Mumaw et al v. Ohio State Racing Commission et al

Filing 87

Opinion and Order. Defendants Thistledown Racetrack, Richard Kinsey and Joel McCullar's Motion for Judgment on the Pleadings (Related Doc # 62 ) is granted in part and denied in part. Judge Christopher A. Boyko on 3/31/2015.(H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BENJAMIN MUMAW, ET AL.,

)
)
Plaintiff,
)
)
Vs.
)
)
OHIO STATE RACING COMMISSION )
ET AL.,
)
)
Defendant.
)

CASE NO.1:13CV1048
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO:
This matter is before the Court on Defendants’ Thistledown Racetrack L.L.C, Richard
Kinsey and Joel McCullar’s Motion for Judgment on the Pleadings (ECF #62). For the
following reasons, the Court grants, in part, and denies, in part, Defendants’ Motion.
Plaintiffs, Benjamin Mumaw and Joshua Mumaw, are Ohio residents and members of a
father/son operation that breeds and trains racehorses and Plaintiff, Eyes of a Child Stables, is a
racing consortium and registered partnership in the State of Ohio. In this action, they seek
monetary damages and injunctive relief against the Commission and the other named
Defendants.
The Ohio State Racing Commission is a statutorily created Ohio agency charged with the
regulation, supervision and rule enforcement for Thoroughbred and Standardbred horse racing in
the State of Ohio. The Commission vests its authority regarding horse racing, participants,
personnel and activities involved in horse racing in a Board of Stewards. On November 8, 2012,
the Board of Stewards at Thistledown Racetrack, under the Commission’s authority, withdrew
Plaintiffs’ horse, Officer Moo La Moo, from a race. Plaintiffs’ horse was withdrawn following

Defendant Deborah Jones’s communication alleging that Plaintiffs had a horse at Sugar Creek
Livestock Auction, which is known to occasionally sell horses to slaughterhouses. The Board of
Stewards also suspended Plaintiffs’ track privileges for the balance of 2012 and, after a later
hearing, permanently barred them from entry.
Although selling and purchasing horses at auction for the purpose of slaughter violates no
state or federal laws, the Thistledown Boarding Agreement prohibits parties from transporting
race horses for slaughter or at an auction house that sells horses for slaughter. Plaintiff Joshua
Mumaw was the recorded owner of the former race horse, High Success, when it was sold at
Sugar Creek Livestock Auction. Plaintiffs claim, however, that the horse had been given to “a
woman,” and deny any part in or knowledge of the horse being at auction.
Plaintiffs’ Second Amended Complaint alleges Thistledown impermissibly prevented
them from racing horses that were already entered in races and ejected and excluded Plaintiffs
from Thistledown Racetrack without cause or inquiry. Plaintiffs allege these actions by
Thistledown deprived Plaintiffs of their occupation and ability to make a living and essentially
bars Plaintiffs from participating in Thoroughbred Racing.
Plaintiffs further allege Thistledown defamed Plaintiffs and cast them in a false light by
claiming Plaintiffs engaged in selling a horse to a slaughterhouse when Plaintiffs had not.
Plaintiffs Second Amended Complaint alleges “Richard Kinsey and Joel McCullar are
members of and comprise the Board of Stewards I, along with Defendant Gore, and are hired,
supervised and assigned to Thistledown Racetrack by Thistledown Racetrack and licensed, approved
and jointly supervised by the Ohio State Racing Commission and who have absolute authority over
all racing, persons and other matters on the premises of a permit holder;” (SAC at ¶ 21). Because

