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Photo of Mahoning County

Court

Mahoning County

Ohio

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Case Information

Filed 2023-01-17
Status CLOSED
Type Civil Boardman
Docket 39 entries
Disposition dismiss

Parties

Plaintiff Essad, Scott C
Defendant America's Wholesale Outlet Llc|Mercure, Michael
Photo of Hon. Houser Joseph M

Judge

Hon. Houser Joseph M

Mahoning County (OH)

Ohio

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Lawyers

Docket Entries

  1. $0.00
  2. ADDITIONAL DEFENDANTS Receipt: 297365 Date: 01/17/2023
  3. Issue Date: 01/19/2023 Service: SUMMONS ISSUED Method: (B) CERTIFIED MAIL Cost Per: $ AMERICA'S WHOLESALE OUTLET LLC 6151 SOUTH AVE BOARDMAN, OH 44512 Tracking No: 9414726699042203611378 MERCURE, MICHAEL 13918 BEAVER SPRINGFIELD ROAD NEW SPRINGFIELD, OH 44443 Tracking No: 9414726699042203611385
  4. SUCCESSFUL SERVICE Method : (B) CERTIFIED MAIL Issued : 01/19/2023 Service : SUMMONS ISSUED Served : 01/21/2023 Return : 01/24/2023 On : AMERICA'S WHOLESALE OUTLET LLC Signed By : IKE MERCORE Reason : (B) SUCCESSFUL Comment : Tracking #: 9414726699042203611378
  5. UNSUCCESSFUL SERVICE Method : (B) CERTIFIED MAIL Issued : 01/19/2023 Service : SUMMONS ISSUED Served : Return : 01/30/2023 On : MERCURE, MICHAEL Signed By : NOT DELIVERABLE AS ADDRESSED Reason : (B) UNSUCCESSFUL Comment : NOT DELIVERABLE AS ADDRESSED Tracking # : 9414726699042203611385
  6. FAILURE OF SERVICE SENT TO ATTY./PLTF. FAILURE OF SERVICE Sent on: 01/30/2023 16:24:15.83
  7. NOTICE OF APPEARANCE AS COUNSEL OF RECORD FOR DEFENDANTS FILED BY Attorney: DESMOND, MARTIN P (77377)
  8. MOTION FOR ADDTIONAL TIME TO RESPOND TO PLAINTIFF'S COMPLAINT FILED Attorney: DESMOND, MARTIN P (77377)
  9. *DEFENDANT'S MOTION FOR ADDITIONAL TIME TO RESPOND TO PLAINTIFF'S COMPLAINT IS SUSTAINED. DEFENDANTS ARE GRANTED UNTIL MARCH 20, 2023, TO RESPOND./S/JMH
  10. MOTION TO DISMISS PLAINTIFFS COMPLAINT FILED BY Attorney: DESMOND, MARTIN P (77377). MKD
  11. HEARING SCHEDULED Event: CIVIL PRE TRIAL (B) Date: 05/15/2023 Time: 10:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2
  12. ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO RESPOND TO MOTION TO DISMISS, ETC FILED BY Attorney: BLACKSTONE, JAY (23662). MKD
  13. ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO RESPOND TO MOTION TO DISMISS, ETC GRANTED. /S/JMH/MKD
  14. PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS FILED BY Attorney: BLACKSTONE, JAY (23662)
  15. COUNSEL PRESENT FOR PLAINTIFF: JAY BLACKSTONE COUNSEL PRESENT FOR DEFENDANT: MARTIN P DESMOND DISCOVERY TO BE COMPLETED IN:60 DAYS DISPOSITIVE MOTIONS, IF ANY, IN:90 DAYS TRIAL TO:BENCH SET FOR BENCH TRIAL IN:120 DAYS OTHER: DEFENDANT'S MOTION TO DISMISS TO BE SET FOR NON-ORAL HEARING IN 30 DAYS. /S/ DONALD J DESANTO
  16. HEARING SCHEDULED Event: NON ORAL HEARING (B) Date: 06/26/2023 Time: 12:00 pm Judge: DESANTO, DONALD Location: COUNTY COURT # 2
  17. HEARING SCHEDULED Event: CIVIL TRIAL (B) Date: 09/18/2023 Time: 10:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2 Result: CONTINUED
  18. *DEFENDANTS AMERICA'S WHOLESALE OUTLET & MICHAEL MERCURE'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS PLAINTIFF'S COMPLAINT & OR ALTERNATIVELY, FOR PLAINTIFF TO PROVIDE A DEFINITE STATEMENT FILED Attorney: DESMOND, MARTIN P (77377)
