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PLEAS OGI8T
"YNE CCUNTY, O17
2 FAR AS ARMA 14 a
IN THE WAYNE COUNTY. COURT OF COMMON PLEAS
WAYNE GOH NIU ETO
Classic Imports, Inc } CASE NO. 12 CV 0015
d/b/a/ Backstage Pass )
) JUDGE: SPITLER
Plaintiff )
)
Ys. ) Plaintiff's Response to Motion to
AMC, Ine. d/b/a AmericasMart Atlanta) Dismiss, et al.
)
Defendant )
L Introduction
Now comes Classic Imports, Inc., by and through its counsel, and hereby opposes
Defendant’s Motion to Dismiss, or in the alternative, to transfer venue. As more fully set forth
herein, the motion should not be well taken.
I. Factual and Procedural Background
Plaintiff's Complaint states, in pertinent part, the following,
Count I: Breach of Contract
1. Plaintiff is an Ohio corporation with its principal place of business located at 2018
Great Trails Dr., Wooster, OH 44691.
2. Plaintiff and Defendant entered into a written booth space contract for the Atlanta
International Gift & Home Furnishings Market. Said contract was offered to Plaintiff
in Wayne County, Ohio. Said contract was negotiated in Wayne County, Ohio. Said
contract was executed in Wayne County, Ohio. Said contract was breached by
Defendant in Wayne County, Ohio. A copy of said contract is attached hereto and
1is marked as Exhibit A.
Said contract was executed by Plaintiff, and Plaintiff made a credit card payment as
a deposit for the booth space at said show. This was done on March 23, 2011. The
total cost of the booth space depended on the location of the booth. Despite no
accord ever being reached as to booth location for Plaintiff, Plaintiff was billed and
Plaintiff paid to Defendant the sum of $6,628.00 for booth space.
Through a series of e-mails, Plaintiff and Defendant tried to reach an accord as to
booth placement for Plaintiff at the show.
No such accord was ever reached.
Defendant has refused to and continues to refuse to refund the booth payment to the
Plaintiff.
There was no meeting of the minds as to the location of the Plaintiff's booth, and as
such, Piaintiff is entitled to a refund of its monies. No binding contract was ever
reached between Plaintiff and Defendant. Alternatively, Defendant breached said
contract by not providing the requested booth space in a timely manner and by not
providing the identities of the other exhibitors of the show to Plaintiff, as promised
by Defendant.
As a direct and proximate result of the actions of Defendant, Plaintiff has lost
business and business opportunities.
Count II: Fraud
Plaintiff adopts by reference all the allegations contained in paragraphs 1 through 8,
and further states:10. Prior to executing the booth space contract and prior to paying for said booth space,
Defendant represented to Plaintiff that Plaintiff would be able to exhibit its wares at
the show in a mutually-agreeable booth location. Defendant further represented to
Plaintiff that Defendant would provide the identities of the other exhibitors in and
around the booth space(s) sought after by Plaintiff before Plaintiff finalized its
decision as to whether to participate in said show.
11. To its detriment, Plaintiff relied on these representations.
12. Defendant never informed Plaintiff as to the identities of these other exhibitors.
13. Plaintiff and Defendant never agreed on a booth space for Plaintiff.
14. Asadirect and proximate result of the foregoing, Plaintiff was fraudulently induced
to enter into the booth space contract with Defendant and as a result has sustained
compensatory damages in excess of One Million Five Hundred Thousand Dollars
($1,500,000.00) representing lost business , and in excess of Three Million Dollars
($3,000,000.00) in punitive damages.
15. The actions of Defendant were done with actual malice and ill will and, as such, the
Plaintiff is entitled to punitive damages
After obtaining a leave to plead to file an Answer, the Defendant, instead, filed its Motion
to Dismiss, or Alternatively, to Transfer Venue. There is no merit to such motion.