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they were acting under color of state law, Plaintiffs contend Kinsey and McCullar violated Plaintiffs’
United States and Ohio Constitutional due process rights in both their official and individual
capacities by scratching Plaintiffs’ horse from a race without a pre-deprivation hearing or adequate
post-deprivation due process.
Plaintiffs’ Second Amended Complaint further alleges Thistledown breached its Stall
Agreement with Plaintiffs when it suspended Plaintiffs’ track privileges without cause. Also,
Plaintiffs’ allege Thistledown, acting in concert with Kinsey and McCullar, deprived Plaintiffs of
their due process rights by scratching Plaintiffs’ horse from racing without cause and preventing
Plaintiffs from racing horses at Thistledown in the future. Plaintiffs further allege Thistledown
tortiously interfered with Plaintiffs’ future economic opportunities when it suspended and expelled
Plaintiffs’ from Thistledown.
Plaintiffs seek Declaratory Relief asking the Court to find paragraph 7 of the Thistledown
Stall Agreement, prohibiting Thistledown boarders from transporting horses to slaughterhouses, as
unenforceable as against public policy.
LAW AND ANALYSIS

After the pleadings are closed but within such time as not to delay the trial, any party
may move for judgment on the pleadings. Fed. R. C.iv. P. 12(c). In this jurisdiction, “[t]he
standard of review for a judgment on the pleadings is the same as that for a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) . . . . We ‘construe the complaint in the light
most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and
determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims
that would entitle relief.’” Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383,
389 (6th Cir. 2007) (citations omitted). The Court’s decision “rests primarily upon the
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allegations of the complaint”; however, “‘exhibits attached to the complaint[] also may be taken
into account.’” Barany-Snyder v Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (citation omitted)
(brackets in the original). Lastly, a Rule 12(c) motion “is granted when no material issue of fact
exists and the party making the motion is entitled to judgment as a matter of law.” Paskvan v.
City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991).
Due Process Violations Under the United States and Ohio Constitutions
According to Defendants, Plaintiffs’ due process claims, found in Counts II, III, VI and
VIII, and brought under 42 U.S.C. § 1983, all arise out of the scratching of Plaintiffs’ horse,
Officer Moo La Moo from a race at Thistledown. However, according to Defendants, these
claims fail as a matter of law because Plaintiffs’ fail to allege the deprivation of a life, liberty or
property interest protected by the Due Process Clause of the Fourteenth Amendment. “To state a
claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed favorably,
establish (1) the deprivation of a right secured by the Constitution or laws of the United States
(2) caused by a person acting under the color of state law.” Sigley v. City of Parma Heights, 437
F.3d 527, 533 (6th Cir.2006). Plaintiffs allege due process violations under the United States
and Ohio Constitutions. The Constitution protects both an individual’s substantive and
procedural due process rights. Substantive Due Process has been defined as, “the doctrine that
governmental deprivation of life, liberty, or property are subject to limitations regardless of the
adequacy of the procedures employed.” Pearson v. City of Grand Banc, 961 F.2d 1211, 1216
(6th Cir. 1992). Furthermore, substantive due process encompasses, “the right not to be subject
to arbitrary and capricious action by a state either by legislative or administrative action...” Id at
1217.

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“Procedural due process imposes constraints on governmental decisions which deprive
individuals of “liberty” or “property” interests within the meaning of the Due Process Clause of
the Fifth or Fourteenth Amendment.” Matthews v. Eldridge, 424 U.S. 319, 332 (1976). The
fundamental requirement of due process is an opportunity to be heard at a meaningful time and
in a meaningful manner.” Id. at 333. “(D)ue process is flexible and calls for such procedural
protections as the particular situation demands.” Id. at 334, citing Morrissey v. Brewer, 408 U.S.
471, 481, (1972). In analyzing procedural due process claims courts must consider three factors:
“(1)some substantive right - life, liberty or property - must be at stake; (2) some deprivation of
that substantive right must occur; and (3) the deprivation must occur without due process. If the
process for the deprivation is adequate, then no due process violation has occurred.” Brickner v.
Voinovich, 977 F.2d 235, 237 (6th Cir.1992).
Plaintiffs do not distinguish whether their due process claims involve deprivation of their
substantive or procedural due process rights. Defendants characterize them as procedural due
process claims and Plaintiffs do not challenge Defendants’ assertion. Regardless, both claims
must first establish the deprivation of a life, liberty or property interest.
The Court begins by analyzing what deprivation of a constitutional right is alleged in
Plaintiffs’ Second Amended Complaint as it impacts both Plaintiffs’ Due Process and Abuse of
Power claims.1 According to Plaintiffs’ Second Amended Complaint,

