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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, OHIO
THE POLARIS POINTE OF ST.
CROIX, USVI, LLC.,
Plaintiff,
Case No. 23 CV H 04 0234
-vs-
ATHENA NIEVES,
Defendant.
Judgment Entry Granting in Part and Denying in Part
Defendant Athena Nieves’s 6/23/23 Motion to Dismiss
Plaintiff, The Polaris Pointe of St. Croix, USVI, LLC (“Polaris Pointe”), owns and
operates a rental property in the United States Virgin Islands. Defendant, Athena
Nieves (“Nieves”), booked a stay at Polaris Pointe’s property and paid a deposit. Shortly
before Nieves’s scheduled stay, a dispute arose between the parties, and she never
stayed at the property. Nieves then made several negative statements—both online and
in other ways—about Polaris Pointe, including an allegation that the company had
engaged in criminal fraud. Soon after, Polaris Pointe filed suit against Nieves for
declaratory judgment, breach of contract, intentional interference with business
operations, and defamation. The case is now before me on Nieves’s motion to dismiss,
in which she seeks dismissal for lack of personal jurisdiction—under the doctrine of
forum non conveniens—and for failure to state a claim upon which relief can be granted.
For the reasons explained below, I grant in part and deny in part that motion and
find that (1) I may properly assert jurisdiction over Nieves, (2) the doctrine of forum
non conveniens does not require dismissal of this case, (3) Polaris Pointe has failed to
state claims for declaratory judgment and intentional interference with business
1
CLERK OF COURTS - DELAWARE COUNTY, OH - COMMON PLEAS COURT
23 CV H 04 0234 - GORMLEY, DAVID M
FILED: 09/06/2023 01:39 PM
relations, and (4) Polaris Pointe has adequately pled its claims for breach of contract
and defamation.
FACTUAL AND PROCEDURAL BACKGROUND
On a motion to dismiss for failure to state a claim, I must accept all allegations in
the complaint as true.' State ex rel. Jennings v. Nurre, 72 Ohio St.3d 596, 597, 651
N.E.2d 1006 (1995).
A. Factual History
Polaris Pointe is an Ohio LLC headquartered in Delaware County that owns real
property located at 12 Catherine’s Hope, Christiansted, in the United States Virgin
Islands (“Property”). (5/25/23 Am. Compl. at 1.) Polaris Pointe operates the Property
as a vacation- and event-rental property. (Jd.) In May 2022, Nieves, a resident of
Virginia, reserved the Property from January 31, 2023 through February 6, 2023 for
lodging and as a venue for her wedding. (Id. at 1] 2, 5.) In addition to a deposit of
approximately $14,000, Nieves was responsible for paying a $4,500 venue fee and costs
for food, supplies, staffing, and other expenses. (/d. at 16.) By January 2023, Nieves
had paid the deposit but not the venue fee or other expenses. (Id. at 1/7, 9.)
On or around January 21, 2023, Polaris Pointe contacted Nieves because it had
been unable to communicate with her regarding arrangements for her event. (Id. at
4/8.) Days later, Polaris Pointe advised Nieves that she would need to execute a rental
agreement before she could access the Property. (/d. at 13.) On or around January 23,
‘ Ordinarily, a motion to dismiss for lack of personal jurisdiction under Civil Rule 12(B)(2) would
permit me to look beyond the allegations in a complaint, but neither party has properly submitted
additional evidence. Jurko v. Jobs Europe Agency, 43 Ohio App.2d 79, 85-86, 334 N.E.2d 478 (8th
Dist.1975) (“When a court considers a challenge to its jurisdiction over a defendant . . . the court may
hear the matter on affidavits, deposition, interrogatories, or receive oral testimony”). I may not
consider the invoice attached to Polaris Pointe’s Memorandum Contra because it has not been
authenticated as the Rules of Evidence require. See generally Evid.R. 901, 902.
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2023, Nieves informed Polaris Pointe that she would not use the Property as a wedding
venue but would still use it for lodging. (/d. at 414.) On January 27, 2023, Polaris
Pointe forwarded the rental agreement, but Nieves refused to sign, stating that she had
already executed a rental agreement in May 2022. (ld. at {{] 17-18.) Nieves never
signed the rental agreement sent to her in January 2023 and did not stay at the
Property. (Id. at 4 20.)
On February 15, 2023, Nieves sent to the Better Business Bureau a review
alleging that Polaris Pointe had acted belligerently and rudely and had insulted and
threatened her. (Jd. at { 21.) In the following weeks and months, Nieves also filed
criminal complaints and police reports alleging that Polaris Pointe had engaged in
criminal conduct and fraud. (Jd. at § 25.)
B. Procedural History
On April 26, 2023, Polaris Pointe filed this action. (4/26/23 Compl.) That
company then filed an amended complaint for declaratory judgment, breach of contract,
intentional interference with business relations, and defamation on May 25, 2023.
(5/25/23 Am. Compl.) Nieves filed her motion to dismiss on June 23, 2023. (Nieves’s
6/23/23 Mot. to Dismiss.)
LAW AND ANALYSIS
Nieves’s motion seeks dismissal of Polaris Pointe’s amended complaint, citing an
alleged lack of personal jurisdiction under the doctrine of forum non conveniens, as well
as an alleged failure to state a claim. I will analyze her motion in that order.
I. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
A. Legal Standard
A defendant may challenge a court’s personal jurisdiction through a motion to
dismiss under Civil Rule 12(B)(2). Ohio courts utilize a two-step analysis to determine
whether they have personal jurisdiction over a defendant. Kauffman Racing Equip.,
LLC v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, § 28. First, a court
must examine whether Ohio’s long-arm statute and civil rules confer jurisdiction. Id. If
so, the court must assess whether exercising jurisdiction comports with the defendant’s
right to due process of law guaranteed by the Fourteenth Amendment to the United
States Constitution. Id.
At the pleading stage, a plaintiff need only make a prima facie showing that a
court may properly exercise personal jurisdiction over the defendant. Mayfran
Internat. Inc., v. Eco-Modity, LLC, 2019-Ohio-4350, 135 N.E.3d 792, 4 36 (8th Dist.).
To determine if a plaintiff has met that burden, a court must view allegations in the
pleadings and any documentary evidence in a light most favorable to the plaintiff and
must resolve competing inferences in favor of the plaintiff. Kauffman at ] 27.
B. Polaris Pointe has made a prima facie showing that the court
has personal jurisdiction.
I will first address whether Ohio’s long-arm statute reaches Nieves’s conduct. If
so, I will then address whether exercising jurisdiction over Nieves satisfies due process.
a Ohio’s long-arm statute covers the actions here.
Ohio’s long-arm statute provides:
(A) A court may exercise personal jurisdiction over a person
who acts directly or by an agent, as to a cause of action arising
from the person's:
BRE
(3) Causing tortious injury by an act or omission in this state;
R.C. 2307.382(A)(3).
