ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COUNTS TWO AND FOUR OF THE COMPLAINT
SUSAN J. DLOTT, District Judge.
This matter, a civil action between a thoroughbred horse owner and a veterinarian, is before the Court on the Motion of Defendants to Dismiss Counts Two and Four of the Complaint for Failure to State a Claim. (Doc. 10.) Plaintiffs have filed a memorandum in opposition, to which Defendants have replied. (Docs. 18, 20.) For the reasons that follow, Defendants' Motion will be GRANTED.
A. The Parties and the Hamilton County Action
Plaintiff Thomas J. Young ("Young"), a resident of Naples, Florida, is engaged in the business of breeding and racing thoroughbred horses. (Complaint, Doc. 3 at PageID 4, 5 (¶¶ 1, 8, 9).) He owns these horses in his own name. (Id. at PageID 5 (¶ 10).) Through trainers, Young has conducted racing operations in both Kentucky and Ohio, specifically at Turfway Park in Florence and at River Downs—now known as Belterra Park—in Cincinnati. (Id. at PageID 5 (¶ 12).) Young is a member and the registered agent of Plaintiff Sandringham Farm, LLC ("Sandringham") located in Georgetown, Kentucky. (Id. at PageID 4 (¶¶ 1, 2).)
Defendant John A. Piehowicz, II ("Piehowicz"), a resident of Cincinnati, Ohio, is a veterinarian licensed to practice in Kentucky and Ohio. (Id. at PageID 4, 6 (¶¶ 4, 16).) He is a member and the registered agent for Defendant Cincinnati Equine, LLC ("Equine"). (Id. at PageID 6 (¶ 16).) Equine's principal business is providing equine veterinary medical services at training facilities and racetracks, largely at Turfway Park. (Id. at PageID 6 (¶¶ 17, 18).) At various times during the period 2006 to January 2008, Equine, through Piehowicz, provided services to Young's horses that were stabled and in training at Turfway Park. (Id. at PageID 7 ¶ 20).) Young denies being physically present when these services were provided. (Id. at PageID 7 (¶ 21).) He also denies any communications with Equine or Piehowicz regarding the terms of these services or authorizing anyone to act on his behalf to make any agreement regarding the terms of these services. (Id.)
Equine periodically invoiced Sandringham (and not Young) for these services at its address in Georgetown. (Id. at PageID 7 (¶ 23).) Young disputed some of the services provided and the charges therefor and ultimately declined to pay the last invoice submitted by Equine in 2008. (Id. at PageID 8 (¶¶ 26-28).) Equine filed suit against Sandringham in the Hamilton County, Ohio Municipal Court in the matter captioned Cincinnati Equine, LLC v. Sandringham Farm, LLC, Case No. 08CV15831 (the "Hamilton County Action"). (Id. at PageID 8 (¶ 29); Doc. 3-1 at PageID 19-24.) The complaint in the Hamilton County Action relies upon an invoice that is not dated, but refers to services purportedly provided through February 25, 2008. (Doc. 3 at PageID 8 (¶ 30); Doc. 3-1 at PageID 24.) The total amount due on the invoice is $2,142.45, which includes two "service charges" of $15.64 and $25.00. (Doc. 3-1 at PageID 24.)
Although he owned the horses that received veterinary services, Young was not named a party to the Hamilton County Action. (Doc. 3 at PageID 9 (¶ 33); Doc. 3-1 at PageID 21.) In his status as a member of Sandringham, Young nonetheless tendered a pro se response to Equine's complaint in the Hamilton County Action, in which he denied the existence of any agreement between Equine and Sandringham regarding veterinary services as alleged. (Doc. 3 at PageID 9 (¶¶ 36, 37); Doc. 3-2 at PageID 26-28.) He also denied that the services were provided in Ohio as alleged. (Doc. 3 at PageID 9 (¶ 37).)
