Bush v. Mercy Health System Northern Region et al

Filing 36

Order granting Defendant's Motion for partial dismissal (Related Doc # 21 ). Judge James G. Carr on 3/26/2013.(G,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Monica Bush,

Case No. 3:12CV2592
Plaintiff
v.

ORDER

Mercy Health Systems Northern Region, et al.,
Defendant

This is a suit by an employee, Monica Bush, against her employer, Mercy Health
Systems Northern Division, which operates plaintiff’s place of employment, St. Vincent’s
Hospital in Toledo, Ohio. (St. V’s). Plaintiff amended complaint alleges, inter alia, that St. V.’s
security guards assaulted her (Count 5), St. V’s violated the Labor Relations Management Act
(LMRA) (Count 6), 11 U.S.C. § 301 et seq., and she is entitled to “any legal or equitable cause
of action” (Count 7).
Pending is defendant’s motion for partial dismissal of these counts. (Doc. 21). For the
reasons that follow, I grant the motion.
1. Count 5: Assault
Defendant seeks dismissal on the basis that plaintiff filed her state law cause of action for
assault outside the applicable one year statute of limitations. O.R.C. § 2305.111(B). The incident
giving rise to this count occurred on May 23, 2011. Plaintiff filed her original complaint on
October 16, 2012. In that complaint she named the defendant security guards as John Does.
Plaintiff filed an amended complaint on November 5, 2012. That complaints names
specific individuals as well as John Does as the St. V’s security guards responsible for the
assault.

Plaintiff thus does not deny that her original complaint was outside the statute of
limitations. Her opposition to the motion to dismiss on that ground asserts that at the time of
filing, she did not know the names of the St. V’s personnel involved.
That assertion is off the mark. To bear her burden of showing that the statute of
limitations was tolled, she must show – and thus allege in her complaint – that, despite the
exercise of due diligence, she was unable to learn the identities of the named individuals. See,
e.g., Sharp v. Ohio Civil Rights Commission, 2005 WL 589889, *3 (Ohio App.) (lack of
information needed to trigger cause of action “would not have tolled the statute of limitations
because [plaintiff] could have obtained this information through due diligence.”)
Plaintiff’s complaint does not assert, much present to a degree of plausibility, see Bell
Atlantic v. Twombley, 550 U.S. 544, 570 (2007), that she acted with due diligence before the
statute of limitations ran to find out who the responsible individuals were.
All that to one side, it was not necessary for plaintiff to wait until she learned the
identities of her alleged assailants. She simply could – and should – have filed her original
complaint within the limitations period against St. V’s and its John Doe officers. This is hardly
an uncommon approach in other cases involving alleged assaults by unknown individuals – such
as police officers who violate a citizen’s civil rights.
Alternatively, plaintiff claims that proceedings relating to her grievance against the
officers tolled the statute of limitations. That is a novel suggestion, which, as defendant points
out, plaintiff entirely fails to support with any citation of pertinent authority.
Defendant is entitled to dismissal of Count 5.
2. LMRA: Count 6
Defendant contends that this court does not have jurisdiction to entertain plaintiff’s
claim that it breached the LMRA because the plaintiff failed to exhaust her remedies under the
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collective bargaining agreement. Plaintiff does not deny that this is so. Instead, she argues that
exhaustion is not necessary. But it is. See, e.g., Winston v. Gen’l Delivery Drivers,
Wharehousemen & Helpers Local Union No. 89, 93 F.3d 251, 255 (6th Cir. 1966).
Plaintiff cannot simply elect to bypass established grievance procedures in whole or part,
whether on the basis, as here, of putative futility, or otherwise, and sue her employer for an
alleged violation of the collective bargaining agreement.
Defendant is entitled to dismissal of Count 6.
3. Count VII: Other Relief
By its own terms (‘Plaintiff states that she asserts any legal or equitable cause of action
for which she is entitled to relief, as based upon the facts as stated herein or may be discovered
later.”) Count 7 fails to state a cognizable cause of action. If, as she seeks to preserve the ability
to do, she can seek leave to amend to state additional causes of action if grounds to do so arise
later in the litigation.
Conclusion
For the forgoing reasons, it is hereby
ORDERED THAT defendant’s motion for partial dismissal (Doc. 21) be, and the same
hereby is granted.
So ordered.
/s/ James G.Carr
Sr. U.S. District Judge

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