1
I THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CITY OF HUBER HEIGHTS, OHIO,
Plaintiff,
v.
DON ALLEN HOLBROOK, LLC,
Defendant /
Third Party Plaintiff,
HEATHER DOBROTT, et al.,
Third Party Defendants.
::::
CASE O. 2012 CV 02947
JUDGE MICHAEL L. TUCKER
DECISION, ORDER, AND ENTRY
SUSTAINING REMAINING THIRD
PARTY DEFENDANTS’, CYNTHIA
CALVERT, HARTBURG
PUBLICATIONS, LLC A FRANK
MAURIZO, MOTIONS TO DISMISS
THE SECOND AMENDED THIRD
PARTY COMPLAINT AND QUASH
SERVICE OF PROCESS
On June 22, 2012, Defendant / Third Party Plaintiff Don Allen Holbrook, LLC (Holbrook,
LLC) filed a Second Amended Third Party Complaint. Third Party Defendants Heather Dobrott,
Frank Maurizio, Cynthia Calvert, and Hartburg Publications (remaining Third Party Defendants)
filed motions to dismiss the Second Amended Third Party Complaint for lack of personal
jurisdiction under Ohio Rule of Civil Procedure (Civ. R.) 12(B)(2) and to quash service of process
pursuant to Civ. R. 4.3(A)(9). On August 22, 2012, Holbrook, LLC filed a notice of dismissal
without prejudice pursuant to Civ. R. 41(A)(1)(a) of the following Third Party Defendants:
Houston Press; The Houston Press d/b/a Village Voice Media Holdings LLC d/b/a Houston Press,
LP d/b/a Backpage.com, LLC; and Craig Malisow. On September 11, 2012, Holbrook, LLC filed a
Montgomery County Common Pleas Court
General Division
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Friday, October 19, 2012 3:59:42 PM
CASE NUMBER: 2012 CV 02947 Docket ID: 17620284
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO2
motion, pursuant to Civ. R. 41(A)(1)(a), to dismiss with prejudice, Stephens Media LLC d/b/a
Pahrump Valley Times. Appropriate response and reply briefs have been filed and the remaining
Third Party Defendants’ motions to dismiss / quash service are ready for decision.
FACTS
For the purpose of reviewing the remaining Third Party Defendants’ motions to dismiss, the
facts are viewed in the light most favorable to Holbrook, LLC (the nonmoving party). Don Allen
Holbrook, LLC (Holbrook, LLC) is an Arizona limited liability company that conducts business as
an economic developer around the United States. Second Amended Third Party Complaint, ¶1.
Holbrook, LLC at the time of the filing of the third party complaint was registered as a foreign
limited liability company in Ohio. Id., ¶1. Holbrook, LLC and The City of Huber Heights, Ohio
entered into a contract requiring Holbrook, LLC, at an agreed upon rate, to perform economic
development services for Huber Heights. The genesis of this case is a complaint filed by Huber
Heights against Holbrook, LLC alleging breach of contract and other causes of action relating to the
contract between Huber Heights and Holbrook, LLC. Holbrook, LLC filed a third party complaint
against several individuals and internet newspapers / blogs alleging, among other causes of action,
defamation.
Third Party Defendant Frank Maurizio is a Nevada resident who posted statements to the
internet from Nevada. Id. ¶3; Frank Maurizio’s Motion to Dismiss, pg.1.4. Third Party Defendant
Heather Dobrott is a Texas resident who posted statements to the internet from Texas. Second
Amended Third Party Complaint, ¶2; Heather Dobrott’s Motion to Dismiss, pg. 3. Cynthia Calvert
is a Texas resident and is the editor, publisher and chief executive officer of “The Tribune”.
Cynthia Calvert’s Motion to Dismiss, pg. 1. Hartburg Publications, LLC is a Texas limited liability
corporation doing business as “The Tribune.” Id. 3
Holbrook, LLC asserts that “sometime on or before February 29, 2012, defamatory, untrue,
derogatory and false statements about Don Allen Holbrook, LLC were posted by internet bloggers
Dobrott and Maurizio and articles were posted on the internet by Malisow (subsequently dismissed
as a party) and Calvert on various websites.” Second Amended Third Party Complaint, ¶26.