According to the amended complaint, Nieves published allegedly false statements
to law enforcement in Ohio, so her conduct falls within Ohio’s long-arm statute and Civil
Rules. (5/25/23 Am, Compl. at { 25) (“Similar statements and/or written reports were
filed with law enforcement in Westerville, Ohio either directly by [Nieves] or as a result
of [Nieves’s] conduct”); Kauffman, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784,
at { 42 (“Roberts posted his allegedly defamatory statements on the Internet, .. . [and]
we do know that at least five Ohioans saw Roberts’s statements. The comments were
thus published in Ohio. Because Roberts's allegedly defamatory statements were
published in Ohio, his alleged tort was committed in Ohio, and he falls within the grasp
of R.C. 2307.382(A)(3) and Civ.R. 4.3(A)(3)”).
2. Allowing the case to be heard here will not violate Nieves’s
constitutional right to due process.
The Fourteenth Amendment’s Due Process Clause prevents a court from
exercising jurisdiction over an out-of-state defendant if there are insufficient ties
between the forum and the defendant. Due process is satisfied where the defendant has
“minimum contacts” with the forum state such that hearing a case does not offend
a8,
traditional notions of fair play and substantial justice. » Internatl. Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), quoting Milliken v.
Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940). Personal jurisdiction can
be general or specific, but only specific jurisdiction may apply here. See Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d
404, (1984), fn. 8 (specific jurisdiction applies when “a State exercises personal
jurisdiction over a defendant in a suit arising out of or related to the defendant’s
contacts with the forum”).
To determine whether a court has specific jurisdiction over a defendant, Ohio
courts apply a test borrowed from the Sixth Circuit’s decision in S. Machine Co. v.
Mahasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968); see Kauffman, 126 Ohio
St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, at 1 50. Under that decision’s three-part
test, we ask first whether the defendant has purposefully availed herself of the forum
state. S$. Machine at 381. A defendant has purposefully availed herself when her
“contacts with the forum state ‘proximately result from actions by the defendant
[herself] that create a ‘substantial connection’ with the forum State.” Kauffman at § 51,
quoting Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528
(1985).
In Kauffman, the Supreme Court found purposeful availment because the
defendant's defamatory statements concerned the plaintiff's in-state activities. Id. at
4/60. Moreover, the plaintiff was an Ohio resident, and the defendant published
statements to other Ohio residents. Jd. Polaris Pointe has offered the requisite prima
facie evidence that Nieves likewise purposefully submitted herself to Ohio’s jurisdiction
when she published supposedly defamatory statements to law-enforcement officers in
Ohio. (5/25/23 Am. Compl. at { 25.) And like the statements in Kauffman, Nieves’s
statements concerned Polaris Pointe’s activities in Ohio, where Polaris Pointe is
headquartered, and those statements were published to Ohio residents. (Id. at 19 1, 25.)
The second prong of the S. Machine test asks whether a plaintiff's claims arise
from the defendant’s contacts with the forum state. 401 F.2d at 381. But assessing
whether a claim “arises from” a defendant's contacts is not some formal or technical
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inquiry. Instead, this “lenient standard” “requires only ‘that the cause of action, of
whatever type, have a substantial connection with the defendant’s in-state activities.”
Kauffman at § 70, quoting Bird v. Parsons, 289 F.3d 865, 875 (6th Cir.2002); Id.,
quoting Third Natl. Bank, 882 F.2d 1087, 1091 (6th Cir.1989) (emphasis in original).
In Kauffman, the Court determined that the defendant’s actions in Ohio were a
but-for cause that led to the filing of the plaintiffs case. 126 Ohio St.3d 81, 2010-Ohio-
2551, 930 N.E.2d 784, at 70. Here, the same can be said. The facts giving rise to
Polaris Pointe’s claims stem from the interaction between it and Nieves. ‘This is most
clear with the defamation claim, but the same is true regarding Nieves’s negotiations
with Polaris Pointe, an Ohio resident, that ultimately resulted in a contractual
agreement. Were it not for these contacts with the Ohio-based plaintiff, no contract
would have been reached and no allegedly defamatory statements would likely have
followed.
Under the final part of the S. Machine test, I must determine whether Nieves’s
conduct has a substantial connection with Ohio such that exercising jurisdiction over
her is reasonable. 401 F.2d at 381. But where, as here, the first two S. Machine prongs
are satisfied, an inference arises that the final prong has also been met. Kauffman at
71. A variety of factors are relevant to this reasonableness inquiry, but I need look at
only one: Ohio’s interests in this controversy. See ¢.g., id. at | 72 (finding the third S.
Machine prong satisfied after considering only Ohio's interests in hearing the matter).
Ohio has a “significant interest” not only in redressing injuries that occur within
the state but also in protecting its citizens’ business. Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 776, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); Bird, 289 F.3d at 875. These
interests are particularly weighty in cases—like this one—where the defendant has
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“intentionally directed [her] activity at forum residents.” Calder v. Jones, 465 U.S. 783,
788-789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Thus, I am satisfied that exercising
jurisdiction over Nieves is reasonable.
Based on my analysis above, I conclude that allowing this case against Nieves to
be heard here would not offend the Fourteenth Amendment's Due Process Clause.
Nieves’s motion to dismiss for lack of personal jurisdiction is denied.
I. MOTION TO DISMISS UNDER FORUM NON CONVENIENS
A. Legal Standard
The doctrine of forum non conveniens permits a court to decline to exercise
jurisdiction over a case even when jurisdiction and venue are proper in that forum:
Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123, 125-126, 519
N.E.2d 370 (1988), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91
L.Ed. 1055 (1947). The doctrine assumes that the plaintiff has chosen a court where
jurisdiction and venue are proper and that there is another forum where the action may
be heard. Jd. at 126.
On a motion to dismiss under forum non conveniens, “6 the ultimate inquiry is
where trial will best serve the convenience of the parties and the ends of justice.” Id. at
127, quoting Koster v. Lumbermens Mut, Cas. Co., 330 U.S. 518, 527, 67 S.Ct. 828, 91
L.Ed. 1067 (1947). Should the court determine that an alternative forum is superior, it
may dismiss a plaintiff's action. But in weighing whether to exercise its discretion, a
court must account for the law’s preference for retaining the plaintiffs chosen forum.
Id. at 127, citing Gilbert at 508.
B. No clearly superior forum exists.
A court presented with a motion to dismiss that relies on the doctrine of forum
non conveniens should consider various factors. The Supreme Court of Ohio has stated
that important factors include:
[T]he 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, 35 Ohio St.3d at 126-127, 519 N.E.2d 370, citing Gilbert, 330 U.S. at 508, 67
S.Ct. 839, 91 L.Ed. 1055. And other factors to be weighed include:
[T]he 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 lit-
igating a case in a forum familiar with the applicable law. Ad-
ditionally, ... the possibility of an unfavorable change in law
upon dismissal should not, standing alone, bar such dismis-
sal, provided the remedy in the alternate forum is not so
clearly inadequate as to amount to no remedy at all.
Id. at 127 (citations omitted).