Il. Law and Argument
A. The forum selection clause is not valid and enforceable.
Initially, the Defendant claims that its forum selection clause is valid and enforceable. It isAs to the issue of invalidating a forum selection clause, courts look to: (1) whether both
parties to the contract are commercial entities; (2) whether there is fraud or overreaching; and, (3)
whether enforcement of the clause would be unreasonable and unjust. Kennecorp Mtge. Brokers,
Inc. v. Country Club Convalescent Hosp., Inc., 1993-Ohio-203, 66 Ohio St.3d 173, 610 N.E.2d 987
(Ohio 1993). In determining whether such clause is unreasonable and unjust, courts look to whether
the clause is a product of fraud or overreaching. Valmac Industries, Inc. v. Ecotech Machinery, Inc.,
2000-Ohio-1689, 137 Ohio App.3d 408, 738 N.E.2d 873 (Ohio App. 2 Dist. 2000). In order to
invalidate a forum selection clause, the alleged wrongdoing must relate to the negotiation or
acceptance of the forum selection clause. Four Seasons Enterprises v. Tommel Financial Servs, Inc.
(Nov. 9, 2000), 8th Dist. No. 77248. Here, such can be shown.
As alleged in the Complaint, Plaintiff was induced into entering into the agreement with the
Defendant, Defendant led Plaintiff to believe that it would permit the Plaintiff to choose its booth
space, even though the written agreement may not have provided for same. Further, as an
inducement, Defendant led Plaintiff to believe that Defendant would provide the identities of the
other exhibitors who would be located near by the Plaintiff's booth space. Such promises were made
in writing, in e-mails to the Plaintiffs representative. As a direct and proximate result of said
representations, Plaintiff decided to execute the form agreement provided to Plaintiff, even though
there were terms contained in same which directly conflicted with the many and clear promises
made by Defendant to Plaintiff.
This is the very essence of fraud: obtain the signature and funds from an entity that has I s
located and does business far, far away from the selected forum. Plaintiff accepted the forum
selection clause based on the fraud committed by Defendant.
4The clause itself, is a standard forum selection clause, drafted by Plaintiff. The words chosen
therein were chosen by Plaintiff. Defendant had no intentions of fulfilling its promises to Plaintiff,
knowing that it would later assert the forum selection clause in order to seek to avoid liability.
The forum selection clause is void as being the product of fraud and overreaching.
B. The language of the clause doe not address this matter.
The clause, itself, states in pertinent part:
Any action by either party against another arising out of this Contract or out of conduct, acts
or activities of the parties hereunder shall be maintained in the Superior Court of Fulton
County, State of Georgia ***.”
This matter does not arise out of the contract. It arises out of the fraudulent actions of
Defendant’s agents in obtaining the execution of the contract and the payment of monies.
c Venue is not improper under the doctrine of forum non conveniens.
Defendant’s next argument in its quest to avoid its obligations is a claim that venue is
improper under the doctrine of forum non conveniens. Such could not be further from the truth.
The principle of forum non conveniens is simply that a court may resist imposition upon its
jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Gulf Oil
Corp. v. Gilbert (1947), 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055. See also Chambers v.
Merrell-Dow Pharmaceuticals, Inc. (1988), 35 Ohio St.3d 123, 126, 519 N.E.2d 370 (holding that
the “doctrine assumes that proper jurisdiction and proper venue lie in the court which plaintiff has
chosen, and additionally presupposes the availability of another forum in which the defendant may
be sued" [citations omitted] ).
There are factors that this Court should look to in making this decision. These factors may
be divided into the private interests of the litigants and factors of public interest involving the courtsand citizens of the forum. Important private interests include: “the relative ease of access to sources
of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining
attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the
action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
There may also be questions as to the enforceability of'a judgment if one is obtained.” Gilbert, supra,
at 508. The Gilbert court noted that “the plaintiffs’ choice of forum should rarely be disturbed,” id.,
particularly when the plaintiff has chosen his home forum. Koster v. Lumbermens Mut. Cas. Co.
(1947), 330 U.S. 518, 524 [67 S.Ct. 828, 91 L.Ed. 1067].
Initially, this Court must note the fact that, in arguing this theory, Defendant is conceding that
this Court has proper jurisdiction, as well as venue. This proper choice of forum should not be
disturbed, but very rarely.
Additionally, Defendant does not argue why the forum is not convenient. Defendant cites
this Court to the proper test, but provides NO analysis as to how it applies, herein.
Here, the majority of the witnesses live and work in Wooster, Ohio. They are located within
this Court’s jurisdiction. Compulsory process on them, if needed, is quite easy to obtain.
