^^^^^^ .
IN THE SUPREME COURT OF OHIO
PAUL L. SACKSTEDER, et al. * CASE NO. ^
Plaintiffs-Appellees,
v.
JEFFREY S. SENNEY, et al.
Defendants-Appellants.
On Appeal from the MontgomeryCounty Court of Appeals, Second
* Appellate District
Court of AppealsCase No. CA 024993
T.C. Case No. 2010 CV 01913^
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTSJEFFREY S. SENNEY, PAUL E. ZIMMER, ANDREW C. STORAR, GERALD L.
MCDONALD AND PICKREL, SCHAEFFER & EBELING CO., LPA
Neil F. Freund (OH12183)(COUNSEL OFRECORD)Lindsay r^. .i ohn-son (OH7 7 753)FREUND, FREEZE & ARNOLDFifth Third Center .1 South Main Street, Suite 1800Dayton, OH 45402-2017Phone: (937) 222-2424Fax: (937) 222-5369PQ.h': 1737^ 222-J.^769
E-Mail: callison e,ffalaw.comE-Mail:liohnson ,ffalaw.com
Counsel for Defendants-AppellantsJeffrey S. Senney, Paul E. Zimmer,Andrew C. Storar, Gerald L. McDonald,and Pick^el, Schaeffer and Ebeling Co., L.
John J. Mueller (0012101)JOHN J. MUELLER, LLC632 V^ne Stre^t, Suite 800Cincinnati, Ohio 45202-2441Phone: (513) 621-2441Fax: (513) 621-2550E-mail: johnjmueller(a21e a lmalpractice.net
Counselfo^ Plaintiffs-Appellees
Gs fj^.isLi^0^ ^ 3 2012
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FREUND,FREEZE & ARNOLDA Legal Professional Association
John F. HavilandCarla J. MormanBIESER, GREER & LANDIS, LLP400 PNC Center6 North Main StreetDayton, Ohio 45402L(a^b^llaw.comcjm(a^b^llaw.com
Counselfor DefendantsTeresa A. Ambos, Nicole R. Brumbaugh,Barry Staff, Inc., and Douglas J. Barry, Jr.
Victoria A. FlinnQuintin F. LindsmithBRICKER & ECKLER LLP100 South Third StreetColumbus, OH 43215vflinn(a_^bricker. com^lindsmith(a,bricker.com
Counselfor Defendant-AppellantJerome M. Buening, J>^.
FREUND,FREEZE & ARNOLDA Legal Professional Association
TABLE OF CONTENTS
Pa^e
EXPLANATION OF WHY THIS IS A CASE OF PUBLIC AND GREATGENERAL INTEREST .................................................................................
STATEMENT OF THE CASE AND FACTS ......... ... ......... ......... ... ...... .... .. ........4
Statement of the Case . . . .. . .. . .. . . . . . .. . .. . . . . . . .. . . .. . .. .. . . . . . .. . .. . . . . . . . .. . . . . . . .. . .. . . .. . .......4
Statement of Facts ... ................ ..................... .................. ... ............. ..........5
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ....................................8
Proposition of Law No. I
In Ohio, to properly state a claim for relief and survive a motion to dismisspursuant to Ohio Civ.R. 12(B)(6), a plaintiff must establish his claims areplausible, rather than speculative or merely possible. (Bell Atlantic Corp. v.Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) andAshcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009),adopted and followed) . ... ... ...... ...... ......... ... ... ......... ... ... ... ......... ..........8
Proposition of Law No. II
In Ohio, to properly state a claim for relief and survive an Ohio Civ.R. 12(B)(6)motion to dismiss, a plaintiff alleging legal malpractice claims must set forthsufficient facts as to each required element in order to establish his claims areplausible rather than speculative or merely possible . ......... ......... .... ....... .... ........13
CONCLUSION ............................................................................................15
CERTIFICATE OF SERVICE ........................................................................16
APPENDIX ................................................................................................17
Appx. Pa^e
Opinion of the Montgomery County Court of Appeals (Sept. 28, 2012) . . . . . . . . . . . . . . . . .. . . . . . . . . ...1
Final Entry of the Montgomery County Court of Appeals ( Sept. 28, 2012) . .. .. . .. . . . . . . . . . . . . ....42
FREUND, FREEZE & ARNOLDA Legal ProFessional Association
EXPLANATION OF WHY THIS IS A CASE OF PUBLIC ANDGREAT GENERAL INTEREST
Predictability in the law and its consistent and uniform application by all courts across the
State of Ohio, in each of the eighty-eight counties and twelve appellate districts, is the very
bedrock of Ohio's judicial system. This system cannot be said to be fair or impartial when the
law being applied in some courts differs markedly from the law applied in others. When the law
is applied differently or inconsistently based upon a court's locality in the state, litigants perceive
the legal system to be unfair and unjust. The judiciary and members of the Bar view the law as
unstable and fickle due to the inability to predict how the law will be applied in cases today as
well as in the fizture. Faced with such uncertainty, businesses and professionals shy away from
engaging in commerce in Ohio, and Ohio's citizens lose faith that the judicial system can fairly
resolve and dispose of their legal disputes. It is for these reasons that consistent, fair and
uniform application of the law throughout Ohio is a matter of public and great general interest.
Nowhere is this uniform and fair application of the law more critically important than at the
commencement of litigation when the adequacy of a complaint is first challenged and
determined. Knowing what rules govern the adequacy of pleadings is essential to a fair and
efficient administration of justice, for both plaintiffs and defendants.
The propositions of law presented in this case address the standard for pleading a cause
of action in a legal malpractice complaint pursuant to Ohio Civ.R. 8(A)(1). This case raises
issues of public and great general interest as litigation in Ohio's courts begins with the filing of a
pleading. Complaints are oftentimes followed by claims being joined in other pleadings such as
counterclaims, cross-claims, or third-party complaints. In order for these pleadings to state a
legal claim for relief, Ohio's Civ.R. 8(A)(1) requires "a short and plain statement of the claim
showing that the party is entitled to relie£" Because Ohio's Rule 8(A)(1) was patterned after
FREUND, FREEZE & ARNOLDA Legal Professional Association
Fed.Civ.R. 8(a)1 Ohio adopted the "no set of facts" standard set forth in Conley v. Gibson, 355
U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) as the test for judging the adequacy of the
complaint at the motion to dismiss stage. See O'Brien v. Universit^Communit^Tenants Union,
Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. But Ohio should join the movement
away from the "no set of facts" standard and adopt the "plausibility" standard now enforced in
federal courts. The "plausibility" standard is being embraced in a growing number of other
jurisdictions across the country.
The Supreme Court of the United States abandoned Conle,y's "no set of facts" standard
noting that "this famous observation has earned its retirement" and "[t]he phrase is best forgotten
as an incomplete, negative gloss on an accepted pleading standard." Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In adopting the new
"plausibility" standard, the Twombly Court observed that "a plaintiff's obligation to provide the
`grounds' of his `entitle[ment] to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do" and "[f)actual allegations
must be enough to raise a right to relief above the speculative level." Id. at 554. A complaint
does not suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at
557. See also, Ashcroft v. Iqbal, 556 U.S. 662, 677-678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2008)(further amplifying and applying the Twombly "plausibility" standard). As the Twombly
Court noted, when plaintiffs "have not nudged their claims across the line from conceivable to
plausible, their complaint must be dismissed." 550 U.S. at 570.
In this case, the Second Appellate District rejected the "plausibility" standard. App. Op.
¶¶38-39, Apx. pp. 16-17. It did so despite the recognition that other courts across the State have
1Fed.R.Civ.P. 8(a)(2) requires a pleading to contain "a short and plain statement of theclaim showing that the pleader is entitled to relief."
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FREUND, FREEZE & ARNOLDA Legal Professional Association
adopted the new standard. App. Op. ¶¶39-46, Apx. pp. 17-19. In fact, as demonstrated herein, it
is clear that several appellate districts in Ohio have all implemented and adopted the
"plausibility" standard based upon a recognition that Twombly has abandoned the old,
antiquated "no set of facts" standard in Conley. But other appellate courts have further confused
the law by citing the Twombl /y Iqbal "plausibility" standard alongside the Conley "no set of
facts" standard in the same opinion. Failing to account for the qualitative difference between the
two standards only compounds the confusion and uncertainty about Ohio's pleading standards.
One reason the Second Appellate District was hesitant to join its sister appellate courts in
implementing the Twombly "plausibility" standard was expressed by Judge Fain in his
concurring opinion: "The Twombly line of cases has no application to the rules of pleading in
Ohio courts unless and until the Supreme Court of Ohio incorporates the principles set forth in
those cases in its interpretation of the Ohio rules of pleading." App. Op. ¶106 (Fain, J., concur),
Apx. pp. 39-40. This Court should welcome the opportunity to clarify the confusion and
uncertainty brought on by the prevailing inconsistent treatment of Twombly and I^c bal
throughout Ohio. In doing so, this Court will resolve the intra-district conflict as to whether
Ohio continues to adhere to the "no set of facts" pleading standard, or is in accord with the
federal courts and other jurisdictions which have embraced the Twombly/Iqbal "plausibility"
standard.
This case is also worthy of review because of its great general interest and implications
for members of Ohio's legal Bar. Due to the reputational and professional harm that
unsupported and baseless allegations cause when made publicly in a civil complaint for
negligence and wrongdoing, this Court has recognized there are civil causes of action which
require closer scrutir.y of the complaint at the motion t® dismiss stage of the litigation. See, ^,
Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991); Mitchell v. Lawson Milk Co., 40 Ohio
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FREUND, FREEZE & ARNOLDA Legal Professional Association
St.3d 190, 532 N.E.2d 753 (1988). Closer scrutiny of pleadings setting forth claims against
Ohio's attorneys for legal malpractice is equally warranted. The adoption of the Twombl. /y Ic^bal
"plausibility" standard in this legal malpractice case is especially appropriate because of the
complaints' glaring deficiencies under Civ.R. 8(A)(1). The Plaintiffs-Appellees' complaints
offer nothing more than "labels and conclusions" and "a formulaic recitation of the elements of a
cause of action" for legal malpractice and breaches of fiduciary duties. The accusations of
damages are factually unsupported, speculative, and Plaintiffs-Appellees have "not nudged their
claims across the line from conceivable to plausible."
For these reasons, this Court should accept jurisdiction over this case to clarify Ohio's
pleading standards, in general,, and those applicable to claims for legal malpractice in particular.
STATEMENT OF THE CASE AND FACTS
Statement of the Case
This case arises out of a voluntary decision to sell a failing staffing services business
venture located in Dayton, Ohio. Plaintiffs-Appellees Paul L. Sacksteder and Circle Business
Services, Inc., d/b/a EXTRAhelp Staffing Services (collectively "EXTRAhelp") allege a variety
of tort and contract claims against ten (10) different parties, including the Defendants-
Appellants, Jeffrey S. Senney, Paul E. Zimmer, Andrew C. Storar, Gerald L. McDonald and
Pickrel, Schaeffer & Ebeling Co., LPA (collectively "PS&E") following EXTRAhelp's sale of
the company and its assets to non-party Belcan Services Group, II ("Belcan"), another temporary
staffing company located in Dayton, Ohio. EXTRAhelp alleges it was represented by the PS&E
attorneys during this sale and that the attorneys were negligent in that representation.
PS&E moved the trial court to dismiss EXTRAhelp's Amended Complaint arguing that
the Amended Complaint fails to set forth facts as to each e1_ement o_f EXTRAhelps's claims
against PS&E such that they are plausible rather than merely possible. Instead, EXTR.Ahelp's
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FREUND,FREEZE & ARNOLDA Legal Professional Association
Amended Complaint contains only basic and conclusory allegations unaccompanied by specific,
non-speculative facts. EXTRAhelp's unsupportive, speculative, and conclusory allegations do
not meet the pleading requirements set forth by the Supreme Court of the United States in Bell
Atlantic Cor^ v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The trial court agreed and entered a Decision and Entry sustaining the motions to dismiss
of PS&E and the other defendants holding that Twombly and I^c bal require Ohio plaintiffs to
allege "enough facts to state a claim to relief that is plausible on its face." Trial Court Decision
and Entry, Dec. 12, 2011, p. 2. EXTRAhelp appealed the trial court's decision to the Second
Appellate District which reversed in part, and affirmed in part, the trial court's decision. The
Second District reversed the dismissal of the claims against PS&E based upon its express
rejection of the "plausibility" standard established in Twombly and ^bal. The Second District
held that when deciding a motion to dismiss under Ohio Civ.R. 12(B)(6), it is not bound by
decisions of the Supreme Court of the United States that do not involve federal statutory or
constitutional law.
Statement of Facts
Following EXTRAhelp's sale of the business and assets to non-party Belcan,
EXTRAhelp filed suit alleging that PS&E's representation was negligent and proximately caused
damages to EXTRAhelp when it was forced to sell its business and assets to Belcan, rather than
to Defendants Douglas Barry and Barry Staff (collectively "Barry Staff'). Prior to the sale,
EXTRAhelp had utilized attorneys from PS&E to provide legal services on an "as-needed" basis,
including Defendant-Appellant Andrew C. Storar ("Attorney Storar"). Defendant-Appellant
Jeffrey S. Ser.ney ("Attorney Senney") - also an attorney at PS^E - had also _represented Barry
Staff. Attorney Senney sent a letter to EXTRAhelp disclosing that he represented an unnamed
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FREUND,FREEZE & ARNOLDA Legal Professional Association
party interested in purchasing EXTRAhelp. Barry Staff's identity as the interested purchaser
was later revealed to EXTRAhelp. After receiving the letter from Attorney Senney, Plaintiff-
Appellee Paul L. Sacksteder ("Sacksteder"), the principal of EXTRAhelp, contacted Attorney
Storar who advised him there was a potential conflict of interest with respect to Attorney Senney
representing Barry Staff in the potential sales transaction when Attorney Storar may be
representing EXTRAhelp. Attorney Storar advised Sacksteder he could consent to waive the
conflict of interest, which Sacksteder eventually did on behalf of himself and EXTR.Ahelp.
EXTRAhelp claims Attorney Storar failed to explain the risks associated with such conflicting
representations. Sacksteder admits he willingly disclosed EXTRAhelp's trade secrets to Barry
Staff during his voluntary and unilateral discussions about the potential sale but blames the
PS&E attorneys for not advising him properly beforehand.
When Sacksteder voluntarily began unilateral conversations with Barry, Sacksteder knew
Attorney Senney represented Barry and Barry Staff. Sacksteder unilaterally provided his contact
information to these competitors. Plaintiffs-Appellees do not allege this exchange of information
was done upon the advice of PS&E or that PS&E was aware Sacksteder, on his own and without
notice to PS&E, met with and discussed confidential information and the proposed transaction
with Barry Staff and its owner. Plaintiffs-Appellees do not claim PS&E had any involvement in
Sacksteder's actions or his negotiations with Barry Staff. During one of their pre-transaction
conferences, Sacksteder and Barry discussed and agreed to permit PS&E to represent both Barry
Staff, on the one side of the transaction, and EXTRAhelp, on the other.
Sometime in early March 2009 Plaintiffs-Appellees claim Barry advised Sacksteder that
Barry, Barry Staff, Attorney Senney and PS&E saw "problems" with the proposed transaction
concerning EXT1ZAhelp's business and assets and that Attorney Senney and PS&E advised
Barry Staff to terminate negotiations with Sacksteder, to abandon any plans to purchase
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FREUND,FREEZE & ARNOLDA Legal Professional Association
EXTRAhelp's business and assets, and to hold no further discussions with Sacksteder.