  19. THE PROCEEDINGS This matter came on non-oral hearing on June 16, 2023, on the Motion to Dismiss Plaintiff's Complaint or Alternatively Provide a More Definite Statement filed by the Defendants on March 8, 2023; the Plaintiff's Memorandum in Opposition filed May 9, 2023 and the Defendants' Reply to Plaintiff's Memorandum in Opposition filed May 31, 2023. PRESENT WERE Neither party nor counsel was required to appear as the matter was considered by way of non-oral hearing. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Plaintiff filed his complaint on January 13, 2023. Plaintiff's complaint asserts that plaintiff is an attorney licensed to practice law in the state of Ohio. The complaint thereafter generally asserts that plaintiff agreed to provide services to the Defendants for various types of legal matters, sent invoices for services provided, that some invoices remain unpaid and alleges that defendant, America's Wholesale Outlet, owes the sum of $13,293.00 and defendant, Michael Mercure, owes the sum of $2,234.00. Plaintiff attached an account to the complaint. 2. In their joint motion to dismiss Defendants allege that plaintiff's complaint fails to state a claim upon which relief can be granted, alleges a claim outside the statute of limitations and fails to provide the necessary documentation in support of the claim. Defendants maintain the complaint is so vague and ambiguous that they cannot reasonably be required to frame a response. The defendants state the appropriate law regarding the standard of review for a Civ. R. 12(B)(6) motion and the court's limitation to consider only the allegations contained in the complaint. Defendants maintain that the complaint is void of factual allegations in support of any claim, asserting a failure to attach the contract, a failure to attach invoices and a failure to state whether the contract was in writing, oral or the terms of the contract. Defendants argue, in addition, that the plaintiff has failed to comply with Civ. R. 10(D)(1) in failing to attach a written instrument upon which the claim is premised. Defendants acknowledge however that an account was attached to the complaint but question the sufficiency of its details. 3. The Plaintiff in its memorandum in opposition argues Civ. R. 8(A)(1) merely requires a short and plain statement of the claim showing that the party is entitled to relief. Certain arguments made by the plaintiff in opposition to the motion to dismiss raise factual assertions not within the complaint and accordingly cannot be considered. Plaintiff maintains that he did attach an account to the complaint and as such complied with Civ. R. 10(D)(1). Plaintiff further argues that the complaint is sufficiently descriptive to permit the framing of a response. Plaintiff maintains that the defendants can simply deny the allegations of the complaint and then conduct discovery. 4. In their reply to Plaintiff's response in opposition the defendants argue that the plaintiff has an obligation to go beyond simply alleging the elements of a cause of action and must supply factual allegations in support. Defendant, Michael Mercure, argues that any breach of contract claim against him is beyond the statute of limitations and must be dismissed. 5. In York v. Ohio State Highway Patrol, 60 Ohio St. 3d 143 (1991) the Ohio Supreme Court addressed 12 (B)(6) motions and held: In O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St. 2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753, this court set forth the standard for granting a motion to dismiss pursuant to Civ. R. 12(B)(6). Specifically, the court held that in order for a court to dismiss a complaint for failure to state a claim upon which relief may be granted, it must appear "`beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" O'Brien at 245, 71 O.O. 2d at 224, 327 N.E. 2d at 755, citing Conley v. Gibson (1957), 355 U.S. 41, 45. In the recent case of Mitchell v. Lawson Milk Co. (1988), 40 Ohio St. 3d 190, 532 N.E. 2d 753, we elaborated upon this standard, noting that "[i]n construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party." Id. at 192, 543 N.E. 2d at 756, citing 2A Moore, Federal Practice (1985) 12-63, Paragraph 12.07 [2.