motion and 

offers the proposed amended complaint on pages 2-21 (“Proposed Amended 

Complaint”). 

Case: 2:12-cv-00825-GLF-NMK Doc #: 43 Filed: 04/19/13 Page: 1 of 6 PAGEID #: <pageID>
2 

Wyandot County is not the county where the maker resides or where the 

warrant of attorney was signed, as is required by O.R.C. § 2323.13. 

Plaintiff specifically alleges that the rendering of cognovit 

judgments, under the circumstances, deprived him and the members of 

the putative class of substantive and procedural due process. 

Plaintiff also alleges that the challenged cognovit judgments violated 

Ohio law and worked a fraud upon the state court. Plaintiff asserts 

constitutional claims under 42 U.S.C. § 1983 against the defendant 

attorneys. Plaintiff also asserts state law claims of abuse of 

process, negligence and civil conspiracy against all defendants. 

Plaintiff seeks declaratory, injunctive and monetary relief and asks 

that O.R.C. § 2323.13 be declared unconstitutional.2

 

 On February 12 and 13, 2013, defendants Bartholomew and Martin 

moved for summary judgment. Doc. Nos. 21 and 22. After these motions 

were fully briefed, plaintiff moved to postpone a ruling on the 

motions. Doc. No. 32.3

 Plaintiff then filed the Motion for Leave to 

Amend, which defendants Martin and Bartholomew oppose. See Defendant 

Sean Martin’s Memorandum Contra Against Granting Cooper Motion for 

Leave to Amend Complaint, Doc. No. 36 (“Martin’s Memo. Contra”), and 

Memorandum of Defendant Bartholomew in Opposition to Plaintiff’s 

Motion to Amend Complaint, Doc. No. 40 (“Bartholomew’s Memo. Contra”). 

With the filing of Plaintiff Timothy H. Cooper’s Reply Memorandum in 

Support of Motion to Amend Complaint, Doc. No. 41 (“Reply”), this 

 

2

 Counsel agreed at the pretrial conference that the particular cognovit 

judgment entered against plaintiff has been vacated by the state court. 

Preliminary Pretrial Order, Doc. No. 6, p. 2 n.1. 3 The Court expedited briefing on plaintiff’s motion to postpone. Order, Doc. 

No. 33. 

Case: 2:12-cv-00825-GLF-NMK Doc #: 43 Filed: 04/19/13 Page: 2 of 6 PAGEID #: <pageID>
3 

matter is now ripe for resolution. 

II. STANDARD 

 Rule 15(a) of the Federal Rules of Civil Procedure provides that 

“[t]he court should freely give leave [to amend] when justice so 

requires.” Fed. R. Civ. P. 15(a)(2). Rule 15 reinforces “the 

principle that cases ‘should be tried on their merits rather than the 

technicalities of pleadings.’” Moore v. City of Paducah, 790 F.2d 

557, 559 (6th Cir. 1986) (quoting Tefft v. Seward, 689 F.2d 637, 639 

(6th Cir.1982)). The grant or denial of a request to amend a 

complaint is left to the broad discretion of the trial court. Gen’l 

Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). In 

exercising this discretion, the trial court may consider such factors 

as “undue delay, bad faith or dilatory motive on the part of a movant, 

repeated failure to cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing party by virtue of allowance 

of the amendment [and] futility of the amendment[.]” Foman v. Davis, 

371 U.S. 178, 182 (1962). See also Brumbalough v. Camelot Care Ctrs., 

Inc., 427 F.3d 996, 1001 (6th Cir. 2005). 

 “A proposed amendment is futile if the amendment could not 

withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford 

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing 

Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 382-83 

(6th Cir. 1993)). A motion to dismiss under Rule 12(b)(6) attacks the 

legal sufficiency of the complaint. See Roth Steel Prods. v. Sharon 

Steel Co., 705 F.2d 134, 155 (6th Cir. 1983). “In reviewing a motion 

to dismiss, [the trial court] construe[s] the complaint in the light 

Case: 2:12-cv-00825-GLF-NMK Doc #: 43 Filed: 04/19/13 Page: 3 of 6 PAGEID #: <pageID>
4 

most favorable to the plaintiff, accept its allegations as true, and 

draw all reasonable inferences in favor of the plaintiff.” Directv, 

Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). However, 

“[f]actual allegations must be enough to raise a right to relief above 

the speculative level[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 546 (2007). Accordingly, a complaint must be dismissed if it 

does not plead “enough facts to state a claim to relief that is 

plausible on its face.” Id. at 570.