Approximately seven to fourteen days later, Sacksteder and EXTRAhelp entered into
negotiations with non-party Belcan for the purchase of EXTRAhelp's business and assets. In the
same month, on or about March 25, 2009 Sacksteder voluntarily sold to Belcan EXTRAhelp's
business and assets. Plaintiffs-Appellees did not attach to their Amended Complaint the asset
purchase agreement or otherwise allege that they suffered damages due to the sale of
EXTRAhelp to Belcan as opposed to Barry Staff.
Plaintiffs-Appellees do not allege they were forced to sell EXTRAhelp's business and
assets to Belcan. They do not allege that but for the conduct of any PS&E attorney the proposed
sale between EXTRAhelp and Barry Staff would have gone through without any problems.
Likewise, they do not allege that the information acquired by Barry and/or Barry Staff
concerning EXTRAhelp's business and assets was incorrect information.
The Amended Complaint is silent as to why Barry Staff was concerned with the potential
purchase of EXTRAhelp, whether the information Barry Staff acquired was initially disclosed by
Sacksteder himself, or whether the information that concerned Barry Staff was public
knowledge, available by a simple public records search or other run-of-the-mill due diligence
investigation. Sacksteder does not allege any PS&E attorney somehow improperly acquired
information about EXTRAhelp. Sacksteder admits he was the source of the information Barry
acquired regarding EXTRAhelp and that Sacksteder did not indicate to PS&E that he planned to
disseminate this information.
Although Plaintiffs-Appellees allege the PS&E attorneys were negligent, they fail to
allege how any action or inaction on the part of these attorneys proximately caused any damages,
especially where Sacksteder himself voluntarily divul_ged the ve_ry information he claims caused
the sale to "fall through." Plaintiffs-Appellees' Amended Complaint contains no factual
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FREUND, FREEZE & ARNOLDA Legal Professional Association
allegations that establish it is plausible the sale would have occurred but for the transfer of this
alleged confidential and proprietary business information by Sacksteder himself. The pleading
likewise fails to establish it is plausible that the PS&E Defendants-Appellants caused the
dissemination of allegedly protected information. Despite being given two opportunities to
properly state a plausible claim with factual allegations to provide support for their claims,
Plaintiffs-Appellees were unable to remedy the shortcomings of their conclusory, speculative,
and unsupported allegations. Specifically, as to the legal malpractice claims, Plaintiffs-
Appellees failed to establish any plausible entitlement to damages.
This Court should accept jurisdiction of this case to review Ohio law governing pleading
standards in light of Twombly and ^bal and its application by Ohio Appellate Courts.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I:
In Ohio, to properly state a claim for relief and survive a motion to dismisspursuant to Ohio Civ.R. 12(B)(6), a plaintiff must establish his claims areplausible, rather than speculative or merely possible. (Bell Atlantic Corp. v.Twombly, 550 U.S. 544,127 S.Ct. 1955,167 L.Ed.2d 929 (2007) and Ashcroft v.
Igbal, 556 U.S. 662,129 S.Ct. 1937,173 L.Ed.2d 868 (2009), adopted and followed).
This proposition of law affords this Court the opportunity to provide guidance on Ohio's
pleading standard and instruct lower courts how to rule on a motion to dismiss when the
complaint fails to allege a right of recovery that is plausible, as opposed to merely possible.
Civ.R. 8(A)(1) requires a complaint contain "a short and plain statement of the claim
showing that the party is entitled to relief." The language in Ohio's Civ.R. 8(A)(1) was modeled
after Federal Civ.R. 8(a). Historically, this Court has followed federal case law interpreting the
federal rules when Ohio's rules are similarly worded. State ex rel. Fire Marshal v. Curl, 87 Ohio
St.3d 568, 571, 722 N.E.2d 73 (1999). The pleading requireme_n_t u_nder Fed.R.Civ.P, 8(a) and
Civ.R. 8(A) are virtually identical. Vagas v. City of Hudson, 9th Dist. App. No. 24713, 2009-
8
FREUND, FREEZE & ARNOLDA Legal Professional Association
Ohio-6794, ¶13, fn. 1. Given this history, Ohio should follow the trend and move away from the
"no set of facts" standard toward the Twombly "plausibility" standard adopted in a pair of very
recent decisions from the Supreme Court of the United States streamlining the standard for
determining a complaint's sufficiency. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009). Ohio plaintiffs should be required to plead facts demonstrating a plausible
right to relief in order to survive a motion to dismiss.
Under Twombly and Igbal, a court applying the "plausibility standard must first separate
factual allegations from mere conclusory statements, giving the alleged facts a presumption of
truth while disregarding the legal conclusions, which are not entitled to this presumption." Iqbal
at 1949-1950 (quoting Twombly at 555-557). After setting aside the plaintiff's legal
conclusions, the court must then review the facts alleged and determine whether they alone "give
rise to an entitlement to relief." ^bal at 1950; Twombly at 557-558. The alleged facts must be
sufficient "to raise a right to relief above the speculative level" and nudg[e] [plaintiff's] claims
across the line from conceivable to plausible." Twombly at 555, 570. "A pleading that offers
`labels and conclusions' or a`formulaic recitation of the elements of a cause of action will not
do.' Nor can a complaint survive dismissal if it tenders `naked assertions' devoid of `further
factual enhancement."' Iqbal at 1959-1950 (quoting Twombly at 555, 557).
At least four Ohio appellate courts have adopted this federal law. In Vagas v. City of
Hudson, the Ninth Appellate District relied upon the federal standard in affirming the trial
court's dismissal of plaintiffs' complaint for failure to allege sufficient facts, noting that
"although Twombly refers to the federal rules and the Ohio rules are applicable here, the
pleading requirements under Fed.R.Civ.P. 8(a) and [Ohio] Civ.IZ. 8(A) are virtually identical.
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FREUND, FREEZE & ARNOLDA Legal Professional Association
Additionally, the Ohio rule was based on the federal rule." Vagas at ¶ 13, n.l(citing the 1970
staff notes to Ohio Civ.R. 8).
Likewise, the Eighth District has adopted Iqbal/Twombly when determining a motion to
dismiss for a failure to state a claim, noting:
The prior analysis was shifted by recent Supreme Court decisions addressing thefederal notice pleading standard in Fed.Civ.R. 8, upon which Ohio's Civ.R. 8pleading requirement is based. The court held that bald legal conclusions did notconstitute a well-pled complaint. In order to survive a motion to dismiss, thecomplaint must offer factual support for the legal conclusions drawn within. ***Based on the above Ohio case law, plaintiffs must only show some set of factsthat would entitle them to relief. *** The Supreme Court has clarified the federalnotice pleading standard - to survive a motion to dismiss, sufficient facts beyonda mere speculative level must be pled.
Snowville Subdivision Joint Venture Phase I et al. v. Home Savings & Loan of Youn^stown,
Ohio, 8th Dist. App. No. 96675, 2012-Ohio-1342, ¶¶9-10(citing ^bal at 1949 and Twombly at
555). See also Digiorgio v. City of Cleveland, 8th Dist. No. 95945, 2011-Ohio-5878 at ¶49
(citing I^c bal and Twombly); Parsons v. Greater Cleveland Regional Transit Authority, 8th Dist.
App. No. 93523, 2010-Ohio-266, ¶11(citing Twombly); Fink v. Twentieth CenturX Homes, Inc.,
et al., 8th Dist. App. No. 94519, 2010-Ohio-5486, ¶24(citing Twombly); Williams v. Ohio
Edison, 8th Dist. App. No. 92840, 2009-0hio-5702 at ¶15(citing Twombly); Gallo v. Westfield
National Ins., 8th Dist. App. No. 91893, 2009-Ohio-1094, ¶9(citing Twombly).
In citing Twombly, the Eleventh District also held:
While a complaint attacked by a Civ.R. 12(B)(6) motion to dismiss does not needfactual allegations, the plaintiff's obligation to provide the grounds for hisentitlement to relief requires more than conclusions, and a mere recitation of theelements of a cause of action without factual enhancement will not suffice.
Hoffinan v. Fraser, l lth Dist. App. No. 2010-G-2975, 2011-Ohio-2200, ¶21.
Further, the Fifth District has relied upon Iqbal in holding that "a legal conclusion cannot
be accepted as true for purposes of ruling on a motion to dismiss." Cirotto v. Heartbeats of
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Licking County, Sth Dist. App. No. 10-CA-21, 2010-Ohio-4238, ¶18 (citing I^cbal). The Fifth
District has also relied upon Twombly in finding the claims set forth in the complaint must be
plausible, rather than merely conceivable. See Bumpus v. Lloyd Ward, P.C., Sth Dist. App. No.
2012-CA-5, 2012-0hio-4674, ¶12.
Twombly and/or Igbal have been followed by several state courts including the Arizona
Court of Appeals, the Delaware Court of Chancery, the D.C. Court of Appeals, the Florida
District Court of Appeals, the Massachusetts Supreme Court and Court of Appeals, the
Minnesota Court of Appeals, the Michigan Court of Appeals, the Nebraska Supreme Court, the
New Mexico Supreme Court, the South Dakota Supreme Court, the Tennessee Court of Appeals,
and the West Virginia Court of Appeals. 2
The status of the Supreme Court of the United States' holdings in Twombly and Icdbal has
left attorneys, judges, and litigants in the State of Ohio confused and uncertain regarding the
standard for judging the sufficiency of a complaint and other pleadings. This inconsistency in
2 See e.^., Phoenix Enters LLC v. Shirley Hi ng_way Distrib. Ctr. LLC, 2007 Bankr. LEXIS 3072(Bankr. D.D.C. Sept. 10, 2007); Braillard v. Maricopa County, 224 Ariz. 481, 232 P.3d 1263,2010 Ariz. App. LEXIS 86 (Ariz. Ct. App. 2010); Meso Scale Dia^nostics, LLC v. RocheDia restios, 2011 Del. Ch. LEXIS 61 (Del. Ch. Apr. 8, 2011); Miaro- s±rategy, Tnc v. Acac'aaResearch Corp., 2010 Del. Ch. LEXIS 254 (Del. Ch. Dec. 30, 2010); Nichols v. Chrysler GroupLLC, 2010 Del. Ch. LEXIS 251 (Del. Ch. 29, 2010); Narrowstep, Inc. v. Onstream Media Corp.,2010 Del Ch. LEXIS 250 (Del. Ch. Dec. 22, 2010); Jackson v. Minter, 2011 Del. Super. LEXIS115 (Del. Super. Ct. Mar. 17, 2011); Mazza v. Housecraft, LLC, 18 A.3d 786, 2011 D.C. App.LEXIS 215 (D.C. 2011); D.C. ex rel. Bates v. Mortgage Elec. Re:;istration Sys., 2012 D.C.Super. LEXIS 6(2012); MYD Marine Distrib. v. Int'1 Paint Ltd., 76 So. 3d 42, 2011 Fla. App.LEXIC 1 Q(A27, 36 Fla, L, wPekl y L^ 2724 (Fla, T^ict, C't, App, 4th Dist= 201 11; Hawkeve
Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600, 2012 Iowa Sup. LEXIS 17(Iowa 2012); Morrissey v. New Eng^. Deaconess Ass'n, 458 Mass. 580, 940 N.E.2d 391, 2010Mass. LEXIS 941 (2010); Cornell v. Collin^s, 2011 Mass. App. Unpub. LEXIS 467 (Mass. App.Ct. Feb. 28, 2011); Christensen v. Cox, 2012 Mass. Super. LEXIS 234 (Mass. Super. Ct. July 25,2012); Duncan v. State, 284 Mich. App. 246, 774 N.W.2d 89, 2009 Mich. App. LEXIS 1380(2009); Romero v. Philip Morris Inc., 2010 NMSC 35, 148 N.M. 713, 242 P.3d 280 (N.M.2010); Gruhlke v. Sioux Empire Fed. Credit Union, 2008 SD 89, 756 N.W.2d 399, 2008 S.D.LEXIS 127 (2008); Hermosa Holdingts Inc. v. Mid-Tennessee Bone & Joint Clinic, P.S., 2009Tenn. App. LEXIS 282 (Tenn. Ct. App. Mar. 16, 2009); and Robinson v. Pack, 223 W.Va, 828,679 S.E.2d 660, 2009 W. Va. LEXIS 59 (2009).
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FREUND, FREEZE & ARNOLDA Legal Professional Association
Ohio appellate law must be clarified with the adoption of the standard set forth in Twombly and
Iqbal in order to provide defendants with fair notice of the nature of the action and to permit trial
courts to fully evaluate a plaintiff's complaint to ensure plaintiff's claims are plausible, as
opposed to merely possible.
Under the facts of the instant case, EXTRAhelp's Amended Complaint does not satisfy
the Twombly/Iqbal standard because it fails to establish that relief is plausible on its face. The
Amended Complaint fails to demonstrate Plaintiffs-Appellees suffered any damages proximately
caused by PS&E's alleged negligence. Their claims are unsupported and speculative and cannot
survive a motion to dismiss under the Twombl^qbal standard.
Adoption of the standard set forth in Twombly and ^bal will reduce the exorbitant cost
of litigation by establishing a fair procedural safeguard to weed out unsupported, speculative,
and weak claims prior to discovery. These were precisely the concerns the Supreme Court of the
United States espoused in Twombly and ^bal. The same concerns at the forefront of the
rationale in Twombly and .I^c bal exist in the State of Ohio as well.
In fact, adopting and applying the standard set forth in Twombly and I^c bal benefits both
Ohio plaintiffs and defendants alike. Requiring a plaintiff to provide grounds for his entitlement
to relief that are plausible forces him to take a detailed look at his case at the time of filing to
prevent false reliance that the claims are supported and plausible when they, in fact, are not. The
courts' and the parties' time and resources will be conserved. Requiring a plaintiff to provide
more than just rampant speculation at the initial pleading stage will streamline litigation.
Adoption of the Twombly/Iqbal standard is a well-balanced approach for determining whether a
complaint should survive a motion to dismiss and proceed to discovery.
12
FREUND, FREEZE & ARNOLDA Legal Professional Association
Pronosition of Law No. II:
In Ohio, to properly state a claim for relief and survive an Ohio Civ.R. 12(B)(6)motion to dismiss, a plaintiff alleging legal malpractice claims must set forthsufficient facts as to each required element in order to establish his claims areplausible rather than speculative or merely possible.
This proposition of law affords this Court the opportunity to instruct lower courts to
apply the Twombl^qbal standard in cases alleging claims of legal malpractice. It further
provides this Court the chance to once again distinguish cases alleging legal malpractice claims
from those alleging other negligence claims.
A legal malpractice plaintiff is a unique litigant. Immediately upon filing a lawsuit
alleging legal malpractice, the plaintiff instantly tarnishes the lawyer-defendant's reputation,
often causing him to lose professional opportunities and potential clients - all before the
defendant-lawyer can even answer the complaint or conduct any discovery in an effort to defend
himself. Often, the legal malpractice plaintiff s filing has the effect of forever damaging the
lawyer-defendant's career even if the lawsuit is later dismissed or disposed of on motion. By
adopting the Twombl /^qbal "plausibility" standard, a legal malpractice plaintiff's complaint
should be scrutinized closely and the plaintiff should be required to plead facts in his complaint
demonstrating his claims are plausible, not merely possible.
