Motion for Reconsideration or Rehearing in KYLE ROHRIG Vs FLANNAGANS DUBLIN VS.FLANNAGANS DUBLIN ET AL| Trellis.Law

On July 06, 2022 a Order was filed involving a dispute between and for PERSONAL INJURY in the District Court of Franklin County.

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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO

KYLE ROHRIG CASE NO. 22 CV 004623

Plaintiff JUDGE ANDRIA C. NOBLE

VS.
DEFENDANT, FLANNAGAN’S DUBLIN,
FLANNAGAN’S DUBLIN, et al. q NC.’S, MOTION
a SE EN TO EO
DISMISS APPEAL
A

Defendants

Defendant, Flannagan’s Dublin, Inc. (hereafter “Flannagan’s”), by and through counsel,

respectfully moves this Court to dismiss this case for lack of subject matter jurisdiction. The reason

for this Motion is that Plaintiff failed to file a timely Notice of Appeal pursuant to Civil Rule 4(A),

and thus has not complied with the requirements to vest proper jurisdiction in the Court. The basis

for this Motion is more fully explained in the attached Memorandum in Support, which is

incorporated by reference as if fully rewritten herein.

Respectfully submitted,
isiCraig G. Pelinw
Craig G. Pelini, Esq.
Supreme Court ID Number 0019221
Attorney for Defendant Flannagan’s Dublin, Inc.
Pelini, Campbell & Ricard, LLC
8040 Cleveland Ave., NW, Suite 400
North Canton, OH 44720
Telephone: (330) 305-6400
E-mail aw.comn
Facsimile: (330) 305-0042
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MEMORANDUM IN SUPPORT

Plaintiff filed his Complaint on July 6, 2022, alleging twelve counts against various

defendants, including Flannagan’s. While each count bore a title, Plaintiff’s claims and the basis for

his claims were not clear, were difficult if not impossible to decode and failed to meet the requirements

of the Civil Rules and well-established precedent. On this basis, Flannagan’s filed a Motion for

Judgment on the Pleadings on September 7, 2022. Plaintiff subsequently filed various pleadings,

none of which addressed Flannagan’s Motion for Judgment on the Pleadings in title or content. On

February 23, 2023, this Court granted Flannagan’s Motion for Judgment on the Pleadings. (Decision

and Entry Ruling on Defendants’ Motions to Dismiss and Plaintiff's Motions for Reconsideration,

Default, Summary Judgment and Sanctions attached as Exhibit A). More than 60 days later, on April

28, 2023, Plaintiff filed a Notice of Appeal. (Notice of Appeal attached as Exhibit B).

App. R. 4(A) requires that "a party who wishes to appeal from an order that is final upon its

entry shall file the notice of appeal required by App. R. 3 within 30 days of that entry." App. R. 3(A)

specifies that the notice of appeal shall be filed "with the clerk of the trial court within the time allowed

by Rule 4. Failure to comply with the filing requirements of App. R. 3 and 4 is a jurisdictional defect

that mandates dismissal of the appeal. State ex rel. Pendell v. Adams Cty. Bd. of Elections (1988),

40 Ohio St. 3d 58, 60; Jianfeng Yu v. Ohio State Univ. Med. Ctr. (10" Dist. 2018), 2018-Ohio-2958.

The Ohio Supreme Court has further recognized the requirement of the timeliness of filing a

notice of appeal:

Timeliness is defined as 30 days from the date of the final order or the date that the
clerk completes service if service is not completed within 30 days of entering the
judgment on the journal. App. R. 4(A)(1). By maintaining a strict 30-day deadline,
there is no doubt as to when the notice of appeal is due.

Clermont Cty. Transp. Improvement Dist. v. Gator Milford, LLC (2015), 141 Ohio St. 3d 352.
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Thus, in the present case, Plaintiff was required to file within 30 days of the final judgment

entry. However, he did not file his notice of appeal until April 28, 2023, more than 60 days after the

judgment entry. His filing therefore was untimely. A court of appeals lacks jurisdiction over any

appeal that is not timely filed. State ex rel. Pendell, supra at 60.

Because Plaintiff filed his Notice of Appeal beyond the 30 days required to file a timely notice

of appeal, the Court lacks subject matter jurisdiction, and this action must be dismissed with prejudice.