Assessing those factors here, I find that any advantages that an alternative forum
for this action might offer would not outweigh the law’s preference in favor of Polaris
Pointe’s decision to file its action in this court. Any decision to transfer this case to
Virginia or the United States Virgin Islands would entail considerable costs and would
offer little, if any, administration-of-justice benefits.
First, the proof for this action seems confined to witnesses and telephonic and
electronic communications between the parties. (See 5/25/23 Am. Compl. at 1 8-9, 19,
21.) Given the possibility of remote testimony and the ease with which electronic data
may be shared, hearing this action in Ohio would not impair the parties’ ability to access
the evidence necessary to present their cases. See Civ.R. 28(B), 39(B) (permitting
remote depositions and trial testimony). Second, the ability to compel unwilling
witnesses is the same whether this case is heard in Ohio or Virginia because both states
have adopted the Uniform Interstate Depositions and Discovery Act. R.C. 2319.09;
Va.Code 8.01-412.8—412.15. Third, I do not see any need for the finder of fact to visit
the Property because Nieves never actually stayed there.
In addition, the public-interest factors do not tilt in favor of a different forum.
The facts giving rise to this case occurred in Ohio and Virginia, and this case presents
relatively simple questions of law and fact. Thus, hearing this case in Ohio or Virginia
would not unduly burden courts in either state, and both have a similar interest in
adjudicating a matter concerning one of their citizens.
Obviously, as a Virginia resident, Nieves does not wish to incur the expense of
traveling to Ohio to defend against this suit. But the granting of her motion and any
shifting of this case to a Virginia court would impose those same expenses on Polaris
Pointe. And it seems clear to me that travel to and from the United States Virgin Islands
would impose significant expense on both parties.
Thus, I am not convinced that exercising my discretion to dismiss this action
would “best serve the convenience of the parties and the ends of justice.” Chambers,
35 Ohio St.3d at 127, 519 N.E.2d 370, quoting Koster, 330 U.S. at 527, 67 S.Ct. 828, 91
L.Ed. 1067. Given this and the law’s preference for maintaining a plaintiff's choice of
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venue, I reject Nieves’s call to dismiss this action under the doctrine of forum non
conveniens.
It. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
A, Legal Standard
Under Rule 12(B)(6) of the Ohio Rules of Civil Procedure, when considering a
motion to dismiss for failure to state a claim upon which relief can be granted, a court
must determine whether it appears beyond doubt from the allegations in the pleading
that the plaintiff can prove no set of facts entitling him or her to recovery. O’Brien v.
Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).
All factual allegations in the pleading must be taken as true, and all reasonable
inferences must be drawn in favor of the nonmoving party. Mitchell, 40 Ohio St.3d at
192, 532 N.E.2d 753.
Unsupported conclusions in a pleading, however, are not considered true and are
not sufficient to withstand a motion to dismiss. Armatas v. Haws, 2018-Ohio-1371, 110
N.E.3d 759, 1117 (5th Dist.), citing State ex rel. Hickman v. Capots, 45 Ohio St.3d 324,
324, 544 N.E.2d 639 (1989). Further, the plaintiff may not rely on generic labels and
legal conclusions but must set forth factual allegations that suggest a plausible claim for
relief. Boske v. Massillon City Sch. Dist., 5th Dist. Stark No. 2010-CA-00120, 2011-
Ohio-580, { 15 (interpreting and relying on the U.S. Supreme Court’s application of
analogous Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6) in Ashcroft v. Iqbal,
556 U.S. 662, 678-683, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-564, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
11
Polaris Pointe’s claims for declaratory judgment and
“intentional interference with business operations” fail to state
a claim, but its claims for breach of contract and defamation
survive.
1 Polaris Pointe has not demonstrated a need for the speedy
relief required for a valid declaratory-judgment claim.
To obtain declaratory relief, a party must establish (4) that a real controversy
exists, (2) that the controversy is justiciable, and (3) that speedy relief is necessary to
preserve the rights of the parties. Burger Brewing Co. v. Ohio Liquor Control Comm.,
34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973). A real controversy exists where there is “
genuine dispute between parties having adverse legal interests of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.” Harris v. Ohio Dept. of
Veteran Serus., 2018-Ohio-2165, 114 N.E.3d 634, § 28 (10th Dist.), quoting Wagner v.
Cleveland, 62 Ohio App.3d 8, 14, 574 N.E.2d 533 (8th Dist.1988). Here, there is a real
controversy because the parties dispute whether Polaris Pointe must return the deposit
to Nieves. (5/25/23 Am. Compl. at 4 28.)
And Polaris Pointe’s refusal to return the deposit—stemming from its reliance on
its cancellation policy—presents a quintessentially justiciable issue. R.C. 2721.03 (“any
person interested under a. .. written contract, or other writing constituting a contract
. . may have determined any question of construction or validity arising under the. . .
contract . .. and obtain a declaration of rights, status, or other legal relations under it”).
Thus, the viability of Polaris Pointe’s claim hinges on whether speedy relief is
necessary to preserve the parties’ rights. Despite Polaris Pointe’s insistence to the
contrary, the Fifth District has recognized the need for speedy relief—or, rather, the lack
thereof—as a ground for dismissing an action for declaratory relief. L.E. Lowry Ltd.
Partnership v. R&R JV LLC, 2022-Ohio-3109, 195 N.E.3d 544, 1 29 (5th Dist.)
12
(“Consequently, we find 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”); see also Mansfield Plumbing Prods. LLC v. Estate of Sparks,
5th Dist. Richland No. 2004-CA-0094, 2005-Ohio-3121, 1 17-18.
In L.E. Lowry, the parties entered into an agreement for the sale of land with an
agreed upon price per “usable acre.” 2022-Ohio-3109 at 1] 2-3. A dispute arose
regarding whether several acres were, in fact, usable. Jd. at 45. On review, the Fifth
District found that the plaintiff had not stated a claim for declaratory relief because it
had not demonstrated the need for speedy relief. Id. at {1 31-32. The Court noted that
the plaintiff was “not faced with the ‘threat of irreparable injury’ in the absence of a
ruling in its favor.” Id. at 1 31, quoting Armatas v. Aultman Health Found., 5th Dist.
Stark No. 2016CA00130, 2016-Ohio-7316, 17. The Court also analyzed the plaintiffs
complaint and found that it “does not allege an actual present need for declaration or
allege any rights it may lose as a result of a delay in procuring judicial review.” Id.
Here, Polaris Pointe’s declaratory-judgment claim fails for similar reasons.
Polaris Pointe has not identified any irreparable harm that it may face in the absence of
a swift judicial determination of the parties’ dispute over Nieves’s demand for a refund.
If I strike Polaris Pointe’s request for declaratory relief, one of two things will occur.
Either Nieves will file claims for the return of the disputed funds, in which case Polaris
Pointe may assert any appropriate defenses in the ordinary course of this litigation, or
Nieves never files any such claims, and this issue becomes moot. These two possibilities
illustrate why there is no risk that Polaris Pointe will lose any of its rights if no speedy
declaration of rights and obligations is issued now. Because Polaris Pointe has not
demonstrated a need for speedy relief, | dismiss its declaratory-judgment claim.