III. DISCUSSION 

 While representing that he seeks “to provide more specificity 

concerning his claims[,]” Doc. No. 34, p. 1, plaintiff nevertheless 

provides no insight into the specific differences between the original 

Complaint and the Proposed Amended Complaint. In comparing the two 

documents, however, the Court notes that the Proposed Amended 

Complaint offers some additional allegations to support plaintiff’s 

existing claims. See, e.g., Proposed Amended Complaint, ¶¶ 25, 28,59-

60, 65-70, 83-86, 91, 97, 104. 

 Defendant Bartholomew, too, notes little difference between the 

original Complaint and the Proposed Amended Complaint, contending that 

the latter document is “simply an attempt to massage the facts that 

are stated to try to create a cause of action.” Bartholomew’s Memo. 

Contra, p. 1. For this reason, defendant Bartholomew further argues 

that the Motion for Leave to Amend is plaintiff’s effort to avoid a 

ruling on the pending motions for summary judgment as to the original 

Complaint. Id. However, since the filing of Bartholomew’s Memo. 

Contra, the Court has denied plaintiff’s motion to postpone ruling on 

Case: 2:12-cv-00825-GLF-NMK Doc #: 43 Filed: 04/19/13 Page: 4 of 6 PAGEID #: <pageID>
5 

these pending motions. See Opinion and Order, Doc. No. 42. Moreover, 

the Court is not persuaded that, based on the present record, granting 

leave to amend necessarily moots the pending motions for summary 

judgment. Accordingly, defendant Bartholomew’s argument to deny the 

Motion for Leave to Amend is not well-taken. 

 Defendant Martin argues that the Motion for Leave to Amend should 

be denied as futile because (1) plaintiff has no damages; (2) the 

doctrine of res judicata applies; and (3) this Court lacks 

jurisdiction over the action. Martin’s Memo. Contra, p. 2. Defendant 

Martin therefore argues that “[n]o matter how specific [plaintiff] 

Cooper makes his complaint . . . he has no cause of action.” Id. In 

reply, plaintiff advances several substantive arguments, supported by 

factual allegations, contending that the Proposed Amended Complaint

sets forth facts sufficient to state a claim upon which relief may be 

granted. Reply, pp. 1-3 (citing Ohio Revised Code § 2323.134

). 

Plaintiff also represents that “[t]his is a case of first impression.” 

Id. at 3. 

 Based on the present record, the Court cannot say that 

plaintiff’s claims, which invoke Ohio law, are not plausible on their 

face. See Fed. R. Civ. P. 12(b)(6); Twombly, 550 U.S. 544 at 570. 

Accordingly, where the proposed amendment complaint is plausible on 

its face and there are substantial arguments to be made as to the 

viability of plaintiff’s claims, the Court concludes that the better 

course is to permit the amendment. See, e.g., Vanburen v. Ohio Dep’t 

of Pub. Safety, No. 2:11-cv-1118, 2012 U.S. Dist. LEXIS 160907, at 

 

4 This section is entitled “[w]arrant of attorney to confess.” 

Case: 2:12-cv-00825-GLF-NMK Doc #: 43 Filed: 04/19/13 Page: 5 of 6 PAGEID #: <pageID>
6 

*10-11 (S.D. Ohio Nov. 9, 2012) (granting leave to amend and 

recognizing the conceptual difficulty presented when “a Magistrate 

Judge, who cannot ordinarily rule on a motion to dismiss,” considers 

futility when ruling on a motion for leave to amend); Durthaler v. 

Accounts Receivable Mgmt., Inc., 2:10-cv-1068, 2011 U.S. Dist. LEXIS 

121573, at *11-12 (S.D. Ohio Oct. 20, 2011) (“[I]t is usually a sound 

exercise of discretion to permit the claim to be pleaded and to allow 

the merits of the claim to be tested before the District Judge by way 

of a motion to dismiss.”); Yeager v. Union County Comm’r, No. 2:05-cv0950, 2006 U.S. Dist. LEXIS 16882, at *8 (S.D. Ohio April 6, 2006) 

(same). Whether or not plaintiff can eventually prevail on his claims 

is not, of course, before the Court at this juncture. 

 WHEREUPON, Plaintiff Timothy Cooper’s Motion for Leave to Amend 

Complaint, Doc. No. 34, and Plaintiff Timothy Cooper’s Supplement to 

Motion for Leave to Amend Complaint-Instanter, Doc. No. 35, are 

GRANTED. The Clerk is DIRECTED to file the amended complaint, which 

is attached to Doc. No. 35. 

April 19, 2013 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge

Case: 2:12-cv-00825-GLF-NMK Doc #: 43 Filed: 04/19/13 Page: 6 of 6 PAGEID #: <pageID>