1

In its Opinion and Order of Garrison’s Motion for Judgment on the Pleadings the
Court held an Abuse of Power claim under federal law is analyzed similarly to a
Due Process violation claim. “Plaintiffs’ Abuse of Power Claim fails as a matter
of law insofar as it states a claim under Ohio law because Ohio does not recognize
such a claim. See Peters v. Ohio Dept. of Natural Res., Case No. 03AP-350, 2003
WL 22480395, *4 (Ohio App. Dist 10, Nov. 4, 2003). ‘However, an abuse of
power claim can be brought in federal court as substantive or procedural due
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21. Richard Kinsey and Joel McCullar are members of and comprise the Board of
Stewards I, along with Defendant Gore, and are hired, supervised and assigned to
Thistledown Racetrack by Thistledown Racetrack and licensed, approved and
jointly supervised by the Ohio State Racing Commission and who have absolute
authority over all racing, persons and other matters on the premises of a permit
holder;

22. Thistledown Racetrack, LLC. is a Thoroughbred Horse Racing Facility
located in North Randall, Ohio and a subsidiary of Caesars Entertainment
Corporation, a Delaware corporate entity which owns and operates multiple
resort, entertainment, gaming and horse racing properties throughout several
countries under a variety of names;

63. The Board of Stewards collectively and each in their individual capacities and
under color of law did scratch the horse known as Officer Moo La Moo from
Thistledown Race 7 on the 9th day of November, 2012 based solely upon the phone
call of an animal rights advocate who has no authority and holds no position with
either the Ohio State Racing Commission or Thistledown Racetrack;
64. The Board of Stewards collectively and each in their individual capacities and
under color of law did scratch the horse known as Officer Moo La Moo from
Thistledown Race 7 on the 8th day of November, 2012 without cause and knowing
that Plaintiffs were not in violation of any law of the State of Ohio or rule or
regulation of the Ohio State Racing Commission;

65. The Board of Stewards collectively and each of them individually and under
color of law deprived Plaintiffs of property and liberty rights and knowingly took
adverse actions against innocent licensees for the primary purpose of placating an
unrelated third party without first providing a pre-deprivation hearing or
providing a post-deprivation hearing; or any due process whatsoever in violation
of the Fourth and Fourteenth Amendment to the U.S. Constitution and Article I,
Sections 1 and 14 of the Ohio Constitution;
93. Once a horse is properly entered in a particular race, property rights attach
evoking the due process requirements of the Fourth and Fourteenth
Amendments to the U.S. Constitution and Article 1, Sections 1 & 14 of the Ohio

process arguments.’” Garrison Opinion and Order pgs. 11-12 citing Schwartz v.
City of Conneaut, Ohio, Case No.09 CV 1222, 2009 WL 4730594, 6 (N. D. Ohio,
Dec. 8, 2009) See also Myers v. Delaware County, Case No. 2–07–cv–844, 2008
WL 4862512, * 9–10, (S. D. Ohio Nov. 7, 2008).
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Constitution (emphasis added).
Thus, it is clear that the Second Amended Complaint alleges a property interest in racing
at Thistledown. Plaintiffs argue the action involves a property interest because they are licensed
by the State of Ohio to engage in Thoroughbred Racing yet, were deprived of the right to race by
the Board of Stewards and Thistleedown. “Whether a person has a “property” interest is
traditionally a question of state law.” EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 855 856 (6th Cir. 2012); Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (“The hallmark
of property ... is an individual entitlement grounded in state law.”). However, “[a]lthough the
underlying substantive interest is created by an independent source such as state law, federal
constitutional law determines whether that interest rises to the level of a legitimate claim of
entitlement protected by the Due Process Clause.” Town of Castle Rock v. Gonzales, 545 U.S.
748, 757 (2005). “[A] party cannot possess a property interest in the receipt of a benefit when the
state's decision to award or withhold the benefit is wholly discretionary.” Med Corp., Inc. v. City
of Lima, 296 F.3d 404, 409 (6th Cir.2002).