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2. Polaris Pointe has stated a claim for breach of contract.
To state a viable breach-of-contract claim, Polaris Pointe must plausibly allege
that (1) a contract existed; (2) it substantially performed its obligations under that
contract; (3) Nieves breached the agreement; and (4) it suffered damages as a result of
Nieves’s breach. See McFarren v. Emeritus at Canton, 2018-Ohio-1593, 111 N.E.3d 87,
{34 (5th Dist.). I will address each requirement in turn.
The essential elements of a contract include an offer, acceptance, contractual
capacity, consideration, a manifestation of mutual assent, and the legality of the
agreement's object and of consideration. See Kostelnik v. Helper, 96 Ohio St.3d 1,
2002-Ohio-2985, 770 N.E.2d 58, 116. Here, Polaris Pointe offered Nieves a reservation
at the Property from January 31, 2023 through February 6, 2023 in exchange for a
deposit of $14,062.50. (5/25/23 Am. Compl. at {| 5-7.) Nieves accepted this offer
when she paid that deposit. (Jd. at 7.) From these facts, I can conclude—or at least
reasonably infer—that the elements of a valid contract are present.
Polaris Pointe’s performance is seemingly demonstrated by the fact that it kept
Nieves’s reservation until her purported breach. (See 5/25/23 Compl. at {1 9-13, 17—
20.) Turning then to the issue of breach, Nieves’s failure to pay necessary fees and costs,
if proven, would suffice. (Id. at { 9-11.) Further, these unpaid amounts could
constitute Polaris Pointe’s damages. With this, I am satisfied that Polaris Pointe’s
complaint adequately states a claim for breach of contract, and I deny Nieves’s motion
to dismiss that claim.
3. Polaris Pointe’s claim for “intentional interference with
business relations” does not state a plausible claim for relief.
Polaris Pointe’s third claim for relief is labeled “INTENTIONAL
INTERFERENCE WITH BUSINESS OPERATIONS.” (5/25/23 Am. Compl. at p. 7.) It
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is unclear to me what legal claim Polaris Pointe is attempting to plead because, in its
Memorandum Contra, Polaris Pointe explicitly disclaims that it is suing for tortious
interference with business or contractual relations. (Polaris Pointe’s 7/7/23 Mem.
Contra at p. 14) (“Plaintiff has not asserted a claim of tortious interference with a
business relationship or contract; but instead a claim for intentional/tortious
interference with business operations . . . .”) But no Ohio case or statute has recognized
“intentional interference with business operations” as a cause of action. The cases held
out by Polaris Pointe as demonstrating the existence of this tort merely use the words
“intentional interference” and “business operations,” but they do not delve into the legal
requirements for such a claim.
In Smith v. Reed, the court reviewed a grant of summary judgment in a
defendant's favor on a claim alleging the “intentional harassment and tortious
interference with [plaintiffs] business operation.” 4th Dist. No. 94CA3, 1994 WL
534927, “1 (Sept. 23, 1994). But the court declined to engage in an extensive review of
that claim, limiting its analysis to this: “appellant has failed to produce sufficient
evidence to defeat appellee’s motion.” Id. at *2. In Myatt v. Myatt, the court reviewed a
trial court’s decision to enforce a settlement agreement but did not substantively review
any “intentional-interference-with-business-operations” claim. 9th Dist. Summit No.
24606, 2009-Ohio-5796, {] 10-16. The Myatt court’s lone mention of anything
resembling “intentional interference with business operations” came when it described
the facts of the case and noted that the defendants had brought a cross-claim for
“malicious[] interfer[erence] with the operation of [defendant's] salon.” Id. at 14. The
final case concerned a trial court’s decision to review a settlement agreement. Tepper v.
Heck, 8th Dist. Cuyahoga No. 61061, 1992 WL 369283, *2~-4 (Dec. 10, 1992). There,
15
too, the only mention of tortious interference with a business operation was in the
court's recitation of the facts. Id. at *1 (“Appellees counterclaimed for declaratory
judgment and damages for tortious interference with the operation of appellees’
business and the use of appellees’ premises”).
These passing references are not enough to demonstrate the existence of a
distinct tort of “intentional interference with business operations. % Because Ohio law
has not yet recognized this cause of action and because the Supreme Court of Ohio is the
only Ohio court with the power to recognize novel legal claims, I must determine
whether Polaris Pointe’s third cause of action states a previously recognized claim for
relief.
Tortious interference with business relations is the only legal claim that could
plausibly describe Polaris Pointe’s third cause of action. For such a claim, a plaintiff
must show (1) the existence of a contract or business relationship, (2) the defendant’s
knowledge of that contract or relationship, (3) an intentional and improper act by the
defendant to prevent a contract’s formation, procure a contractual breach, or terminate
a business relationship, (4) the defendant lacked justification or privilege for its actions,
and (5) resulting damages. Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d
171, 707 N.E.2d 853 (1999), paragraphs one and two of the syllabus, citing Kenty v.
Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 650 N.E.2d 863 (1995), paragraph
two of the syllabus; A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr.
Trades Council, 73 Ohio St.3d. 1, 14, 651 N.E.2d 1283 (1995).
? Rather, it strikes me that these cases are most likely using “intentional interference” and “business
operations” as an alternative description for a claim of tortious interference with business relations.
16
But Polaris Pointe cannot maintain a tortious-interference claim because it has
not alleged that Nieves knew of a separate business relation or that she caused the
termination of that business relation. (See generally 5/25/23 Am. Compl.) Thus, I
grant Nieves’s motion to dismiss Polaris Pointe’s claim for “intentional interference with
business operations.”
4 Nieves’s purported statements to her bank and law
enforcement alleging criminal fraud by Polaris Pointe provide
a valid ground for a defamation claim.
Defamation allows a plaintiff to recover for reputational harm caused by a
defendant’s false statements. Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-
1041, 883 N.E.2d 1060, 49. Defamation requires a false and defamatory statement of
fact about the plaintiff that was published without privilege to a third party with some
degree of fault, and the statement was either defamatory per se or caused special harm
to the plaintiff. Hurst v. Moore, 5th Dist. Licking No. 17-CA-4, 2017-Ohio-7238, {| 20.
Here, it is alleged that Nieves knowingly made false statements to her bank and
law enforcement claiming Polaris Pointe had engaged in criminal fraud. (5/25/23 Am.
Compl. at 1] 25-27.) These allegations are sufficient to state a claim for defamation per
se. Gosden v. Louis, 116 Ohio App.3d 195, 207, 687 N.E.2d 481 (9th Dist.1996) (“A
writing that accuses a person of committing a crime is libelous per se”); see also Hurst,
at 91 5-6, 27-29 (finding a prima facie claim for defamation per se where the defendant
published the plaintiff's name on the National Sex Offender Registry even though the
plaintiff was not classified as a “sexually oriented offender”). I, therefore, deny Nieves's
motion to dismiss the defamation claim.