Respectfully submitted,

IsiCraigG. Pelini
Craig G. Pelini, Esq.
Supreme Court ID Number 0019221
Attorney for Defendant Flannagan’s Dublin, Inc.
Pelini, Campbell & Ricard, LLC
8040 Cleveland Ave., NW, Suite 400
North Canton, OH 44720
Telephone: (330) 305-6400
E-mai
Facsimil (330) 305
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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was filed and emailed to all counsel via this
Honorable Court’s electronic filing system this 8" day of May 2023. A copy was sent to the
following via regular US mail:

KYLE J. ROHRIG Plaintiff - Pro Se
2460 JACKSON PIKE
COLUMBUS, OH 43223

COLUMBUS IN-INE DANCE Unrepresented Defendant
COLLECTIVE
6835 CAINE RD.
COLUMBUS, OH 43235
Counsel for Defendant Facebook
KIP T BOLLIN
THOMPSON HINE LLP
3900 KEY CENTER
127 PUBLIC SQUARE
CLEVELAND, OH 44114-1291

Counsel for Defendant Coughlin Cars
BRUCE A CURRY
CURRY ROBY, LLC
SUITE 300
30 NORTHWOODS BLVD
FAX# 614-430-8890
COLUMBUS, OH 43235-0000
(614) 430-8885
Counsel for Defendant Bud Light
JOSHUA C BERNS
ULMER & BERNE LLP
SUITE 1100
65 EAST STATE STREET
COLUMBUS, OH 43215-0000
(614) 229-0040

isiCraigG. Pelini,
Craig G. Pelini (#0019221)
54010\9\appealimotion
to dismiss.docx
es
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ere or
IN THE COURT OF COMMON P ANKLIN COUNTY, OHIO
CIVIL DIVISION

KYLE ROHRIG, CASE NO. 22CV 004623

Plaintiff, JUDGE ANDRIA C. NOBLE

FLANNAGAN’S DUBLIN, et al.,

Defendants

Decision and Entry Ruling on Defendants’ Motions to Dismiss and
Plaintiff's Motions for Reconsideration, Default, Summary Judgment, and Sanctions

This matter comes before the Court on the Motions to Dismiss of Defendants, Bud Light

(incorrectly named as “Budlight”), filed on August 8, 2022; Coughlin Automotive, Inc., filed on

August 10, 2022; Flannagan’s Dublin Inc., filed on September 7, 2022; and Meta Platforms, Inc.

(incorrectly named as “Facebook”, filed on January 3, 2023, as well as on Plaintiff’s Motion for

Summary Judgment Against All Defendants, filed on October 15, 2022; Motion for Demurrer,

filed November 4, 2022; Motion for Sanctions and Motion for Summary Judgment, filed on

November 27, 2022; and Motion for Reconsideration, Motion for Default Judgment, Motion for

Summary Judgment, filed on December 29, 2022; and Memorandum in Support of Default and

Summary Judgment, filed on December 30, 2022.

L Background

Plaintiff filed a complaint on July 6, 2022, naming Flannagan’s Dublin (hereinafter
7m
“Flannagan ), Columbus In-Line Dance Collective, Budlight (hereinafter “Bud Light”),

CoughlinCars.com (hereinafter “Coughlin”), and Facebook (hereinafter “Meta”) as Defendants.

The Complaint alleged the following counts: Count One, Negligence, Count Two, Concert of

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Action, Count Three, Fraud; Count Four, Fraud; Count Five, Fraud; Count Six, Fraud, Count

Seven, Fraud; Count Eight, Premise (sic.) Liability, Count Nine, Premise (sic.) Liability; Count

Ten, Premise (sic.) Liability; Count Eleven, Negligent Security; and Count Twelve, Respondeat

Superior.

Defendants, Flannagan’s, Bud Light, Coughlin, and Meta have filed responsive pleadings.

Defendant, Columbus In-Line Dance Collective, was served via Certified Mail on July 19, 2022,

and has not entered an appearance or filed responsive pleadings.

Motions filed by Bud Light, Coughlin, Flannagan’s and Meta

A. Law and Argument

1, Whether certain named Defendants are entities subject to lawsuit

Defendant, Bud Light, argues that Plaintiff's Complaint fails because the name “Bud

Light” is a trademark. As a trademark, Bud Light is not an entity capable of being sued under Ohio

law. Likewise, while Defendant, Coughlin, acknowledges that it owns the URL

, itargues that CoughlinCars.com is not a legal entity or sole proprietorship

capable of being sued under Ohio law.

