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IN THE DELAWARE COUNTY COMMON PLEAS COURT
DELAWARE COUNTY, OHIO
CIVIL DIVISION
THE POLARIS POINTE OF
ST. CROIX, USVI, LLC. Case No.: 23 CV H 04 0234
Judge: GORMLEY
Plaintiff,
v
ATHENA NIEVES
Defendant
MOTION OF THE DEFENDANT ATHENA NIEVES
TO DISMISS THE FIRST A. [ENDED COMPLAINT
Now comes Defendant Athena Nieves, by and through counsel, respectfully requesting this
Court grant her motion to dismiss the First Amended Complaint filed by Plaintiff The Polaris
Pointe of St. Croix, USVI, LLC., pursuant to Ohio R. Civ. P. 12(B)(2), Ohio R. Civ. P. 12(B)(6),
and under the Doctrine of Forum Non Conveniens. The reasons for the motion are more
particularly set out below.
Respectfully submitted,
DECKER VONAU & CARR, LLC
By:/s/ Garrison P. Carr
Garrison P. Carr (0090595)
Christopher S. Vonau (0091426)
620 E. Broad Street, Suite 200
Columbus, Ohio 43215
Tel: (614) 744-3108
Fax: (614) 242-4243
Email: gearr@deckervonau.com
1
CLERK OF COURTS - DELAWARE COUNTY, OH - COMMON PLEAS COURT
23 CV H 04 0234 - GORMLEY, DAVID M
FILED: 06/23/2023 04:00 PM
MEMORANDUM IN SUPPORT
I. INTRODUCTION
Plaintiff filed this case on April 26, 2023, against Defendant Athena Nieves, an individual
residing in the Commonwealth of Virginia. However, the Court lacks jurisdiction over Ms. Nieves
in the present matter. Additionally, Plaintiff's Complaint consists of unsupported conclusory
allegations and asks for remedies that this Court cannot grant. The absence of sufficient
jurisdiction, factual allegations, and appropriate relief sought warrants the dismissal of Plaintiff's
Complaint in its entirety as a matter of law.
I. LAW AND ARGUMENT
A Legal Standard
"A motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Ed
of Commrs., 65 Ohio St.3d 545, 548 (1992). To grant a motion to dismiss under Civ. R. 12(B)(6)
for failure to state a claim upon which relief may be granted, it must appear beyond doubt that
plaintiff can prove no set of facts warranting a recovery. O'Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242, 245 (1975). When ruling on a Civ. R. 12(B)(6) motion, the court
must presume the truth of the factual allegations in the complaint and must make all reasonable
inferences in favor of the non-moving party. Mitchell vy. Lawson Milk Co., 40 Ohio St.3d 190,
192, 532 N.E.2d 753 (1988) (reinstating the trial court's decision granting dismissal of the
complaint for failure to state a claim). However, a motion to dismiss for lack of personal
jurisdiction places the burden on plaintiff to show that the trial court has personal jurisdiction over
the defendant. Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551,
930 N.E.2d 784, 27.
B This Court Lacks Jurisdiction Over Ms. Nieves in the Present Matter, and Therefore
Must Dismiss Plaintiff's Complaint.
As the Ohio Supreme Court has stated, “[t]he rise in Internet-related disputes does not
mean courts should ignore traditional jurisdiction principles.” Kauffman Racing Equip., L.L.C. v.
Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, 25. This case is no exception.
When a defendant challenges the exercise of personal jurisdiction, the plaintiff must show that the
trial court has personal jurisdiction over the defendant. /d. Plaintiff cannot meet this burden;
therefore, its Complaint must be dismissed.
To determine whether an Ohio court sitting in diversity has personal jurisdiction over a
nonresident defendant, it must engage in a two-step analysis. Kauffman Racing Equip., L.L.C.,
supra, at J 10; citing U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K's Foods, Inc., 68
Ohio St.3d 181, 183, 624 N.E.2d 1048 (1994); Kentucky Oaks Mall Co. v. Mitchell's Formal Wear,
Inc., 53 Ohio St.3d 73, 75, 559 N.E.2d 477 (1990). First, the court must consider whether Ohio’s
long-arm statute and applicable civil rule confer personal jurisdiction. /d. Second, if the court
determines that the applicable rule and statute confer personal jurisdiction, it must then consider
whether exercising jurisdiction under the statute and rule comport with the defendant’s due process
rights under the Fourteenth Amendment to the United States Constitution. Jd.
Concerning the first prong of the Court’s analysis, Ohio’s long-arm statute, O.R.C.
2307.382, allows Ohio courts to exercise personal jurisdiction over a non-resident defendant only
if the non-resident defendant commits certain acts in the forum state. Such acts may include:
(1) Transacting business within the state;
(2) Contracting to supply services or goods in the state;
(3) Causing tortious injury by an act or omission in the state;
sR
(6) Causing tortious injury in the state to any person by an act outside the state
committed with the purpose of injuring persons, when he might reasonably have
expected that some person would be injured thereby in the state[.] ...
Here, even construing all allegations in the Amended Complaint as true, Plaintiff did not
make a prima facie showing that the Court could exercise personal jurisdiction over Ms. Nieves
under Ohio’s long-arm statute as required under the first prong of the personal jurisdiction analysis.
1 Ms. Nieves did not transact business in Ohio.
O.R.C. § 2307.382(A)(1) permits the exercise of personal jurisdiction over non-resident
defendants if they are “transacting! business” in Ohio. While determining whether a defendant is
“transacting business” within the statute's meaning is made on a case-by-case basis,” the facts
alleged in Plaintiff's complaint do not give rise to personal jurisdiction over Ms. Nieves.
In its complaint, Plaintiff alleges the Court has proper jurisdiction because the alleged
agreement was reached with Plaintiff-corporation which is headquartered in Delaware, Ohio, and
funds were received by Plaintiffin Delaware, Ohio. (Amend. Compl. {§ 2-3). While the Plaintiff
fails to include the fact in its complaint, the alleged agreement was initially made through a third-
party internet site, VRBO.
1 The Ohio Supreme Court has turned to the ordinary definition of “transact” when conducting this analysis.
According to the Court, the word “transact” means “’to prosecute negotiations; to carry on business; to have
dealings....' The word embraces in its meaning the carrying on or prosecution of business negotiations but it is a
broader term than the word ‘contract’ and my involve business negotiations which have been either wholly or
partially brought to a conclusion.” Kentucky Oaks Mall Co. v. Mitchell’s Formal Wear, Inc., 53 Ohio St. 3d 73, 75,
559 N.E.2d 477, 480 (1990) (citing Black’s Law Dictionary (5 Ed. 1979) 1341).
? “Because it is such a broad statement of jurisdiction, O.R.C. § 2307.382(A)(1) has given rise to a variety of cases
which ‘have reached their results on highly particularized fact situations, thus rendering any generalization
unwarranted.”” U.S. Spring Communications Co. Ltd. P’ship, at 185, N.E.2d 1048 (citing 22 Ohio Jurisprudence 3d
(1980) 430, Courts and Judges, Section 280). “With no better guideline than the bare wording of the statute to
establish whether a nonresident is transacting business in Ohio, the court must, therefore, rely on a case-by-case
determination.” Jd.
4
In Ohio, a passive internet website that does little more than make information available to
those interested in it is not grounds for exercising personal jurisdiction. Edwards v. Erdey (Ohio
Com.PI., 11-28-2001) 118 Ohio Misc.2d 232, 770 N.E.2d 672, 2001-Ohio-4367, citing Bensusan
Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y.1996). As the Tenth District summarized,
“[t]he majority of jurisdictions that have considered the issue of personal jurisdiction arising out
of a single transaction on an auction website such as eBay have found the absence of jurisdiction.”
Id.
The case at bar is no exception. Ms. Nieves initially booked The Polaris Pointe through
the short-term rental website VRBO for a single transaction. Ohio’s long-arm statute, O.R.C.