The Court finds Plaintiffs’ Second Amended Complaint fails to allege a deprivation of a
property right or liberty right in horse racing at a particular track in a particular race. While
Plaintiffs generally allege a property and liberty interest deprivation, at paragraph 93 of their
Second Amended Complaint, Plaintiffs allege, “ Once a horse is properly entered into a
particular race, property rights attach evoking the due process requirements of the Fourth and
Fourteenth Amendments to the U.S. Constitution and Art. I, Sections 1 and 14 of the Ohio
Constitution.” Plaintiffs expressly allege a property interest attaches when a horse is entered in a
race. Plaintiffs do not allege a particular liberty interest, rather, they merely allege a protected
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liberty interest without describing the interest.

Thus, Plaintiffs argue the property interest is the right not to have a horse scratched from
a race, once its been entered, without due process. The Court finds several problems with this
naked assertion. First, while United States Supreme Court recognizes property interests in
licenses, (see Barry v. Barchi, (1979) 443 U.S. 55), Plaintiffs’ license is not at issue. Plaintiffs
do not allege that the Board of Stewards and/or Thistledown have revoked, suspended or
otherwise challenged Plaintiffs’ license to race horses in the State of Ohio. In fact, during the
course of this litigation the Ohio State Racing Commission has indicated it had no intention of
pursuing any action against Plaintiffs’ license. Instead the Plaintiffs’ allege a property interest in
having a horse race in a particular race once it has been entered. The Court has been unable to
ascertain any caselaw supporting Plaintiffs’ position that the right to enter a race is a property
right for purposes of a due process claim.

The Court is aware of one case wherein a court determined that the right to have a horse
race in a race constituted a protected liberty interest. In Bier v. Fleming, 538 F.Supp. 437 (N.D.
Ohio 1981), the plaintiff was a harness horse driver-trainer who was excluded from racing at the
Painesville Meet, a race held at Northfield Park Racetrack, a privately owned harness race
venue. Plaintiff’s license was suspended and ultimately was not renewed by the Ohio State
Racing Commission. Plaintiff alleged his due process rights were violated when he was
prevented from racing at the Painesville Meet without a hearing. The court agreed, holding
plaintiff had a liberty interest in his occupation of horse racing. The court reasoned that plaintiff
had a property interest in his horse racing license because Ohio law governed the circumstances

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where such a license may be revoked, denied or suspended. The court then concluded that
plaintiff had a liberty interest in his occupation as a driver to race horses in Ohio and pursue his
occupation because such interest derived from his property interest in his license. Therefore, the
court concluded, plaintiff could not be deprived of pursuing his occupation absent a hearing.

The court in Bier relied in part on the United States Supreme Court decision in Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972).

When defining the parameters of

a liberty interest, the Supreme Court stated “[w]hile this court has not attempted to define with
exactness the liberty . . . guaranteed (by the Fourteenth Amendment), the term has received much
consideration and some of the included things have been definitely stated. Without doubt, it
denotes not merely freedom from bodily restraint but also the right of the individual to contract,
to engage in any of the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized . . . as essential to the
orderly pursuit of happiness by free men.” Quoting Meyer v. Nebraska, 262 U.S. 390, 399,
(1923). Thus, in finding a liberty interest in racing, the court in Bier, determined that because
the denial affected Bier’s ability to engage in his occupation, it affected a liberty interest as
defined by the Supreme Court in Roth. The Sixth Circuit has held that there also exists a
property interest in the continuing operation of a business. See Women’s Medical Professional
Corp. V. Baird, 438 F.3d 595 (6th Cir. 2006).

The Bier decision was appealed to the Sixth Circuit, which overruled the decision on the
grounds that Plaintiff could not show state action. The Court declined to consider whether the

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district court’s conclusion that Bier had a liberty interest in racing at a particular race was
correct. Therefore, the Court has no binding precedent upon which to apply to the facts of this
case.