Holbrook, LLC alleges that these internet postings prompted Huber Heights to breach its contract
with Holbrook, LLC. Id. at ¶29. Holbrook, LLC’ Second Amended Third Party Complaint alleges
the following counts against the remaining Third Party Defendants: (1) civil conspiracy; (2) tortious
interference with contract and prospective business relations; and (3) defamation.
STANDARD OF REVIEW
A court may decide a Civ. R. 12(B)(2) motion without an evidentiary hearing. If the court
reviews the 12(B)(2) motion without an evidentiary hearing, the plaintiff need only make a prima
facie showing of jurisdiction over the defendant to withstand a motion to dismiss. Giachetti v.
Holmes, et al., 14 Ohio App.3d 306, 307, 471 N.E.2d 165 (1984). A plaintiff meets the burden for a
prima facie showing of jurisdiction if “reasonable minds could find jurisdiction.” Id. at 307. When
reviewing a motion to dismiss under Civ. R. 12(B)(2) for lack of personal jurisdiction over the
defendant, a court must evaluate the pleadings and evidentiary materials in the light most favorable
to the non-moving party. Goldstein, et al., v. Christiansen, Judge, et al., 70 Ohio St.3d 232, 236,
1994-Ohio-229, 638 N.E.2d 541, citing Giachetti v. Holmes, 14 Ohio App.3d 306, 471 N.E.2d 165
(1984). The court, as indicated, may consider evidence in addition to the complaint, such as
answers to interrogatories, depositions, or affidavits without converting a Civ. R. 12(B)(2) motion
into a motion for summary judgment. Price v. Wheeling Dollar Savings & Trust Co., 9 Ohio
App.3d 315, 318, 460 N.E.2d 264 (1983). 4
LAW AD AALYSIS
In order to determine if an Ohio court has personal jurisdiction over a nonresident defendant,
courts have adopted a two step process: “(1) whether the long-arm statute and the applicable rule of
civil procedure confer jurisdiction and, if so, (2) whether the exercise of jurisdiction would deprive
the nonresident defendant of the right to due process of law under the Fourteenth Amendment to the
United States Constitution.” Kauffman Racing Equipment, LLC v. Roberts, 126 Ohio St.3d 81, ¶28,
2010-Ohio-2551, 930 N.E.2d 784 (2010).
I. Long-Arm Statute:
Ohio’s long arm statute, R.C. 2307.382, specifies certain actions which confer personal
jurisdiction on Ohio courts. Holbrook, LLC asserts that jurisdiction is proper in Ohio under R.C.
2307.382(A)(3)(“causing tortious injury by an act or omission in [Ohio]”) and
2307.382(A)(6)(“causing tortious injury in [Ohio] to any person by an act outside [Ohio]…”).
Holbrook, LLC alleges that the remaining Third Party Defendants published and posted articles and
blogs, including defamatory, derogatory, and false statements about [Holbrook, LLC], on internet
websites. All of the remaining Third Party Defendants are residents of other states, the actual
internet postings were not written in Ohio, and the internet newspapers and websites were not
directed at Ohio. However, Holbrook, LLC asserts that the remaining Third Party Defendants
should have been able to predict that their postings would be viewed by residents of Ohio. Since
the actions – publishing and posting articles, blogs, etc. on the internet – took place outside the state
of Ohio, R.C. 2307.382(A)(3) is not satisfied and cannot be used to establish personal jurisdiction
over the remaining Third Party Defendants. The only contact directed at Ohio that Holbrook, LLC
points to is an allegation that a reporter from a town near Houston, Texas contacted the Huber
Heights City Manager prior to February 29, 2012. Third Party Plaintiff’s Memorandum in
Opposition (August 17, 2012), pg. 5. However, the Second Amended Complaint clearly identifies 5
the reporter who made such direct contact as dismissed defendant Craig Malisow. Second
Amended Third Party Complaint, ¶ 4. Based upon the Second Amended Complaint, the allegation
of direct contact only relates to Mr. Malisow, a Third Party Defendant who has been dismissed, and
nothing Holbrook, LLC points to creates a prima facie case that Mr. Malisow’s alleged
communication can reasonably be attributable to any of the remaining Third Party Defendants. As
such, the Court will next evaluate whether personal jurisdiction exists under R.C. 2307.382(A)(6).