2307.382, is limited and does not extend personal jurisdiction to the limits of due process
Goldstein v. Christiansen, 70 Ohio St.3d 232, 238 n. 1, 638 N.E.2d 541 (1994). Likewise, in this
case, granting personal jurisdiction under the long-arm statute is not consistent with “traditional
notions of fair play and substantial justice” as articulated by the United States Supreme Court in
International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95
(Quotation omitted)
2 The Exercise of Jurisdiction Over Ms. Nieves Does Not Comport with Due Process.
Personal jurisdiction can be general or specific, depending upon the nature of contacts the
defendant has with the forum state. Kauffman Racing Equip., L.L.C. at 4 46, quoting Conti v.
Pneumatic Prods. Corp., 977 F.2d 978, 981 (C.A.6, 1992). Regarding Ms. Nieves, neither exists.
a. There is no general personal jurisdiction over Ms. Nieves.
General jurisdiction is proper only if a defendant’s contacts with the forum state are so
extensive as to be characterized as “continuous and systematic.” Helicopteros Nacionales de
Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Here, Ms. Nieves’s
contacts with Ohio are virtually non-existent. As pointed out in { 2 of the Plaintiff's Amended
Complaint, Ms. Nieves resides in the Commonwealth of Virginia. Ms. Nieves does not maintain
any physical, financial, or other kind of presence in Ohio that could be regarded as “substantial”
“continuous and systematic.” The extent of Ms. Nieves’s contact with Ohio was to file a police
report with the Westerville Police Department after the alleged incident. (PI.’s Amend. Compl.
25).
To satisfy due process, the defendant must maintain certain minimum contacts with the
state so that the suit does not offend traditional notions of fair play and substantial justice. inVentiv
Health Communications, Inc. v. Rodden (Ohio App. 5 Dist., 03-12-2018) 108 N.E.3d 605, 2018-
Ohio-945, on remand 2018 WL 2009362. Here, Ms. Nieves has not maintained the required
minimum contacts with the state of Ohio that exercising personal jurisdiction over her in this
matter would offend traditional notions of fair play and substantial justice.
b. Ms. Nieves does not have the minimum contacts required for personal jurisdiction.
Under the second prong of the court’s analysis, to meet these “traditional notions of fair
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play and substantial justice,” due process requires the defendant have certain minimum contacts
with [the forum state]...’” for a court to exercise specific jurisdiction over that party. Ky. Oaks
Mail Co., supra fn 1, § 10, quoting /nt’ Shoe Co., supra. The Supreme Court further
acknowledged that these minimum contacts must have a basis in “some act by which the defendant
purposefully avails itself of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462,
474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
Ohio courts apply a three-part test adopted by the Sixth Circuit in S. Machine Co., Inc. v.
Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir. 1968), to determine if minimum contacts
exist between the nonresident and the forum state to satisfy the due process requirement. See,
generally, Kauffman Racing Equip., L.L.C. at § 48, citing S. Machine Co., Inc. at 381. According
to the S. Machine Co. test:
for a trial court to assert limited personal jurisdiction over an out-of-state
defendant, three criteria must be satisfied: (1) the defendant must purposefully
avail himself of the privilege of acting in the forum state or causing a consequence
in the forum state; (2) the cause of action must arise from the defendant's activities
there; and (3) the acts of the defendant or the consequences caused by the
defendant must have a substantial enough connection with the forum state to make
the exercise of jurisdiction reasonable.
Id., quoting S. Machine Co., Inc. at 381 (emphasis added).
Under the first S. Machine factor, “’[p]urposeful availment’ is present when the
defendant’s contacts with the forum state ‘proximately result from actions by the defendant himself
that create a ‘substantial connection’ with the forum State.” Kauffman Racing Equip., L.L.C at J
51, quoting Burger King Corp. 471 U.S. at 475 (internal quotations admitted). Additionally, “[t]he
defendant's conduct and connection with the forum must be such that he ‘should reasonably
anticipate being haled into court there.’” /d., quoting Burger King Corp. 471 U.S. at 474 (internal
quotations admitted). See also World-Wide Volkswagen Corp. v. Woodson, (1980) 444 U.S. 286,
295, 100 S.Ct. 559, 62 L.Ed.2d 490
“This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts,” id. at 475, citing
Keeton, 465 U.S. at 774, 104 S.Ct. 1473, 79 L.Ed.2d 790, or of the “ ‘unilateral activity of another
party or third person.’ ” /d., quoting Helicopteros Nacionales, 466 U.S. at 417, 104 S.Ct. 1868, 80
L.Ed.2d 404.
For example, in Kauffman, the Fifth District determined the exercise of personal
jurisdiction over an out-of-state buyer of an automobile engine block in a seller's action for
defamation and intentional interference with contracts and business relationships based on buyer's
posting of highly critical messages about the seller on internet sites, comported with due process
In determining that personal jurisdiction complied with due process, the court noted that the buyer
knew that the alleged defamation concerned a resident of the forum state, and the brunt of the harm
suffered was in the forum state.
Here, Ms. Nieves did not know the location of Plaintiffs business registration or where the
principal of Plaintiff’s business lived. Ms. Nieves never set foot in Ohio to discuss her stay in St.
Croix. The St. Croix property was advertised on VRBO, an internet-based entity, and all of Ms
Nieves's discussions were about utilizing the property for her wedding.* Because Ms. Nieves did
not know the location of the principal of the Plaintiff, she could not have known the brunt of the
harm suffered in Ohio. Therefore, Ms. Nieves did not purposely avail herself.
Under the second prong, “If a defendant's contacts with the forum state are related to the
operative facts of the controversy, then an action will be deemed to have arisen from those
contacts.” CompuServe, Inc. v. Patterson (C.A.6, 1996), 89 F.3d 1257, 1267. This “does not
require that the cause of action formally ‘arise from’ defendant's contacts with the forum; rather,
this criterion requires only ‘that the cause of action, of whatever type, have a substantial connection
with the defendant's in-state activities.’ ” Third Natl. Bank, 882 F.2d at 1091, quoting S. Machine
Co., 401 F.2d at 384, fn. 27. Further, a “lenient standard * * * applies when evaluating the ‘arising
from’ criterion.” Bird v. Parsons, 289 F.3d 865, 875.
Here, the cause of action does not have a substantial connection with Ms. Nieves’s contacts
with Ohio. As stated above, Ms. Nieves did not know the location of the Plaintiff's business
3 Additionally, the personal website Plaintiff created for the Polaris Pointe makes no reference to being an Ohio
corporation. The only “hint” given by Plaintiff that they are located in Ohio is the “(614)” area code of one of the
phone numbers listed on the website.
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registration or where the principal of the Plaintiff’ s business lived. Her contact with Plaintiff began
through VRBO. Then, the contact moved to email. All the while, the location of the principal of
the Plaintiff was not disclosed. The only connection to Ohio is the alleged location of the Plaintiff.
Everything else, including the property's location, the Defendant's wedding, and the Defendant's
location, is outside of Ohio. Therefore, Ms. Nieves’s contacts with Ohio are unrelated to the
controversy's operative facts.
Under the third and final prong of the S. Machine test, the acts of the nonresident defendant
or consequences caused by the defendant must have a substantial connection with the forum state
to make the exercise of jurisdiction over the defendant reasonable. 401 F.2d at 384. When “the
first two elements of a prima facie case [are satisfied], then an inference arises that this third factor
is also present.” CompuServe, Inc., 89 F.3d at 1268, citing Am. Greetings Corp. v. Cohn (C.A.6,
1988), 839 F.2d 1164, 1170. “ ‘[O]nly the unusual case will not meet this third criterion.’ ” Am.
Greetings, 839 F.2d at 1170, quoting First Natl. Bank of Louisville v. J.W. Brewer Tire Co. (C.A.6,
1982), 680 F.2d 1123, 1126
In the instant case, the transaction at issue involved the one-time rental of a property in St.
Croix facilitated by the placement of an advertisement on VRBO, which the Plaintiff or Ms. Nieves
do not operate; the facts indicate that Ms. Nieves arranged to rent a property outside of Ohio, and
there is no evidence that Ms. Nieves ever entered Ohio as part of the transaction. Therefore, this
court must conclude that Ms. Nieves's contacts were too “random” and “attenuated” to create a
substantial connection within the forum state to make personal jurisdiction over [her] reasonable.”