This case presents a number of facts distinguishing it from Bier that, in the Court’s
opinion, militate against finding a protected liberty or property interest. First, while Bier’s
license was revoked, depriving him of the ability to engage in his profession, Plaintiffs in this
case have not suffered such a deprivation. Plaintiffs’ Second Amended Complaint alleges that
Defendants’ are “depriving Plaintiffs of their occupation and ability to make a living and
essentially barring Plaintiffs’ participation in the Thoroughbred Racing Industry.” (SAC at 5).
However, this is stated in a conclusory fashion with no factual allegation explaining how the
scratching of Plaintiffs’ horse in one race or the barring of Plaintiffs’ race privileges at one track
in the State of Ohio essentially bars them from Thoroughbred Racing. In fact, in his affidavit
filed in support of his Motion for Preliminary Injunction, Plaintiff Ben Mumaw attested that after
the Thistledown suspension he raced horses in Pennsylvania and was afraid that other Ohio
racetracks may ban him. (Mumaw aff. ECF 2-8). Therefore, Plaintiffs’ allegations that they
cannot effectively pursue their chosen profession is belied by their own previously filed affidavit
attesting that they were, in fact, able to continue racing horses.

Also, conclusory allegations without sufficient factual underpinning cannot maintain a
cause of action. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” As the Court held
in [Bell Atlantic v.] Twombly, 550 U.S. 544, 127 S. Ct. 1955 [(2007)], the pleading standard Rule

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8 announces does not require “detailed factual allegations,” but it demands more than an
unadorned, the-Defendant-unlawfully-harmed-me accusation. Id. at 555... A pleading that offers
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not
do.” Id. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further
factual enhancement.” Id. at 557. According to the Sixth Circuit, the standard described in
Twombly and Iqbal “obliges a pleader to amplify a claim with some factual allegations in those
contexts where such amplification is needed to render the claim plausible.” Weisbarth v. Geauga
Park Dist., 499 F.3d 538, 541 (6th Cir.2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd
Cir. 2007)). That is, “Iqbal interpreted Twombly to require more concrete allegations only in
those instances in which the complaint, on its face, does not otherwise set forth a plausible claim
for relief.” Weisbarth, 499 F.3d at 542. A complaint should be dismissed when it fails to allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
The Court holds that such an allegation without sufficient factual pleading fails to support their
claim that Plaintiffs’ are unable to engage in their occupation; especially when such a
representation is belied by their earlier representations.

Furthermore, the Court finds no liberty or property interest in this matter because the
actions taken by Thistledown and the Board of Stewards were a sanction arising, not from an
Ohio statute, rule or regulation, but was instead, an alleged violation of the Stall Agreement.
According to Plaintiffs’ Second Amended Complaint, they were scratched from the race and
barred from further racing at Thistledown due to the alleged sale of High Success at an auction
for the purposes of slaughter. Plaintiffs’ Stall Agreement, which Plaintiffs’ allege is a contract,
contains the following language:
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Any Trainer of Owner stabling a horse at Thistledown who directly or indirectly
is part of the transport of a horse from Thistledown to a slaughterhouse or an
auction house who sells horses for slaughter will be prohibited from having any
stalls at Thistledown.
On page two of the Stall Application it reads:

If any Applicant or any employee, representative or agent of Applicant violates
the terms an conditions set forth above, THISTLEDOWN reserves the right, in its
sole discretion and without prior notice to exercise any of all of the following:
...Refuse any entry or revoke the acceptance of any entry of any horse by
Applicant in any race during the current race meet:.. Revoke Applicant’s
privileges regarding Thistledown...
Plaintiffs’ Second Amended Complaint not only alleges this Agreement was entered into
by the parties but further seeks to enforce it in its Breach of Contract claim. Because Plaintiffs’
suspension did not arise from a state statute, regulation or rule but instead arose from a
contracted for agreement to stable horses, no protected interest was implicated.