There is no need for any viewing of the premises in Atlanta. This is a very simple matter.
Defendant misled Plaintiff, and through same, obtained Plaintiff's execution of the contract as well
as payment on same.
As the majority of the witnesses live and work within this county, access to sources of proof
is quite easy, here. In fact, it would be more inconvenient to force the Plaintiff to trudge down to
Atlanta, Georgia to prove its case.
Lastly, there are no other practical problems facing this Court. If there were. Defendant,clearly would have pointed them out.
D. Exercising personal jurisdiction over Defendant is proper.
Finally, as to its motion to dismiss, Defendant argues that Ohio’s long arm statute does not
reach it. Such argument is not true, though.
To determine whether a court has personal jurisdiction over a non-resident, it must engage
in a two-step analysis. “First, the court must determine whether the state's 'long-arm' statute and
applicable civil rule confer personal jurisdiction, and, if so, whether granting jurisdiction under the
statute and the rule would deprive the defendant of the right to due process of law pursuant to the
Fourteenth Amendment to the United States Constitution.” U.S. Sprint Communications Co., Lid.
Partnership v. Mr K's Foods, Inc., 68 Ohio St.3d 181, 183-184, 1994-Ohio-504.
"A state's long arm statute or equivalent civil rule provides the basis upon which the exercise
of personal jurisdiction is authorized by state law. * * * The interpretation of the applicable long arm
statute or civil rule must be determined by application of the forum state's law." Hack v. Fisher-Bord
Worldwide Moving, Summit App. No, 20914, 2002-Ohio-3863, 411.
Of relevance in this case is R.C. 2307.382 (A)(1), under which a trial 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 ***[t]ransacting any business in this state ***." The phrase, “transacting any
business," has been interpreted broadly by Ohio courts. See Kentucky Oaks Mail at 75; see also
Schneider v. Gunnerman (Aug. 24, 1998), Fayette App. Nos. CA97-07-017, CA97-12-034.
Nevertheless, “a nonresident's ties must ‘create a "substantial connection’” with Ohio to find personal
jurisdiction exists under R.C. 2307.382 (A)(1). See U.S. Sprint Communications Co. v. Mr K's
Foods, Inc., 68 Ohio St.3d 181, 185, 1994-Ohio-504, Where a non-resident defendant contracts withan Ohio resident to create an ongoing business relationship, such defendant is “transacting any
business” in Ohio pursuant to the plain meaning of R.C. 2307.382 (A)(1). See Kentucky Oaks Mall
at 76; see also Schneider.
Here, Defendant has contracted with a known Ohio resident. Additionally, there is the
Internet angle of this matter. In addition to entering into a contract with an Ohio resident, and in
addition to negotiating same over the Internet with said entity-within this State, Defendant
advertised the show on the Internet, inviting persons from all parts of the world, including the State
of Ohio to participate in same. Such, clearly constitutes minimum contacts with Ohio.
Having generally advertised to the world, and more specifically, to person s within the State
of Ohio, and even more specifically. having negotiated a contract within the confines of this State
(and making fraudulent statements, herein), Defendant is hard-pressed to argue that personal
jurisdiction cannot be exercised over it. Exercising jurisdiction over the Defendant does not offend
constitutional due process.
E. There is no cause for the transfer of this matter to any courts in Georgia.
Lastly, Defendant attempts to avoid its inevitable day in court by arguing that this case should
be transferred to a court in the State of Georgia. There is no basis for same, though.
In order to make said transfer, though, the Defendant must consent to this Court’s
jurisdiction. Civ. R. 3(D). Here, Defendant has not so consented. As such, there can be no transfer.
Alternatively, this Court can accept this argument (in part) of Defendantas an admission that
there is jurisdiction over it. In such situation, then, this Court should look back to the issue of forum
non conveniens. There simply is no basis for the transfer of this matter. Jurisdiction and venue liein this Court.
i“
Respectfully submitted,
waigtRos & LOEPP, LTD.