It is well established under Ohio law that “both the plaintiff and a defendant in a lawsuit

must be legal entities with the capacity to be sued.” Patterson v. VAf Auto Body, 63 Ohio St.3d

573, 574, 589 N.E. 2d 1306 (1992). Ohio Civ. R. 4.2 sets forth which persons or entities may be

served and are subject to service for litigation. The rules provide that “[s]ervice of process pursuant

to Civ.R. 4 through Civ.R. 4.6, except service by publication as provided in Civ.R. 4.4(A), shall

be made as follows:

(A) Upon an individual, other than a person under sixteen years of age or an
incompetent person, by serving the individual;
(B) Upon a person under sixteen years of age by serving either the person's guardian
or any one of the following persons with whom the person to be served lives or

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resides: a parent or the individual having the care of the person; or by serving
the person if the person neither has a guardian nor lives or resides with a parent
or a person having his or her care;
{C) Upon an incompetent person by serving either the incompetent's guardian or
the person designated in division (E) of this rule, but if no guardian has been
appointed and the incompetent is not under confinement or commitment, by
serving the incompetent;
(D) Upon an individual, confined to a penal institution of this state or of a
subdivision of this state, by serving the individual, except that when the
individual to be served is a person under sixteen years of age, the provisions
of division (B) of this rule shall be applicable;
(E) Upon an incompetent person who is confined in any institution for the mentally
ill or mentally deficient or committed by order of court to the custody of some
other institution or person by serving the superintendent or similar official of
the institution to which the incompetent is confined or committed or the person
to whose custody the incompetent is committed,
(F) Upon a corporation either domestic or foreign: by serving the agent authorized
by appointment or by law to receive service of process; or by serving the
corporation at any of its usual places of business by a method authorized under
Civ.R. 4.1 (A)(1); or by serving an officer or a managing or general agent of
the corporation;
(G) Upon a limited liability company by serving the agent authorized by
appointment or by law to receive service of process; or by serving the limited
liability company at any of its usual places of business by a method authorized
under Civ.R. 4.1 (A)(1); or by serving a manager or member;
{H) Upon a partnership, a limited partnership, or a limited partnership association
by serving the entity at any of its usual places of business by a method
authorized under Civ.R. 4.1 (A){1) or by serving a partner, limited partner,
manager, or member;
(1) Upon an unincorporated association by serving it in its entity name at any of its
usual places of business by a method authorized under Civ.R. 4.1 (A)(1); or by
serving an officer of the unincorporated association,
(J) Upon a professional association by serving the association in its corporate name
at the place where the corporate offices are maintained by a method authorized
under Civ.R. 4.1 (A)(1); or by serving a shareholder,
(K) Upon this state or any one of its departments, offices and institutions as defined
in division (C) of section 121.01 of the Revised Code, by serving the officer
responsible for the administration of the department, office or institution or by
serving the attorney general of this state;
(L) Upon a county or upon any of its offices, agencies, districts, departments,
institutions or administrative units, by serving the officer responsible for the
administration of the office, agency, district, department, institution or unit or
by serving the prosecuting attorney of the county;
(M) Upon a township by serving one or more of the township trustees or the
township clerk or by serving the prosecuting attorney of the county in which
the township is located, unless the township is organized under Chapter 504.

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of the Revised Code, in which case service may be made upon the township
law director;
(N) Upon a municipal corporation or upon any of its offices, departments, agencies,
authorities, institutions or administrative units by serving the officer
responsible for the administration of the office, department, agency, authority,
institution or unit or by serving the city solicitor or comparable legal officer,
(O) Upon any governmental entity not mentioned above by serving the person,
officer, group or body responsible for the administration of that entity or by
serving the appropriate legal officer, if any, representing the entity. Service
upon any person who is a member of the ‘group’ or ‘body’ responsible for the
administration of the entity shall be sufficient.”