Pursuant to R.C. 2307.382(A)(6), “[a] court may exercise personal jurisdiction over a
person who acts directly or by an agent, as to a cause of action arising from the person’s: [c]ausing
tortious injury in this state to any person by an act outside this state committed with the purpose of
injuring persons, when he might reasonably have expected that some person would be injured
thereby in this state.” In order for jurisdiction to be proper under R.C. 2307.382(A)(6), the
defendants must have had the purpose of injuring Holbrook, LLC and must have reasonably
expected that Holbrook, LLC would be injured in Ohio. Holbrook, LLC asserts that Huber Heights
breached the contract with Holbrook, LLC because of comments posted to the internet by the
remaining Third Party Defendants on or before February 29, 2012. Review of the record before the
court demonstrates that none of the remaining Third Party Defendants mentioned Huber Heights on
or before February 29, 2012. All of the internet postings on or before February 29, 2012 related to
Holbrook, LLC’s contractual activities with local governments in Nevada and Texas. While some
postings on or before February 29, 2012 vaguely reference Holbrook, LLC’s involvement in other
towns across the United States, only one article specifically mentions cities in Minnesota and
Indiana. The vague reference to Holbrook, LLC’s involvement with various cities outside Ohio is
not sufficient to confer personal jurisdiction over the remaining Third Party Defendants in Ohio.
See Holbrook, LLC’s Memorandum in Opposition (filed August 17, 2012), pg. 4. Although, based
upon the content of the postings, it may be concluded that the remaining Third Party Defendants 6
intended to negatively portray Holbrook, LLC, the remaining Third Party Defendants, since the
postings did not mention Ohio or any work Mr. Holbrook had performed or was performing in
Ohio, could not reasonably have expected that Holbrook, LLC would be injured in Ohio by the
internet postings. Since the remaining Defendants could not reasonably have expected to injure
Holbrook in Ohio, personal jurisdiction in Ohio cannot be premised upon Ohio’s long-arm statute.
II. Due Process:
In addition to the inapplicability of Ohio’s long-arm statute, hauling the remaining
Defendants into an Ohio court would not be compatible with due process. Even if the requirements
of the long-arm statute are met, it must be established that the minimum contacts necessary to
satisfy due process have occurred to subject a non-resident defendant to personal jurisdiction in
Ohio. Specifically, the Ohio Supreme Court has stated the following with regard to minimum
contacts necessary to meet the due process requirements for personal jurisdiction:
***the constitutional touchstone remains whether the defendant
purposefully established 'minimum contacts' in the forum State. The
nonresident defendant has purposefully established minimum contacts "* * *
where the contacts proximately result from actions by the defendant himself
that create a 'substantial connection' with the forum State * * * where the
defendant 'deliberately' has engaged in significant activities within a State * *
* or has created 'continuing obligations' between himself and residents of the
forum * * * he manifestly has availed himself of the privilege of conducting
business there, and because his activities are shielded by 'the benefits and
protections' of the forum's laws it is presumptively not unreasonable to
require him to submit to the burdens of litigation in the forum as well."
Furthermore, minimum contacts are satisfied when the defendant
foreseeably causes injury in the forum state if "'* * * the defendant's
conduct and connection with the forum State are such that he should
reasonably anticipate being hauled into court there.' * * *" (Internal
citations omitted and emphasis added.)
Kentucky Oaks Mall Co. v. Mitchell’s Formal Wear, Inc., 53 Ohio St.3d 73,77, 559 N.E.2d 477
(1990) quoting Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462 (1985). In short, irrespective
of whether Ohio may exercise personal jurisdiction over a non-resident defendant based upon 7
Ohio’s long-arm statute, an Ohio court must refrain from exercising personal jurisdiction if the
defendant does not have sufficient minimum contacts with Ohio to make being hauled into an Ohio
court compatible with due process.