Attorney for Plaintiff
3580 Darrow Road
Stow, Ohio 44224
Tloepp@bizlawfix.com
(330) 688-0560
CERTIFICATE OF SERVICE
A copy of the foregoing documents was sent on March 15, 2012 via regular U.S. Mail
Mark Berntohr
Sarah Baker
The Nantucket Building, Third Floor
23 S. Main Street
Akron, OH 44308
mark@b-wlaw.com
sarah@b-wlaw.com
THOMAS C. LOEPP (#0046629)
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PLEAS OGI8T "YNE CCUNTY, O17 2 FAR AS ARMA 14 a IN THE WAYNE COUNTY. COURT OF COMMON PLEAS WAYNE GOH NIU ETO Classic Imports, Inc } CASE NO. 12 CV 0015 d/b/a/ Backstage Pass ) ) JUDGE: SPITLER Plaintiff ) ) Ys. ) Plaintiff's Response to Motion to AMC, Ine. d/b/a AmericasMart Atlanta) Dismiss, et al. ) Defendant ) L Introduction Now comes Classic Imports, Inc., by and through its counsel, and hereby opposes Defendant’s Motion to Dismiss, or in the alternative, to transfer venue. As more fully set forth herein, the motion should not be well taken. I. Factual and Procedural Background Plaintiff's Complaint states, in pertinent part, the following, Count I: Breach of Contract 1. Plaintiff is an Ohio corporation with its principal place of business located at 2018 Great Trails Dr., Wooster, OH 44691. 2. Plaintiff and Defendant entered into a written booth space contract for the Atlanta International Gift & Home Furnishings Market. Said contract was offered to Plaintiff in Wayne County, Ohio. Said contract was negotiated in Wayne County, Ohio. Said contract was executed in Wayne County, Ohio. Said contract was breached by Defendant in Wayne County, Ohio. A copy of said contract is attached hereto and 1is marked as Exhibit A. Said contract was executed by Plaintiff, and Plaintiff made a credit card payment as a deposit for the booth space at said show. This was done on March 23, 2011. The total cost of the booth space depended on the location of the booth. Despite no accord ever being reached as to booth location for Plaintiff, Plaintiff was billed and Plaintiff paid to Defendant the sum of $6,628.00 for booth space. Through a series of e-mails, Plaintiff and Defendant tried to reach an accord as to booth placement for Plaintiff at the show. No such accord was ever reached. Defendant has refused to and continues to refuse to refund the booth payment to the Plaintiff. There was no meeting of the minds as to the location of the Plaintiff's booth, and as such, Piaintiff is entitled to a refund of its monies. No binding contract was ever reached between Plaintiff and Defendant. Alternatively, Defendant breached said contract by not providing the requested booth space in a timely manner and by not providing the identities of the other exhibitors of the show to Plaintiff, as promised by Defendant. As a direct and proximate result of the actions of Defendant, Plaintiff has lost business and business opportunities. Count II: Fraud Plaintiff adopts by reference all the allegations contained in paragraphs 1 through 8, and further states:10. Prior to executing the booth space contract and prior to paying for said booth space, Defendant represented to Plaintiff that Plaintiff would be able to exhibit its wares at the show in a mutually-agreeable booth location. Defendant further represented to Plaintiff that Defendant would provide the identities of the other exhibitors in and around the booth space(s) sought after by Plaintiff before Plaintiff finalized its decision as to whether to participate in said show. 11. To its detriment, Plaintiff relied on these representations. 12. Defendant never informed Plaintiff as to the identities of these other exhibitors. 13. Plaintiff and Defendant never agreed on a booth space for Plaintiff. 14. Asadirect and proximate result of the foregoing, Plaintiff was fraudulently induced to enter into the booth space contract with Defendant and as a result has sustained compensatory damages in excess of One Million Five Hundred Thousand Dollars ($1,500,000.00) representing lost business , and in excess of Three Million Dollars ($3,000,000.00) in punitive damages. 