At an early stage in the Hamilton County Action, Young tendered to Equine, through its counsel, a check drawn on a Sandringham account that was made payable to "Jackass Piehowicz" in the amount of $2,101.81. (Doc. 3 at PageID 9 (¶ 39) and Doc. 3-3 at PageID 38.) This amount paid in full the charges for veterinary services but did not include the two "service charges." (Doc. 3 at PageID 9 (¶ 39).) Neither Equine nor Piehowicz negotiated the check. (Id. at PageID 9 (¶ 40).)
Eventually Equine filed motions both for default judgment
B. The Racing Commission Complaint and the Hamilton County Action Appeal
On August 4, 2014 Equine and Piehowicz filed a "Financial Responsibility" complaint against Young with the Ohio State Racing Commission ("OSRC"). (Id. at PageID 10 (¶ 48); Doc. 3-6 at PageID 47-52.) They enclosed the judgment from the Hamilton County Action as well as the lien against Sandringham Farm. (Doc. 3-6 at PageID 47-52.) Young, through counsel, requested a dismissal on jurisdictional grounds. (Doc. 3 at PageID 11 (¶ 54).) Young also, again through counsel, filed a motion to vacate the 2008 judgment in the Hamilton County Municipal Court. (Id. at PageID 11 (¶ 55).) He argued that the Ohio court lacked personal jurisdiction over Sandringham and, in any event, Sandringham was not the proper party defendant. (Id.)
Following a hearing held in January 2015, the Hamilton County Municipal Court denied Young's motion. (Id. at PageID 11 (¶ 56).) He appealed. (Id. at PageID 12 (¶ 57).) On March 4, 2016, the Hamilton County, Ohio Court of Appeals reversed and remanded the cause to the trial court "to conduct an evidentiary hearing of the issue of whether the exercise of personal jurisdiction over Sandringham Farm is consistent with Ohio's long-arm statute and due process." (Cincinnati Equine, LLC v. Sandringham Farm, LLC, No. C-150067 (Ohio Ct. App. 1st Dist., Mar. 4, 2016) (the "Hamilton County Action Appeal")), Doc. 3-7 at PageID 54, 60 (¶ 19).) Thereafter Equine and Piehowicz withdrew their complaint lodged with the OSRC and that proceeding was dismissed on April 6, 2016. (Doc. 3 at PageID 12 (¶¶ 60, 61); Doc. 3-8 at PageID 62-64.) Equine then dismissed the Hamilton County Action on April 13, 2016 and released the lien against Sandringham Farm. (Doc. 3 at PageID 12 (¶¶ 62, 63).)
C. Procedural History
Young and Sandringham Farm filed a four-count Complaint in this civil action on December 6, 2016. They allege "abuse of process" claims against Equine regarding the Hamilton County Action (Count One) and against Equine and Piehowicz regarding the OSRC proceeding (Count Three). They also allege "wrongful use of civil proceedings," or malicious prosecution, claims against Equine regarding the Hamilton County Action (Count Two) and against Equine and Piehowicz regarding the OSRC proceeding (Count Four). Equine and Piehowicz have filed a Motion to Dismiss Counts Two and Four, the claims for malicious prosecution. This matter is fully briefed and ripe for review.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To withstand a dismissal motion, a complaint must contain "more than labels and conclusions [or] a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Courts do not require "heightened fact pleading of specifics, but only enough facts to state a claim for relief that is
On a Rule 12(b)(6) motion, a district court "may consider exhibits attached [to the complaint], public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein, without converting the motion to one for summary judgment." Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011) (internal quotation and citation omitted). The ability of the court to consider supplementary documentation has limits, however, in that it must be "clear that there exist no material disputed issues of fact concerning the relevance of the document." Mediacom Se. LLC v. BellSouth Telecomms., Inc., 672 F.3d 396, 400 (6th Cir. 2012) (internal quotation and citation omitted).
The four elements of the tort of malicious civil prosecution are:
Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 1994-Ohio-503, 626 N.E.2d 115, 117-18 (citing Crawford v. Euclid Nat'l Bank, 19 Ohio St.3d 135, 483 N.E.2d 1168, 1171 (1985)). Equine and Piehowicz argue that Young and Sandringham cannot prove the third and fourth elements, requiring dismissal of Counts Two and Four. The Court agrees.