Ohio Civ. R. 4.2

In this case, Bud Light is a registered trademark, and the corporation that owns that

trademark name is not a party to this action. Trademarks do not fall within any of the listed

categories that are subject to service of process for litigation under Civ. R. 4.2. Therefore, as a

trademark, Bud Light does not have the capacity to be sued under Ohio law. Furthermore,

is a URL owned by Coughlin, and is not a valid legal entity of sole

proprietorship capable of being sued under Civ. R. 4.2.

2 Personal Jurisdiction over Meta

Plaintiff bears the burden of alleging fact sufficient to establish personal jurisdiction. See,

Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 6 N.E.3d 9, 11. It is well settled that a corporate

defendant is subject to general jurisdiction only in those states where it has its “place of

incorporation and principal place of business.” Daimler AG v. Bauman, 571 U.S. 117, 137, 134

8.Ct. 746, 760 (2014). See also, Buckner v. JP Morgan Chase, No. 1:17-CV-302, 2017 WL

6594018, at *6 n.2 (S.D. Ohio Dec. 22, 2017) (taking judicial notice of the bank’s articles of

association because they are maintained with the SEC), Ralls v. Facebook, 221 F. Supp. 3d 1237,

1243 0.4 (W.D. Wash. 2016) (taking judicial notice of Facebook’s state of incorporation and

principal place of business based on form 10-K); R. Evid. 201(B) (“A judicially noticed fact must

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be one not subject to reasonable dispute in that it is... capable of accurate and ready determination

by resort to sources whose accuracy cannot be questioned.”). A trial court may take judicial notice

of “appropriate matters” in considering a Civ. R. 12(B)(6) motion to dismiss for failure to state a

claim, State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12, 16, 661 N.E. 2d 170 (1996). See also, State

ex rel. Everhart v. McIntosh, 115 Ohio St3d 195, § 10, 874 N.E.2d 516 (2007) (taking judicial

notice of a dismissal entry in reviewing a motion to dismiss), Leatherworks Partnership v. Berk

Realty, Inc., No. 4:04 CV 0784, 2005 WL 3059623, *2 (N.D. Ohio Nov. 15, 2005) (court takes

judicial notice of public court records available on the internet).

Courts have repeatedly found that Meta is not subject to general personal jurisdiction

outside of California and Delaware. See, Georgalis v. Facebook, Inc., 324 F. Supp. 3d 955, 959

(N.D. Ohio 2018) (finding no general personal jurisdiction because “Facebook is incorporated in

Delaware with its principal place of business in California”); See also, Corley v. Vance, 365 F.

Supp. 3d 407, 433 (S.D.N.Y. 2019); and Ralls, 221 F. Supp. 3d 1237 at 1243-1244.

The Court takes judicial notice of Meta’s Annual Report (form 10-K) which is available

online at SEC.gov. The Annual Report shows that Meta is incorporated in Delaware and maintains

its principal place of business in California. Plaintiff has not met his burden in alleging that Meta’s

operations in Ohio are so significant as to make this “an exceptional case” that would subject Meta

to general jurisdiction in Ohio, despite its headquarters and place of incorporation being located

elsewhere. Daimler, 571 U.S. 117 at 139 1.19.

Absent general jurisdiction, personal jurisdiction over Meta can only be established if

specific jurisdiction exists under the facts of this particular case. “The constitutional touchstone is

whether the nonresident defendant purposely established contacts in the forum state such that the

defendant should reasonably anticipate being haled into court in that state.” Natl. City Bank v.

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Yevu, 178 Ohio App.3d 382, 898 N.E.2d 52, 4 16 (8" Dis. 2008). For the exercise of specific

jurisdiction to be “consistent with due process, the defendant’s suit-related conduct must create a

substantial connection with the forum State.” Walden v. Fiore, 571 U.S. 277, 284, 134 S. Ct. 1115,

1121 (2014). The relationship must arise out of contacts that the “defendant himself” creates with

the forum State. /d. at 1122, citing Burger King Corp. v. Rudzewicz, 471 U. S. 462, 475, 105 S.

Ct. 2174, (1985). “Due process limits on the State’s adjudicative authority principally protect the

liberty of the nonresident defendant — not the convenience of plaintiffs or third parties.” /d. citing

World-Wide Volkswagen Corp., supra, at 291-292, 100 S. Ct. 559, 62 L. Ed. 2d 490. Additionally,

a “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not

the defendant’s contacts with persons who reside there. /d. citing International Shoe Co. v.