CONCLUSION
For the reasons explained above, I:
17
(1) Deny Nieves’s motion to dismiss for lack of personal jurisdiction;
(2) Deny Nieves’s motion to dismiss under the doctrine of forum non conveniens;
(3) Grant Nieves’s motion to dismiss Polaris Pointe’s claims for declaratory
judgment and “intentional interference with business operations” for failure
to state a claim; and
(4) Deny Nieves’s motion to dismiss Polaris Pointe’s breach-of-contract and
defamation claims.
Any answer to the May 25, 2023 amended complaint must be filed by September
22, 2023.
h be
7
4
DAVID M. GORMLEY, JUDGE
The Clerk of this Court is hereby Ordered to serve a copy of this Judgment Entry upon all parties
or their counsel through the Clerk's e-filing system, by regular mail, or by fax.
18
Preview
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, OHIO THE POLARIS POINTE OF ST. CROIX, USVI, LLC., Plaintiff, Case No. 23 CV H 04 0234 -vs- ATHENA NIEVES, Defendant. Judgment Entry Granting in Part and Denying in Part Defendant Athena Nieves’s 6/23/23 Motion to Dismiss Plaintiff, The Polaris Pointe of St. Croix, USVI, LLC (“Polaris Pointe”), owns and operates a rental property in the United States Virgin Islands. Defendant, Athena Nieves (“Nieves”), booked a stay at Polaris Pointe’s property and paid a deposit. Shortly before Nieves’s scheduled stay, a dispute arose between the parties, and she never stayed at the property. Nieves then made several negative statements—both online and in other ways—about Polaris Pointe, including an allegation that the company had engaged in criminal fraud. Soon after, Polaris Pointe filed suit against Nieves for declaratory judgment, breach of contract, intentional interference with business operations, and defamation. The case is now before me on Nieves’s motion to dismiss, in which she seeks dismissal for lack of personal jurisdiction—under the doctrine of forum non conveniens—and for failure to state a claim upon which relief can be granted. For the reasons explained below, I grant in part and deny in part that motion and find that (1) I may properly assert jurisdiction over Nieves, (2) the doctrine of forum non conveniens does not require dismissal of this case, (3) Polaris Pointe has failed to state claims for declaratory judgment and intentional interference with business 1 CLERK OF COURTS - DELAWARE COUNTY, OH - COMMON PLEAS COURT 23 CV H 04 0234 - GORMLEY, DAVID M FILED: 09/06/2023 01:39 PM relations, and (4) Polaris Pointe has adequately pled its claims for breach of contract and defamation. FACTUAL AND PROCEDURAL BACKGROUND On a motion to dismiss for failure to state a claim, I must accept all allegations in the complaint as true.' State ex rel. Jennings v. Nurre, 72 Ohio St.3d 596, 597, 651 N.E.2d 1006 (1995). A. Factual History Polaris Pointe is an Ohio LLC headquartered in Delaware County that owns real property located at 12 Catherine’s Hope, Christiansted, in the United States Virgin Islands (“Property”). (5/25/23 Am. Compl. at 1.) Polaris Pointe operates the Property as a vacation- and event-rental property. (Jd.) In May 2022, Nieves, a resident of Virginia, reserved the Property from January 31, 2023 through February 6, 2023 for lodging and as a venue for her wedding. (Id. at 1] 2, 5.) In addition to a deposit of approximately $14,000, Nieves was responsible for paying a $4,500 venue fee and costs for food, supplies, staffing, and other expenses. (/d. at 16.) By January 2023, Nieves had paid the deposit but not the venue fee or other expenses. (Id. at 1/7, 9.) On or around January 21, 2023, Polaris Pointe contacted Nieves because it had been unable to communicate with her regarding arrangements for her event. (Id. at 4/8.) Days later, Polaris Pointe advised Nieves that she would need to execute a rental agreement before she could access the Property. (/d. at 13.) On or around January 23, ‘ Ordinarily, a motion to dismiss for lack of personal jurisdiction under Civil Rule 12(B)(2) would permit me to look beyond the allegations in a complaint, but neither party has properly submitted additional evidence. Jurko v. Jobs Europe Agency, 43 Ohio App.2d 79, 85-86, 334 N.E.2d 478 (8th Dist.1975) (“When a court considers a challenge to its jurisdiction over a defendant . . . the court may hear the matter on affidavits, deposition, interrogatories, or receive oral testimony”). I may not consider the invoice attached to Polaris Pointe’s Memorandum Contra because it has not been authenticated as the Rules of Evidence require. See generally Evid.R. 901, 902. 2 2023, Nieves informed Polaris Pointe that she would not use the Property as a wedding venue but would still use it for lodging. (/d. at 414.) On January 27, 2023, Polaris Pointe forwarded the rental agreement, but Nieves refused to sign, stating that she had already executed a rental agreement in May 2022. (ld. at {{] 17-18.) Nieves never signed the rental agreement sent to her in January 2023 and did not stay at the Property. (Id. at 4 20.) On February 15, 2023, Nieves sent to the Better Business Bureau a review alleging that Polaris Pointe had acted belligerently and rudely and had insulted and threatened her. (Jd. at { 21.) In the following weeks and months, Nieves also filed criminal complaints and police reports alleging that Polaris Pointe had engaged in criminal conduct and fraud. (Jd. at § 25.) B. Procedural History On April 26, 2023, Polaris Pointe filed this action. (4/26/23 Compl.) That company then filed an amended complaint for declaratory judgment, breach of contract, intentional interference with business relations, and defamation on May 25, 2023. (5/25/23 Am. Compl.) Nieves filed her motion to dismiss on June 23, 2023. (Nieves’s 6/23/23 Mot. to Dismiss.) LAW AND ANALYSIS Nieves’s motion seeks dismissal of Polaris Pointe’s amended complaint, citing an alleged lack of personal jurisdiction under the doctrine of forum non conveniens, as well as an alleged failure to state a claim. I will analyze her motion in that order. I. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION A. Legal Standard A defendant may challenge a court’s personal jurisdiction through a motion to dismiss under Civil Rule 12(B)(2). Ohio courts utilize a two-step analysis to determine whether they have personal jurisdiction over a defendant. Kauffman Racing Equip., LLC v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, § 28. First, a court must examine whether Ohio’s long-arm statute and civil rules confer jurisdiction. Id. If so, the court must assess whether exercising jurisdiction comports with the defendant’s right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. Id. At the pleading stage, a plaintiff need only make a prima facie showing that a court may properly exercise personal jurisdiction over the defendant. Mayfran Internat. Inc., v. Eco-Modity, LLC, 2019-Ohio-4350, 135 N.E.3d 792, 4 36 (8th Dist.). To determine if a plaintiff has met that burden, a court must view allegations in the pleadings and any documentary evidence in a light most favorable to the plaintiff and must resolve competing inferences in favor of the plaintiff. Kauffman at ] 27. B. Polaris Pointe has made a prima facie showing that the court has personal jurisdiction. I will first address whether Ohio’s long-arm statute reaches Nieves’s conduct. If so, I will then address whether exercising jurisdiction over Nieves satisfies due process. a Ohio’s long-arm statute covers the actions here. Ohio’s long-arm statute provides: (A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's: BRE (3) Causing tortious injury by an act or omission in this state; R.C. 2307.382(A)(3). According to the amended complaint, Nieves published allegedly false statements to law enforcement in Ohio, so her conduct falls within Ohio’s long-arm statute and Civil Rules. (5/25/23 Am, Compl. at { 25) (“Similar statements and/or written reports were filed with law enforcement in Westerville, Ohio either directly by [Nieves] or as a result of [Nieves’s] conduct”); Kauffman, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, at { 42 (“Roberts posted his allegedly defamatory statements on the Internet, .. . [and] we do know that at least five Ohioans saw Roberts’s statements. The comments were thus published in Ohio. Because Roberts's allegedly defamatory statements were published in Ohio, his alleged tort was committed in Ohio, and he falls within the grasp of R.C. 2307.382(A)(3) and Civ.R. 4.3(A)(3)”). 