SIDE BAR: The SDOH Opinion/Order asserts in part on Page 3 that [Ed: footnote omitted; emphasis added]:
Mr. Byrd sought relief from the Financial Industry Regulatory Authority ("FINRA"). Mr. Byrd was apparently dissatisfied with FINRA's response, both initially and when he elevated his complaint to the Office of the Ombudsman, headed by Mr. Cook. (See ECF No. 4, 16.) . . .
As far as I know, Cindy Foster has been heading FINRA's Office of the Ombudsman since 2009, so I'm not all that clear as to what Byrd had alleged about Christopher Cook's role or what SDOH about what the court had taken judicial notice.
Proceeding without assistance of counsel, Mr. Byrd filed this suit in the Common Pleas Court of Licking County on April 7, 2021. (See ECF No. 4.) Before summarizing the allegations, the Court must note that Mr. Byrd's Complaint is nearly incomprehensible. It lacks organization and structure, which renders the content difficult to interpret. The Complaint also includes several emails-some of which appear to have been later annotated -- in no discernable order and without context. Despite its shortcomings, the Complaint does make clear that Mr. Byrd's claims center around the allegedly unauthorized purchase of an annuity contract for his individual retirement account ("IRA").
Although a pro se litigant is entitled to a liberal construction of his pleadings and filings, he still must do more than assert bare legal conclusions, and the "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." . . .
With respect to the claims against him in his individual capacity, it is striking that the Complaint scarcely mentions Mr. Cook. The Complaint excerpts a November 16, 2020 email Mr. Cook authored, which states, in full:
Mr. Byrd,There is no rule governing the confidentiality - this is a FINRA internal policy. In line with that policy, FINRA does not provide other information such as dates/times of contact. However, it appears you already have much of that in your past emails.Regards,Christopher Cook
(ECF No. 4, 4) (emphasis omitted). The only other mention of Mr. Cook is in a January 21, 2021 email, in which Mr. Byrd expresses his dissatisfaction with FINRA's handling of his dispute. (Id., 7.) In short, the Complaint does not allege that Mr. Cook engaged in any conduct that might form the basis of a claim-let alone a claim sounding in fraud. Though it contains the conclusory allegation that "FINRA . . . failed to ethically investigate and patently fabricated the truth," the Complaint fails to allege any facts in support of that conclusion. As a result, Mr. Byrd's Complaint fails to assert any plausible claims against Mr. Cook in his personal capacity. . . .
[F]irst, as this Court has recently explained, "FINRA is immune 'from suit for conduct falling within the scope of the SRO's regulatory and general oversight functions.' " Mohlman v. Fin. Indus. Regulatory Auth., Inc., No. 3:19-cv154, 2020 WL 905269, at *3 (S.D. Ohio Feb. 25, 2020) (Rose, J.) (quoting D'Alessio v. New York Stock Exch., Inc., 258 F.3d 93, 105 (2d Cir. 2001)) (collecting cases), aff'd on other grounds, 977 F.3d 556 (6th Cir. 2020). What's more, "FINRA's regulatory immunity extends to its employees acting within the 'aegis of the Exchange Act's delegated authority.' " Id. at *4 (quoting P'ship Exch. Sec. Co. v. Nat'l Ass'n of Sec. Dealers, Inc., 169 F.3d 606, 608 (9th Cir. 1999)). See also Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 637 F.3d 112, 115 (2d Cir. 2011) ("There is no question that an SRO and its officers are entitled to absolute immunity from private damages suits in connection with the discharge of their regulatory responsibilities."); Hurry v. Fin. Indus. Regulatory Auth., Inc., No. CV-14-02490- PHX-ROS, 2015 WL 11118114, at *5 (D. Ariz. Aug. 5, 2015) (concluding that, because regulatory immunity derives from sovereign immunity, it extends to FINRA employees carrying out their duties).
[M]r. Farnsworth argues: Although obtaining dismissal of the Complaint would customarily be a satisfactory result, Mr. Byrd's prior history demonstrates that additional relief is warranted. . . . Mr. Byrd has turned pro se litigation into a hobby, and absent being deemed a vexatious litigator, will file objections, motions for reconsideration, and countless other filings that would require Mr. Farnsworth to respond and require this Court to devote needless resources to this case.
(ECF No. 7, 4.) He points out that, since 1999, Mr. Byrd has filed at least fifteen pro se civil actions in state and federal courts-all of which have been dismissed as meritless or for Mr. Byrd's failure to prosecute. (See ECF Nos. 7-1-7-44.) Underscoring Mr. Farnsworth's argument, Mr. Byrd responded to an email containing courtesy copies of motion filings by threatening to file another sanctions motion based on improper removal of the case, and "a complaint to the United States Courts, Circuit Justice Brett Kavanaugh, or FBI Corruption Division[.]" (ECF No. 22, PAGEID # 712) (emphasis omitted).
at Page 11 of the SDOH Opinion/Orderfiling any new actions without either (i) submitting a statement from an attorney licensed to practice in this Court or the State of Ohio certifying that there is a good faith basis for the claims Mr. Byrd seeks to assert, or (ii) tendering a proposed complaint for review by this Court prior to filing. He is further ORDERED to include the captions and case numbers of all of his prior actions with any complaint filed in this or any other court.