Washington, 326 U. S. 310, 319, 66 S. Ct. 154, (1945).

In this case, Plaintiff's Complaint does not allege any conduct Meta undertook in Ohio.

The complaint alludes to the fact that Facebook is accessible to users in Ohio. (Plaintiff's

Complaint at | 70-74). However, simply maintaining an internet platform accessible in Ohio is

insufficient contact to establish specific jurisdiction. See, Jn re Blue Flame Energy Corp., 171

Ohio App.3d 514, 871 N.E.2d 1227, | 22 (10" Dist. 2006) (“Personal jurisdiction exists only in

forums in which a party has purposeful, deliberate contact, not random contact occasioned by the

wide accessibility of the internet.”); Kerger v. Dentsply Int 7., 8" Dist. Cuyahoga No. 94430, 201 1-

Ohio-84, { 24 (“[M]aintain[ing] a website available to anyone on the internet is insufficient” to

justify the exercise of personal jurisdiction). In order to establish personal jurisdiction, Plaintiff

must show that the “cause of action... arise[s] from the defendant’s activities” in Ohio. Stewart v.

M & M Headgear, Inc., N.D. Ohio No. 5:14 CV 857, 2015 WL 1423560 *3 (March 27, 2015).

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Plaintiff has not alleged any activity by Meta in Ohio, much less any activity connected to his

claims. For the foregoing reasons, this Court lacks personal jurisdiction over Meta.

3. Sufficiency of the Complaint

Defendants Bud Light, Coughlin and Meta, are seeking dismissal of Plaintiffs Complaint

for failure to state a claim pursuant to Civ. R. 12(B)(6). A motion to dismiss for failure to state a

claim pursuant to Civ. R. 12(B)(6) is procedural and tests whether the complaint is sufficient. State

ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). In considering

a Civ.R. 12(B)(6) motion to dismiss, a trial court may not rely on allegations or evidence outside

the complaint. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, (1997). Rather, the trial

court may only review the complaint and may dismiss the case only if it appears beyond a doubt

that plaintiff
can prove no set of facts entitling the plaintiff to recover. O ‘Brien v. Univ. Community

fenants Union, Inc., 42 Ohio St.2d 242, (1975), syllabus.

The court must presume that all factual allegations in the complaint are true and draw all

reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio

St.3d 190, 192 (1988). “A party is not required to prove her case at the pleading stage.” Morrow

v. Reminger & Reminger Co. LPA, 182 Ohio App. 3d 40, 2009-Ohio-2665, | 47 (10th Dist.}.

However, even under a liberal notice pleading standard, “a well-pled complaint must include

factual allegations going to each element of the claim, and conclusory statements without any

factual allegations in support are insufficient.” Gibbs v. Burley (10th Dist.}, 2020-Ohio-38, J 16

(internal quotations omitted).

A complaint that fails to allege factual allegations, taken together with all reasonable

inferences that support an element of a cause of action, fails to state a claim upon which relief can

be granted. Jones v. Nichols, 12th Dist. Warren No. CA2012-02-009, 2012-Ohio-4344, | 10 (Sept.

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24, 2012). While the factual allegations of the complaint are taken as true, “‘[uJnsupported

onclusions of a complaint are not considered admitted. and are not sufficient to withstand a

motion to dismiss.’” Wildi v. Hondros College, 10 Dist. Franklin No. O9AP-346, 2009-Ohio-205,

4 10 (Sept.
30, 2009).
Defendant Flannagan’s is seeking judgment on the pleadings pursuant to Civ. R. 12(C).

Under Civ. R. 12(C), “[a]fter the pleadings are closed, but within such time as not to delay the

trial, any party may move for judgment on the pleadings.” State ex rel. Pirman v. Money, 69 Ohio

St.3d 591, 592, 635 N.E.2d 26 (1994), Trinity Health Sys. v. MDX Corp., 180 Ohio App. 3d 815,

907 N.E.2d 746 (2009). Civ. R. 12(C) permits consideration of the complaint and answer, but a

Civ.R. 12(B)(6) motion must be judged on the face of the complaint alone. State ex rel. Midwest

Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996), citing Burnside v.

Leimbach, 71 Ohio App. 3d 399, 402-403, 594 N.E.2d 60, 62 (1991). The standards for Civ. R.