-5]. This standard for granting a motion to dismiss is in accord with the notice pleading regimen set up by the Federal Rules of Civil Procedure and incorporated into the Ohio Rules of Civil Procedure. Under these rules, a plaintiff is not required to prove his or her case at the pleading 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. If the plaintiff were required to prove his or her case in the complaint, many valid claims would be dismissed because of the plaintiff's lack of access to relevant evidence. Consequently, as long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss. Id., pgs. 144,145 (emphasis added). 6. Based on the stated law above the Court cannot find beyond doubt that the plaintiff can prove no set of facts in support of his claim. The Court finds no basis for an order directing the plaintiff to provide a more definite statement as per Civ. R.12(E). The defendants have available to them the various provisions of the Civil Rules to conduct discovery. Additionally, plaintiff has attached an account to his complaint which complies with Civ. R. 10(D)(1). For all of the foregoing the Defendants' motion to dismiss or alternatively to provide a more definite statement is not well-founded DECISION 1. Defendants' Motion to Dismiss Plaintiff's complaint or Alternatively to Provide a More Definite Statement is overruled. _________________ ______________________________ Date Donald J. DeSanto, Magistrate Pursuant to Civil Rule 53(D)(3)(a)(iii) a party shall not assign as error the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civil Rule 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civil Rule 53(D)(3)(b). *
  20. DEFENDANTS AMERICAS WHOLESALE OUTLET AND MICHAEL MERCURES OBJECTIONS TO THE MAGISTRATES DECISION OVERRULING DEFENDANTS MOTION TO DISMISS FILED BY Attorney: DESMOND, MARTIN P (77377). MKD
  21. MOTION TO CONTINUE FILED BY DEFENDANT Attorney: DESMOND, MARTIN P (77377)
  22. MOTION TO CONTINUE APPROVED PENDING RULING ON DEFENDANT'S OBJECTIONS, PER MAGISTRATE
  23. MOTION BY DEFENDANTS TO CONTINUE TRIAL IS SUSTAINED. TRIAL IS CONTINUED UNTIL THERE IS A RULING ON THE DEFENDANT'S OBJECTIONS./S/JMH/DJD
  24. JUDGEMENT ENTRY: THE COURT HAS REVIEWED THE MAGISTRATE'S DECISION AND THE PLEADINGS OF THE PARTIES. THE MOTION TO DISMISS PLAINTIFFS CASE AGAINST DEFENDANT, AMERICAS WHOLESALE OUTLET LLC OR ALTERNATIVELY TO PROVIDE A MORE DEFINITE STATEMENT IS OVERRULED. DEFENDANTS MOTION TO DISMISS THE COMPLAINT AGAINST MICHAEL MERCURE IS GRANTED SINCE THE STATUTE OF LIMITATIOND HAS EXPIRED AND THE COMPLAINT WAS NOT FILED TIMELY. TRIAL TO BE SET ON THE CLAIMS AGAINST THE DEFENDANT, AMERICA'S WHOLESALE OUTLET LLC. /S/JMH/MKD
  25. HEARING SCHEDULED Event: CIVIL TRIAL (B) Date: 01/06/2025 Time: 10:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2 Result: UNAVAILABILITY OF COURT
  26. HEARING SCHEDULED The following event: CIVIL TRIAL (B) scheduled for 01/06/2025 at 10:00 am has been rescheduled as follows: Event: CIVIL TRIAL (B) Date: 01/27/2025 Time: 10:30 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2
  27. NOTICE OF DISMISSAL FILED. Attorney: BLACKSTONE, JAY (23662) SLL
  28. CASE DISMISSED WITH PREJUDICE. /S/JMH
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