Malone v. Berry, 10th Dist. No. O7AP-128, 174 Ohio App.3d 122, 2007-Ohio-6501, 881 N.E.2d
283,922
In conclusion, Plaintiff failed to satisfy the S. Machine Co. test because no minimum
contacts exist between Ms. Nieves and Ohio to satisfy the due process requirement. Therefore this
case must be dismissed for lack of personal jurisdiction.
Cc Plaintiff Does Not Have a Valid Claim for a Declaratory Judgment.
In its first claim for relief, Plaintiff alleges Ms. Nieves “entered into an agreement [with
Plaintiff] to reserve The Polaris Pointe for [her] wedding event." (Pl.'s Amend. Compl. 30).
According to Plaintiff, under the agreement, Ms. Nieves was "required to pay additional funds for
food, supplies, staff, and other event-related expenses and execute a rental agreement [with
Plaintiff] prior to her arrival at The Polaris Pointe" and failed to do so. /d. PP 31-34. As aresult,
Plaintiff asserts it is entitled to a declaratory judgment stating: (1) "a valid [rental] agreement
existed between Plaintiff and Ms. Nieves," (2) Ms. Nieves "effectively canceled her reservation...
when she refused to sign the rental agreement prior to arrival" and, (3) as a result, "Ms. Nieves is
not entitled to a refund." /d. PP (a) — (c). However, the law does not support this claim because
the Complaint alleges no facts showing why speedy relief is necessary to preserve Plaintiff's rights
In Ohio, " '[t]he essential elements for declaratory relief are (1) a real controversy exists
between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary
to preserve the rights of the parties.” Autumn Care Ctr., Inc. v. Todd, 5th Dist. No. 14-CA-41,
2014-Ohio-5235, 22 N.E.3d 1105, § 17, citing Aust v. Ohio State Dental Bd., 136 Ohio App.3d
677, 681, 737 N.E.2d 605 (10th Dist.2000).
In Ohio, there are traditionally two reasons why a court will dismiss a complaint for
declaratory judgment under Civ. R. 12(B)(6): (1) where there is no real controversy or justiciable
issue between the parties, or (2) where the declaratory judgment will not terminate the uncertainty
or controversy under O.R.C. 2721.07. See L.E. Lowry Limited Partnership v. R&R JV LLC., Sth
Dist. No. 2021 CA 00105, 2022-Ohio-3109, 195 N.E.3d 544, § 29. However, the Fifth District
10
Court of Appeals “has also found that ‘to state a claim for declaratory judgment, [a party] must
a
allege facts to show speedy relief is necessary to preserve the rights of the parties. Id., citing
Bunting v. Watts, 5th Dist. Stark No. 2018CA00065, 2018-Ohio-3357, 2018 WL 4026979, ¥ 19
(holding that “failure to allege facts showing that speedy relief is necessary to preserve the rights
of the parties is a third basis for dismissing a complaint for declaratory judgment.”)
To show speedy relief is necessary, Plaintiff must allege facts supporting a conclusion of a
“threat of irreparable injury” without a ruling in its favor. Armatas v. Aultman Health Found., 5th
Dist. Stark No. 2016CA00130, 2016-Ohio-73 16, 2016 WL 5940866, § 17. In other words, “speedy
relief is necessary to the preservation of rights which may otherwise be impaired or lost.” Burger
Brewing Co. v. Liquor Control Commission, Dept. of Liquor Control, 34 Ohio St.2d 93, 296
NE.2d 261, { 1.
For example, in L.E. Lowry Limited Partnership, the Fifth District Court of Appeals held
that the vendor of real property who brought a breach of contract and declaratory judgment action
against the purchaser, seeking resolution over a dispute regarding price and the purchaser’s ability
to use three acres on the purchased property was not entitled to a declaratory judgment “[b]ecause
the complaint [did] not include allegations citing the need for prompt relief to protect [plaintiff]’s
rights.” 5th Dist. No. 2021 CA 00105, 2022-Ohio-3109, 195 N.E.3d 544, § § 31-32 (internal
citations omitted). In partially upholding Defendant’s motion to dismiss, the Fifth District Court
of Appeals noted that all “necessary elements of a declaratory judgment action” must be present
to survive a motion to dismiss under Civ. R. 12(B)(6), including the requirement for speedy relief.
Id. The court reasoned that because the complaint was filed three months after the closing of the
real estate transaction and did not allege an actual present need for a declaration or “allege any
rights [that] may [be] lost as a result of a delay in procuring judicial review,” a declaratory
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judgment was not necessary. Jd. {31
In this case, Plaintiff's Complaint makes no allegation as to why speedy relief is necessary
While Plaintiff asserts a declaratory judgment is needed because “[d]efendant demanded the
return of her deposit which has been refused by Plaintiff...there exists a justiciable controversy
which requires resolution by this Court” (Pl.’s Amend. Compl. 36), it makes no mention of a
present existing need for a declaratory judgment or alleges any rights it may lose as a result of a
delay in procuring it. On the contrary, Plaintiff's Complaint, filed on April 26, 2023, and the
subsequent Amended Complaint, filed on May 25, 2023, do not mention what rights require
prompt relief to protect. While the Complaints do make note that the alleged agreement between
Plaintiff and Ms. Nieves was for a reservation and events that were to occur from January 31,
2023, through February 6, 2023. (/d. 45). Like in L.E. Lowry, here, Plaintiff did not commence
this action until over two months past the reservation period in controversy. (/d.) As a result,
issuing a declaratory judgment in this matter is moot because Plaintiff's complaint does not allege
an actual present need for one because any rights Plaintiff may have retained as a result of a
declaratory judgment no longer apply since the reservation period had already passed before
Plaintiff commenced the present action.*
Therefore, Plaintiff's demand for declaratory judgment must be dismissed under Civ. R.
12(B)(6) because the “speedy relief” element necessary for a declaratory judgment no longer
exists, which in turn means no justiciable controversy exists. See generally L.E. Lowry Limited
Partnership.
D. Plaintiff Fails to Assert Facts Necessary to State a Valid Breach of Contract Claim
Against Ms. Nieves.
4 In other words, for the Court to issue a declaratory judgment in this matter, speedy relief requires the Court to have
considered this issue before the alleged January 31, 2023, reservation period.
12
Plaintiff's second claim fails because it does not meet the essential elements required to
plead a valid contract existed between the parties. In Ohio, “a complaint must... allege sufficient
underlying facts that relate to and support the alleged claim and may not simply state legal
conclusions.” Beem v. Thorp, 5th Dist. Licking No. 16-CA-97, 2017-Ohio-2967, § 22, citing
DeVore v. Mut. of Omaha Ins. Co., 32 Ohio App.2d 36, 38, 288 N.E.2d 202 (1972)
In Count Two of Plaintiff's Amended Complaint, Plaintiff alleges that “Plaintiff and
Defendant entered into an agreement to rent The Polaris Pointe...,” and “Defendant breached her
obligations under [said] agreement by failing to pay additional funds required for the wedding
event, canceling the wedding event just days before her check-in date, and subsequently refusing
to execute a rental agreement prior to her arrival at The Polaris Pointe.” (Pl.’s Amend. Compl. at
438; 4 40).
To successfully prosecute its breach of contract claim, Plaintiff must prove the existence
of a contract, that it performed its obligations under the contract, that Defendant breached the
contract, and that Plaintiff has suffered damages. Doner v. Snapp (1994), 98 Ohio App. 3d 597,
600. To prove the existence of a valid contract, written or oral, a plaintiff must show that both
parties consented to the terms of the contract, that there was a ‘meeting of the minds’ of both
parties, and that the terms of the contract are definite and certain.” Specialty Executives, Inc. v.
KDH Defense Systems, Inc. , 5th Dist. No. 1}6CA0012, 2017-Ohio-4399, 93 N.E.3d 114, 145, citing
Episcopal Retirement Homes, Inc. v. Ohio Dep't of Indus. Rel., 61 Ohio St.3d 366, 369, 575 N.E.2d
134 (1991).