The Twombly defendants had similar concerns when faced with a class action litigation
filed by their telephone/internet subscribers, or customers. The majority in Twombly believed
that requiring allegations to "reach the level" suggesting wrongdoing was the best way to avoid
potentially expensive discovery in cases where there was doubt that evidence to support a claim
would be discovered. Twombly favored requiring a showing of "plausibility" at the pleading
stage in order to take early precautions to avoid meritless litigation.
13
FREUND, FREEZE & ARNOLDA Legal Professional Association
Like the defendants in Twombly, Ohio legal malpractice defendants deserve to know
their accuser's allegations are more than bald, speculative, and unsupported assertions at the
outset of the case. This position is especially compelling when one considers the immediate
damage a lawyer suffers upon the mere filing of a legal malpractice complaint against him.
Like the facts underpinning Twombly, where the Supreme Court of the United States
recognized there was an obvious alternative explanation for the complained-of-conduct, there
can be countless explanations for a less-than-optimal legal result which forms the basis for a
plaintiff's legal malpractice Complaint. However, as this Court has stressed in many previous
legal malpractice cases - claims brought against lawyers are different and deserve greater
scrutiny. See Paterek v. Peterson & Ibold, 118 Ohio St.3d 503, 2008-Ohio-2790, 890 N.E.2d
316 ("in an attorney-malpractice case, proof of collectability of the judgment due to the
malpractice is an element of the plaintiff's claim against the attorney"), Environmental Network
Corp. v. Goodman Weiss Miller, LLP, 119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173
("when a plaintiff premises a legal malpractice claim on the theory that he would have received a
better outcome if his attorney had tried the underlying matter to conclusion rather than settled it,
the plaintiff must establish that he would have prevailed in the underlying matter and that the
outcome would have been better than the outcome provided by the settlement"), and National
Union Fire Insurance Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939.
Further, unlike other negligence claims, claims against a lawyer require expert testimony
to establish the standard of care and a breach of that standard. Krahn v. Kinney, 43 Ohio St.3d
103, 538 N.E.2d 1058 (1989); McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 461 N.E.2d
1295 (1984); Burke v. Gammarino, 108 Ohio App.3d 138, 143-144, 670 N.E.2d 295 (lst Dist.
1995).
14
FREUND,FREEZE & ARNOLDA Legal Professional Association
Ohio legal malpractice plaintiffs must plead facts sufficient to demonstrate each element
of their legal malpractice claims is plausible in order to survive a motion to dismiss. To hold
otherwise is to permit speculative, unsupported claims to continue, resulting in unnecessary legal
fees, only to have these claims dismissed later by dispositive motion, long after the lawyer
defendant's reputation has been irreparably damaged, his legal malpractice premiums increased,
and prospective clients lost.
This Court made significant strides in clarifying legal malpractice law in Ohio in the
above-cited decisions. This case now gives this Court yet another opportunity to do so.
Twombly and Iclbal have been adopted by Ohio appellate courts and should likewise be adopted
by this Court establishing another procedure safeguard to prevent speculative, unsupported
allegations against lawyers in this state.
CONCLUSION
For the foregoing reasons, the PS&E Defendants-Appellants respectfully request this
Court accept jurisdiction of this case in order to resolve an intra-appellate district conflict
concerning pleading standards in Ohio and to likewise establish an additional procedural
safeguard to ensure plaintiff's alleged legal malpractice claims are plausible, as opposed to
merely possible or speculative. ^
Resp ctful submitted,Neil . Fxe d. Counsel of Record
^ntisay 1VI. Johns^H77753)FREUND, FREEZE & ARNOLD
COUNSEL FOR DEFENDANTS-APPELLANTS JEFFREY S. SENNEY,PAUL E. ZIMMER, ANDREW C. STORAR,GERALD L. MCDONALD, ANDPICKREL, SCHAEFFER AND EBELINGCO., L.P.A.
15
FREUND, FREEZE & ARNOLDA Legal Professional Association
CERTIFICATE OF SERVICE ^l a'
I hereby certify that a true and accurate copy of the foregoing was served thisday of November, 2012, via regular U.S. mail, postage prepaid, upon the following:
John J. MuellerJohn J. Mueller, LLC632 Vine Street, Suite 800Cincinnati, Ohio 45202-2441johnimueller(a^le ag_lmalpractice.net
Counselfo^ Plaintiffs-Appellees
John F. HavilandCarla J. MormanBieser, Greer & Landis, LLP400 PNC Center6 North Main StreetDayton, Ohio 45402j^b^llaw.comcjm(a^b^llaw.com
Counselfor DefendantsTeresa A. Ambos, Nicole R. Brumbaugh and Barry Staff, Inc.,and Douglas J Barry, Jr.
Victoria A. FlinnQuintin F. LindsmithBRICKER & ECKLER LLP100 South Third StreetColumbus, OH 43215vflinn(a,bricker. com^lindsmith(a^bricker.com
Counsel for Defendant AppellantJerome M. Buening, Jr.
16
FREUND, FREEZE & ARNOLDA Legal Professional Association
COUNSEL FOR DEFENDANTS-APPELLANTS JEFFREY S. SENNEY, PAULE. ZIMMER, ANDREW C. STORAR,GERALD L. MCDONALD, AND PICKREL,SCHAEFFER AND EBELING CO., L.P.A.
APPENDIX
17
FREUND,FREEZE & ARNOLDA Legal Professional Association
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IN THE C4URT OF APPEALS FOR MONTG{7MERY COUNTY, OH10
PAUL L. SACKSTEDER, et al,
Plaintiffs-AppeAants
v.
JEFFREY S. SENNEY, et al.
Defenda nts-Appellees
OPINtC3N
C,A. CASE NC}. 24993
T.C. Nt^. 10CV1913
(Civil appeal fromCornmon Pleas Courk}
Rendered on the 28th day of Septernber , 2fl12.
JC}HN J. MUELLER, Atty. Reg. No. 0012101, fi32 Vine Street, Sui#e $00, Cincinnati, C^hio452fl2
Attorney for Plaintiffs-Appellan#s, Paul L. Sacksteder and Circle Business Services,Inc., dba EXTRAhelp Staffing Services
NEIL F. FREUND, Atty. Reg. No. 0012183 and LiNDSAY M. JOHNSON, Atty. Reg. No.00777$3, Fifth Third Center, 1 South Main Street, Suite 1$00, Day#on, ^Jhio 4^402
Attorneys for Defendants-AppelEees, Jeffrey S. Senney, Paul E. ^irnmer, AndrewC. Storar, Gerald L. McDonald and Pickrel, Schaeffer & Ebeling Co., LPA
JC}HN F. HAVILAND, Atty. Reg. No. 4Q29599 and GARLA J. MORMAN, Atty. Reg. No.0067062, 400 PNC Center, 6 North Main Street, Dayton, ^hio 46402
Attorneys for Defendants-Appellees, Barry Staff, Inc., Dauglas J. Barry, Jr., TeresaAmbos and Nicole Brumbaugh
QUINT^N F. LINDSMITH, Atty. Reg. No. 001$327 and VICTC7RIA A. FLINN, Atty. Reg.
THE COURT OF APPEALS QF QHtOSECtJI^iD APPEI.LATE AISTRICT
APPENDIX PAGE NO. 1
2
No. 0085713, 100 South Third Street, Columbus, Ohio 43215Attorneys for Defendant ;4ppellee, Jerome M. Buening, Jr.
FRC^ELiCH, J.
{¶ 1} Paul Sacksteder and Circle Business Services, Inc., dba EXTRAheip Staffing
Services, appeal from a judgment of the Montgomery County Court of Common Pleas,
which dismissed their complaint pursuant to Civ. R. 12(B)(6) for failure to state a claim.
{¶ 2} For the reasons discussed below, the judgment of the trial court will be
reversed in part and affirmed in part.
6. Facts and Procedurai F:istoiy
{¶ 3} In March 2010, Sacksteder and EXTRAhelp filed a complaint against the law
firm Pickerel, Schaeffer a^ ad Ebelin^g, Co., LPA, and severaE of its attorney er^ployeesi
Jeffery Senney, Paui Zirnmer, Andrew Storar, and Geraid McDonald, alleging iegal
i.t'.C'.J....:.+..^; f3;;l•t TL.u I......^E 6"L -lj= :"e'u^v.+^e ti'L.FF Fd 'Fi:ia^r3F'T^iiF-^ ^Fii^Y^
4.^ .-., .,i:.-_.^ ^ .t -^ h r.e ^ L. . ..i f iF".ai^.ii ^a^..ii"v^ .^.ii ii.i 'vi ^^^+^ ^ vi i ii.ii.lF.^i^ii y ^+ui.Y. i i i^. ICiYVJU1C ui.^f.r uii^.^^u ZvF ievuo li IL^..i iul ^.i 1^.^.. ve iu i
business relationships, and conversion and misappropriation of trade secrets and
confidential information on the part of three former employees of EXTRAhefp, Jerome
Buening Il, Teresa Ambos, and Nicole Brumbaugh. Finally, the complaint alleged
participation in breach of fiduciary duty and interference with business relationships by
Douglas Barry, Jr., and BarryStaff, inc.
{¶ 4} The claims in this case arise from the failed sale of EXTRAhelp to BarryStaff
in 2009. During negotiations, lawyers from Pickerel, Schaeffer and Ebeling ("PS^E")
represented both sides of the transaction.
{¶ 5} Paul Sacksteder is the president of EXTRAhelp. At various times before the
APPENDIX PAGE NO. 2THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
3
attempted sale, PS&E lawyers had provided services to Sacksteder and EXTRAhelp on
an "as needed, when-needed" basis. After encountering some business difficulties,
EXTRAhelp decided in August 2008, to sell fts business or liquidate. A business broker
1^ ^ ^^..^:,, ^;,., e ^er^ices ^rou^ L also indicated interest in{.^ d B Ican ^^ N^ P^
!o^'iaLCd Litree pC/LCIILid! LJ.+^'ers an ^
purchasing the business. Talks with Belcan and other potential buyers continued into
January and February 2009.
{y^ 6} fn mid-February 2009, attorney Jeffrey Senney sent a letter to EXTRAhelp on
behalf of BarryStaff, indicating that Senney represerited a party interested in purchasing
the business. Senney said that his client would be happy to sign a mutua{ non-disclosure
ar^reerr;ert. After rece[v^ng the letter, Sacksteder contacted Andrew Storar, who was a
member of the same law firm as Senney. Storar told Sacksteder that a confiict of interest
existed, but said the conflict could be waived. According to the complaint, Storar failed to
explain the risks involved with conflicting representation.
^^€ ^} After s:^eaking with Storar, Sackst?der gave Sen^ey his cel! phone number.
Sacksteder then met with Dougfas Barry of BarryStaff to discuss a merger. Barry and
Sacksteder agreed :to iet PS&E represent botli sides of the transaction. Sacksteder
informed Storar of the discussions and was told that Paul Zimmer, another P^S&E
employee, would be representing Sacksteder for purposes of the sale. Again, according
.. ^_e_ i ^^.:^t....^ 7^mmor nnrto tne compia^r^L, ^ ^CiLi ici ^^i ^^^ ^^^^ ,^... Stnrar informed Sacksteder of the risks of disclosing
confidential information without a non-disclosure agreement, and neither took steps to
obtain such an agreement from Barry.
{¶ 8} During subsequent discussions with Barry, Sacksteder disciosed some
confidential and proprietary business information about EXTRAhelp. During these
APPENDIX PAGE NO. 3THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
__ i4
discussions, Sacksteder also told Barry that he was contemplating a sale to Belcan. Barry
then offered to purchase ths business on terms similar to those that Belcan had offered.
Sacksteder decided to proceed with the sale to Barry, but Barry later withdrevv from the
proposed saie, basi3d on advice from Senney, who had discovered potentia! probiems with
the transaction. Sacksteder then informed Barry that he would pursue the sale to Belcan.
{¶ 9} In mid-March 2009, Sacksteder and Belcan entered into negotiations. Around
the same time, Sacksteder learned that EXTRAheip's own employee or former employee,
Jerome Buening, had approached a customer of EXTRAhelp. Buening told the customer
that EXTRAhelp was selling its business to Belcan and was broke. Buening then solicited
^ y,o^ 1 0° ^- ' and asked the custorner to terminate itc relationship with
^t I., vu3lCi({ 6^.r ^ 6J^d^ll Bejs
EXTRAhelp. Sacksteder also learned that Buening had revealed EXTRAhelp's confidential
and propriAtar;^ EnfnrmatEOn and trade secrets to Bar;-u.
{^ 1 E^} The sale between EXTRAhelp and Belcan closed "on or about" March 24,
`^^f^^ hzt ^ fe^ne$tar nf ^ X: i^ G:-;e}p's hoie^rooee srae^? ^ceQ+e tr+ CL in^sr. cre^ rl^n^ ^m^r.+ n+'+Ir+.J
,,.^ __:,u ^:.a^^^^ ^u ^.+^i^.ni ^ vic5 ci uv^.u^ ^ ic^ i^ ci iuucu
---^+ =^ -- _._..._:_. - : _ _ 1<,._ k-
"Asset Purchase Agreement." Under the terms of the transaction, EXTRAhelp sold and
transferred all its trade secrets and confidential and proprietary ir^formation, incfuding
customer lists, temporary employee assignments, customer contact information, and
customer purchasing history, to Belcan. Although certain facts were not mentioned in the
^^ ^t^^^^ ^^^o^l h„ a!I r,arties in memorandacomplaint or amended compiaint, tr^ey wer e ^^^^u^^^u ^, ^--' -
connected to the various motions to dismiss, and were also explicitly considered by the trial
court in rufing on the motion to dismiss. Specificalfy, EXTRAhelp alleged that according
to the terms of the sale, EXTRAhelp could receive additional payrnents based on the
purchaser's receipts from former customers of EXTRAhelp which continued to do business
THE COURT OF APPEALS OF OH10APPENDIXPAGEN0.4
SECOND APPELLATE DISTRICT
5
with the purchaser, Belcan.
{¶ 11} EXTRAhelp's employees were informed of the sale "on or about" March 25,
2009. The following day, Belcan offered employment to some employees, including
Teresa Ambos and ^licoie Brumbaugh. i^feither Atr^bos nor Bru^r°bau9h accepted
ernployment. On March 30, 2009, Sacksteder found notes that both employees had left
at their workstations, indicating that they had accepted employment with BarryStaff. On
the same day, Barry told Sacksteder that he had entered into discussions with
EXTRAhelp's largest ciient, and that as a resulf of those discussions, the client was taking
its business from EXTRAhelp and was placing it with BarryStaff.
{ii 1?} Sacksteder an" EXTF?^:hAlp fEled s ►'it in March 2010, alleging, as indicated,
that the law firm defendants, the potential purchaser (BarryStaff), and the former
of n°gl'u°nce breaches of fiduci?r^^ dut,^,emp!oyees had vom:?-^:tted varlous acts „ ^
dissemination of confidentiai information, and tortious interference with business
rpE,fi^r^nhi^+n i h^ n^co aei^3c $r^n^'GCrre£'^. [o a^r^v^^:n^ i:..idge^ '^lnd !n/'lC .`,,,,'^ICCI Cnn^^',(){i(15.,,;fiPf! In
:F^.;^. - dr_.^i viaw:iVF ^v'^ • • " -
April 2009, with a prior case that Beican had fifed against BarryStaff, Ambos, and
Brumbaugh.