2. Allowing the case to be heard here will not violate Nieves’s constitutional right to due process. The Fourteenth Amendment’s Due Process Clause prevents a court from exercising jurisdiction over an out-of-state defendant if there are insufficient ties between the forum and the defendant. Due process is satisfied where the defendant has “minimum contacts” with the forum state such that hearing a case does not offend a8, traditional notions of fair play and substantial justice. » Internatl. Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940). Personal jurisdiction can be general or specific, but only specific jurisdiction may apply here. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404, (1984), fn. 8 (specific jurisdiction applies when “a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum”). To determine whether a court has specific jurisdiction over a defendant, Ohio courts apply a test borrowed from the Sixth Circuit’s decision in S. Machine Co. v. Mahasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.1968); see Kauffman, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, at 1 50. Under that decision’s three-part test, we ask first whether the defendant has purposefully availed herself of the forum state. S$. Machine at 381. A defendant has purposefully availed herself when her “contacts with the forum state ‘proximately result from actions by the defendant [herself] that create a ‘substantial connection’ with the forum State.” Kauffman at § 51, quoting Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). In Kauffman, the Supreme Court found purposeful availment because the defendant's defamatory statements concerned the plaintiff's in-state activities. Id. at 4/60. Moreover, the plaintiff was an Ohio resident, and the defendant published statements to other Ohio residents. Jd. Polaris Pointe has offered the requisite prima facie evidence that Nieves likewise purposefully submitted herself to Ohio’s jurisdiction when she published supposedly defamatory statements to law-enforcement officers in Ohio. (5/25/23 Am. Compl. at { 25.) And like the statements in Kauffman, Nieves’s statements concerned Polaris Pointe’s activities in Ohio, where Polaris Pointe is headquartered, and those statements were published to Ohio residents. (Id. at 19 1, 25.) The second prong of the S. Machine test asks whether a plaintiff's claims arise from the defendant’s contacts with the forum state. 401 F.2d at 381. But assessing whether a claim “arises from” a defendant's contacts is not some formal or technical 6 inquiry. Instead, this “lenient standard” “requires only ‘that the cause of action, of whatever type, have a substantial connection with the defendant’s in-state activities.” Kauffman at § 70, quoting Bird v. Parsons, 289 F.3d 865, 875 (6th Cir.2002); Id., quoting Third Natl. Bank, 882 F.2d 1087, 1091 (6th Cir.1989) (emphasis in original). In Kauffman, the Court determined that the defendant’s actions in Ohio were a but-for cause that led to the filing of the plaintiffs case. 126 Ohio St.3d 81, 2010-Ohio- 2551, 930 N.E.2d 784, at 70. Here, the same can be said. The facts giving rise to Polaris Pointe’s claims stem from the interaction between it and Nieves. ‘This is most clear with the defamation claim, but the same is true regarding Nieves’s negotiations with Polaris Pointe, an Ohio resident, that ultimately resulted in a contractual agreement. Were it not for these contacts with the Ohio-based plaintiff, no contract would have been reached and no allegedly defamatory statements would likely have followed. Under the final part of the S. Machine test, I must determine whether Nieves’s conduct has a substantial connection with Ohio such that exercising jurisdiction over her is reasonable. 401 F.2d at 381. But where, as here, the first two S. Machine prongs are satisfied, an inference arises that the final prong has also been met. Kauffman at 71. A variety of factors are relevant to this reasonableness inquiry, but I need look at only one: Ohio’s interests in this controversy. See ¢.g., id. at | 72 (finding the third S. Machine prong satisfied after considering only Ohio's interests in hearing the matter). Ohio has a “significant interest” not only in redressing injuries that occur within the state but also in protecting its citizens’ business. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); Bird, 289 F.3d at 875. These interests are particularly weighty in cases—like this one—where the defendant has 7 “intentionally directed [her] activity at forum residents.” Calder v. Jones, 465 U.S. 783, 788-789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Thus, I am satisfied that exercising jurisdiction over Nieves is reasonable. Based on my analysis above, I conclude that allowing this case against Nieves to be heard here would not offend the Fourteenth Amendment's Due Process Clause. Nieves’s motion to dismiss for lack of personal jurisdiction is denied. I. MOTION TO DISMISS UNDER FORUM NON CONVENIENS A. Legal Standard The doctrine of forum non conveniens permits a court to decline to exercise jurisdiction over a case even when jurisdiction and venue are proper in that forum: Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123, 125-126, 519 N.E.2d 370 (1988), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The doctrine assumes that the plaintiff has chosen a court where jurisdiction and venue are proper and that there is another forum where the action may be heard. Jd. at 126. On a motion to dismiss under forum non conveniens, “6 the ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice.” Id. at 127, quoting Koster v. Lumbermens Mut, Cas. Co., 330 U.S. 518, 527, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Should the court determine that an alternative forum is superior, it may dismiss a plaintiff's action. But in weighing whether to exercise its discretion, a court must account for the law’s preference for retaining the plaintiffs chosen forum. Id. at 127, citing Gilbert at 508. B. No clearly superior forum exists. A court presented with a motion to dismiss that relies on the doctrine of forum non conveniens should consider various factors. The Supreme Court of Ohio has stated that important factors include: [T]he 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, 35 Ohio St.3d at 126-127, 519 N.E.2d 370, citing Gilbert, 330 U.S. at 508, 67 S.Ct. 839, 91 L.Ed. 1055. And other factors to be weighed include: [T]he 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 lit- igating a case in a forum familiar with the applicable law. Ad- ditionally, ... the possibility of an unfavorable change in law upon dismissal should not, standing alone, bar such dismis- sal, provided the remedy in the alternate forum is not so clearly inadequate as to amount to no remedy at all. Id. at 127 (citations omitted). Assessing those factors here, I find that any advantages that an alternative forum for this action might offer would not outweigh the law’s preference in favor of Polaris Pointe’s decision to file its action in this court. Any decision to transfer this case to Virginia or the United States Virgin Islands