12(B)(6) and Civ. R. 12(C) motions are similar, but Civ. R. 12(C) motions are specifically for

resolving questions of law. Peterson v. Teodosio, 34 Ohio St. 2d 161, 166, 297 N.E.2d 113, 117

(1973).
Under Civ. R. 12(C), dismissal is appropriate where a court (1) construes the material

allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the

nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts

in support of his claim that would entitle him to relief. Lin v. Gatehouse Constr. Co., 84 Ohio App.

3d 96, 99, 616 N.E.2d 519, 521 (1992). Thus, Civ.R. 12(C) requires a determination that no

material factual issues exist and that the movant is entitled to judgment as a matter of law.

Burnside, 71 Ohio App. 3d 399, 403, 594 N_E.2d 60, 62.

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Ohio law requires that the pleadings provide notice as to the claims asserted. Civ.R. 8(A)

requires “a short and plain statement of the claim showing that the party is entitled to relief.”

“Although a complaint need not state with precision all elements that give rise to a legal basis for

recovery, fair notice of the nature of the action must be provided.” McWreath v. Cortland Bank,

11th Dist. Trumbull No. 2010-T-0023, 2012-Ohio-3013, { 40, citing Bridge v. Park Natl. Bank,

10th Dist. Franklin No. 03 AP-380, 2003-Ohio-6932, § 5. “Under the notice pleading requirements,

‘to constitute fair notice, the complaint must still allege sufficient underlying facts that relate to

and support the alleged claim, and may not simply state legal conclusions.” /d., citing Gonzalez

v. Posner, 6th Dist. Fulton No. F-09-017, 2010-Ohio-2117, F11.

“[{T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadomed, the-defendant-unlawfully-
harmed-me accusation. A pleading that offers ‘labels and conclusion’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does a
complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
a9
enhancement.

Digiorgio v. Cleveland, 8th Dist. Cuyahoga No. 95945, 201 1-Ohio-5878, {| 49, quoting Ashcroft

v. Iqbal, 556 U.S. 662, 129 S.Ct, 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 557, 127 §.Ct. 1955, 167 L.Ed.2d 929 (2007).

Civ. R. 9(B) requires that an “allegation of fraud be pleaded with sufficient particularity.”

There are usually three reasons cited for the requirement of particularity. First, particularity is

required to protect defendants from the potential harm to their reputations which may attend

general accusations of acts involving moral turpitude. Second, particularity ensures that the

obligations are concrete and specific so as to provide defendants notice of what conduct is being

challenged. Finally, the particularity requirement inhibits the filing of complaints as a pretext for

discovery of unknown wrongs. See Jn re Commonwealth Oil'Tesoro Petroleum Corp. Securities

Litigation (WD. Tex. 1979), 467 F. Supp. 227, 250. The Supreme Court of Ohio has held that the

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first and second reasons are of paramount importance for purposes of Civ. R. 9(B). Haddon View

Investment Co. v.. Coopers & Lybrand, 70 Ohio St. 2d 154, 158-159, 436 N.E. 2d 212, 215-216

(1982).
In Korodi v. Minot, 40 Ohio App. 3d 1, 4, 531 N.E. 2d 318 (10" Dist. 1987), the Court held

that the general propositions developed by the Second Circuit are “quite helpful in assessing the

adequacy of a complaint sounding in fraud for purposes of Civ. R. 12(B)(6).” “The federal appeals

court has stated that the particularity required by Fed. R. Civ. P. 9(b) means: (1) plaintiff must

specify the statements claimed to be false; (2) the complaint must state the time and place where

the statements were made; and, (3) plaintiff must identify the defendant claimed to have made the

statement.” Jd. citing Goldman v.. Belden (CA. 2, 1985), 754 F. 2d 1059, 1069-1070. These

requirements are intended to place potential defendants on notice of the precise statement being

alleged as fraudulent, which is all that Civ. R. 9(B) requires. /d.

The importance of notice, however, must be tempered by the provisions of Civ. R. 8(A)(1)

and (E). Where numerous defendants are claimed to have participated in the fraudulent conduct, it

would defeat the purpose of Civ. R. 8 to require a plaintiff to state with precision the exact time

and place of each alleged misrepresentation. Koradi, 49 Ohio App. 3d, 1, 4, citing Pierce v. Apple

Valley, Inc. (S.D. Ohio 1984), 597 F. Supp. 1480, 1492-1493. Accordingly, a court should give

due deference to the circumstances which surround the alleged fraudulent acts when invoking the

requirement of particularity to test the sufficiency of a claim pursuant to Civ. R. 12(B)(6).