A. The Hamilton County Action
The record is clear that the Hamilton County Court of Appeals reversed the decision of the Hamilton County Municipal Court because it failed to conduct an evidentiary hearing on the issue of personal jurisdiction before it denied Sandringham's motion to vacate the 2008 judgment:
(Hamilton County Action Appeal, Doc. 3-7 at PageID 59-60 (¶ 17).) However promising for Sandringham, this ruling was not a decision on the merits. Rather, it was a mandate to the trial court to establish first that it has jurisdiction over the defendant being sued before it proceeds to resolve the actual dispute between the parties. See Vitrano v. CWP Ltd. P'ship, No. 19516, 1999 WL 1261151, at *4 (Ohio Ct. App. 9th Dist., Dec. 22, 1999). And before the Hamilton County Municipal Court was able to hold a jurisdictional hearing, Equine exercised its right to voluntarily dismiss its action pursuant to Ohio R. Civ. P. 41(A)(1)(a). Therefore, the Hamilton County Action did not terminate in Sandringham's favor, a circumstance fatal to its claim for malicious prosecution. See Miller v. Unger, 192 Ohio App.3d 707, 2011-Ohio-990, 950 N.E.2d 241, 243 (¶ 16); Starinki v. Pace, 81 Ohio App.3d 113, 610 N.E.2d 494, 495 (1991); Elite Designer Homes, Inc. v. Landmark Partners, No. 22975, 2006 WL 2270832, at *9 (¶¶ 41, 44) (Ohio Ct. App. 9th Dist. Aug. 9, 2006); Graff v. Ohio Valley Truss Co., No. 05CA3, 2005 WL 3441252, at *3 (¶¶ 11-13) (Ohio Ct. App. 4th Dist. Dec. 12, 2005); Bayer v. Neff, 1995 WL 815345, at *4 (Ohio Ct. App. 11th Dist. Dec. 29, 1995), rev'd on other grounds, Palivoda v. Felix, No. 2010-A-0017, 2011 WL 4790982, at *9 n.3 (Ohio Ct. App. 11th Dist. Oct. 7, 2011); Wilson v. Fifth Third Bank, No. CA94-01-001, 1994 WL 250144, at *1 (Ohio Ct. App. 12th Dist. June 13, 1994); Summitville Tiles, Inc. v. Jackson, No. 87-C-42, 1988 WL 122836, at *2-3 (Ohio Ct. App. 7th Dist. Nov. 15, 1988);
Also fatal to Sandringham's claim is the fact that it cannot demonstrate that any of its property was seized by Equine. Equine admittedly obtained a judgment against Sandringham in the Hamilton County Action, and then naturalized that judgment and filed a lien in Kentucky. But Equine never collected against the lien, which it released once it dismissed the Hamilton County Action. No seizure ever occurred,
Because Sandringham is unable to establish either the third or fourth elements of its malicious prosecution claim, the Court must dismiss Count Two.
B. The OSRC Complaint
It is undisputed that Equine and Piehowicz withdrew their "Financial Responsibility" complaint filed against Young on April 5, 2016, and, in turn, the OSRC closed the case the very next day. No decision on the merits of the complaint ever was rendered. While obviously beneficial to Young, the OSRC proceedings did not terminate in his favor. Nor was any action taken by the OSRC against Young—such as suspending, revoking or otherwise restricting his horse racing license—in reaction to Equine and Piehowicz filing their complaint. Thus, no property seizure occurred. See Moss v. Blake, No. 43799, 1982 WL 5198, at *4 (Ohio Ct. App. Mar. 4, 1982). Accordingly, like Sandringham, Young cannot establish either the third or fourth elements of his malicious prosecution claim, and the Court must dismiss Count Four as well.
Based on the foregoing reasons, the Motion of Defendants to Dismiss Counts Two and Four of the Complaint for Failure to State a Claim (Doc. 10) is hereby
Id. (emphasis added). Hence, the Bourbon County lien against the real property comprising Sandringham Farm is palpably insufficient to constitute a seizure under Ohio law.