Furthermore, while factual allegations in the complaint are taken as true, "[u]nsupported
conclusions of a complaint are not considered admitted... and are not sufficient to withstand a
motion to dismiss." State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 324, 544 N.E.2d 639
13
(1989) (affirming decision granting dismissal of the complaint for failure to state a claim). See
also Beem v. Thorp, Sth Dist. Licking No. 16-CA-97, 2017-Ohio-2967, P 23 (affirming trial court's
finding that Plaintiff's conclusory statements did not meet the requirements of Civ. R. 8(A));
Phelps v. Office of the Attorney General, 10th Dist. Franklin No. O6AP-751, 2007-Ohio-14, [PP 4
(affirming trial court's finding that plaintiffs! complaint did not articulate a cognizable claim upon
which relief could be granted).
In the case at bar, Plaintiff makes multiple allegations that the parties “entered into an
agreement to rent The Polaris Pointe at such time as Defendant requested to reserve [it] and
Plaintiff accepted such reservation. (See, e.g., Pl.’s Amend. Compl. [P 2, P38). However, it fails
to provide any facts sufficient to support that both parties consented to the terms of the contract,
that there was a “meeting of the minds” of both parties, or that the terms of the contract are definite
and certain.” Furthermore, Plaintiff concludes that “at all relevant times [it] performed all of its
obligations under the agreement with Defendant” and “Defendant breached her obligations under
the agreement...” without alleging any facts that show what the specific obligations were of each
party under the agreement. (PI.’s Amend. Compl. P 39 -- 40).
Therefore, because Plaintiff's amended complaint fails to allege any facts that show the
existence of a valid contract or what the rights and obligations of the parties under the alleged
agreement were, Count two of Plaintiff's Amended Complaint must be dismissed.
E. Plaintiff has Failed to Plead Prevention, Breach, or Termination.
For its Third claim in its Amended Complaint, the Plaintiff alleges that Ms. Nieves
tortiously interfered with the business relationship or contract of the Plaintiff and its employees
To establish a claim of tortious interference with a business relationship or contract, a plaintiff
must show (1) the existence of a business relationship or contract, (2) the defendant's knowledge
14
of the business relationship or contract, (3) the defendant's intentional or improper action taken to
prevent a contract formation, procure the contract's breach, or terminate a business relationship,
(4) lack of justification or privilege, and (5) resulting damages. Cairelli v. Brunner, 10th Dist. No.
18AP000164, 2019-Ohio-1511, 2019 WL 2005922, { 55, citing Fred Siegel Co., L.P.A. v. Arter
& Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), paragraph one of the syllabus. Here, the
Plaintiff has failed to sufficiently plead that the acts of Ms. Nieves procured a breach of contract
or termination of a business relationship between the Plaintiff and its employees.
In the Plaintiff's Amended Complaint, the Plaintiff pleads that on or around April 4, 2023,
Plaintiff contacted Defendant to inform her that the deadline to accept the March 2, 2023 offer had
passed and therefore such offer was officially rescinded. Pl.’s Amend. Compl. { 23. On or around
that time, and continuing to the time of the filing of this action, Defendant began harassing Plaintiff
and its employees, including by calling Plaintiff's employees in the middle of the night. Pl.’s
Amend. Compl {| 24. Defendant has interfered with the Plaintiff's business operations by
continuously harassing Plaintiff and its employees, including by calling Plaintiff's employees at
all hours of the night, filing unfounded complaints and police reports against Plaintiff, and making
untrue and defamatory statements about Plaintiff to third parties. Pl.’s Amend. Compl. § 43.
A review of the Platiniff's amended complaint does not allege anywhere that a single
employee left the employment of the Platiniff. It does not allege that an employee terminated its
contract with the the Platinff due to the actions of Ms. Nieves. The Ohio Supreme Court has quoted
with approval 4 Restatement of the Law 2d, Torts, Section 766 (1979), which provides:
One who intentionally and improperly interferes with the performance of a
contract (except a contract to marry) between another and a third person by inducing
or otherwise causing the third person not to perform the contract, is subject to liability
to the other for the pecuniary loss resulting to the other from the failure of the third
person to perform the contract.
15
The Plaintiff has simply not pleaded any facts establishing that a third person did not
establish a contract, breached their contract with the Platiniff, or terminated a business relationship
with the Plaintiff. Although the Plaintiff is not required to set forth the elements of any of these
causes of action, it is, nonetheless, required to state direct allegations on every material point
necessary to sustain a recovery on any legal theory. Davis v. Widman, 3rd Dist. No. 13-09-20, 184
Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, § 24. Therefore, the Plaintiffs third claim
must be dismissed.
F, Under the Doctrine of Forum Non Conveniens, the Defamation Claim Must be
Dismissed.
The remaining alleged defamation claim, in this case, should be dismissed under the
common law doctrine of forum non conveniens. “The principle of forum non conveniens is simply
that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the
letter of a general venue statute.” Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d
123, 125-26, 519 N.E.2d 370, 372-73 (1988), quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S.
501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055. The doctrine assumes that proper jurisdiction and
proper venue lie in the court which plaintiff has chosen, and additionally presupposes the
availability of another forum in which the defendant may be sued. /d., quoting Gilbert at 504, 67
S.Ct. at 840; cf. Ohio Civ.R. 3(D). “[T]he doctrine furnishes criteria for choice between them.”
Id., quoting Gilbert, supra, at 507
The Gilbert court noted that “the plaintiffs' choice of forum should rarely be disturbed,”
Chambers, quoting Gilbert, supra, 330 U.S. at 508, 67 S.Ct. at 843, particularly when the plaintiff
has chosen his home forum. Koster v. Lumbermens Mut. Cas. Co. (1947), 330 U.S. 518, 524, 67
S.Ct. 828, 831, 91 L.Ed. 1067. However, in Piper Aircraft Co. v. Reyno, the court held: “Because
the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a
16
foreign plaintiff's choice deserves less deference.” (1981), 454 U.S. 235, 256, 102 S.Ct. 252, 266,
70 L.Ed.2d 419, The criteria set forth in Gi/bert and other United States Supreme Court decisions
are to be applied flexibly, with each case tuming on its own facts. /d., quoting Williams v. Green
Bay & Western Ry. Co. (1946), 326 U.S. 549, 66 S.Ct. 284, 90 L.Ed. 311.
Important private interests include “the relative ease of access to sources of proof;
availability of compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to
the action; and all other practical problems that make trial of a case easy, expeditious, and
inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained.”
Chambers at 126-127, 519 N.E.2d 370.
Here, the facts surrounding this case transpired via the Internet or telephone. The other
critical facts of this case lie in St. Croix. The property is located in St. Croix, and nothing about
this case in Ohio needs to be viewed. Each party has equal access to and equal ability to collect
the internet communications of each party. Additionally, the Ohio Rules of Civil Procedure allow
for collecting deposition testimony through internet-based means, which were frequently and
effectively used during the COVID-19 pandemic. Even if a judgment were obtained in Ohio, the
means of collection would have to occur either in St. Croix or the Commonwealth of Virginia,
where Ms. Nieves currently resides.
Additionally, public interest factors to be considered include “the administrative
difficulties and delay to other litigants caused by congested court calendars, the imposition of jury
duty upon the citizens of a community which has very little relation to the litigation, a local interest
in having localized controversies decided at home, and the appropriateness of litigating a case in
a forum familiar with the applicable law.” Chambers at 127, 519 N.E.2d 370.
17
The alleged defamation claim is readily severable and does not involve a risk of
inconsistent ruling in either jurisdiction. While the Plaintiff is an Ohio resident, most of Ms
Nieves's alleged defamatory conduct occurred in either St. Croix, Virginia, or the internet-based
Better Business Bureau and involved mostly law enforcement and/or occurred through message
board postings sent from Virginia to Internet groups. The state of origin for most of Ms. Nieves's
alleged defamatory conduct is Virginia. Virginia is also where Ms. Nieves's family (who likely
would be witnesses in any court proceedings) and the majority of the sources of proof (Internet
postings, e-mails) are located. See Lee v. Burnett, Franklin App. No. O7AP-40, 2007-Ohio-3742,
2007 WL 2110801
Finally, maintaining jurisdiction over only the alleged defamation claim in Ohio “would
undermine the concept of judicial efficiency, which requires that the entire dispute be resolved in
a single forum, without needless duplication of evidence and expense. The convenience of the
parties and witnesses would be best served by a single trial in a single location and the proper
forum for the Plaintiff's claims is in Virginia or St. Croix.