{¶ 13} After the defehdants all filed motions to dismiss pursuant to Civ. R. 12(B)(6),
Sacksteder and EXTRAheip fiied an amended complaint. The defendants again filed
.,. ,-, ,,^^ ^ia^ G^hc°nFFantVV the trial court dismissed themotions to dismiss under ^w. rc. ^<<B^t^^^ ^U^^^^,^.^^.-^>>
complaint, relying on what the court termed the "plausibfe test" of Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Sackstede, and
EXTRAhelp appeal from the judgment of dismissal.
II. Alleged Error in Applying a Plausibility Test to Motions to t^ismiss
APPENDIX PAGE NO. 5THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
6
{¶ 14} Sacksteder's and EXTRAhelp's first assignment of error is as follows:
In rul6ng on motions to dismiss, the trial court applied the staridards of
pfeading the Supreme Court of the United States adopted in BeI/ Atlantic
Cor^. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007), and
Asf^croft v. iqbal, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009), to govern pleadings
under Fed.R.Civ.P. 8. Applying those federal pleading standards to a pleading
governed by Civ. R. 8, which requires only a short, plain statement providing
notice of the claim, the tria{ court erred.
{¶ 15} Sacksteder and EXTRAhelp contend that the trial court improperly
substituted a federai "pfausibility standard" for the notice pieading that has iong been
appiied in Chio cases. 1/\1e consider orders gr^ntina Civ. R. 12(S)(5) motions to dismiss
under a de novo standard of review. rerrysaurg Twp. v. Rossiorc^, 103 iJhio St.3d 7 9,
2004-Ohio-4362, 814 N.E.2d 44, ¶ 15. Further, in conducting this review, courts
1 • 11 1 1 1' A A- L 1^
traditiona!!y "accept as true ai[ factuai aiiegations in the compia^nt. ^e^., ciTing r^f^tcrrerr v.
1 awson IVIilk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).
{¶ 16} The plausibi(ity standard originates from two cases decided by the United
States Supreme Court. The first case, Bell At(antic Corp. v. Twomb{y, 550 U.S. 544; 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007), involved claims brought under the Sherman Act, 15
U.S.C. 1, for restraint of trade. The action in Bell was brought by subscribers af iocai
telephone Gndlor high speed internet services against companies which had enioyed
monopoiies after the 1984 divestiture of the AT&T local te{ephone business. Id. at 548.
The subscribers alleged that the companies had conspired to restrain trade by engaging
in "parallel conduct" in their respective services areas to inhibit growth of other companies,
APPENDIX PAGE NO. 6THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
^
and by agreeing to refrain from competing with each other. fd. at 550-551. After the
district court dismissed the complaint for failure to state a claim, the Court of Appeals for
the Second Circuit reversed. Id. at 552-553. The United States Supreme Court then
yr ai ^t;,d Cer ^EOrari to consider the proper standard for pieading antitrust conspiracies
through "allegations of parallel conduct." Id. at 553.
{^j 'i7} In considering this issue, the Supreme Court first stressed that in the
antitrust context, "[e]ven `conscious parallelism,' a common reaction of `firms in a
concentrated market [that] recogniz[e] their shared economic interests and their
interdependence with respect to price and output decisions' is 'not in itself unlawfuL' " Id.
II at 553-55^, quoting from Brooke ^'roca^ Ltd. E^. 3rown & l^,^illfa^r;sor^ Toba^co Cor^., 509
U.S. 2t^9, 227, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993). The Court noted that it had
, rlarl aga net f ce h('+^ ^!'e dEre +'e"^ v r iGt ^^n:nrevinuslv gE ^ar i..^ al^.^ inferences at ^^^ . c^ , e d' an^ s! ^F- ^ar`Y
judgment stages of trial, based on the ambiguity of "parailel conduct," which can just as
.r.l^ ^"g1^'imutQ °th.li^Si! ic^-.j c`i.. kr,n' FGl1 I! [^
e^^El^/ be(:P7.•'."1,^ECteE'tt \ftlEt'I"S ^ raE'SgG ^:^^i nir.vije^_ _s_i^ r e,i,.^. '.; t c^.5^:'•
However, the Court concluded that the case at hand presented an opportunity to address
the "antecedent" issue of what plaintiffs must p(ead in order to state a cEaim under Section
1 of the Sherman Antitrust Act. Id.
{¶ ^ 8} To resolve this issue, the Court first considered general standards of
pleading. The court noted that detaiied factua! a!legations afe not required; but Rule
12(b)(6) requires "more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." fd. at 555. ®ue to the nature of Section 1
claims, the Court determined that "when allegations of parallel conduct are set out in order
to make a§ 1 claim, they must be-pt^ced in a context that raises a suggestion of a
APPENDIX PAGE NO. 7THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
8
preceding agreement, not merely parallel conduct that could just as well be independent
action." Id. at 557. The Court, therefore, required some "furtherfactua! enhancement" that
would allow the complaint to cross the fine between "possibility and plausibility of
`entitfe^ment[ to reiief.' „ ld.
{¶ 19} The majority in Twomblywas clearly concerned by the fact that "proceeding
to antritrust discovery can be quite expensive," as exemplified by the case at hand, which
involved a putative class of at Ieast 90 percent of subscribers to local telephone or internet
service in the United States, and antitrust violations that had allegedly occurred over a
seven year period. 550 U.S. at 558. The majority dismissed the effect of trial court
supervision in checking discovery abuse, and concluded th^t requiring allegations to "reach
the level suggesting conspiracy" v^ras the onlyway to avoid poter}tiaiiy enormous discovery
expense in cases :ti^here there ^:^as no „`"raasonably founded hope„ ,„ that ^^^^dence to
support a cEaim wou{d be discovered. (Citatians omitted.) Id. at 559.
, i,.. a,..,^^.,..^.,u^ .. N^^,^ ,^^„^f5Y "?fet !^ fter,r.
,-z,aE^i;^^ i^;ege nheenratinnc thn Cuirer^mn C'ni erF n"t®ri ti-Iafi thQ nE^i^tiffc'
main objection to a"pEausibilty" standard was its confiictwith the accepted rufe from Conley
v. Gibson, 355 U.S. ^1, 78 S.Ct• 99, 2 L.Ed.2d 80 (1957), that" `a complaint shou{d not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.' " 550 U.S.
at 55i, q^uotin^g from Conrey, 355 !^,5, at 45-46, The Court cautioned that the "no set of
facts" language in Conley should not be read in isolation to mean that "any statement
revealing the theory of the claim wiil suffice un{ess its factual impossibifity may be shov,rn
from the face of the p(eadings." Id. Instead, this phrase ("no set of facts") should be
viewed through the prism of the Conley opinion's directiy-preceding summary of the
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.8
SECOND APPELLATE DISTRICT
9
complaint's allegations, which had amply stated a claim for relief. Id. at 563.
{¶ 2'[} Nonetheless, because ofwhat the Supreme Court characterized as the legal
profession's "puzzlement" over Conley for 50 years, the Court stated that the "no set of
facts" phrase shouid be "best forgotten as an incompiete, negative gioss on an accepted
pleading standard: once a ciaim has been stated adequateiy, it may be supported by
showing any set of facts consistent with the allegations in the compiaint." id.
{¶ 22} Finaliy, the Court looked for "plausibility" in the complaint and found it
lacking. Among other things, the Court relied on the idea of viewing the compiaint "in fight
of common economic experience." 550 U.S. at 565. The Court also focused on what it
te^med an "obvious alternative expianation" for the paraiie! conduct. id. at 567. in this
regard, the Court noted history's teaching that in "a traditionaliy unreguiated industry with
n „^,.., f^.-.,,,,. ,.! ^_i^?!R^ barriarc tQ en±r^,r gn^rco ^nmr,o ^+' o^v^ !!!!!!^ ^Gmii!atii!g ^epara^^'a . ru„^v u^ ^ ^v^..t^6^on a!^ 1!`Jng i d
geographical segments of the market couid very well signify iliegai agreement." id.
N^u^ ^ut^v^ ^ Ivo L^ Il.+ ul..ll.e Illai e^J.Q61^^^r^ c^l l^^l I s ^Jl^77"^'.! y!! !^
^EIIPJP\/eY}t'{'1e!'(1!!^!"eee.^'.^ed^n^.c•exnE7t^^+irZnfnr+hQrl^fnr•.e-S^xr+f'e^n!!r.^.'+1 ^!"••} l••••••°••
instead that:
in the decade ^preceding the 1996 Act and weii before that, monopoiy was
the norm in telecommunications, not the exception. *** The ILECs [the alleged
conspirators] were born in that world, doubtless fiked the world the way it was, and
!., l.r,,.., t ►,o ^rranA ah^!!t him fsicl who lives by the sword. Hence, a naturalSi.irely n!l^v^ ^^^, uuUy•, ^.,..__ L ,
explanation for the noncompetition alleged is that the former
Government-sarctioned monopoiists were sitting tight, expecting their neighbors to
do the same thing. (Citation omitted.) Id. at 567-568.
{^[ 23} Thus, the Court credited the alternate explanation, conciuded the compiaint
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.9
SECOND APPELLATE DISTR]CT
10
had been properly dismissed, and reversed the decision of the Seventh Circuit Court of
Appeals.
{¶ z4} The Supreme Court's decision in Twombly could be viewed in the context
of its circumstances, which incfuded a pariicufar industry, an unavoidably enormously
expensive lawsuit, and a legal context that requires parEicularity of proof. However, its later
decision in Ashcroft v. lqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009),
continued the discussion about pleading.
{¶ 25} In Iqbal, an alleged terrorist claimed that he had been deprived of
constitutional protections while in federal custody, and filed suit against several federal
officiaEs, including Attorney Generai ^o► : ^ As hcr oft. Id. at 600. Th e compfaint aEEeged that
Ashcroft and the Director of the FBI had adopted an unconstitutional policy subjecting Iqbal
i t_ rs: !-ii^+" -• ^-h ^^rr{i^. ^• , _^ r `'e^lgio'i, Or natiOnaE ^vriy^in. id.:^ h^r^.^ .^.^...^;ons ef con:;ne ,^en^, :;as;,u ..,, „^^ ace, , , ,
{^ 26} The district court denied the defendants' motion to dismiss the complaint,
^ i - - R ^ ^P,` 1 1 ` L _J ^s ero Pi /"^ . •^• • ^ • = 1 N V %1
.,I. ..,,^ +...,i _ .cc: _r ._ , ^--ap^,;1^ 7.7g ..^ ^.. .^......^ ^uc.4^;.3 ^v:^i va.liilE iv^a ii i `vvfti^:;%, .^^.^ V. V. ^V f, 1 V J.^vC. J^ , G !_.L^.t.GU 'vl1
(1957). On appeal, the Second Circuit Court of Appeals acknowledged that Twombly had
retired Confey's "no-set-of-facts" test. After discussing how to apply Twombly, the Second
Circuit concluded that it required a"`flexible "plausibifity standard," which obliges a pleader
to amplify a claim with some factual allegations in those contexts where such amp(ification
^ ^ r+ i ^+^l^ 6^r... ^rr.m lrvj'1^^ ^/
is needed to render the claim plausibie.' " iqbai, 556 u.^. a^ c ^ ^, quo^^^ ^y ^^ ^^ ^^^^rNU- ^
Hasty, 490 F.3d 143, 157-158 (C.A.2 2007). Because the case did not involve such a
context, the Second Circuit Court of Appea{s upheld the pleading as adequate. Ed.
{¶ 27} On appeal, the Supreme Gourt first considered subject matter jurisdiction,
which is not relevant to our discussion. The court then considered one elernent necessary
THE COURT OF APPEALS OF OH10SECOND APPELLATE DISTRICT
APPENDIX PAGE NO. 10
11
to prove the defendants' liability, which was that the defendants had adopted and
implemented the detention poficies "not for a neutral, investigative reason, but for the
purpose of discriminating on account of race, religion, or national origin." 556 U.S. at 677.
T his required a showing of purpose, rather than knowiedge. id. ^efore deciding if the
complaint met this standard, the Court considered and attempted to expound upon its prior
decision in Twombly.
{¶ 28} Initially, the Court acknowledged that Fed.Civ.R. 8(a)(2) requires only a
"`short and pEain statement of the claim showing that the pleader is entitfed to refief.' " id.
The Court noted that under Twombly:
To sur^ive a motion to di^miss, a compEaint must contain sufficient factual
matter, accepted as true, to "state a claim to relief that is plausible on its face." ^i
^, ^, +^ f .,lo L... +h..cEaim h^S faclaE pfa:.lslblflt;r S^.tlen tfi°v pfalnuf^ v^..ad`'
s faCiuaf content tiiat aE1VVJS u1^
court to draw the reasonable inference that the defendant is liable for the
Lin +^ ^ °r^rr.h..h't'+vn^^^r v.u^ uui ^.^ ^^VL ^nn1 LV Ci NIVVGS1.1111LVYY91^(`_f1Pil^ollv't ^EE^rsAd. The pEal,:^lreifi't^r e+^nr-17rr^ ic nn+
requirement," but it asks for more than a sheer possibility that a defendant has
acted unfawful(y. ^** Where a complaint pleads facts that are "merely consistent
with" a defendant's liability, it °stops short of the (ine between possibility and
plausibility of `entitfement to relief.' "(Citations omitted.) Id. at 678.
{11 2y} The Court then discussed what it classified as thP "two working principles"
underlying Twombly:
First, the tenet that a court must accept as true a!f of the al[egations
contained in a complaint is inapplicabfe to (egal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
THE COURT OF APPEALS OF OHIOAPPENDIXPAGENO.11
SECOND APPELLATE DISTRICT
12
not suffice. (Although for the purposes of a motion to dismiss we must take all of
the factual allegations in the complaint as true, we "are not bound to accept as true
"*** Rule 8 marks a notablea legal conclusion couched as a factual alfegation ).
and generous departure from the hyper-technicai, code-pieading regime ^f a priar
era, but it does not unlock the doors of discovery for a plaintiff armed with nothing
more than conclusions. Second, only a complaint that states a piausible ciaim for
refief survives a motion to dismiss. Determining whether a complaint states a
plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial
e^perience and common sense• But where the weEi-pleaded facts do not permit the
court to infer more thai^ the mere possibility of ^m^isconduct, tE^Ie complaint has
alleaed-but it has nCt "shovR^[n]"--`°that thP pleader iS entitlarl tn refief." (Citatinn^
omitted.) 555 U.S. at 678-79.
F^ s^T rina!I^r thP frn^ ^rf riigr^^!ccPri fiha rr,ie nf trial ji irEg€^^, hy cfi^fiing thafi;^}
In keeping with these principles a court considering a motion to dismiss can
choose to begin by identifying pfeadings that, because they ar e ^^o n ^ore ±han
concfusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual
alieaations. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibiy give rise to an
entitlement to relief. id.