While considerable leniency must be afforded to pro se actions, there is a limit to that

leniency. Jn re Paxson (July 1, 1992), Scioto App. No. 91CA2008, unreported, at 1-2, 1992 WL

154139, see also Pilgrim v. Littlefield, 92 F 3d 413, 416, (6" Cir. 1996). “Principles requiring

generous construction of pro se filings do not require courts to conjure up questions never squarely

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asked or construct full-blown claims from convoluted reasoning.” State ex rel. Karmasu v. late,

83 Ohio App. 3d 199, 206, 614 N.E.2d 827, citing Beaudett v. Hampton (C.A.4, 1985), 775 F.2d

1274, 1277, 1985 U.S. App. LEXIS 24559.

Even assuming arguendo that Plaintiff correctly named all Defendants and all Defendants

are legal entities capable of being sued, Plaintiff's Complaint does not allege specific facts which

are sufficient to give notice to any Defendant as to the allegations or legal theories which are being

asserted against them. Plaintiff's Complaint lacks even the most basic facts including, but not

limited to, what acts each Defendant allegedly committed, and the date(s) on which those acts

occurred. For each of the twelve counts in his Complaint, Plaintiff attempts to list the elements of

the legal theory but fails to allege any supporting facts regarding operative acts or omissions by

any Defendant. It is worth noting that Defendants, Bud Light and Coughlin, are referenced by

name only once, in the case caption, and are not specifically named anywhere else in the twenty-

two-page Complaint.

In Count One of his Complaint, Plaintiff alleges a claim of negligence. To satisfy a

negligence claim, “the plaintiff must show (1) the existence of a duty, (2) a breach of a duty, and

(3) an injury proximately resulting therefrom.” Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d

75,77, 472 N.E.2d 707 (1984), Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 788 N.E.2d 1088, |

8 (2003). In this case, Plaintiff fails to plead all of the elements of negligence, much less any

operative or coherent facts to support that claim. The Complaint alleges that “Plaintiff was exposed

to fraud, defamation of character, negligence (sic.) misrepresentation, premise (sic.) liability by all

Defendants while Plaintiff was suing them and/or on vacation doing nothing wrong.” (Plaintiff's

Complaint at | 7). Plaintiff then goes on to allege that Defendants breached various alleged duties

owed to him, and makes baseless, conclusory statements that the breach directly and proximately

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caused him personal injury. (/d. at (10-14). The Complaint makes absolutely no allegations of any

facts which would support Plaintiff's claim of negligence or provide fair notice to Defendants as

to the claims against them.

In Count Two, Plaintiff alleges concert of action. It appears that Plaintiff is basing his claim

on Restatement of the Law 2d, Torts (1979) 315, Section 876. This section is divided into three

parts; only part (b) is relevant here. This section states that “[f]or harm resulting to a third person

from the tortious conduct of another, one is subject to liability if he * * * (b) knows that the other’s

conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other

so to conduct himself * * *.” Ohio has not definitively adopted this Section 876, and few Ohio

cases have applied it. The Supreme Court of Ohio has never expressly approved Section 876;

however, it has cited this section in two cases. See Great Cent. Ins. Co. v. Tobias, 37 Ohio St.3d

127, 130-131, 524 N.E.2d 168, 171-173 (1988), Allstate Fire Ins. Co. v. Singler, 14 Ohio St.2d

27, 30, 236 N.E.2d 79, 81 (1968). In this case, the Court need not determine whether Ohio

recognizes Section 876 because Plaintiff did not prove the elements necessary to sustain a claim

under that section. Again, Plaintiff’s claim rests on baseless, conclusory statements, and does not

provide sufficient facts which would entitle him to relief or provide fair notice of the claims made

against them.