CONCLUSION
For the reasons stated above, Defendant Nieves respectfully requests that this Court
dismiss the Plaintiff's Complaint.
Respectfully submitted,
DECKER VONAU, LLC
By:/s/ Garrison P. Carr
Garrison P. Carr (0090595)
Christopher S. Vonau (0091426)
620 E. Broad Street, Suite 200
Columbus, Ohio 43215
Tel: (614) 744-3108
18
Fax: (614) 242-4243
gcarr@deckervonau.com
CERTIFICATE OF SERVICE
Thereby certify that a copy of the forgoing document was filed with the Delaware Clerk of Courts
on June 23, 2023 and was sent via ordinary mail to:
AC Strip
Loni R Sammons
575 South Third Street,
Columbus, OH 43215
GormleyCourt@co.delaware.oh.us
By /s/ Garrison P. Carr
Garrison Carr (0090595).
19
Preview
IN THE DELAWARE COUNTY COMMON PLEAS COURT DELAWARE COUNTY, OHIO CIVIL DIVISION THE POLARIS POINTE OF ST. CROIX, USVI, LLC. Case No.: 23 CV H 04 0234 Judge: GORMLEY Plaintiff, v ATHENA NIEVES Defendant MOTION OF THE DEFENDANT ATHENA NIEVES TO DISMISS THE FIRST A. [ENDED COMPLAINT Now comes Defendant Athena Nieves, by and through counsel, respectfully requesting this Court grant her motion to dismiss the First Amended Complaint filed by Plaintiff The Polaris Pointe of St. Croix, USVI, LLC., pursuant to Ohio R. Civ. P. 12(B)(2), Ohio R. Civ. P. 12(B)(6), and under the Doctrine of Forum Non Conveniens. The reasons for the motion are more particularly set out below. Respectfully submitted, DECKER VONAU & CARR, LLC By:/s/ Garrison P. Carr Garrison P. Carr (0090595) Christopher S. Vonau (0091426) 620 E. Broad Street, Suite 200 Columbus, Ohio 43215 Tel: (614) 744-3108 Fax: (614) 242-4243 Email: gearr@deckervonau.com 1 CLERK OF COURTS - DELAWARE COUNTY, OH - COMMON PLEAS COURT 23 CV H 04 0234 - GORMLEY, DAVID M FILED: 06/23/2023 04:00 PM MEMORANDUM IN SUPPORT I. INTRODUCTION Plaintiff filed this case on April 26, 2023, against Defendant Athena Nieves, an individual residing in the Commonwealth of Virginia. However, the Court lacks jurisdiction over Ms. Nieves in the present matter. Additionally, Plaintiff's Complaint consists of unsupported conclusory allegations and asks for remedies that this Court cannot grant. The absence of sufficient jurisdiction, factual allegations, and appropriate relief sought warrants the dismissal of Plaintiff's Complaint in its entirety as a matter of law. I. LAW AND ARGUMENT A Legal Standard "A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Ed of Commrs., 65 Ohio St.3d 545, 548 (1992). To grant a motion to dismiss under Civ. R. 12(B)(6) for failure to state a claim upon which relief may be granted, it must appear beyond doubt that plaintiff can prove no set of facts warranting a recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975). When ruling on a Civ. R. 12(B)(6) motion, the court must presume the truth of the factual allegations in the complaint and must make all reasonable inferences in favor of the non-moving party. Mitchell vy. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988) (reinstating the trial court's decision granting dismissal of the complaint for failure to state a claim). However, a motion to dismiss for lack of personal jurisdiction places the burden on plaintiff to show that the trial court has personal jurisdiction over the defendant. Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, 27. B This Court Lacks Jurisdiction Over Ms. Nieves in the Present Matter, and Therefore Must Dismiss Plaintiff's Complaint. As the Ohio Supreme Court has stated, “[t]he rise in Internet-related disputes does not mean courts should ignore traditional jurisdiction principles.” Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, 25. This case is no exception. When a defendant challenges the exercise of personal jurisdiction, the plaintiff must show that the trial court has personal jurisdiction over the defendant. /d. Plaintiff cannot meet this burden; therefore, its Complaint must be dismissed. To determine whether an Ohio court sitting in diversity has personal jurisdiction over a nonresident defendant, it must engage in a two-step analysis. Kauffman Racing Equip., L.L.C., supra, at J 10; citing U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K's Foods, Inc., 68 Ohio St.3d 181, 183, 624 N.E.2d 1048 (1994); Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53 Ohio St.3d 73, 75, 559 N.E.2d 477 (1990). First, the court must consider whether Ohio’s long-arm statute and applicable civil rule confer personal jurisdiction. /d. Second, if the court determines that the applicable rule and statute confer personal jurisdiction, it must then consider whether exercising jurisdiction under the statute and rule comport with the defendant’s due process rights under the Fourteenth Amendment to the United States Constitution. Jd. Concerning the first prong of the Court’s analysis, Ohio’s long-arm statute, O.R.C. 2307.382, allows Ohio courts to exercise personal jurisdiction over a non-resident defendant only if the non-resident defendant commits certain acts in the forum state. Such acts may include: (1) Transacting business within the state; (2) Contracting to supply services or goods in the state; (3) Causing tortious injury by an act or omission in the state; sR (6) Causing tortious injury in the state to any person by an act outside the state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in the state[.] ... Here, even construing all allegations in the Amended Complaint as true, Plaintiff did not make a prima facie showing that the Court could exercise personal jurisdiction over Ms. Nieves under Ohio’s long-arm statute as required under the first prong of the personal jurisdiction analysis. 1 Ms. Nieves did not transact business in Ohio. O.R.C. § 2307.382(A)(1) permits the exercise of personal jurisdiction over non-resident defendants if they are “transacting! business” in Ohio. While determining whether a defendant is “transacting business” within the statute's meaning is made on a case-by-case basis,” the facts alleged in Plaintiff's complaint do not give rise to personal jurisdiction over Ms. Nieves. In its complaint, Plaintiff alleges the Court has proper jurisdiction because the alleged agreement was reached with Plaintiff-corporation which is headquartered in Delaware, Ohio, and funds were received by Plaintiffin Delaware, Ohio. (Amend. Compl. {§ 2-3). While the Plaintiff fails to include the fact in its complaint, the alleged agreement was initially made through a third- party internet site, VRBO. 1 The Ohio Supreme Court has turned to the ordinary definition of “transact” when conducting this analysis. According to the Court, the word “transact” means “’to prosecute negotiations; to carry on business; to have dealings....' The word embraces in its meaning the carrying on or prosecution of business negotiations but it is a broader term than the word ‘contract’ and my involve business negotiations which have been either wholly or partially brought to a conclusion.” Kentucky Oaks Mall Co. v. Mitchell’s Formal Wear, Inc., 53 Ohio St. 3d 73, 75, 559 N.E.2d 477, 480 (1990) (citing Black’s Law Dictionary (5 Ed. 1979) 1341). ? “Because it is such a broad statement of jurisdiction, O.R.C. § 2307.382(A)(1) has given rise to a variety of cases which ‘have reached their results on highly particularized fact situations, thus rendering any generalization unwarranted.”” U.S. Spring Communications Co. Ltd. P’ship, at 185, N.E.2d 1048 (citing 22 Ohio Jurisprudence 3d (1980) 430, Courts and Judges, Section 280). “With no better guideline than the bare wording of the statute to establish whether a nonresident is transacting business in Ohio, the court must, therefore, rely on a case-by-case determination.” Jd. 4 In Ohio, a passive internet website that does little more than make information available to those interested in it is not grounds for exercising personal jurisdiction. Edwards v. Erdey (Ohio Com.PI., 11-28-2001) 118 Ohio Misc.2d 232, 770 N.E.2d 672, 2001-Ohio-4367, citing Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y.1996). As the Tenth District summarized, “[t]he majority of jurisdictions that have considered the issue of personal jurisdiction arising out of a single transaction on an auction website such as eBay have found the absence of jurisdiction.” Id. The case at bar is no exception. Ms. Nieves initially booked The Polaris Pointe through the short-term rental website VRBO for a single transaction. Ohio’s long-arm statute, O.R.C. 2307.382, is limited and does not extend personal jurisdiction to the limits of due process Goldstein v. Christiansen, 70 Ohio St.3d 232, 238 n. 1, 638 N.E.2d 541 (1994). Likewise, in this case, granting personal jurisdiction under the long-arm statute is not consistent with “traditional notions of fair play and substantial justice” as articulated by the United States Supreme Court in International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (Quotation omitted) 2 The Exercise of Jurisdiction Over Ms. Nieves Does Not Comport with Due Process. Personal jurisdiction can be general or specific, depending upon the nature of contacts the defendant has with the forum state. Kauffman Racing Equip., L.L.C. at 4 46, quoting Conti v. Pneumatic Prods. Corp., 977 F.2d 978, 981 (C.A.6, 1992). Regarding Ms. Nieves, neither exists. a. There is no general personal jurisdiction over Ms. Nieves. General jurisdiction is proper only if a defendant’s contacts with the forum state are so extensive as to be characterized as “continuous and systematic.” Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Here, Ms. Nieves’s contacts with Ohio are virtually non-existent. As pointed out in { 2 of the Plaintiff's Amended Complaint, Ms. Nieves resides in the Commonwealth of Virginia. Ms. Nieves does not maintain any physical, financial, or other kind of presence in Ohio that could be regarded as “substantial” “continuous and systematic.” The extent of Ms. Nieves’s contact with Ohio was to file a police report with the Westerville Police Department after the alleged incident. (PI.’s Amend. Compl. 25). To satisfy due process, the defendant must maintain certain minimum contacts with the state so that the suit does not offend traditional notions of fair play and substantial justice. inVentiv Health Communications, Inc. v. Rodden (Ohio App. 5 Dist., 03-12-2018) 108 N.E.3d 605, 2018- Ohio-945, on remand 2018 WL 2009362. Here, Ms. Nieves has not maintained the required minimum contacts with the state of Ohio that exercising personal jurisdiction over her in this matter would offend traditional notions of fair play and substantial justice. b. Ms. Nieves does not have the minimum contacts required for personal jurisdiction. Under the second prong of the court’s analysis, to meet these “traditional notions of fair we play and substantial justice,” due process requires the defendant have certain minimum contacts with [the forum state]...’” for a court to exercise specific jurisdiction over that party. Ky. Oaks Mail Co., supra fn 1, § 10, quoting /nt’ Shoe Co., supra. The Supreme Court further acknowledged that these minimum contacts must have a basis in “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Ohio courts apply a three-part test adopted by the Sixth Circuit in S. Machine Co., Inc. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir. 1968), to determine if minimum contacts exist between the nonresident and the forum state to satisfy the due process requirement. See, generally, Kauffman Racing Equip., L.L.C. at § 48, citing S. Machine Co., Inc. at 381. According to the S. Machine Co. test: for a trial court to assert limited personal jurisdiction over an out-of-state defendant, three criteria must be satisfied: (1) the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state; (2) the cause of action must arise from the defendant's activities there; and (3) the acts of the defendant or the consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction reasonable. Id., quoting S. Machine Co., Inc. at 381 (emphasis added). Under the first S. Machine factor, “’[p]urposeful availment’ is present when the defendant’s contacts with the forum state ‘proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum State.” Kauffman Racing Equip., L.L.C at J 51, quoting Burger King Corp. 471 U.S. at 475 (internal quotations admitted). Additionally, “[t]he defendant's conduct and connection with the forum must be such that he ‘should reasonably anticipate being haled into court there.’” /d., quoting Burger King Corp. 471 U.S. at 474 (internal quotations admitted). See also World-Wide Volkswagen Corp. v. Woodson, (1980) 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 “This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts,” id. at 475, citing Keeton, 465 U.S. at 774, 104 S.Ct. 1473, 79 L.Ed.2d 790, or of the “ ‘unilateral activity of another party or third person.’ ” /d., quoting Helicopteros Nacionales, 466 U.S. at 417, 104 S.Ct. 1868, 80 L.Ed.2d 404. For example, in Kauffman, the Fifth District determined the exercise of personal jurisdiction over an out-of-state buyer of an automobile engine block in a seller's action for defamation and intentional interference with contracts and business relationships based on buyer's posting of highly critical messages about the seller on internet sites, comported with due process In determining that personal jurisdiction complied with due process, the court noted that the buyer knew that the alleged defamation concerned a resident of the forum state, and the brunt of the harm suffered was in the forum state. Here, Ms. Nieves did not know the location of Plaintiffs business registration or where the principal of Plaintiff’s business lived. Ms. Nieves never set foot in Ohio to discuss her stay in St. Croix. The St. Croix property was advertised on VRBO, an internet-based entity, and all of Ms Nieves's discussions were about utilizing the property for her wedding.* Because Ms. Nieves did not know the location of the principal of the Plaintiff, she could not have known the brunt of the harm suffered in Ohio. Therefore, Ms. Nieves did not purposely avail herself. Under the second prong, “If a defendant's contacts with the forum state are related to the operative facts of the controversy, then an action will be deemed to have arisen from those contacts.” CompuServe, Inc. v. Patterson (C.A.6, 1996), 89 F.3d 1257, 1267. This “does not require that the cause of action formally ‘arise from’ defendant's contacts with the forum; rather, this criterion requires only ‘that the cause of action, of whatever type, have a substantial connection with the defendant's in-state activities.’ ” Third Natl. Bank, 882 F.2d at 1091, quoting S. Machine Co., 401 F.2d at 384, fn. 27. Further, a “lenient standard * * * applies when evaluating the ‘arising from’ criterion.” Bird v. Parsons, 289 F.3d 865, 875. Here, the cause of action does not have a substantial connection with Ms. Nieves’s contacts with Ohio. As stated above, Ms. Nieves did not know the location of the Plaintiff's business 3 Additionally, the personal website Plaintiff created for the Polaris Pointe makes no reference to being an Ohio corporation. The only “hint” given by Plaintiff that they are located in Ohio is the “(614)” area code of one of the phone numbers listed on the website. 8 registration or where the principal of the Plaintiff’ s business lived. Her contact with Plaintiff began through VRBO. Then, the contact moved to email. All the while, the location of the principal of the Plaintiff was not disclosed. The only connection to Ohio is the alleged location of the Plaintiff. Everything else, including the property's location, the Defendant's wedding, and the Defendant's location, is outside of Ohio. Therefore, Ms. Nieves’s contacts with Ohio are unrelated to the controversy's operative facts. Under the third and final prong of the S. Machine test, the acts of the nonresident defendant or consequences caused by the defendant must have a substantial connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. 401 F.2d at 384. When “the first two elements of a prima facie case [are satisfied], then an inference arises that this third factor is also present.” CompuServe, Inc., 89 F.3d at 1268, citing Am. Greetings Corp. v. Cohn (C.A.6, 1988), 839 F.2d 1164, 1170. “ ‘[O]nly the unusual case will not meet this third criterion.’ ” Am. Greetings, 839 F.2d at 1170, quoting First Natl. Bank of Louisville v. J.W. Brewer Tire Co. (C.A.6, 1982), 680 F.2d 1123, 1126 In the instant case, the transaction at issue involved the one-time rental of a property in St. Croix facilitated by the placement of an advertisement on VRBO, which the Plaintiff or Ms. Nieves do not operate; the facts indicate that Ms. Nieves arranged to rent a property outside of Ohio, and there is no evidence that Ms. Nieves ever entered Ohio as part of the transaction. Therefore, this court must conclude that Ms. Nieves's contacts were too “random” and “attenuated” to create a substantial connection within the forum state to make personal jurisdiction over [her] reasonable.” Malone v. Berry, 10th Dist. No. O7AP-128, 174 Ohio App.3d 122, 2007-Ohio-6501, 881 N.E.2d 283,922 In conclusion, Plaintiff failed to satisfy the S. Machine Co. test because no minimum contacts exist between Ms. Nieves and Ohio to satisfy the due process requirement. Therefore this case must be dismissed for lack of personal jurisdiction. Cc Plaintiff Does Not Have a Valid Claim for a Declaratory Judgment. In its first claim for relief, Plaintiff alleges Ms. Nieves “entered into an agreement [with Plaintiff] to reserve The Polaris Pointe for [her] wedding event." (Pl.'s Amend. Compl. 