{¶ 31} {n appfying this framework to the pieadings before it, the Court first identified
al{egationsin the complaint that it felt were "not entitled to the assumption of truth." Id. at
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.12
SECOND APPELLATE DISTRICT
13
680. For example; the Court rejected the allegation that Ashcroft was the principal
architect of the invidious policy of discrimination, because the Court considered it
"conclusory." Id. More troubling yet is the fact that the Supreme Court weighed the factua!
allegatior^s to determir^e if they "pfausibiy suggest an entitiement to relief." id. at 681. The
Court acknowledged that specific factual allegations that thousands of Rrab Musfim men
had been arrested and detained as part of the FBI investigation of the September 11
events, and that defendants had approved the poficy of holding these men in highly
restrictive conditions, were consistent with purposefully designating detainees of "high
interest" due to race, religion or national origin. Id. at 681. However, the Court rejected
that theory as "plausibly establishing this purpose," beca^ise it believed there were "more
fikefy explanations," id., like the fact that a iegitimate po(icy directing law enforcement
personnel to arrest and detain individ^jals beca^!se of a sllspe^±ed link to the terrorist
attacks would produce a "disparate, incidental impact on Arab Muslims." {d. at 682.
i^ fc^r i^ r:r,nrl icinn fha .^r^iiprame f`.ni iri^ yn^ont nn tn G++r^{^[ 3^} As an additional bas_ t- "^^ """"" "' n`
that even if the respondent's arrest gave rise to a plausible inference of discrimination, the
only factual allegatian against Ashcroft and MueCier was that they had adopted a policy
approving " `restrictive conditions of confinement' " for these detainees until they were
cleared by the FBI. 556 U.S. at 683. The Court rejected this contention, again on the
basis that it is ^ ^ ^ore plausible tha±± ►,P n^^^cv would have been adopted for nationaf securityr....-^
reasons as opposed to purposeful discrimination. Id. Accordingly, the Court found that
the complaint failed to state a claim, and reversed the matter for a decision on whether the
petitioner would be permitted to fiie an amended compfaint. id. at 687.
{^ 33} Justice Souter, who had authored the majority opinion in Two ^^bfy, fi6ed a
APPENDIX PAGE NO. 13THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
14
strong dissent, in which three members of the Court concurred. Justice Souter noted that
P.shcroft and Mueller had conceded in their briefs that they would be liable for their
subordinates' conduct " if they `had actual knowledge of the assertedly discriminatory
nature of the ciassificatian of suspects as beirig"of high interest" and they were
deliberately indifferent to that discrimination.' " Id. at 694-695. (Souter, dissenting).
Souter thus concluded that the complaint satisfied Fed. Civ. R. 8(a)(2). He also
commented that the complaint went further than required, by alleging that these
defendants had affirmatively acted to create the discriminatory policy. Id. at 695.
{¶ 34} Souter further observed that:
^ashcroft and nn^ueller argue that these allegations fail to satisfy the
"plausibility standard" of Twombfy TheY contend that iqbai°s claims are implausibie
hecause such high-rankinr^ officialg "tPr^rl not to bb` pPrcr^nally in^ir^(veri in the
specific actions of lower-leve! officers down the bureaucratic chain of command."
^rir^f f:^r ^afiitinner^ 28, ^^ et thic re^^^nGe he`;peak^ a f i indar^enta!
misunderstanding oftheenquirythat Twomblydemands. Twombfydoes notrequire
a court at the motion-to-dismiss stage to consider whether the factuai aifegations
are probably true. We made it clear, on the contrary, that a court must take the
allegations as true, no matter how skeptical the court may be. SeeTwombly, 550
U S at 555, 127 S,Ct. 1955 (a cour± m! ^st nroceed "on the assumption that all the- r
allegations in the compfaint are true (even if doubtful in fact)"); id., at 556, 127 S.Ct.
1955 ("[A] wel(-pleaded complaint may proceed even if it strikes a sa^vy )udge that
actual proof of the facts alleged is improbabfe"); see a(sof^feitzke v. lit/iiliams, 490
U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("RUIe 12(b)(6) does not
APPENDIX PAGE NO. 14THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
15
countenance ... dismissals based on a judge's disbelief of a complaint's factual
al[egations"). The sole exception fo this rule fies with allegations that are sufficiently
fantastic to defy reality as we know it: claims about little green men, or the plaintiffs
recent tl lp tl^ rlutC^, Ur experienCeJ in tilile tr avcl. T hat iS r'^i^t VJi1at we have I lere.
Under Twomb/y, the relevant question is whether, assuming the factual
allegations are true, the plaintiff has stated a ground for refief that is plausibie. That
is, in Twombly's words, a piaintiff must "allege facts" that, taken as true, are
"suggestive of illegal conduct." 550 U.S., at 564, n. 8, 127 S.Ct. 1955. lqbaf, 556
U.S. at 695-696.
{^; ^5} Aftsr rqhal, federa! courts ha^^e struggled over how to intPrpret and
impfement Twomblyand iqbai. See ^obyns v. v.S., 91 Fed.Cl. 412, 42^ (Fed.CL 2"u10}
(nnting that r,anp anr^ nf .tha cpartr,l^im ^iia^nic thece racec in "r,n,inimafict fiermc " anr^-^•° - - ^ "
continues to apply al! or nearly all the traditional concepts identified with notice pleading;
the ^thar ^nd r,f fhP ^r,^rtr1 ^m ^<ievvc tl,er;t a_ €^a^;inn ^cfahfich^d "a f1 ^n;^arr,^nt^6iy-diffPrent,^., .,
significantly-heightened pleading standard." } See, also, Khalik v. United Air Lines, 671
F.3d 1188, 1191 (1Oth Cir. 2u12).
{¶ 36} in Khalik, the Tenth Circuit Court of Appeals adopted a"middle ground" that
it described as a"refined standard" - meaning that "[i]n other words, Rule 8(a)(2) still
lives." Id. at 1191-1192. The Tenth Circuit Court of Appeals noted in Khalik that:
In ^applying this new, refined standard, we have held that plausibility refers
"to the scope of the allegatEOns in a complaint: if they are so general that they
encompass a wide swath of conduct, much of it innocent, th:en the plaintiffs `have
not nudged their claims across the line from conceivable to plausibfe."' Further, we
THE COURT OF APPEALS OF OHIO APPENDIXPAGENO.15
SECOND APPELLATE DISTRICT
16
have noted that "[t]he nature and specificity of the allegations required to state a
plausible cfaim will vary based on context." (Citation omitted.) Id. at 1191.
{¶ 37} The Supreme Court has not provided further guidance to the lower courts,
Enstead, the COUrt h^S iltlrequently cited Tw:,^^r;b1y an^d lqba{ in subsequer^t caseS. ^J^^here
these cases have been cited in the context of motions to dismiss, the Court has continued
to refer to traditionaf standards for crediting aliegations in the compiaint. For example, in
U.S. 131 S.Ct. 1309, 179 L.Ed.2d 398Matrixx lnitiatives, Inc. v. Siracusano, ,
(2011), the Supreme Court held that a claim for securities fraud under Section 10(b) of the
Securities Exchange Act of 1934, was sufficient. In evaluating the complaint, the Court
,r,nt°d that "^?espondents' conso!idated amended complaint alleges the foflowing facts,
which the courts beiow properly assumed to be true." id. at 1314, citing iqba1, 55a U^S•
55E, 12g S,rt. 193?, 173 L.Ed.2d 80^ (2009). The Court reiterated the same standard
later in the opinion, stating that "[a]ssuming the complaint's allegations to be true, as we
muCt, .n.^{atrixx rthe defendant] recei^'ed information that plausibly indicated a reliable causa{
link between Zicam and anosmia." id. at 1322.
{^ 38} The use of the word "plausibt^,r" indicates that the Court has not completely
abandoned its stance, but the reference is more muted than one would expect, given the
comments in Twombly and lqbal. fn (ight of this fact and the varying approaches taken
by the federal circuit cour^s, ally abai ^donment of standards that have been routinely
applied in Ohio for many years should be a matter for the Ohio Supreme Court. Notably,
we are not bound by dPcisions of the United States Supreme Court that do not involve
federal statutory and constitutiona{ law. See, e.g., State v. Burnett, 93 ^hio St.3d 419,
422, 755 N.E.2d 857 (2001).
' APPENDIX PAGE NO. 16THE COURT OF APPEALS OF OH10
SECOND APPELLATE DISTRICT
17
{¶ 39} To support their position that we should apply height^ned pleading
standards, Appellees cite several cases from other Ohio districts that have allegedly
adopted Twombly and Iqbal. We have reviewed the relevant authority and do not find that
heightened standards have been adopted.
{¶ 40} For example, the Fifth District Court of Appeals cited iqbal for the proposition
that "[a] legal conclusion cannot be accepted as true for purposes of rufing on a motion to
rdismiss." Cirotto v. Hearfbeats of Licking Cty., 5th Dist. Licking No. 10-CA-21,
2010-Ohio-4238, ¶ 18. This is hardly a novel concept. See, e.g., Bratton v. Adkins; 9th
Dist. Summit No. 18136, 1997 WL 459979, * 1 (Aug. 6, 1997)(holding that even under "
rnotice' pleading, a complaint must be more than ` bare assertions of legal conclusions' „).
fn any event, the Fifth District Court of Appeais went on to appiy traditionaf standards in
^_..^h^, '+n r^ r., .,^^ ^F.,,.+, ^„ n,,,.,,.F•,....-.
a^irrr;it'^g tho r^ligmi^^a! .^•f the CCmpla^nt, ^,y a.,^.euttt tg atl la^,^ual a1la^at.iul lJ a5 u uC cand
applying all reasonable inferences in favor of the moving party. id. at ^j 17.
C mmi+ F^Ii+ ^:t'r^ ^^ '^nnn ^f !io-v794 '^^ ^^^ {n tl/an^r. Yi F'i*LS ni ^-lrrr!'^,rnn Q+h ^li +
; .,.^uJ vrc^ vr r ruv vrr. .^ttt VI^SI. Vulltlllll l^lV. G"t/ IJ, GVV^7- a
the Ninth District Court of Appeals cited Twomblyfor the proposition that compiaints must
contain more than mere " labefs and conclusions." The court then appiied traditionaf Civ.
R. 12(B)(6) standards. Id. at ^[ 7 and 13. Again, the rule is not new that "[u]nsupported
conclusions of a complaint are not considered admitted * ** and are not sufficient to
wit hstarld a mction to disrr,iss." Prr^dential Ins. Co. of Am. v. Corporate Circle, Ltd., 103
Ohio App.3d 93, 658 N.E.2d 1066 ( 8th Dist. 1995), citing State ex rel. Hickman v. Capots,
45 rJhio St.3d 324, 544 N.E.2d 639 (1989).
{¶ 42} Similarly, the Eleventh District Court of Appeals cited Twombly for the idea
that mere recitation of the elements of a cause of action is insufficient without some factual
THE COURT OF APPEALS OF OHIOAPPENDIXPAGEN0.17
SECOND APPELLATE DISTRICT
18
al(egations. Nonetheless, traditional Civ. R. 12(B)(6) standards were also cited. See
Hoffman v. Fraser, 11th Dist. Geauga No. 2010-G-2975, 2011-Ohio-2200, ¶ 21.
{¶ 43} Several cases in the Eighth District Court of Appeals have cited Twombly
in the context of indicating that the righ'tto refief shown in the comp(aint must be more than
specu(ative. See Ga//o v. Westfield Natl. Ins. Co., 8th Dist. Cuyahoga No. 91893,
2009-Ohio-1094, ¶ 9; Williams v. Ohio Edison, 8th Dist. Cuyahoga No. 92840,
2009-Ohio-5702, ¶ 15; Parsons v. Greater Cleveland Regional Transit Auth., 8th Dist.
Cuyahoga No. 93523, 2010-Dhio-266, ¶ 11; Fink v. Twentieth Century Homes, Inc., 8th
Dist. Cuyahoga No. 94519, 2010-Ohio-5486, ¶ 24; and DiGiorgio v. Cleveland, 8th Dist.
^ Cuy^hcga 6°'^ Q^°'"^ "'01 ^-nt^°o-5^7R ^j41. The^e coiurts ccntinu:e however to cite and^^. v.^^-^^., ^ : ^ :: ^, ..., o , :
appfy traditional Civ. R. 12(B)(6) standards. See, e.g., Fink, at ¶ 23, and DiGiorgio, at ¶19.
r^ "4' Snov vie;e cuhd;vis:on ^;`o:nt ^ei:ture Phase ; v. i^ome S. ^ ^. oi ^oungsto^vn,^i u ^ • ...
Ohio, 8th Dist. Cuyahoga No. 96675, 2012-Ohio-1342, is the most recent decision on this
^v ^^^^^v"^^c ifi ir`f'37 l^^JC^ Tf'9^ F-1l7YlTl1 1 IICt'r'^f"t rpf+:taN.h'....1 F.-.^..... tL.^ ^...:.. .... ['::`s.'_i t'+_.....d r n _ e_ • :
^ui.i^^...^ E i v: i{ Li iv ^.i'^^'i iei i v...u IC.i ^v'e.ii i ^ ^.^f.: ^ ue.,^. ::: ..: euz vexa^+, _. es. ^e^:::., e v:ase vt :._.v:6^u
traditional Ohio rufes for construing complaints, and then noted that:
This analysis was shif"ted by recent Supreme Court decisions addressing the
federal notice pleading standard in Fed.Civ.R. 8, upon which Ohio's Civ.R. 8
p(eading requirement is based. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S.Ct. 1055, 157 L.Ed.2d g2Q (2007); A.ch_r.rr^ft vo Ipbal, 556 U.S. 662, 129 S.Ct.
1937, 149, 173 L.Ed.2d 868 (2009). The Court held that bald legal conclusions did
not constitute a weii-pled compiaint. fn order to survive a motion to dismiss, the
complaint must offer factual support for the legal conclusions drawn within. iqbal
at 1949. These holdings are similar to the rule enunciated in Capots, cited above.
THE COURT OF APPEALS OF OHIO APPENDIXPAGENO.18
SECOND APPELLATE DISTRICT
19
But the shift fies in the level of certainty of the complaint. Based on the above Ohio
I case law, plaintiffs must only show some set of facts that would entitle them to
relief. O'Brien at 245, 327 N.E.2d 753. Snowville, 2012-Ohio-1342 at ¶ 9, referring
to State ex re;. f-^ick^;^an v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 ( i 989}, and
O'Brien v. University Community Tenants Union, lnc., 42 Ohio St.2d 242, 327
N.E.2d 753 (1975).
{^j 45} The interstitial, definitional progression from the "fantastic" (e.g., "fittle green
"" ossible," "plausible," "reasonably founded,"men") through "speculative;" "conceivabfe, p
"consistent with liability," "suggestive of liability," to "probability," can be the legal equivalent
of explaining the progression from a gu^r^ to the Higgs boson. C^hi^ h^s iong recognized
that cases shouid be decided on their merits, not probedural iechnicaiities. Lyl€ins v. ivliarii
n_`273`2 ^211 2d 1^^r /`^rl ^,list ) 6T a^ /.,1^.,+nSn 157 (^hin Ann,3rl 291 ^004_n!^:i N.E. ,^ ;^u , , a ^^ ;a^^^t/alleyf-^- ^., ^-r , - ' " ..
noting that "Civ.R. 8(F) reguires a court to liberally construe all pleadings `as to do
^ a ^^t'i,Air-^nfen®ri r^fe7rfinn cf^nrtarrl fr.r
^ljbstan[^sif Illstl[:e^ n ^;tilf5f'^`fl!!t"^'C itaV(^ 1'1C1t^C1llNted^^ u r^+^ uv^^^r o^ ,iv iu ivl
^- ^
Civ. R. 12(B)(6) motions to dismiss or considered such a motion to dismiss as a Civ. R. 56
, ,.:. : r,^ motion for summary judgment-lite. By the same token, we have never construeo ^lv.rc.