This conclusion is further supported by the Sixth Circuit’s determination that no
protected property interest is implicated where the state actor’s actions were based on
discretionary authority. “If an official has unconstrained discretion to deny the benefit, a
prospective recipient of that benefit can establish no more than a “unilateral expectation” to it.
Roth, 408 U.S. at 577, 92 S.Ct. 2701. Med Corp., Inc. v. City of Lima, 296 F.3d 404, 409 -410
(C.A.6 (Ohio),2002). Assuming for the purposes of this Opinion only that Thistledown and its
Board of Stewards actions were state actions, the Stall Agreement gives Thistledown sole
discretion to prohibit Plaintiffs’ race privileges for alleged violation of the Agreement. By
agreeing to these terms, Plaintiffs acknowledged Defendants’ discretionary authority to scratch
their horse and exclude them from Thistledown for violations of the Stall Agreement. With such

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discretionary authority, Plaintiffs expectation was a unilateral expectation under applicable law
and does not support the finding of a protected property or liberty interest.

Therefore, the Court finds Defendants are entitled to judgment as a matter of law on
Plaintiffs’ due process claims because Plaintiffs cannot assert a protected property or liberty
interest.

Defendants move the Court to dismiss Plaintiffs’ due process claims insofar as they assert
due process violations for injury to their reputation and contract rights. In Ferencz v. Hairston
119 F.3d 1244, 1249 (6th Cir. 1997) the Sixth Circuit, quoting the United States Supreme Court
in Wisconsin v. Constantineau, 400 U.S. 433 (1971), reads “the Supreme Court stated that
‘[w]here a person's good name, reputation, honor, or integrity is at stake because of what the
government is doing to him, notice and an opportunity to be heard are essential.’” Id. at 437, 91
S.Ct. at 510. Furthermore, the right to contract is a property right under Ohio law. Mertik v.
Blalock, 983 F.2d 1353, 1360 (6th Cir.1993) (citing Joseph Bros. v. Brown, 65 Ohio App.2d 43,
415 N.E.2d 987, 990 (1979)); as are the interests created by contract. Joseph Bros., 415 N.E.2d
at 990.

While these are viable bases for due process violation claims, Plaintiffs’ Second
Amended Complaint alleges no such constitutional claims. Nowhere in their Second Amended
Complaint, either in the facts or individual claims, do the Plaintiffs assert §1983 due process
claims brought under a contract or for defamation. While the Second Amended Complaint
alleges Breach of Contract, Defamation and False Light claims against these Defendants, these
claims are brought solely as state law claims. Nowhere in the claims themselves do Plaintiffs
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assert that the breach of contract or defamation deprived them of a constitutionally protected
interest nor do they allege that the breach or defamation violated a constitutional right.
Plaintiffs’ Second Amended Complaint plainly alleges the due process violations are brought for
deprivation of property rights in entering a horse for a race and denying Plaintiffs the right to
race at Thistledown. This is further bolstered by Plaintiffs’ representation in its Opposition brief
that “ Again the Barchi Court makes clear that a licensee has a property interest in that license
(internal citation omitted). Paragraph 65 of Plaintiffs’ Complaint clearly provides that this
property interest and the deprivation thereof form the basis for their Constitutional claims.”
(Opposition brief pg. 8). There is no allegation anywhere in the Complaint alleging due process
violations arising from a contract or defamation. Plaintiffs’ acknowledge that their Defamation,
and False Light claims are brought solely under state law. (Opposition brief at pg. 15.

Therefore, the Court dismisses Plaintiffs’ due process claims under the United States and
Ohio Constitutions at Counts II, III, VI and VIII of Plaintiffs’ Second Amended Complaint.2

Breach of Contract

Defendants move to dismiss Plaintiffs’ Breach of Contract claim because they contend
Plaintiffs’ Second Amended Complaint only alleges denial of stall space which is at

2

U.S. and Ohio Constitutional claims are coextensive and are analyzed the same.
Walsh v. Erie County Dept. of Job and Family Services, 240 F.Supp.2d 731
(N.D.Ohio 2003).
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Thistledown’s sole discretion. Nothing in the Second Amended Complaint alleges Defendants
breached a promise to Plaintiffs.