30). According to Plaintiff, under the agreement, Ms. Nieves was "required to pay additional funds for food, supplies, staff, and other event-related expenses and execute a rental agreement [with Plaintiff] prior to her arrival at The Polaris Pointe" and failed to do so. /d. PP 31-34. As aresult, Plaintiff asserts it is entitled to a declaratory judgment stating: (1) "a valid [rental] agreement existed between Plaintiff and Ms. Nieves," (2) Ms. Nieves "effectively canceled her reservation... when she refused to sign the rental agreement prior to arrival" and, (3) as a result, "Ms. Nieves is not entitled to a refund." /d. PP (a) — (c). However, the law does not support this claim because the Complaint alleges no facts showing why speedy relief is necessary to preserve Plaintiff's rights In Ohio, " '[t]he essential elements for declaratory relief are (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties.” Autumn Care Ctr., Inc. v. Todd, 5th Dist. No. 14-CA-41, 2014-Ohio-5235, 22 N.E.3d 1105, § 17, citing Aust v. Ohio State Dental Bd., 136 Ohio App.3d 677, 681, 737 N.E.2d 605 (10th Dist.2000). In Ohio, there are traditionally two reasons why a court will dismiss a complaint for declaratory judgment under Civ. R. 12(B)(6): (1) where there is no real controversy or justiciable issue between the parties, or (2) where the declaratory judgment will not terminate the uncertainty or controversy under O.R.C. 2721.07. See L.E. Lowry Limited Partnership v. R&R JV LLC., Sth Dist. No. 2021 CA 00105, 2022-Ohio-3109, 195 N.E.3d 544, § 29. However, the Fifth District 10 Court of Appeals “has also found that ‘to state a claim for declaratory judgment, [a party] must a allege facts to show speedy relief is necessary to preserve the rights of the parties. Id., citing Bunting v. Watts, 5th Dist. Stark No. 2018CA00065, 2018-Ohio-3357, 2018 WL 4026979, ¥ 19 (holding that “failure to allege facts showing that speedy relief is necessary to preserve the rights of the parties is a third basis for dismissing a complaint for declaratory judgment.”) To show speedy relief is necessary, Plaintiff must allege facts supporting a conclusion of a “threat of irreparable injury” without a ruling in its favor. Armatas v. Aultman Health Found., 5th Dist. Stark No. 2016CA00130, 2016-Ohio-73 16, 2016 WL 5940866, § 17. In other words, “speedy relief is necessary to the preservation of rights which may otherwise be impaired or lost.” Burger Brewing Co. v. Liquor Control Commission, Dept. of Liquor Control, 34 Ohio St.2d 93, 296 NE.2d 261, { 1. For example, in L.E. Lowry Limited Partnership, the Fifth District Court of Appeals held that the vendor of real property who brought a breach of contract and declaratory judgment action against the purchaser, seeking resolution over a dispute regarding price and the purchaser’s ability to use three acres on the purchased property was not entitled to a declaratory judgment “[b]ecause the complaint [did] not include allegations citing the need for prompt relief to protect [plaintiff]’s rights.” 5th Dist. No. 2021 CA 00105, 2022-Ohio-3109, 195 N.E.3d 544, § § 31-32 (internal citations omitted). In partially upholding Defendant’s motion to dismiss, the Fifth District Court of Appeals noted that all “necessary elements of a declaratory judgment action” must be present to survive a motion to dismiss under Civ. R. 12(B)(6), including the requirement for speedy relief. Id. The court reasoned that because the complaint was filed three months after the closing of the real estate transaction and did not allege an actual present need for a declaration or “allege any rights [that] may [be] lost as a result of a delay in procuring judicial review,” a declaratory 11 judgment was not necessary. Jd. {31 In this case, Plaintiff's Complaint makes no allegation as to why speedy relief is necessary While Plaintiff asserts a declaratory judgment is needed because “[d]efendant demanded the return of her deposit which has been refused by Plaintiff...there exists a justiciable controversy which requires resolution by this Court” (Pl.’s Amend. Compl. 36), it makes no mention of a present existing need for a declaratory judgment or alleges any rights it may lose as a result of a delay in procuring it. On the contrary, Plaintiff's Complaint, filed on April 26, 2023, and the subsequent Amended Complaint, filed on May 25, 2023, do not mention what rights require prompt relief to protect. While the Complaints do make note that the alleged agreement between Plaintiff and Ms. Nieves was for a reservation and events that were to occur from January 31, 2023, through February 6, 2023. (/d. 45). Like in L.E. Lowry, here, Plaintiff did not commence this action until over two months past the reservation period in controversy. (/d.) As a result, issuing a declaratory judgment in this matter is moot because Plaintiff's complaint does not allege an actual present need for one because any rights Plaintiff may have retained as a result of a declaratory judgment no longer apply since the reservation period had already passed before Plaintiff commenced the present action.* Therefore, Plaintiff's demand for declaratory judgment must be dismissed under Civ. R. 12(B)(6) because the “speedy relief” element necessary for a declaratory judgment no longer exists, which in turn means no justiciable controversy exists. See generally L.E. Lowry Limited Partnership. D. Plaintiff Fails to Assert Facts Necessary to State a Valid Breach of Contract Claim Against Ms. Nieves. 4 In other words, for the Court to issue a declaratory judgment in this matter, speedy relief requires the Court to have considered this issue before the alleged January 31, 2023, reservation period. 12 Plaintiff's second claim fails because it does not meet the essential elements required to plead a valid contract existed between the parties. In Ohio, “a complaint must... allege sufficient underlying facts that relate to and support the alleged claim and may not simply state legal conclusions.” Beem v. Thorp, 5th Dist. Licking No. 16-CA-97, 2017-Ohio-2967, § 22, citing DeVore v. Mut. of Omaha Ins. Co., 32 Ohio App.2d 36, 38, 288 N.E.2d 202 (1972) In Count Two of Plaintiff's Amended Complaint, Plaintiff alleges that “Plaintiff and Defendant entered into an agreement to rent The Polaris Pointe...,” and “Defendant breached her obligations under [said] agreement by failing to pay additional funds required for the wedding event, canceling the wedding event just days before her check-in date, and subsequently refusing to execute a rental agreement prior to her arrival at The Polaris Pointe.” (Pl.’s Amend. Compl. at 438; 4 40). To successfully prosecute its breach of contract claim, Plaintiff must prove the existence of a contract, that it performed its obligations under the contract, that Defendant breached the contract, and that Plaintiff has suffered damages. Doner v. Snapp (1994), 98 Ohio App. 3d 597, 600. To prove the existence of a valid contract, written or oral, a plaintiff must show that both parties consented to the terms of the contract, that there was a ‘meeting of the minds’ of both parties, and that the terms of the contract are definite and certain.” Specialty Executives, Inc. v. KDH Defense Systems, Inc. , 5th Dist. No. 1}6CA0012, 2017-Ohio-4399, 93 N.E.3d 114, 145, citing Episcopal Retirement Homes, Inc. v. Ohio Dep't of Indus. Rel., 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). Furthermore, while factual allegations in the complaint are taken as true, "[u]nsupported conclusions of a complaint are not considered admitted... and are not sufficient to withstand a motion to dismiss." State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 324, 544 N.E.2d 639 13 (1989) (affirming decision granting dismissal of the complaint for failure to state a claim). See also Beem v. Thorp, Sth Dist. Licking No. 16-CA-97, 2017-Ohio-2967, P 23 (affirming trial court's finding that Plaintiff's conclusory statements did not meet the requirements of Civ. R. 8(A)); Phelps v. Office of the Attorney General, 10th Dist. Franklin No. O6AP-751, 2007-Ohio-14, [PP 4 (affirming trial court's finding that plaintiffs! complaint did not articulate a cognizable claim upon which relief could be granted). In the case at bar, Plaintiff makes multiple allegations that the parties “entered into an agreement to rent The Polaris Pointe at such time as Defendant requested to reserve [it] and Plaintiff accepted such reservation. (See, e.g., Pl.’s Amend. Compl. [P 2, P38). However, it fails to provide any facts sufficient to support that both parties consented to the terms of the contract, that there was a “meeting of the minds” of both parties, or that the terms of the contract are definite and certain.” Furthermore, Plaintiff concludes that “at all relevant times [it] performed all of its obligations under the agreement with Defendant” and “Defendant breached her obligations under the agreement...” without alleging any facts that show what the specific obligations were of each party under the agreement. (PI.’s Amend. Compl. P 39 -- 40). Therefore, because Plaintiff's amended complaint fails to allege any facts that show the existence of a valid contract or what the rights and obligations of the parties under the alleged agreement were, Count two of Plaintiff's Amended Complaint must be dismissed. E. Plaintiff has Failed to Plead Prevention, Breach, or Termination. For its Third claim in its Amended Complaint, the Plaintiff alleges that Ms. Nieves tortiously interfered with the business relationship or contract of the Plaintiff and its employees To establish a claim of tortious interference with a business relationship or contract, a plaintiff must show (1) the existence of a business relationship or contract, (2) the defendant's knowledge 14 of the business relationship or contract, (3) the defendant's intentional or improper action taken to prevent a contract formation, procure the contract's breach, or terminate a business relationship, (4) lack of justification or privilege, and (5) resulting damages. Cairelli v. Brunner, 10th Dist. No. 18AP000164, 2019-Ohio-1511, 2019 WL 2005922, { 55, citing Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), paragraph one of the syllabus. Here, the Plaintiff has failed to sufficiently plead that the acts of Ms. Nieves procured a breach of contract or termination of a business relationship between the Plaintiff and its employees. In the Plaintiff's Amended Complaint, the Plaintiff pleads that on or around April 4, 2023, Plaintiff contacted Defendant to inform her that the deadline to accept the March 2, 2023 offer had passed and therefore such offer was officially rescinded. Pl.’s Amend. Compl. { 23. On or around that time, and continuing to the time of the filing of this action, Defendant began harassing Plaintiff and its employees, including by calling Plaintiff's employees in the middle of the night. Pl.’s Amend. Compl {| 24. Defendant has interfered with the Plaintiff's business operations by continuously harassing Plaintiff and its employees, including by calling Plaintiff's employees at all hours of the night, filing unfounded complaints and police reports against Plaintiff, and making untrue and defamatory statements about Plaintiff to third parties. Pl.’s Amend. Compl. § 43. A review of the Platiniff's amended complaint does not allege anywhere that a single employee left the employment of the Platiniff. It does not allege that an employee terminated its contract with the the Platinff due to the actions of Ms. Nieves. The Ohio Supreme Court has quoted with approval 4 Restatement of the Law 2d, Torts, Section 766 (1979), which provides: One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract. 15 The Plaintiff has simply not pleaded any facts establishing that a third person did not establish a contract, breached their contract with the Platiniff, or terminated a business relationship with the Plaintiff. Although the Plaintiff is not required to set forth the elements of any of these causes of action, it is, nonetheless, required to state direct allegations on every material point necessary to sustain a recovery on any legal theory. Davis v. Widman, 3rd Dist. No. 13-09-20, 184 Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, § 24. Therefore, the Plaintiffs third claim must be dismissed. F, Under the Doctrine of Forum Non Conveniens, the Defamation Claim Must be Dismissed. The remaining alleged defamation claim, in this case, should be dismissed under the common law doctrine of forum non conveniens. “The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123, 125-26, 519 N.E.2d 370, 372-73 (1988), quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055. The doctrine assumes that proper jurisdiction and proper venue lie in the court which plaintiff has chosen, and additionally presupposes the availability of another forum in which the defendant may be sued. /d., quoting Gilbert at 504, 67 S.Ct. at 840; cf. Ohio Civ.R. 3(D). “[T]he doctrine furnishes criteria for choice between them.” Id., quoting Gilbert, supra, at 507 The Gilbert court noted that “the plaintiffs' choice of forum should rarely be disturbed,” Chambers, quoting Gilbert, supra, 330 U.S. at 508, 67 S.Ct. at 843, particularly when the plaintiff has chosen his home forum. Koster v. Lumbermens Mut. Cas. Co. (1947), 330 U.S. 518, 524, 67 S.Ct. 828, 831, 91 L.Ed. 1067. However, in Piper Aircraft Co. v. Reyno, the court held: “Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a 16 foreign plaintiff's choice deserves less deference.” (1981), 454 U.S. 235, 256, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, The criteria set forth in Gi/bert and other United States Supreme Court decisions are to be applied flexibly, with each case tuming on its own facts. /d., quoting Williams v. Green Bay & Western Ry. Co. (1946), 326 U.S. 549, 66 S.Ct. 284, 90 L.Ed. 311. Important private interests include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained.” Chambers at 126-127, 519 N.E.2d 370. Here, the facts surrounding this case transpired via the Internet or telephone. The other critical facts of this case lie in St. Croix. The property is located in St. Croix, and nothing about this case in Ohio needs to be viewed. Each party has equal access to and equal ability to collect the internet communications of each party. Additionally, the Ohio Rules of Civil Procedure allow for collecting deposition testimony through internet-based means, which were frequently and effectively used during the COVID-19 pandemic. Even if a judgment were obtained in Ohio, the means of collection would have to occur either in St. Croix or the Commonwealth of Virginia, where Ms. Nieves currently resides. Additionally, public interest factors to be considered include “the administrative difficulties and delay to other litigants caused by congested court calendars, the imposition of jury duty upon the citizens of a community which has very little relation to the litigation, a local interest in having localized controversies decided at home, and the appropriateness of litigating a case in a forum familiar with the applicable law.” Chambers at 127, 519 N.E.2d 370. 17 The alleged defamation claim is readily severable and does not involve a risk of inconsistent ruling in either jurisdiction. While the Plaintiff is an Ohio resident, most of Ms Nieves's alleged defamatory conduct occurred in either St. Croix, Virginia, or the internet-based Better Business Bureau and involved mostly law enforcement and/or occurred through message board postings sent from Virginia to Internet groups. The state of origin for most of Ms. Nieves's alleged defamatory conduct is Virginia. Virginia is also where Ms. Nieves's family (who likely would be witnesses in any court proceedings) and the majority of the sources of proof (Internet postings, e-mails) are located. See Lee v. Burnett, Franklin App. No. O7AP-40, 2007-Ohio-3742, 2007 WL 2110801 Finally, maintaining jurisdiction over only the alleged defamation claim in Ohio “would undermine the concept of judicial efficiency, which requires that the entire dispute be resolved in a single forum, without needless duplication of evidence and expense. The convenience of the parties and witnesses would be best served by a single trial in a single location and the proper forum for the Plaintiff's claims is in Virginia or St. Croix. CONCLUSION For the reasons stated above, Defendant Nieves respectfully requests that this Court dismiss the Plaintiff's Complaint. Respectfully submitted, DECKER VONAU, LLC By:/s/ Garrison P. Carr Garrison P. Carr (0090595) Christopher S. Vonau (0091426) 620 E. Broad Street, Suite 200 Columbus, Ohio 43215 Tel: (614) 744-3108 18 Fax: (614) 242-4243 gcarr@deckervonau.com CERTIFICATE OF SERVICE Thereby certify that a copy of the forgoing document was filed with the Delaware Clerk of Courts on June 23, 2023 and was sent via ordinary mail to: AC Strip Loni R Sammons 575 South Third Street, Columbus, OH 43215 GormleyCourt@co.delaware.oh.us By /s/ Garrison P. Carr Garrison Carr (0090595). 19