12(B)(6) as permitting eitherspecufation or complaints that are devoid offactua! allegations
supporting the legal claims.
t^t ^61 Thus. to the extent that the trial court adopted a plausibility test based on^^^ --^ .
Twombly and Iqbal, it erred, and the first assignment of error is sustained on that basis.
However, the error would not be prejudicial, unless the complaint fails on standards that
have been traditionally applied by Ohio courts to evaluate motions to dismiss.
{¶ 47} The First Rssignment of Er ror is sustained.
APPENDIX PAGE NO. 19THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
20
II1. Alleged Error in Appiying Traditional Civ. R. 12(B)(6) Standards
{¶ 48} Sacksteder's and EXTRAhelp's second assig^ment of error is as follows:
ln dismissing all claims againstall defendants, the trial court concluded
that "the ciairn rests on its participation in breaches by the {aw firm and none
are set out, nor are damages set out other than as conciusory." The trial
court reached these conclusions applied [sic] incorrect pleading standards
and a resulting incorrect standard on a rnotion to dismiss for failure to state
a claim, for refief. Accordingly, in applying a"plausibility" standard of
pieading in determining a inotion to dismiss under Civ. R. '!2(B)(^), the trial
court erred.
^^ ^9} As was noted, Ohio has adhered to the following standards with respect to
^,-^ ^,.Giv.R. 1^^d)(o) mot^ons:
In construing a complaint upon a motion to dismiss forfailure to state a claim,
d.e.. - •% ci^..fi.......t....... :..^F.
i...• k r-.. t.... ,.! .,,...^^... r.i I
vVe i t iljsl pl esl,fi 1 le li ial al^ iacll.lai aiiCl^dCivi iJ ui Lhe Coi t ip^d^n^ cii e ii Ue ai iU i f IctilC Gi1
reasonable inferences in favor of the non-moving party. Then, before we may
dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set
offacts warranting a recovery. (Gitations omitted.) Mitchell, 40 Ohio St.3d 190, 192,
532 N.E.2d 753 (1988).
{¶ 5r3} in York v. Ohio State Highway Patrol, 60 vi iio St.3d 143, 573 N.E.2d
1063 ( 1991), the Qhio Supreme rourt stressed that under notice pfeading rules:
[p,] pEaintiff is not required to prove his or her case at the pieading stage.
Very often, the evidence necessary for a plaintiff to prevail is not obtained until the
plaintiff is able to discover materials in the defendant's possession. {f the plaintiff
APPENDIX PAGE NO. 20THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
21
were required to prove his or her case in the complaint, many valid claims would be
dismissed because of the rJlaintiffs lack of access to relevant evidence.
Consequently, as long as there is a set of facts, consistent with the plaintiffs
a ivvJ tl'ie piaintiff tG reCGVer, tii8 CGurt maji nGt grant acomplaint, ^,vhictl vdoi^{d 1
defendant's motion to dismiss. Id. at 145.
{¶ 51} In order to analyze the vafidity of the trial court's decision, our discussion will
separate the claims against the various groups of parties: the law firm defendants; the
potential purchaser; and the EXTRAhelp employees:
A. C{aims against the Law Firm Defendants
{¶ 52} The amended compiaint contains three claims for relief with respect to the
Eaw firm defendants, based on iegai mdlpr^ctice, i leg6igel It and in^tention^al breach of
fiduciarv duty, and vicariQUS [iability (the latter being applicable onfy to the law firm). C^ur
discussion of these claims will be combined, because "[a]n action against one's attorney
for dama^es resultlno from the manner in v^fhich the attorney represented the clier^t
constitutes an action for maipractice within the meaning of R.C. 2305.11, regardiess of
whether predicated upon contract or tort or whether for indemnificati^n or for direct
damages." Muir v. Hadler Rea/ Estate Management Co., 4 Ohio App.3d 89, 90, 446
N.E.2d 820 (10th Dist. 1982). Accord, Trustees of Ohio Carpenters' Pension Fund v. U. S.
Rank IVath Assn., 189 Ohio App.3d 260, 2010-^hio-911, 938 N.E.2d 61, ¶ 23 (8th Dist.).
Further, the law firm is only liable if the attorneys are found to have committed iegal
malpractice. lVatl. Union Fire Ins. Ca. of Pittsburgh, PA v. !il/uerth, 122 Ohio St.3d 594,
594, 2009-Ohio-3601, 913 N.E.2d 939, paragraph two of the syliabus.
To estabfish a cause of action for legal maiptactice based on negligent
THE COURT OF APPEALS OF OHIOAPPENDIXPAGEN0.21
SECOND APPELLATE DtSTRICT
22
representation, a plaintiff must show (1) that the attorney owed a duty or obligation
to the plaintiff, (2) that there was a breach of that duty or obligation and that the
attorney failed to conform to the standard required by law, and (3) that there is a
causai connection between the conduct compfained of and the re5ufting damage
or loss. Vahila v:-f^all, 77 Ohio St.3d 421, 422, 674 N.E.2d 1164 (1997), syl{abus.
{¶ 53} The complaint and amended complaint allege that an attorney-client
relationship existed between the law-firm defendants and the plaintiffs. The cornplaints
alsa alleged breach of the duty in three basic ways: 1) the attorneys failed to properly
advise plaintiffs about precautions to take when proceeding with discussions with Barry
^ ^ L rnni^^earJ ^ ^i^h rJicrlncie^n
and Barr °^Staff; 2) tE Ee attor6 ieysfaiied ^v adi/ise `Jf - i I`Sf^s asJ.v^^cad^-u . e^ri^o ^ ^.e^JViv.^^^ i^
confidential information without a properiy executed confidentiafity agreement; and 3) the
r ^«.ff.attorne1y`S fail ed ±o provide such an agreerrlent t^ b" °x°^l.;t°r,ul hy i,r^,laintiffc anrl R,a^ nt^ta
In addition, the complaints and memoranda aflege that the plaintiff, Sacksteder, disc{osed
rnrlsir^6ansi^i irs^nrrra^i^n tn ^^Pr^^ rs^Fring nAnnfiafjnnc anrl that r_^+arni tieGF; irl^nrrv-Qafinn
gained during negotiations or from EXTRAhelp's employees to solicit, and thus, basically
steal EXT^Ahefp's fargest cfien't. Finaify, the complaints aiiege that Sacicsteder and
EXTRAheip would have enjoyed a better financial position without the improper acts, and
that they suffered financial damages as a result of the lawyers' failures,
x ,._: ^ .+ ,.,,n^^^ ^^-to^I +hat "It rlneg not{¶ 54} In granting the motion to dismiss, ^^ie u ^a^ cou^ ^ ^^^ ^^^UU^-u ^^ ^u^
appear that plaintiff passed on any particu{ar information that Barry could have put to use."
Trial Court ^ecision and Entry, p. 3. This is an assumption that is not established by ±he
facts, and is not part of the court's duties in evaluating a motion to dismiss. The trial court
further stated that:
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
APPENDIX PAGE NO. 22
^
23
In paragraph 33 of the Amended Complaint Sacksteder states that during his
talks with Barry he gave him confidential information. Barry with his attorney
terminated their negotiations and shortly thereafter a sale was made to Belcan. No
foss due to th,e failure of negotiations is ciaimed; none can be since no numbers are
given as to either Barry's offer nor as to Belcan's final price for the business. Again,
the court is invited simply to speculate, if those are the damages plaintiff is speaking
of. Id.
{¶ 55} We conclude that the trial court's decision requires a degree of specificity
that is unwarranted in filing a complaint. Furthermore, the arguments by the law firm
►efAnd^r.ts miss the poi^t. Fnr examplP, the faw firm defendants argue that they were n^t
invoived directiy in Sacksteder's decision to discuss confidentiai information with Barry.
^nweVer, the cruX nf the allegerl rYtalprartlre Is that the rlafanrlar^tc failPrl aitf^cr tr^ advi^e
Sacksteder r ► ot to disclose information, or to protect him in the event that he chose to do
^c^ Thi^ tntnt3lc; be n^rtirt^l^rlv impnrt^nt in the cnntext nf di ► a! re^recenfafinn h^^ the Eaenr
firm..• ^ ^^ ^. i,,; ^„-;^^.
{^[ 56} The !aw firm defendants also heaviEy rely on the conten^iort ^t ^a^ p^a^r^^„J
cannot show the proximate cause of the alleged darnages, because plaintiffs cannot prove
that the damages are collectable, as required by law. In this regard, defendants focus on
II the fact that Barry "made the final decision not to purchase EXTRAhelp, likely based on
EXTRAheip's financial condition or other r"actors which would have influenced Barry
regardless of the PSE A.ppellees' involvement in those discussions." Brief of La`N F^rm
Appellees, p. 20. (Emphasis added.) The law firm defendants afso focus on the fact that
EXTRAhelp's business was sold to another party da;^s later.
APPENDIX PAGE NO. 23THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
24
{¶ 57} The Supreme Court of Ohio has held that "collectibility is logically and
inextricably finked to the legal-malpractice plaintiffs damages, for which the plaintiff be;^rs
the burden of proof. In proving whatwas lost, the plaintiff must showwhatwould have been
gaiiied." r^aierek ii. PeLerserl & lbOlc^,118 Ghio St.3d 5^u3, 2008-^hib-279G, 890 N.E.2d
316; ¶ 37. However, this is not a matter of proof at the pleading stage; it is a matter for trial
or, perhaps, for summary judgment if the facts are undisputed. For example, inPaterek,
the case did not come before the court foilowing motions to dismiss the legal malpractice
case - the matter proceeded to trial and a jury verdict. Id. at ¶ 16.
{¶ 58} In this regard, we are also troubled by the specufation that is shown through
co,.^E„pnts abo,^,t what an®ther party was "tikely" thinking when makin^ decisions. This kind
of remark (many of which are found in ali defendants' briefs), exempiifies the danger or'
d^^m^ss^ng C:aseG ^n the pleadlr^gC thro^ 1(^f!'1 \NPlgrl,ll'1g Qf P\/If{Pt't^e^ aC t{'1P !'^Pfendants argue
that Twombly and lqbal appear to allow.
{^ c^} ThF` I?vtir firm def°C?dat?tS ais^ rnntenri fhaf EA;Tf?A.heip IackS Standing tv ^ring
this case, because its business was sold to Belcan shortly after the sale to SarryStaff fell
through. The faw firm contends that E?CTE.^::heip was required to allege specifics with
respect to the sale, or as the trial court phrased it, to provide "numbers." We disagree.
{¶ 60} "Standing is a threshold question for the court to decide in order for it to
proceed to adjudicate the action^." State °Y re!. :InnPs v. Suster, 84 Ohio St.3d 70, 77,
1998-Ohio-275, 701 N.E.2d 1002. However, the issue of lack of standing "challenges the
capacity of a party to bring an action, not the subject matter jurisdiction of the court." Id.
To decide whether the requirement has been satisfied that an action be brought by the real
party in interest, "courts must look to the substantive law creating the rigi^i being sued upon
APPENDIX PAGE NO. 24THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
25
to see if the action has been instituted by the party possessing the substantive right to
relief." Shealy v. Campbell, 20 Ohio St.3d 23, 25, 485 N.E.2d 701 (1985).
{¶ 61}Although standing is a threshofd matter, the decision is often made at the
earliest at the summary judg ►rlent stage. See, e.g., Shealy at 24 (standing issue decided
upon trial of case); Fifth Third Mtge. Co. v. Bihn, 2d Dist. Montgomery No. 24691,
2012-Ohio-637, ¶ 15 (standing issue implied in trial court and specifically raised on appeal
after summary judgment had been granted to mortgagee);Dibert v. Carpenter, 196 Ohio
App.3d 1; 2011-Ohio-5691, 961 N.E.2d 1217, ¶21-22 (2d Dist.) (standing issue raised via
motion for partial summary judgment); and Fed. Horne Loan Mtge. Corp. v. Schwartzwald,
1Q4 C`hio App.3d 544, 2011-^hio-2581, 957 N.E.2d 790, ¶ 19 (2d Di^t.)(starlding issue
raised in summary judgment motion).
g annnt hn„ raiSed !n mot!^n^ t^ dlBmiS^.{^ ^?} Th;s !s net to sa;r ±h^t standln C^
Fiowever, "[a]t the pfeading stage, a party establishes standing by alleging enough general
F^,rjTC^;C cF^n^ ci Th^t !.^"'^^o_ir^r rcc^ ^liad frnrr! she r^lafenr^lant'^ C.::nu^.,6Ct, heCa'4Ce :.rl,en .r.,ieClClny u
motion to dismiss, a court wili presume `that general allegations embrace those specific
facts that are necessary to support a ciaim.' "(Citation omitted). S. ChrisfianLeadership
Conference v. Combined Healfh Dist.,191 Ohio App.3d 405, 2010-0hio-6550, 946 N.E.2d
282, ¶ 17 (2d Dist.).
^^__ .^:,.,,•,^^,^^, ,^,o rnnr.Illde that Sacksteder and{¶ 63} in view of the prece^ainy U^^^u^^^^^ ^, ••^ ^^• ^-^-
EXTRAhelp have alleged sufficient facts to withstand a motion to dismiss on the issue of
standing. As we mentioned, the complaints indicate that if the lati^r firm defendants had
proper{y represented Sacksteder and EXTRAhelp, they (Sacksteder and EXTRAhe(p)
would have enjoyed a better f inancial position than the financial position in which they fi^ ^d
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.25
SECOND APPELLATE DISTRICT
^6
thernselves. The complaints also state that Sackstederand EXTRAhelp have each
suffered monetary damages.
{¶ 64} While there is no specific allegation that the eventual sale price was less, the
inference is present. in addition, Sackstederand EX T Ri^help indicated to the trial cou `'
and the court did consider, the allegation that the sa{e to Belcan provided for revenue
based on future sales to customers of EXTRAhelp that were retained. if the saie price
were to be paid over time, or were dependent, in part, on future business from
EXTRPrhefp'sformer customers (see ¶ 10, supra), the attorneys' faifure to get a signed
confidentially agreement could have led to Barry's taking someof EXTRAhelp's customers
(see ¶ 11, supra;. This e^^o^ald cause monetary damages to the plaintiffs.
' ^^^} Whife the ciaim as to damage^ rn^y have beei ^ bettcr p hrased, p6ainatiffs are{
T{"Ie Qrl(tl a romplaint was 45 paaes{ivt reyuir ed t^v tr;^ the^r
^a^e sn the !n!tlal plear^lingc, .^.n I
iong, and the amended complaint consisted of 38 pages. Both documents could have
p,^le4n^eAer it^°e^^i^vreart'ft^iiiys
b"^t tF;e dersrPP nf fief^ll dAYYt^iYifte(ibV C^Pf^:i'i(iai5lti v^F^3^{d reE;LSire
litigants to write a book when filing fegal actions:
{¶ ^6} ln fdct, cour"ts have previousfy commented on cor<eplain^ts that are
unnecessaril lengthy and detailed. For example, in Scacciav. Lemmie, 2d Dist.