15. The actions of Defendant were done with actual malice and ill will and, as such, the Plaintiff is entitled to punitive damages After obtaining a leave to plead to file an Answer, the Defendant, instead, filed its Motion to Dismiss, or Alternatively, to Transfer Venue. There is no merit to such motion. Il. Law and Argument A. The forum selection clause is not valid and enforceable. Initially, the Defendant claims that its forum selection clause is valid and enforceable. It isAs to the issue of invalidating a forum selection clause, courts look to: (1) whether both parties to the contract are commercial entities; (2) whether there is fraud or overreaching; and, (3) whether enforcement of the clause would be unreasonable and unjust. Kennecorp Mtge. Brokers, Inc. v. Country Club Convalescent Hosp., Inc., 1993-Ohio-203, 66 Ohio St.3d 173, 610 N.E.2d 987 (Ohio 1993). In determining whether such clause is unreasonable and unjust, courts look to whether the clause is a product of fraud or overreaching. Valmac Industries, Inc. v. Ecotech Machinery, Inc., 2000-Ohio-1689, 137 Ohio App.3d 408, 738 N.E.2d 873 (Ohio App. 2 Dist. 2000). In order to invalidate a forum selection clause, the alleged wrongdoing must relate to the negotiation or acceptance of the forum selection clause. Four Seasons Enterprises v. Tommel Financial Servs, Inc. (Nov. 9, 2000), 8th Dist. No. 77248. Here, such can be shown. As alleged in the Complaint, Plaintiff was induced into entering into the agreement with the Defendant, Defendant led Plaintiff to believe that it would permit the Plaintiff to choose its booth space, even though the written agreement may not have provided for same. Further, as an inducement, Defendant led Plaintiff to believe that Defendant would provide the identities of the other exhibitors who would be located near by the Plaintiff's booth space. Such promises were made in writing, in e-mails to the Plaintiffs representative. As a direct and proximate result of said representations, Plaintiff decided to execute the form agreement provided to Plaintiff, even though there were terms contained in same which directly conflicted with the many and clear promises made by Defendant to Plaintiff. This is the very essence of fraud: obtain the signature and funds from an entity that has I s located and does business far, far away from the selected forum. Plaintiff accepted the forum selection clause based on the fraud committed by Defendant. 4The clause itself, is a standard forum selection clause, drafted by Plaintiff. The words chosen therein were chosen by Plaintiff. Defendant had no intentions of fulfilling its promises to Plaintiff, knowing that it would later assert the forum selection clause in order to seek to avoid liability. The forum selection clause is void as being the product of fraud and overreaching. B. The language of the clause doe not address this matter. The clause, itself, states in pertinent part: Any action by either party against another arising out of this Contract or out of conduct, acts or activities of the parties hereunder shall be maintained in the Superior Court of Fulton County, State of Georgia ***.” This matter does not arise out of the contract. It arises out of the fraudulent actions of Defendant’s agents in obtaining the execution of the contract and the payment of monies. c Venue is not improper under the doctrine of forum non conveniens. Defendant’s next argument in its quest to avoid its obligations is a claim that venue is improper under the doctrine of forum non conveniens. Such could not be further from the truth. The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055. See also Chambers v. Merrell-Dow Pharmaceuticals, Inc. (1988), 35 Ohio St.3d 123, 126, 519 N.E.2d 370 (holding that the “doctrine assumes that proper jurisdiction and proper venue lie in the court which plaintiff has chosen, and additionally presupposes the availability of another forum in which the defendant may be sued" [citations omitted] ). There are factors that this Court should look to in making this decision. These factors may be divided into the private interests of the litigants and factors of public interest involving the courtsand citizens of the forum. Important private interests include: “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of'a judgment if one is obtained.” Gilbert, supra, at 508. The Gilbert court noted that “the plaintiffs’ choice of forum should rarely be disturbed,” id., particularly when the plaintiff has chosen his home forum. Koster v. Lumbermens Mut. Cas. Co. (1947), 330 U.S. 518, 524 [67 S.Ct. 828, 91 L.Ed. 1067]. Initially, this Court must note the fact that, in arguing this theory, Defendant is conceding that this Court has proper jurisdiction, as well as venue. This proper choice of forum should not be disturbed, but very rarely. Additionally, Defendant does not argue why the forum is not convenient. Defendant cites this Court to the proper test, but provides NO analysis as to how it applies, herein. Here, the majority of the witnesses live and work in Wooster, Ohio. They are located within this Court’s jurisdiction. Compulsory process on them, if needed, is quite easy to obtain. There is no