The Ohio Supreme Court has set forth a three part test for determining whether asserting
personal jurisdiction over a nonresident defendant comports with due process: (1) “the defendant
must purposefully avail himself of the privilege of acting in the forum state or causing a
consequence in the forum state”; (2) “the cause of action must arise from the defendant’s activities
there”; and (3) “the acts of the defendant or consequences caused by the defendant must have a
substantial enough connection with the forum state to make the exercise of jurisdiction over
defendant reasonable.” Kauffman, 126 Ohio St.3d 81, ¶49 quoting Bird v. Parsons, 289 F.3d 865,
874 (C.A. 6, 2002). The remaining Third Party Defendants did not purposefully avail themselves of
the privilege of acting in Ohio. As noted by the Ohio Supreme Court, “[t]he fact that [Defendants]
could foresee that [their proclamations would be viewed] and have an effect in Ohio, is not, in itself,
enough to create personal jurisdiction.” Kauffman, 126, Ohio St.3d 91, at ¶64 quoting Reynolds v.
International Amateur Athletic Fedn., 23 F.2d 1110, 1120 (6th Cir. 1994). When evaluating
personal jurisdiction over nonresident defendants in defamation cases, Ohio courts routinely
examine whether the facts are closer to those in Calder v. Jones, 465 U.S. 783, 104 S.Ct.1482
(1984) (focus of the story written and published by out of state defendants was California, the state
seeking to assert jurisdiction) or Reynolds v. Internatl. Amateur Athletic Fedn., 23 F.3d 1110 (1964)
(where the state in which personal jurisdiction was sought was not the focal point of the article).
Kauffman, 126 Ohio ST.3d 91, ¶64. The Kauffman Court held that the Calder effects test is also
valid when dealing with internet communications. Id. at ¶66. “While the effects of Internet conduct
may be felt in many [forums], the intent requirement allows a court to find a particular focal point.”
Id., at ¶66 (internal citations omitted). A review of the articles and comments at issue are not 8
focused upon Ohio generally or, more specifically, upon Holbrook, LLC’s actions relating to Huber
Heights. The focus of the postings, as indicated, was upon Holbrook LLC’s activities in Nevada
and Texas. The remaining Third Party Defendants, in conclusion, do not have sufficient minimum
contacts with Ohio to make this court’s exercise of personal jurisdicition over the remaining
defendants consistent with due process.
CONCLUSION
The remaining Third Party Defendants’ (Cynthia Calvert, Hartburg Publications, LLC, and
Frank Maurizo) motions to dismiss and quash service of process are hereby sustained.
SO ORDERED
s/MICHAEL L. TUCKER, JUDGE 9
This document is electronically filed by using the Clerk of Courts’ e-filing system. The system will
post a record of the e-filing account “Notifications” tab to e-filing participants.
L. MICHAEL BLY
(937) 223-1130
Attorney for Plaintiff, City Of Huber Heights Ohio
SUE SEEBERGER
(937) 291-8646
Attorney for 3rd Party Plaintiff/Defendant, Don Allen Holbrook LLC
KEVIN WILLIAM KITA
(216) 928-2200
Attorney for 3rd Party Defendants, Heather Dobrott, Cynthia Calvert, Hartburg Publications and Hartburg
Publications dba The Tribune
ADAM R WEBBER
(937) 222-3000
Attorney for 3rd Party Defendant, Heather Dobrott, Cynthia Calvert, Hartburg Publications and Hartburg
Publications dba The Tribune
ANDREW J REITZ
(937) 227-3716
Attorney for 3rd Party Defendant, Craig Malisow, Houston Press, and Pahrump Valley Times
ROBERT P BARTLETT
(937) 227-3707
Attorney for 3rd Party Defendant, Craig Malisow, Houston Press, and Pahrump Valley Times
FRANK MAURIZIO
(775) 209-5898
Pro Se 3rd Party Defendant, Frank Maurizio
Copies of this document were sent to non-e-filing participants by ordinary mail this date of filing.
A SCOTT, Bailiff
(937) 225-4448 General Divison
Montgomery County Common Pleas Court
41 N. Perry Street, Dayton, Ohio 45422
Case Title: CITY OF HUBER HEIGHTS OHIO vs DON ALLEN
HOLBROOK LLC
Case Number: 2012 CV 02947
Type: Decision
So Ordered
Michael L. Tucker
Electronically signed by mtucker on 2012-10-19 page 10 of 10
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