Y
f^iontgomery t^fo. 21506, 2007-Ohio-1055, we affirmed the dismissal of a case in which the
--lai^ ^tiff had filed a 70-pagecomplaint that contained 548 paragraphs and nineteen
^separate causes of action, and an amended complaint that contained 50 pages, 440
ara ra hs, and eighteen causes of action. !d. at ¶ 5 and 8. The plaintiff in Scaccia
p g p
argued that the complaint was as concise as it could be, given the nature of the action, and
that the triai cou^ i had err ed by striking the entire ccmp!aint, rather than excising the
THE COURT OF APPEALS OF OHIO AppENDIXPAGEN0.26SECOND APPELLATE DISTRICT
27
improper parts. Id. at ¶ 19
{¶ 67} In reviewing the matter, we noted that "`Civ.R. 8(A} does not contemplate
evidentiary pleading.' " Id. at ¶ 20, quoting Collins v. Nationa! City Bank, 2d Dist:
f^^on^tgomey No. 1088 +, 2003-Chio-0893, ^( ^8. `J',Ie fitrther obser ved that:
We have reviewed the first complaint, and agree with the trial court that it
failed to set forth a short and plain statement showing thaf Scaccia was,entitled to
refief. For example, at one point in the complaint, Scaccia devotes five paragraphs
to describing his quafifications for empfoyment rather than merefy averring that he
was quafified for the position he sought. In anofher portion of the complaint,
Sdaccia devetes approximate(y twenty paragraphs to describing the birth of his child
and the City's failure to piovide him with appropriate leave rather thari mereiystating
that the City acted inappropriately by denying the leave. These are merely two
examples of page after page of tedious detail of numerous events that could, and
shoul^, have been distilled into a more concise statement. Ed. at ^j 21.
{^ 68} Litigants shouid not have to navigate between the ScylEa of saying too fittle
and the Charybdis of saying too much, never ^:nowing what leve! of detai! wiil cause their
complaints to be dismissed.
{¶ ^^} As a final matter, the law firm defendants contend that Sacksteder's claims
should be dismissed because h e does not allege ±ha± he had an individual attorney-client
refationship with the firm. We disagree. The complaints afiege that Andrew Storar and
other lawyers at PS&E provided various leoal services to Sacksteder and EX_TRAhelp on
an "as-needed, when-needed" basis. The complaints fur'ther allege that Sacksteder was
told that attorney Paul Zimmer wou(d be representing Sacksteder and EXTRAhelp with
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.27
SECOND APPELLATE DISTRICT
28
regard to the transaction in question. We fail to see what more would be required to al{ege
an attorney-c(ient relationship.
70 A lying standard Civ. R. 12(B)(6) analysis, we conclude thatthe complaints{¶ } pp
state a claim for reiief against the iaw firm defendants. Even appEying a"plausibi'ity" test,
it is certainly "plausible" that an attorney's failure to properly advise a client regarding
fidentialit , or to protect the client by providing confidentiaiity agreements, could causecon Y
damage to the sale of a client's business. EXTRAhelp alieged that the law firm's failures
sed it to be in a poorer financial condition, and this is sufficient. EXTRAheip was notcau
required to detail its damages, or to provide "numbers," as the trial court suggested. This
e^as not a triu! to the bench or a r^-totion for summary judgment - it was simply a motion to
deterrrmine if the case could proceed to discovery. Accordingly, the tria! court erred in
^;cmissin t"e First, c°cond, ar;d Thirrl (:laims for RPIiPf, which were brought against the
uia g
faw firm defendants. We express no opinion on the merits or even probabi(ity of success
nT fhecA ^i?irF?S,
B. Ciaims against the Prospective Purchaser
^j 7°ii} The claims against BarryStaff, the prospective purchaser, and its presi^ei ^t,
{
Douglas Barry, Jr., are contained in the Fourth, Seventh, and Ninth Claims for Reiief.
These claims for refief alfege, respectivefy, that the Barry defendants participated in the
breaches of fiducia^y duty by ±t,P {aw firm defendants; that the Barry defendants
participated in the breaches of fiduciary duty by the employees of EXTRAhelp; and thatthe
Bar defendants tortious!y interfered with the existing business and contractualry
re(ationships that Sacksteder and EXTRAhelp had with customers and ciients af
EXTRAhelp.
THE COURT OF APPEALS OF OHIO AppENDIXPAGEN0.28
SECOND APPELLATE DISTRICT
29
{¶ 72} "To maintain. a, c.laim of breach of a fiduciary duty, the plaintiff must prove (1)
the existence of a duty arising from a fiduciary relationship; (2) a failure to observe the
duty; and (3) an injury resulting proximatelytherefrom."Harwood v. Pappas &Assoc., Inc.,
8th Dist. Cuyahoga No. 84761, 20u5-Ohio-2442, ^ 26, citingSrrock v. Pressneil, 38 uhio
St.3d 207, 216, 527 N.E.2d 1235 ( 1988).
{¶ 73} The relationship between the plaintiffs and the law firm defendants was a
fiduciary relationship, but the allegation against the Barry defendahts is based on their
artici ation in another's breach of fiduciary duty. This theory was rejected by the trialp p
court, based on the fact that Ohio courts have not recoghized a cause of action for
r t•^ , ^iiparCiClpa^i^vn in a brea^`^1 oi ii^l.iE^iai')^ ut^
r ^^r! C^/ (^^;help (^^nteC1C^ t^'iai ^^'tEf^vavk.^7tedei ^ ` %`T ^
has recognized this tort.
Court of ^ 1^ ^^cl, ^ ^+ ^^n;^^dST 7^[.1 ^fi^o iof^+ ^nioro filorJ tro C! lr+r p villv iooueu ^u u`^'vialvi i^^f ^ i 611Vr brlVl 7 VYVIV IIIVW, IV V^1rlemC+
answering a certified question regarding whether Ohio recognizes a cause of action for
li^;:F;:iityunrEcr ^^ect^rern®nt nf the i^^F,^ 2u, i^r6s, ^ecti .^vn ^ i v (1 979 j i hi.°.^. ^^^^•tion
provides for imposition of liabi(ity for the conduct of others, if the defendant:
(a) does a torfiious act in concert with the other or pursuant to a comrnon design with
him, or
(b) knows that the other's conduct constitutes a breach of duty and gives substantial
^^_ ^^.,.r ^„ +^ ^^ ^i^uct himself; orassistance or encouragement to «^^ o^^ ^ci ^^ ^^ ^^n^
(c) gives substantial assistance to the other in accomplishing a tortious result and
his own conduct, separate!y considered, cor,stitutes a breach of duty to the trird
person. Id. at 315.
{¶ 75} The Supreme Court of Ohio answered the question in the negative, stating
THE COURT OF APPEALS OF OHIOAPPENDIXPAGEN0.29
SECOND APPELLATE DISTRICT
30
that :"This court has never recogn!zed a claim under 4 Restatement 2d of Torts, Sect!on
876 (1979), and we decline to do so under the circumstances of this case." DeVries Dairy,
Ohio St.3d 2012-Ohio-3828, N.E.2dL.L.C. v. White Eagle Coop. Assn., Inc., ^
, ^ 2•
{¶ 76} In view of this recent decision of the Supreme Court of Ohio, we conclude
that the tr!al court did not err in dismissing the Fourth and Seventh Claims for Relief against
Barry and BarryStaff. Whether the fiduciary c{aim is against the law firm defendants or the
employees of EXTRAhelp, persons "participating" in the direct actor's breach of fiduciary
duty are not !iable.
{^ 77} -rhe n±her ^[aim acainst the Barry defendants is based on contractual and
business interference. The trial court rejected these claims, based on !ack of standing,
!ar(^ nf cnarifir_^ rPgarrling ranrallatinnc ra^,^^ing I^^^ tr^ p!aintiff^, and !ack ^f allega±iCn^r ^.^... ^
that "any contracts cf any kind are al!eged to have gone out of the Be!can-EXTRAhe[p
^rhit," Tria! Cni ► ;^i_ E^^^icir^sn anri Entr;r, ^, n.
{¶ 78} "The elements of the tort of tortious interference with contract are (1) the
existence of a confract, (2) the v^rrongdoer's know!edge of the contract, (3) the wrongdoer's
intentional procurement of the contract's breach, (4) !ack of justification, and (5) resu{ting
damages." Fred Siegel Co., LPA v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853
(1999) paragrap" o^ ^e cf the gy!lah^ ^c. Simi{ar!y; "The elements essential to recovery for
a tortious interference with a business relationship are: (1) a business relationship; (2) the
wrongdoer's know!edge thereof; (3) an intentiona! interference causing a breach er
termination of the relationship; and (4) damages resulting therefrom." (Citations omitted.)
VVolf v. iVlcCuilough-Hyde Itilemorial Hosp., 67 Ohio App.3d 349, 355, 586 N.E.2d 120^+
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT APPENDIXPAGEN0.30
31
{12th Dist.1990). "The main distinction between tortious interference with a contractual
relationship and tortious interference with a business relationship is that interference with
a business relationship includes intentional interference with prospective contractual
relations; not yet reduced to a contract." (Citation omitted.) Diarrond t^"3ine & Spirits, frrc.
v. Dayton Heidelberg Distrib. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, 774 N. E.2d 775,
¶ 23 (3d Dist.).
{¶ 79} We have already discussed the standing issue, and reject that argument.
We also conclude, contrary to the trial court, that EXTRAhelp adequateiy stated a claim
for business interference and/or contractual interference. The complaints alleged that
var Y and Ba erySt^ff ^,^-ror^g{y soEicited E"TP..^.help's largest custor?'??r, ^. tsing confidential
trade secrets or confidential information, and wrongly caused that customer to leave
EXTRLI{-lelr^. ^:.^rthermore, alfihn^,^gh nnt PYpIl r;itly rn,{er^l i;-I t!';e cc;^?plaint ±he ±rial C^'u'r^ :^,'as
aware of EXTRAhe{p's contention that it was entit{ed to a share of further earnincus from
,r,^i^ctnrnare thaf ^ne^ra r^f^,ir^ad h`^ r-',raEran a;^'rer tha ^air^, Tf,e triai CO:;ri^ rejertpd this- s
argument, stating that because EXTRAHeIp chose not to attach this contract to the
complair^t, that there was no such contract. At most, such document cou(d have been
provided, if it exists, in response to an appropriate motion by the Barry defendants.
{¶ 80} Again, the case was not before the trial court on a summary judgment or
bench trial. EXTRAhelp and Sacksteder were not required to try their case o^ ^ the
pleadings. They were also not required to attach a copy of the sale contract to the
pleading. AEthough Civ. R. 10(D) provides that "`^^^;hen any claim or defense is founded on
an account or other written instrument, a copy of the account or written instrument must
be attached to the pleading," the claim against the Barry defendants was not founded on
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.31SECOND APPELLATE DISTRICT
32
an account orwritten document. The requirement of attaching documents typically applies
to matters like accounts, leases, and the like. For example, "The purpcse of the
requirement to attach an account imposed by Civ.R. 10(D) is to exemplify the basis of the
pariicuiar claim for relief aiieged, in order to confine the issues in the action to mafters
related to the course of dealings between the parties the attachment portrays." Asset
Acquisitions Group, L.L.C. v. Gettis, 186 Ohio App.3d 586, 2010-0hio-950, 929 N.E.2d
506, ¶ 14 (2d Dist.). This is because the contract is the "best evidence" of the transaction.
Id
{¶ 81} The case before us does not involve a"contract" between the plaintiffs and
r ,a + Th^ ^M^,•n^Q nf a ntrart hafin,reen f,^^lr^n ^nd EXTR.^help,th e Barry de^en^an_s. ^ ex. ^^. ^r :^. co -
aflowing for payment to EXTRAhefp based on retained customers, is evidentiary matter
that ^nrCt,^Ir,l he ^ceti at tria! t^ rn,rp^;e rlamage^. It nePr^ nnt he attaciled t^ ±hn^ ^nmplalnt ;n
order for the complaint to survive a motion to dismiss. !f courts vvere to require this type
nf ^tt^rrsrrtient fr, niaadit^rsc fhara rrn^^id ha nn and trZ enrhatrn,E,aintir,',r'^ enrn^,;,i;d be rAM;,^irer^;,i t0
fife, simply to be allowed to proceed beyond the initial pleading
burden cours, which are already plagued by a sea of documents.
it would aiso unduly
{¶ 82} As final matter, we note that Sacksteder conceded in the trial court that he
has no individual claim against Barry under the Ninth Claim for Refief.
^_ ^,.^.,. ,..:.,i ,.,.^ ^.+ ^II^! r,nt arr in dismissing the Fourth{^ 83} For the reasons stat^U, u ^^ ^^ ^a^ ^^u^ ^ u^^ ^°^^ ^• •
and Seventh Claims for Refief, but did err in dismissing the Ninth Cfaim for Relief with
respect to the Barry defendants, but only insofar as the dismissa! of EXTRRhelp's clairns
is concerned. The dismissal with regard to Sacksteder's claims was not error.
Claims against the EXTR^help Empioyees
THE COURT OF APPEALS OF OHIO ,^ppENDIXPAGEN0.32
SECOND APPELLATE DISTRICT
33
{¶ 84} In the Fifth, Sixth, and Eighth Claims for Relief, Sacksteder and EXTRAhelp
contend that Buening, Ambos, and Brumbaugh improperly misappropriated, converted,
and disseminated trade secrets and confidential and proprietary business information. The
triaE court dismissed these claims, because EXTRAheip never provided facfs to bring the
information within the "statutory definition of trade secret." Trial Court Decision and Entry,
p. 5. The court also focused on the fact that Sacksteder, himself, disclosed "some" of his
secret information to Barry, and that the employees did not sign non-disc{osure
agreements.
{¶ 85} As an initial matter, we note that Sacksteder conceded in the trial court that
he has no lndividua! c!aim against the empfoyees. T^erefore, the sufficiency of the
compEaint wili be considered oniy as to EXTRAhelp's ciaims.
I^T fi^l (n thr^ FifFh ^laim fnr RPliaf FXTF?Aha{p ^nntand^ that B^„ening D;Y;hOs, andc o - J
Brumbaugh were employed in managerial positions of trust, gained access to confidential
inforfrcation in triat rn^arity, and brear!-,pd fidu^ri^ j^ r,^i^^,^ties hv disc!oslCeg this infCrmation
to Barry. As was noted, Sacksteder also alfeged in the comp{aints that Barry used this
confiderttia! information tc so!icit EXTRAhefp's largest cEient.
{¶ 87} In order to prove a breach of fiduciary duty cfaim, the plaintiff must
estab(ish ( 1) the existence of a duty arising from a fiduciary relationship; (2)
a fallUre LU (^b5elYe the duty; and (^) an jn^tJry resulting proximately
therefrom. "A `fiduciary' has been defined as a person having a duty, created
by his undertaking, to act primari!y for the benefit o f ar^other in matters
connected with his undertaking." In some instances, an employee can be a
fiduciary of an empioyer; however, emp(oyees typicaliy owe nothing more
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.33
SECOND APPELLATE DISTRICT
34
than a duty of good faith and loyalty to their employer.
Generally, the determination of what constitutes a fiduciary
re!ationship is a question of fact dependent ori the circumstances of each
case. (Citation omitted). Graceiech (rc. v. Perez, 8th Dist. Cuyahoga ^^o.
96913, 2012-Qhio-700, ¶ 11-12.