would entail considerable costs and would offer little, if any, administration-of-justice benefits. First, the proof for this action seems confined to witnesses and telephonic and electronic communications between the parties. (See 5/25/23 Am. Compl. at 1 8-9, 19, 21.) Given the possibility of remote testimony and the ease with which electronic data may be shared, hearing this action in Ohio would not impair the parties’ ability to access the evidence necessary to present their cases. See Civ.R. 28(B), 39(B) (permitting remote depositions and trial testimony). Second, the ability to compel unwilling witnesses is the same whether this case is heard in Ohio or Virginia because both states have adopted the Uniform Interstate Depositions and Discovery Act. R.C. 2319.09; Va.Code 8.01-412.8—412.15. Third, I do not see any need for the finder of fact to visit the Property because Nieves never actually stayed there. In addition, the public-interest factors do not tilt in favor of a different forum. The facts giving rise to this case occurred in Ohio and Virginia, and this case presents relatively simple questions of law and fact. Thus, hearing this case in Ohio or Virginia would not unduly burden courts in either state, and both have a similar interest in adjudicating a matter concerning one of their citizens. Obviously, as a Virginia resident, Nieves does not wish to incur the expense of traveling to Ohio to defend against this suit. But the granting of her motion and any shifting of this case to a Virginia court would impose those same expenses on Polaris Pointe. And it seems clear to me that travel to and from the United States Virgin Islands would impose significant expense on both parties. Thus, I am not convinced that exercising my discretion to dismiss this action would “best serve the convenience of the parties and the ends of justice.” Chambers, 35 Ohio St.3d at 127, 519 N.E.2d 370, quoting Koster, 330 U.S. at 527, 67 S.Ct. 828, 91 L.Ed. 1067. Given this and the law’s preference for maintaining a plaintiff's choice of 10 venue, I reject Nieves’s call to dismiss this action under the doctrine of forum non conveniens. It. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM A, Legal Standard Under Rule 12(B)(6) of the Ohio Rules of Civil Procedure, when considering a motion to dismiss for failure to state a claim upon which relief can be granted, a court must determine whether it appears beyond doubt from the allegations in the pleading that the plaintiff can prove no set of facts entitling him or her to recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). All factual allegations in the pleading must be taken as true, and all reasonable inferences must be drawn in favor of the nonmoving party. Mitchell, 40 Ohio St.3d at 192, 532 N.E.2d 753. Unsupported conclusions in a pleading, however, are not considered true and are not sufficient to withstand a motion to dismiss. Armatas v. Haws, 2018-Ohio-1371, 110 N.E.3d 759, 1117 (5th Dist.), citing State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 324, 544 N.E.2d 639 (1989). Further, the plaintiff may not rely on generic labels and legal conclusions but must set forth factual allegations that suggest a plausible claim for relief. Boske v. Massillon City Sch. Dist., 5th Dist. Stark No. 2010-CA-00120, 2011- Ohio-580, { 15 (interpreting and relying on the U.S. Supreme Court’s application of analogous Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6) in Ashcroft v. Iqbal, 556 U.S. 662, 678-683, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-564, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). 11 Polaris Pointe’s claims for declaratory judgment and “intentional interference with business operations” fail to state a claim, but its claims for breach of contract and defamation survive. 1 Polaris Pointe has not demonstrated a need for the speedy relief required for a valid declaratory-judgment claim. To obtain declaratory relief, a party must establish (4) that a real controversy exists, (2) that the controversy is justiciable, and (3) that speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Ohio Liquor Control Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973). A real controversy exists where there is “ genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Harris v. Ohio Dept. of Veteran Serus., 2018-Ohio-2165, 114 N.E.3d 634, § 28 (10th Dist.), quoting Wagner v. Cleveland, 62 Ohio App.3d 8, 14, 574 N.E.2d 533 (8th Dist.1988). Here, there is a real controversy because the parties dispute whether Polaris Pointe must return the deposit to Nieves. (5/25/23 Am. Compl. at 4 28.) And Polaris Pointe’s refusal to return the deposit—stemming from its reliance on its cancellation policy—presents a quintessentially justiciable issue. R.C. 2721.03 (“any person interested under a. .. written contract, or other writing constituting a contract . . may have determined any question of construction or validity arising under the. . . contract . .. and obtain a declaration of rights, status, or other legal relations under it”). Thus, the viability of Polaris Pointe’s claim hinges on whether speedy relief is necessary to preserve the parties’ rights. Despite Polaris Pointe’s insistence to the contrary, the Fifth District has recognized the need for speedy relief—or, rather, the lack thereof—as a ground for dismissing an action for declaratory relief. L.E. Lowry Ltd. Partnership v. R&R JV LLC, 2022-Ohio-3109, 195 N.E.3d 544, 1 29 (5th Dist.) 12 (“Consequently, we find 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”); see also Mansfield Plumbing Prods. LLC v. Estate of Sparks, 5th Dist. Richland No. 2004-CA-0094, 2005-Ohio-3121, 1 17-18. In L.E. Lowry, the parties entered into an agreement for the sale of land with an agreed upon price per “usable acre.” 2022-Ohio-3109 at 1] 2-3. A dispute arose regarding whether several acres were, in fact, usable. Jd. at 45. On review, the Fifth District found that the plaintiff had not stated a claim for declaratory relief because it had not demonstrated the need for speedy relief. Id. at {1 31-32. The Court noted that the plaintiff was “not faced with the ‘threat of irreparable injury’ in the absence of a ruling in its favor.” Id. at 1 31, quoting Armatas v. Aultman Health Found., 5th Dist. Stark No. 2016CA00130, 2016-Ohio-7316, 17. The Court also analyzed the plaintiffs complaint and found that it “does not allege an actual present need for declaration or allege any rights it may lose as a result of a delay in procuring judicial review.” Id. Here, Polaris Pointe’s declaratory-judgment claim fails for similar reasons. Polaris Pointe has not identified any irreparable harm that it may face in the absence of a swift judicial determination of the parties’ dispute over Nieves’s demand for a refund. If I strike Polaris Pointe’s request for declaratory relief, one of two things will occur. Either Nieves will file claims for the return of the disputed funds, in which case Polaris Pointe may assert any appropriate defenses in the ordinary course of this litigation, or Nieves never files any such claims, and this issue becomes moot. These two possibilities illustrate why there is no risk that Polaris Pointe will lose any of its rights if no speedy declaration of rights and obligations is issued now. Because Polaris Pointe has not demonstrated a need for speedy relief, | dismiss its declaratory-judgment claim. 