The Court holds that Plaintiffs have alleged the existence of a contract - i.e., the Stall
Agreement. Plaintiffs have alleged they were scratched from a race and denied privileges to
Thistledown for breaching a condition of the agreement - i.e., not to transport a horse from
Thistledown to a slaughterhouse or auction that sells horses for slaughter. Plaintiffs are not
alleging denial of stall space. Plaintiffs contend that Thistledown sanctioned Plaintiffs pursuant
to the Stall Agreement because they violated the Stall Agreement when they transported a horse
to an auction that sells horses to slaughter. This, according to Plaintiffs, is not true. Plaintiffs
allege that they suffered injury in having their horse scratched from a race and having their
racing privileges due to Defendants’ imposition of a contractual penalty for such a violation as
described in the Stall Agreement. The parties agree selling a horse to slaughter does not violate
Ohio or federal law. Plaintiffs aver the sanctions were imposed strictly for their alleged breach
of the Stall Agreement. Plaintiffs aver they did not breach the agreement and Thistledown, in
violation of the terms of the agreement, imposed sanctions. Therefore, the Court finds
Plaintiffs’ have asserted sufficient facts stating a plausible claim for breach of contract and
denies Defendants’ Motion on Plaintiffs’ Breach of Contract claim.

Tortious Interference with Future Economic Opportunities

Plaintiffs’ Second Amended Complaint alleges Defendants’ excluding Plaintiffs’ from
Thistledown “tortuously (sic) interfered with Plaintiffs’ abilities to conduct business and
economically benefit from the conduct of their business.” (SAC at 119). “Under Ohio law,
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interference with business relationships or contracts generally occurs when a person, without
privilege to do so, induces or otherwise purposely causes a third person not to enter into or
continue a business relation with another or not to perform a contract with another.” Edwards v.
Woodforest Nat. Bank, No. 1:11Cv2205, 2012 WL 1906309, 4 (N. D.Ohio, May 24, 2012) citing
Wauseon Plaza Ltd. Psp. v. Wauseon Hardware Co., 156 Ohio App.3d 575, 588, (2004); A &
B—Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d
1, 14,(1995). “The elements of a cause of action for interference with a prospective business
opportunity under Ohio law are: (1) the existence or the prospect of a business relationship; (2)
that defendant knew of the plaintiff's prospective relationship; (3) that defendant intentionally
and materially interfered with the plaintiff's prospective relationship; (4) the interference was
without justification; and (5) the interference caused the plaintiff to suffer damages.” Edwards,
at *4. See also Chrvala v. Borden, Inc., 14 F.Supp.2d 1013, 1023 (S.D.Ohio 1998); Dish
Network, LLC v. Fun Dish, Inc., No. 1:08 CV 1340, 2010 WL 5230860, at *5 (N.D.Ohio Dec.16,
2010).

Defendants move to dismiss the claim because Plaintiffs’ Second Amended Complaint
fails to allege any prospective business relationship with a third party that was affected by
Thistledown’s excluding Plaintiffs from its premises.

Plaintiffs’ contend the business relationship affected is Plaintiffs’ relationship with
Defendants. However, as Defendants point out under Ohio law “a person cannot tortiously
interfere with his own business relationship.” Dolan v. Glouster, 173 Ohio App.3d 617, 630-631
(Ohio App. 4 Dist.,2007). Therefore, in the absence of some allegation or argument that

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Plaintiffs’ business relationship with a third party was interfered with, Plaintiffs’ tortious
interference claim fails as a matter of law.

Defamation and False Light

Plaintiffs’ Second Amended Complaint alleges Thistledown defamed Plaintiffs by
terminating Plaintiffs’ track privileges. In doing so, Plaintiffs contend Thistledown advertised to
all the world that Plaintiffs engaged in improper or unlawful conduct in attempting to sell a horse
to slaughter. According to Plaintiffs, this representation was false and Thistledown took no steps
to investigate the matter before disclosing it to others.

To assert a claim of defamation there must be: 1) a false statement of fact; 2) the false
statement was defamatory; 3) the false defamatory statement was published by defendants; 4) the
publication was the proximate cause of the injury to the plaintiff; and 5) the defendants acted
with the requisite degree of fault. Voyticky v. Village of Timberlake, Ohio 412 F.3d 669, 678 (6th
Cir. 2005) citing Celebrezze v. Dayton Newspapers, Inc., 41 Ohio App.3d 343(1988).