{^ 88} !n our view, the complaints adequately aliege the existenceof fiduciary
relationships between these employees and their employer.The complaints allege that
they were in managerial pos!tions, were in positions of trust, and were entrusted with
confidential and proprietary business information. We are unsure, factually, what more
the corr^F^laints ^^^'ou!d ha v e n€G^ded to ra^, un!ess it ^,^^as to !ist the exact confidential and6'
proprietary information. VVhether such a reiationship actua!ly existed and what the
information e^,as ?r? q^ ^?Stinnc nf fart nnt racnl^iah!a tk-2rn6 igh a rtlotinn fin dismiSS.
{¶ 8g} In this regard, the employee defendants point out that ordiriary employees
#vnic?libe n+^xrc t^air at^'ip!^yenY- ^nt!-;irig t'^'inra t{^an ^ fi6^fl^tl'^ art iti fi^1e 66trt'i('t^i gofSCi falt!"1.
_^^, s . _ .. _._ -
While this is true, reference to the case cited for this proposition iilustrates why dismissal
at the pfeading stage is not appropriate. in Lombardo v. ^ahc^^ey, 8th Dist. Cuyahoga P^o.
92608, 2009-Ohio-5826, an employer had sued its employee, claiming breach of fiduciary
duty. The trialcourt denied a motion for judgment on the pleadings, and then later granted
ud ment after the empioyee sub^^^itted evidencP indicating that she merelysummary j 9
performed clerical functions !ike answering telephones and taking messages. She also
offered proof that she had not tak.en the improper actions a!!eged, and the employer
offered no evidence of any kind in response. Id. at ¶ 17 and 20. Under the
circumstances, the employee was cfearly not actingin a fiduciary capac!ty, and the claims
APPENDIX PAGE NO. 34THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
35
against her were not substantiated. But, the claims were dismissed afterthe employer had
been given an opportunity to present factual issues regarding its case.
{¶ 90} This discussion illustrates the problems with the position advocated by ali
defendants, which appears to urge triai on the pleadings, governed by judges who weigh
facts. For exampfe, the employee defendants point outthat Sacksteder, himself, disclosed
trade secrets or confidential information to Barry during their discussion. They, contend,
therefore, that they could not be liable for disclosing trade secrets, because Sacksteder
disclosed the "same" information. See,Ambos and Brumbaugh Brief, p. 18, and Buening
Brief, p. 17.
^;^ 91 } The compl^ints did not say that Sacksteder discl::se^ the "sam^" information
fihat the defendants aifegedly disciosed. instead the compiaints stafed that Sackst^der did
pf r^^^n+r. ^c+`+ rdin['^ ^(^ n rl
4{^Y^Iv^e ^r^mn nnr+firlcan+ial ir+fnrmo+inn +n Rarni and +hat +hp
vv1111^..^v11LILAI 1 IIVIIIIULIVII LV v It3/, II L11 L11C3
dC^lelIlAQ116J aIJV uIJVIVJ U
confidential and proprietary information and trade secrets: Whether this invoives the
tv F^e eet7Fiiici,eri ^++ho cl ler.er.^n^l^I lrinrnont e^+nnr^ nr_ LwL4vl LAL/IIJI \J 4L Ll llr J4f I
II I IGI j I4Ul^. I I IG11 JLQ^ ^V
`^carrs,a" i.^.fnrrr;atinn n,rr nnt ic u m^fi+ar ^
at trlal.
^ j 92} The compfaints do not specificafiy indicate whether Ambos and Brumbaugh
knew of the sale until after it occurred. However, the complaints do indicate that these
individuals, as well as Buening, disclosed confidential information, that Barry improperly
I l^o,^ + ►,i^ ^nnfidPntial information to solicit EXTRAhelp's customers, and that EXTRAhelpu.^^+^.. u I..+ v.. ^
was damaged as a result. See Amended Complaint, ¶ 105-107. As was noted, if
EXTRAhelp ^hrere due to receive revenue from clients that Belcan retained, EXTPv,help
would have standing to sue. Accordingly, we conclude that EXTRAheip provided sufficient
information to withstand a moticn to dismiss the Fifth Claim for Relief.
APPENDIX PAGE NO. 35THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
36
{¶ 93} The Sixth and Eighth Cfaims for Relief alleged that the employee defendants
misappropriated and converted trade secrets and confidential and proprietary business
information for their own uses. Again, the employee defendants contend that the
information is insufficient to withstand a motion to dismiss, because Sacicsteder disciosed
the "same" information. They also argue that the complaints are deficient because they
fail to compiy with certain standards adopted in the area of trade secrets.
{¶ 94} This argument again illuminates why dismissal on the pleadings is
premature. In this regard, the employee defendants rely on a six-factor test that the
Supreme Court of Ohio adopted for determining whether items meet the statutory definition
of trade secrets contained in R.C. 1^^1.01(^}. See State Px rel. ^he Plai^^ Dealer v. ^hi°
Dept. of fns., 80 Ohio St.3d 513, ^^4-^2^, 0^^ f^.E.2d t^61 (1997}.
{!^ 95} R.C. 1 ^31.01(G} defines a trade secret as:
[i]nformation, including the whole or any portion or phase of any scientific or
f^nhr+ir^^l in^f^rm^^iv.n r: inn r;rn^^^a.cay pr^v^v°c_dure, f^rmuia, patt°crn, cvmpiiativn,
C...:Si:EI!lV^E !!!lVIE!!C.'!°.Ll!!, 4-^e^!^!!i ^' .
program, device, method, technique, or improvement, or any business information
or plans, financiaf information, or fisting of names, addresses, or teiephone
numbers, that satisfies both of the following:
(1) It derives independent economic value, actual or potential, from not being
ger^eral^y kncY^rn ±o, and npt hPing readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use.
(2) Et is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
{¶ 96} fn The ^iairr Dealer, the Supreme Court adopted and applied the fo!lowing
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.36
SECOND APPELLATE DISTRICT
37
s'ix-factor test for deciding if trade. secret claims meet the statutory definition;
(1) The extent to which the information is known outside the business; (2) the
extent to which it is known to those inside the business, i.e., by the employees; (3)
the precautions taken by the holder of the trade secret to guard thc secr^cy of th^
information; (4) the savings effected and the value to the holder in having the
information as against competitors; (5) the amount of effort or money expended in
obtaining and developing the information; and (6) the amount of time and expense
it would take for others to acquire and dup(icate the information. 80 Ohio St.3d at
524-525.
{^ 97^. !n the cas° before us; the employee defendants contend that the complaints
are insufficient because they faii to contain factual a66egations pertaining to each of trese
rriteria, Anain, wP disagree. (f cnmpl.aints Were requirPd to set out factual criterla that
meet various "tests" adopted by courts to review evidence, Qhio would return to
^^ in,hersn ►.'?",? pleading reqiuirernents thatl^ere d^scarded many years ago. The n^^m^ber of
such lists of factors or "tests" could be virtually endless. ( n this regard, we note that unfike
the present case, The Plain C?ealAr in^^o!ved a petition for writ of mandamus and an
evidentiary review, including an in camera inspection of documents claimed to be trade
secrets. Id. at 517. Thus, the court had an opportunity to decide the matter on the merits,
not the pieadings.
{¶ 98} For the reasons stated, the Sixth and Eighth Claims for Relief are sufficient
to titi^ithstand a motion to dismiss, and the trial coi ^rt erred in dismissing these claims. As
before, we state no opinion on the merits of the claims.
{¶ 99} The only matter remaining is the Pvinth Claim far Refief, which raises claims
THE COURT OF APPEALS OF OHIO APPENDIXPAGEN0.37
SECOND APPELLATE DISTRICT
^ 38
of contractua! and business interference. The trial court dismissed this claim against the
employee defendants, because the complaint failed to demand judgment against the
employee defendants. EXTRAhelp does not address this point in its brief, but simply
points out that th e claim for refief states a claim against ^arry, BarryStaf f, and the
employee defendants.
{¶ 100} The triaf court was correct in concluding that EXTRAhelp did not ask for
judgment against the employee defendants on this particular claim, but neither the triaf
court nor the parties offered legal analysis or citations to support dismissal on this ground.
{¶ 101} Civ. R. 54(C) states that "[e]xcept as to a party against whom a judgment
is ei 6tered by defa,^:l±y e 6,enr^ f9na! j^ud^mer.t shall g.rant the relief to which the party in who^e
I ' rendered is entitied, even if the party has not demanded the reiief in thefavor it ^s
nlaar{innc " Thi ^c fnr rrxamrn,fa^ a plaintiff hac F,^gen allnwr^rl tn recnvPr r_lar,r?agPC nr nthPr
^,...,uu., .^...
forms of recovery that either exceed the amount requested in the complaint, or were not
rani^acfan af aii. =eP ^.^,. ,^frr,nl^I v, Fitlrvnr^C^, f l^:., Rth ^i^t_ C:o^y^f-ic^,g^ ^'vn. 84i 37,
2004-Ohio-7031, ¶ 12-13, and State ex rel. Rothal v. Smith, 151 Ohio App.3d 289, 307,
2002-Ghio-7328, 783 ^^.E.2d 1001, ^ 80-82 (9th Qist.) (noting that under Civ. R. 54(C), "the
tria( court may render whatever judgment is equitable considering the issues raised in the
pleadings or at trial.") Consequently, failure to specifically request judgment against the
^^ employee defendants was not a proper basis for disr'^'issing the Ninth Claim of Relief.
{¶' 102} We have already concluded that the complaints adequately state a claim
for business and/or contractua! interference against the Barry defendants, ar.d the same
reasoning would apply here. The employee defendants contend in their briefs that
EXTRAhelp fai{ed to allege numerous facts, including the names of customers w ho were
APPENDIX PAGE NO. 38THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT^
39
solicited, the nature of the customers' relationships with EXTRAhelp, or facts regarding the
defendants' knowledge of these customers. In addition, the defendants maintain that
EXTRAhelp should have attached its contracts with customers to the complaint.
{¶ 1^3} As noted, EXTRAhe1p did alfege sufficient facts to suppori a business
inte^ferenee claim. And, contrary to the employee defendants' assertions, EXTRAhelp did
allege that its largest customer was lost to due to interference
Claim states a claim for refief against the employee defendants
IV. Conclusion
Accordingly, the Ninth
{¶ 104} The judgment of the trial court will be affirmed in part and reversed in part.
Tha diSrr;i`^cal nf Sa^k^^eder's and E.XTRAhelp's First; Second; and Third Claims for Relief
is reversed; the dismissal of the Four'th and Seventh Claims for Relief is affirmed; the
dismissal of the Sixth and Eighth Claim^ for Relief is affirmed, ..^ith respect to the claims
of Sacksteder, but reversed as to the claims of EXTRAhelp; the dismissal of the Ninth
Claim foi' Relief is ^ffirt'i^ed v^rith resp^rfi tn tha cfaimc nf ^ar:ffgtev.ier,anr^l i^ re^ie,rcgd :r'atn
respect to the claims of EXTRAhelp against Barry, BarryStaff, Buening, Ambos, and
Brumbaugh. This case v,'ill be remanded for further procsedings.
FAIN, J., concurring:
{11 ;► ua} f co^^cur in^ Judge Frcelich's opinion forthe court. I write separately merely
to cfarify my view of the rules of pleading.
{^j 1^6} The reguirements for pleading a cause of action in an Chio ccurt are set^
forth in Civ.R. 8. The Supreme Court of Ohio is the uitimate authority on the proper
THE COURT OF APPEALS OF OHIO AppENDIXPAGEN0.39
SECOND APPELLATE DISTRICT
40
construction of Ohio law, not the Supreme Court of the United States.' Therefore, the
decisions of the Supreme Court of the United States in the BeUAtlantic Corp. v. Twom6ly I
and Ashcroft v. Iqbal cases, cited in Judge Froe(ich's opinion, cannot override the rules of
pleading estabfished by the C)hio Rufes of Civil Procedure, as interpreted by the Supreme
Court of Ohio. The Twombly {ine of cases has no appiication to the rules of pleading in
Ohio courts unless and until the Supreme Court of Ohio incorporates the principles set
forth in those cases in its interpretation of the Ohio rules of pleading.
HALL, J., concurs with Judge Froeiich's opinion and with Judge Fain's concurring opinion.
'Of course, if federal faw confiicts with Ohio faw, federal {aw prevails by virtueof the Supremacy C{ause in f^rticie VI of the United States Constitution. in the casebefore us, there is no conffict; federal rules of pleading govern the pleading ofcauses of action in federal court, and Ohio ruies ofi pleadi^ig govern the pleading of
causes of action in Ohio courts.
THE COUI2T OF APPEALS OF OH10APPENDIXPAGEN0.40
SECOND APPELLATE DISTRICT
41
Copies mailed to:
John J. MuellerNeil F. FreundLindsay M. JohnsonJohn F. HavilandCarla J. MormanQuintin F. LindsmithVictoria A. FlinnHon. Michael L. Tucker
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT
APPENDIX PAGE NO. 41
u., .^.
^
1012
IN 1"HE COtJRT C,^ ^s
MON lPAUL L. SACKSTEDER, et a
Pfaintiffs-Appella nts
v.
JEFFREY 5. SENNEY, et al.
Defendants-Appe(lees
^_^^^^^^^^F,_E^..j^^^r^^
i R
H^ ^; qP AL ^^C?^MONTGOMERY COUNTY, OHt4 _
Or (:^'i^1RT^ ,f g ^^• aHlt7
: C.A. CASE N{). 24993
: T.C. NQ. 10CV1913
: Fif1lAL ENTRY
^ Pursuant ia the apinian af this couri rendered on the^^^n day af ^^^^^mp^^2vi2,
the judgment of the trial caurt is a^rmed in part, reversed in part, and the matter is
remanded far further praceedings consistent with this caurt's opinicrn.
Casts to be paid as fallaws: 50°lo by plaintiffs-appeflants; 50% by defendants-
appellees.
°ur^::a,^,c ^G ^vf'it^i App.s?. ^n,e J^ it Sc ^nrehy nr^oro^I tF^^t thev ^Ier'{S af thF,+ Af1^n^^^menJ^ 1\ VV f-S t ^ V V 1 V V I --
County Caurt af Appeals shalf immediately serve notice of thisjudgmer^t upan all parties and
make a nate in the docket of the mailing. ^,
,
M! KE FAI N, J udge
JEF . FRf3 iCH, Judge^
MiCH EL T. F^ALL, Judge
THF COURT OF APPEALS OF OI^t10 APPENDIXPAGEN0.42
SECOND APPELLATH DISTRICT
^ . ^II "
Copies maifed ta:
2
3ohn J. Mueller .632 Vine StreetSuite 8Q0Cincinnati, Ohio 45202
Neil F. FreundL.indsay M. JohnsonFifth Third Center1 South Main Street, Suite 1800Qa.yton, ^hia 45402
John F. HavilandCarEa J. Morman400 PNC Center6 North Main Street®a^lton, ^3hEt} 4J^^^
Quinton F. LindsrnithVictoria A. Flinn^ 00 South Third StreeiColumbus, Qhio 43215
Hon. Michael L, TuckerCur^mon PEeas Co^art41 N. Perry StreetQayton, tJhio 45422
E
_ _ _ _
THE COURT OF APPEALS OF OH10 APPENDIXPAGEN0.43SECOND APPELLATE DISTRICT