In Counts Three, Four, Five, Six and Seven, Plaintiff alleges claims of fraud. It is well-

established that when fraud is alleged as the basis for an action, five elements must be asserted in

the complaint: (1) a false representation; (2) knowledge by the person making the representation

that it is false; (3) the intent by the person making the representation to induce the other to rely on

that representation; (4) rightful reliance by the other to his detriment; (5) an injury as a result of

the reliance. Schwartz v.. Capital Savings & Loan Co., 56 Ohio App.2d 83, 86, 381 N.E. 2d 957,

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959 (1978); Noland v.. Bryant (Jan 12, 1984), Franklin App. No. 83AP-31, unreported, at 5. In this

case, Plaintiff's Complaint does not allege sufficient facts to satisfy the requirements of Civ. R.

9(B), or to support the elements of a claim of fraud. Plaintiff makes general, conclusory allegations

that all Defendants have engaged in some type of fraud without providing specific factual

allegations about the alleged fraud or which Defendant is alleged to have engaged in that conduct.

Furthermore, in each action for fraud, Plaintiff refers to other lawsuits and asserts that either

“Defendants” or “Courts” justifiably relied upon certain representations but makes no allegations

that he made any such reliance. (Plaintiff's Complaint, Counts Three-Seven).

In Counts Eight, Nine and Ten, Plaintiff claims premises liability. To satisfy the elements

of premises liability under Ohio law, a “plaintiff must establish by a preponderance of the evidence

that: (1) the store, through its offers or employees, created the hazard complained of, or (2) at least

one of the store’s officers or employees had actual knowledge of the hazard and failed to remove

it or wam the customer, or (3) the hazard existed long enough that the store officers or employees

should have known of its presence and removed it or warmed the customer.” Titenok v. Wal-Mart

Stores E., Inc., 10th Dist. No. 12AP-799, 2013-Ohio-2745, 6, Johnson v. Wagner Provision Co.,

141 Ohio St. 584, 589, 49 N_E.2d 925 (1943); Mercer v. Wal-Mart Stores, Inc., 2013-Ohio-5607,

P13, 2013 Ohio App. LEXIS 5848, *9. In this case, Plaintiff makes claims of premises liability

against all Defendants except Facebook; however, Plaintiff fails to plead all of the elements, much

less any operative or coherent facts to support his claims. His allegations fail to state any facts

about what conduct of each Defendant forms the basis for his claims. Nor does he allege that there

was anything on Defendants’ premises that caused harm to him.

In Count Eleven, Plaintiff makes a claim of negligent security. However, negligent security

is not a recognized tort in Ohio. Even assuming, arguendo, that Plaintiff is actually alleging a

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negligence claim, once again, he fails to state specific facts to support his claim and provide

Defendants with fair notice as to the claims against them. His Complaint consists of baseless,

conclusory statements without showing why he is entitled to relief.

In Count Twelve, Plaintiff makes a claim of respondeat superior. “It is a fundamental

maxim of law that a person cannot be held liable, other than derivatively, for another’s negligence.”

Comer y. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, 4 17, quoting. In the

employment-law context, “the most common form of derivative or vicarious liability is that

imposed by the law of agency, through the doctrine of respondeat superior.” Albain v. Flower

Hosp., 50 Ohio St.3d 251, 255, 553 N.E.2d 1038 (1990). An employer may be liable for a wrong

committed by its employee when the employer delegates a course of action to the employee and

the employee then commits a tortious act while acting within the scope of his employment as to

the delegated course of action. See Losito v. Kruse, 136 Ohio St. 183, 186, 24 N.E.2d 705 (1940).

The employer and the employee are not jointly liable under that circumstance; the primary liability

rests with the employee who committed the wrong, and the secondary liability rests with the

employer by reason of its relationship with the employee-wrongdoer. /d. at 187. In this case,

Plaintiff once again makes vague, conclusory statements and fails to state specific operative facts

which would support his claim for relief or provide fair notice to Defendants of the claims against

them.

Absent speculation, it is impossible to ascertain from the four corners of Plaintiff's

Complaint how Bud Light, Coughlin, Flannagan’s, and Meta have any potential liability in this

case. Plaintiff's failure to identify any particular factual allegations or specific legal theories

against those Defendants places an unfair burden on them by forcing them to speculate as to the

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potential cl

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ANDRIA C NOBLE Track Judge’s New Case

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May 08, 2023

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July 06, 2022

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Order: KYLE ROHRIG Vs FLANNAGANS DUBLIN VS.FLANNAGANS DUBLIN ET AL

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