need for any viewing of the premises in Atlanta. This is a very simple matter. Defendant misled Plaintiff, and through same, obtained Plaintiff's execution of the contract as well as payment on same. As the majority of the witnesses live and work within this county, access to sources of proof is quite easy, here. In fact, it would be more inconvenient to force the Plaintiff to trudge down to Atlanta, Georgia to prove its case. Lastly, there are no other practical problems facing this Court. If there were. Defendant,clearly would have pointed them out. D. Exercising personal jurisdiction over Defendant is proper. Finally, as to its motion to dismiss, Defendant argues that Ohio’s long arm statute does not reach it. Such argument is not true, though. To determine whether a court has personal jurisdiction over a non-resident, it must engage in a two-step analysis. “First, the court must determine whether the state's 'long-arm' statute and applicable civil rule confer personal jurisdiction, and, if so, whether granting jurisdiction under the statute and the rule would deprive the defendant of the right to due process of law pursuant to the Fourteenth Amendment to the United States Constitution.” U.S. Sprint Communications Co., Lid. Partnership v. Mr K's Foods, Inc., 68 Ohio St.3d 181, 183-184, 1994-Ohio-504. "A state's long arm statute or equivalent civil rule provides the basis upon which the exercise of personal jurisdiction is authorized by state law. * * * The interpretation of the applicable long arm statute or civil rule must be determined by application of the forum state's law." Hack v. Fisher-Bord Worldwide Moving, Summit App. No, 20914, 2002-Ohio-3863, 411. Of relevance in this case is R.C. 2307.382 (A)(1), under which a trial 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 ***[t]ransacting any business in this state ***." The phrase, “transacting any business," has been interpreted broadly by Ohio courts. See Kentucky Oaks Mail at 75; see also Schneider v. Gunnerman (Aug. 24, 1998), Fayette App. Nos. CA97-07-017, CA97-12-034. Nevertheless, “a nonresident's ties must ‘create a "substantial connection’” with Ohio to find personal jurisdiction exists under R.C. 2307.382 (A)(1). See U.S. Sprint Communications Co. v. Mr K's Foods, Inc., 68 Ohio St.3d 181, 185, 1994-Ohio-504, Where a non-resident defendant contracts withan Ohio resident to create an ongoing business relationship, such defendant is “transacting any business” in Ohio pursuant to the plain meaning of R.C. 2307.382 (A)(1). See Kentucky Oaks Mall at 76; see also Schneider. Here, Defendant has contracted with a known Ohio resident. Additionally, there is the Internet angle of this matter. In addition to entering into a contract with an Ohio resident, and in addition to negotiating same over the Internet with said entity-within this State, Defendant advertised the show on the Internet, inviting persons from all parts of the world, including the State of Ohio to participate in same. Such, clearly constitutes minimum contacts with Ohio. Having generally advertised to the world, and more specifically, to person s within the State of Ohio, and even more specifically. having negotiated a contract within the confines of this State (and making fraudulent statements, herein), Defendant is hard-pressed to argue that personal jurisdiction cannot be exercised over it. Exercising jurisdiction over the Defendant does not offend constitutional due process. E. There is no cause for the transfer of this matter to any courts in Georgia. Lastly, Defendant attempts to avoid its inevitable day in court by arguing that this case should be transferred to a court in the State of Georgia. There is no basis for same, though. In order to make said transfer, though, the Defendant must consent to this Court’s jurisdiction. Civ. R. 3(D). Here, Defendant has not so consented. As such, there can be no transfer. Alternatively, this Court can accept this argument (in part) of Defendantas an admission that there is jurisdiction over it. In such situation, then, this Court should look back to the issue of forum non conveniens. There simply is no basis for the transfer of this matter. Jurisdiction and venue liein this Court. i“ Respectfully submitted, waigtRos & LOEPP, LTD. Attorney for Plaintiff 3580 Darrow Road Stow, Ohio 44224 Tloepp@bizlawfix.com (330) 688-0560 CERTIFICATE OF SERVICE A copy of the foregoing documents was sent on March 15, 2012 via regular U.S. Mail Mark Berntohr Sarah Baker The Nantucket Building, Third Floor 23 S. Main Street Akron, OH 44308 mark@b-wlaw.com sarah@b-wlaw.com THOMAS C. LOEPP (#0046629)