To assert a claim for false light, “[i]n Ohio, one who gives publicity to a matter
concerning another that places the other before the public in a false light is subject to liability to
the other for invasion of his privacy if (a) the false light in which the other was placed would be
highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the false light in which the other would be
placed.” Welling v. Weinfeld, 113 Ohio St.3d 464, 473 (Ohio,2007).

Both these state law causes of action require knowledge or reckless disregard for the
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falsity of the statements made and publication to third parties. Plaintiffs’ Second Amended
Complaint alleges the same facts in support of both Plaintiffs’ Defamation and False Light
claims. Plaintiffs allege Defendants suspended Plaintiffs for the alleged transport of a horse to
slaughter. By suspending Plaintiffs, Defendants “advertized (sic) to all the world that Plaintiffs
engaged in improper or unlawful activity by selling or attempting to sell a horse for slaughter
and human consumption.” (SAC at 139 & 151).

Defendants move for judgment on these claims, contending that Plaintiffs’ fail to allege
facts plausibly supporting these claims. In particular, Defendants argue Plaintiffs have failed to
allege a false statement made by Defendants, rather, the Complaint only alleges that Defendants
relied on the false statements of Deborah Jones. Reliance on another’s false statements is not
defamation according to Defendants. Furthermore, Defendants contend Plaintiffs fail to allege
publication of false statements to third parties. Simply alleging that Defendants suspended
Plaintiffs is insufficient to support defamation of false light claims.

Plaintiffs respond that the Second Amended Complaint sufficiently alleges Defamation
and False Light claims. Not only did Plaintiffs expressly allege Thistledown advertised to the
whole world but further alleged “Thistledown company officials conveyed to others that
Plaintiffs had consigned or were directly responsible for the consignment of the horse known as
High Success to a public auction for the purpose of slaughter and human consumption thereby
defaming Plaintiffs” (SAC at 143 & 155). Therefore, Plaintiffs contend, their Second Amended
Complaint plausibly alleges facts supporting claims for Defamation and False Light.

Although sparse, the Court finds sufficient facts have been pled to survive Defendants’
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Motion. First, Plaintiffs have alleged that Thistledown conveyed false information. This
identifies the corporation as the defamer. Second, Plaintiffs identify the allegedly false
information conveyed - i.e., that Plaintiffs consigned or were directly responsible for consigning
a horse to slaughter. Plaintiffs expressly state this was false. Lastly, Plaintiffs allege the
publication of this information advertised to all the world that Plaintiffs engaged in conduct
damaging to Plaintiffs reputation. Ordinarily this may not be enough to show publication but in
this context wherein Plaintiffs allege it was disclosed in the context of announcing Plaintiffs’
suspension, discovery will be able to determine whether such information was transmitted to the
general public or some third parties. Therefore, the Court denies Defendants’ Motion for
Judgment on the Pleadings on Plaintiffs’ Defamation and False Light claims.

Declaratory Relief on Section 7 of the Stall Agreement
Defendants move to dismiss Count X of Plaintiffs’ Second Amended Complaint which
seeks a declaration from the Court that the Stall Agreement’s requirement that trainers not
transport horses to a slaughterhouse nor to an auction that sells horses to slaughter, is
unenforceable as against public policy. Plaintiffs waive the claim in their Brief in Opposition at
page 19 and the Court grants Defendants’ Motion and dismisses the claim.

Therefore, for the foregoing reasons, the Court grants Defendants’ Motion, in part, and
dismisses Plaintiffs’ Due Process claims found at Counts II, III, VI and VIII. The Court further
dismisses Plaintiffs’ Tortious Interference claim at Count IX and Plaintiffs’ claim for
Declaratory Relief found at Count X. The Court denies, in part, Defendants’ Motion for
Judgment on the Pleadings regarding Plaintiffs’ state law claim for Breach of Contract at Count

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VII, Plaintiffs’ Defamation claim at Count XI and Plaintiffs’ False Light claim at Count XII.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 31, 2015

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