13 2. Polaris Pointe has stated a claim for breach of contract. To state a viable breach-of-contract claim, Polaris Pointe must plausibly allege that (1) a contract existed; (2) it substantially performed its obligations under that contract; (3) Nieves breached the agreement; and (4) it suffered damages as a result of Nieves’s breach. See McFarren v. Emeritus at Canton, 2018-Ohio-1593, 111 N.E.3d 87, {34 (5th Dist.). I will address each requirement in turn. The essential elements of a contract include an offer, acceptance, contractual capacity, consideration, a manifestation of mutual assent, and the legality of the agreement's object and of consideration. See Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, 116. Here, Polaris Pointe offered Nieves a reservation at the Property from January 31, 2023 through February 6, 2023 in exchange for a deposit of $14,062.50. (5/25/23 Am. Compl. at {| 5-7.) Nieves accepted this offer when she paid that deposit. (Jd. at 7.) From these facts, I can conclude—or at least reasonably infer—that the elements of a valid contract are present. Polaris Pointe’s performance is seemingly demonstrated by the fact that it kept Nieves’s reservation until her purported breach. (See 5/25/23 Compl. at {1 9-13, 17— 20.) Turning then to the issue of breach, Nieves’s failure to pay necessary fees and costs, if proven, would suffice. (Id. at { 9-11.) Further, these unpaid amounts could constitute Polaris Pointe’s damages. With this, I am satisfied that Polaris Pointe’s complaint adequately states a claim for breach of contract, and I deny Nieves’s motion to dismiss that claim. 3. Polaris Pointe’s claim for “intentional interference with business relations” does not state a plausible claim for relief. Polaris Pointe’s third claim for relief is labeled “INTENTIONAL INTERFERENCE WITH BUSINESS OPERATIONS.” (5/25/23 Am. Compl. at p. 7.) It 14 is unclear to me what legal claim Polaris Pointe is attempting to plead because, in its Memorandum Contra, Polaris Pointe explicitly disclaims that it is suing for tortious interference with business or contractual relations. (Polaris Pointe’s 7/7/23 Mem. Contra at p. 14) (“Plaintiff has not asserted a claim of tortious interference with a business relationship or contract; but instead a claim for intentional/tortious interference with business operations . . . .”) But no Ohio case or statute has recognized “intentional interference with business operations” as a cause of action. The cases held out by Polaris Pointe as demonstrating the existence of this tort merely use the words “intentional interference” and “business operations,” but they do not delve into the legal requirements for such a claim. In Smith v. Reed, the court reviewed a grant of summary judgment in a defendant's favor on a claim alleging the “intentional harassment and tortious interference with [plaintiffs] business operation.” 4th Dist. No. 94CA3, 1994 WL 534927, “1 (Sept. 23, 1994). But the court declined to engage in an extensive review of that claim, limiting its analysis to this: “appellant has failed to produce sufficient evidence to defeat appellee’s motion.” Id. at *2. In Myatt v. Myatt, the court reviewed a trial court’s decision to enforce a settlement agreement but did not substantively review any “intentional-interference-with-business-operations” claim. 9th Dist. Summit No. 24606, 2009-Ohio-5796, {] 10-16. The Myatt court’s lone mention of anything resembling “intentional interference with business operations” came when it described the facts of the case and noted that the defendants had brought a cross-claim for “malicious[] interfer[erence] with the operation of [defendant's] salon.” Id. at 14. The final case concerned a trial court’s decision to review a settlement agreement. Tepper v. Heck, 8th Dist. Cuyahoga No. 61061, 1992 WL 369283, *2~-4 (Dec. 10, 1992). There, 15 too, the only mention of tortious interference with a business operation was in the court's recitation of the facts. Id. at *1 (“Appellees counterclaimed for declaratory judgment and damages for tortious interference with the operation of appellees’ business and the use of appellees’ premises”). These passing references are not enough to demonstrate the existence of a distinct tort of “intentional interference with business operations. % Because Ohio law has not yet recognized this cause of action and because the Supreme Court of Ohio is the only Ohio court with the power to recognize novel legal claims, I must determine whether Polaris Pointe’s third cause of action states a previously recognized claim for relief. Tortious interference with business relations is the only legal claim that could plausibly describe Polaris Pointe’s third cause of action. For such a claim, a plaintiff must show (1) the existence of a contract or business relationship, (2) the defendant’s knowledge of that contract or relationship, (3) an intentional and improper act by the defendant to prevent a contract’s formation, procure a contractual breach, or terminate a business relationship, (4) the defendant lacked justification or privilege for its actions, and (5) resulting damages. Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), paragraphs one and two of the syllabus, citing Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 650 N.E.2d 863 (1995), paragraph two of the syllabus; A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d. 1, 14, 651 N.E.2d 1283 (1995). ? Rather, it strikes me that these cases are most likely using “intentional interference” and “business operations” as an alternative description for a claim of tortious interference with business relations. 16 But Polaris Pointe cannot maintain a tortious-interference claim because it has not alleged that Nieves knew of a separate business relation or that she caused the termination of that business relation. (See generally 5/25/23 Am. Compl.) Thus, I grant Nieves’s motion to dismiss Polaris Pointe’s claim for “intentional interference with business operations.” 4 Nieves’s purported statements to her bank and law enforcement alleging criminal fraud by Polaris Pointe provide a valid ground for a defamation claim. Defamation allows a plaintiff to recover for reputational harm caused by a defendant’s false statements. Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio- 1041, 883 N.E.2d 1060, 49. Defamation requires a false and defamatory statement of fact about the plaintiff that was published without privilege to a third party with some degree of fault, and the statement was either defamatory per se or caused special harm to the plaintiff. Hurst v. Moore, 5th Dist. Licking No. 17-CA-4, 2017-Ohio-7238, {| 20. Here, it is alleged that Nieves knowingly made false statements to her bank and law enforcement claiming Polaris Pointe had engaged in criminal fraud. (5/25/23 Am. Compl. at 1] 25-27.) These allegations are sufficient to state a claim for defamation per se. Gosden v. Louis, 116 Ohio App.3d 195, 207, 687 N.E.2d 481 (9th Dist.1996) (“A writing that accuses a person of committing a crime is libelous per se”); see also Hurst, at 91 5-6, 27-29 (finding a prima facie claim for defamation per se where the defendant published the plaintiff's name on the National Sex Offender Registry even though the plaintiff was not classified as a “sexually oriented offender”). I, therefore, deny Nieves's motion to dismiss the defamation claim. CONCLUSION For the reasons explained above, I: 17 (1) Deny Nieves’s motion to dismiss for lack of personal jurisdiction; (2) Deny Nieves’s motion to dismiss under the doctrine of forum non conveniens; (3) Grant Nieves’s motion to dismiss Polaris Pointe’s claims for declaratory judgment and “intentional interference with business operations” for failure to state a claim; and (4) Deny Nieves’s motion to dismiss Polaris Pointe’s breach-of-contract and defamation claims. Any answer to the May 25, 2023 amended complaint must be filed by September 22, 2023. h be 7 4 DAVID M. GORMLEY, JUDGE The Clerk of this Court is hereby Ordered to serve a copy of this Judgment Entry upon all parties or their counsel through the Clerk's e-filing system, by regular mail, or by fax. 18