Kaschalk v. Parker, et al.
Filing
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Memorandum Opinion and Order: Before the Court is the renewed motion of defendants for judgment on the pleadings of plaintiff's amended complaint, which incorporates defendants' arguments from their motion for judgment on the pleadin gs of plaintiff's original complaint. (Doc. Nos. 20 and 9 .) Plaintiff opposed defendants' first motion (Doc. No. 15 ), but did not file an opposition to the renewed motion. The renewed motion is granted, and counts IV (battery), V (assault), and VIII (intentional infliction of emotional distress) are dismissed with prejudice. Judge Sara Lioi on 7/11/2016. (S,He)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTHONY C. KASCHALK,
PLAINTIFF,
vs.
RICHARD E. PARKER, et al.,
DEFENDANTS.
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CASE NO. 5:15-cv-1871
JUDGE SARA LIOI
MEMORANDUM OPINION AND ORDER
Before the Court is the renewed motion of defendants for judgment on the pleadings of
plaintiff’s amended complaint, which incorporates defendants’ arguments from their motion for
judgment on the pleadings of plaintiff’s original complaint. (Doc. Nos. 20 and 9 ([“Renewed
Mot.”] and [“Mot.”], respectively.) Plaintiff opposed defendants’ first motion (Doc. No. 15
[“Opp’n”]), but did not file an opposition to the renewed motion. For the reasons that follow, the
renewed motion is granted.
I. BACKGROUND
Plaintiff Anthony Kaschalk (“plaintiff” or “Kaschalk”) is a former employee of
defendants Mid-Ohio Trucking, Inc. and Mid-Ohio Asphalt and Concrete, Inc. (collectively the
“Mid-Ohio defendants”). Defendant Richard Parker (“Parker”) was plaintiff’s supervisor.
Plaintiff filed a complaint on September 14, 2015, alleging that defendants violated the Fair
Labor Standards Act (“FLSA”) (29 U.S.C. §§ 201-219), and the Ohio Minimum Fair Wage
Standards Act (Ohio Rev. Code. § 4111.01 et seq.), by not paying hourly, non-exempt employees
minimum wage and overtime compensation. Plaintiff also alleged that he was punched by Parker
while on the job on July 17 and 23, 2014. In addition to his wage claims, plaintiff also claimed
negligence, assault and battery, and intentional infliction of emotional distress. (Doc. No. 1
(Complaint [“Compl.”].)
Defendants answered the complaint and filed a motion for judgment on the pleadings
pursuant to Fed. R. Civ. P. 12(c) with respect to the non-wage claims (Doc. No. 9), contending
that those claims are time-barred by Ohio’s one-year statute of limitations. Defendants’ pending
Rule 12(c) motion was discussed at the case management conference conducted on February 8,
2016, and plaintiff was granted leave to file an amended complaint. (Minutes of proceedings,
February 8, 2016.)
Plaintiff’s timely filed amended complaint (Doc. No. 18 (Amended Complaint [“AC”]))
contains the same factual allegations as the original complaint, and asserts eight claims: (1)
failure to pay overtime in violation of federal and state law (AC ¶¶ 35-42); (2) failure to pay
minimum wage in violation of federal and state law (AC ¶¶ 43-50); (3) a collective action with
respect to claims 1 and 2 on behalf of: “[a]ll former and current hourly employees of [the MidOhio defendants] at any time between March 20, 2013 and the present[]” (AC ¶¶ 51-56); (4)
battery (AC ¶¶ 57-64); (5) assault (AC ¶¶ 65-73); (6) (numbered as Count VII in error)
negligence (AC ¶¶ 74-76); (7) negligent supervision (AC ¶¶ 77-83); and (8) intentional infliction
of emotional distress (AC ¶¶ 84-89).
Defendants answered the amended complaint (Doc. No. 19) and renewed their motion for
judgment on the pleadings. The renewed motion seeks judgment on counts IV (battery), V
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(assault), and VIII (intentional infliction of emotional distress) on the grounds that those claims
are brought beyond the applicable statute of limitations. (Renewed Mot. at 115.1)
II. DISCUSSION
A. Standard of Review
Fed. R. Civ. P. 12(c) provides that “[a]fter the pleadings are closed—but early enough not
to delay trial—a party may move for judgment on the pleadings.” The standard of review for a
motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a
claim for relief under Rule 12(b)(6). E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th
Cir. 2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998)). “For purposes of a
motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of
the opposing party must be taken as true, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510
F.3d 577, 581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 479 F.2d 478, 480 (6th Cir. 1973)). The district court, however, “need not accept as true
legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.
1999) (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). “The 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) (citation omitted).
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All references to page numbers are to the page identification numbers generated by the Court’s electronic filing
system.
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B. Analysis
1. Assault and battery claims
Ohio Rev. Code § 2305.111(B) provides that the statute of limitations for assault and
battery is one year. The statute of limitations in Ohio for bodily injury resulting from negligence
is two years pursuant to Ohio Rev. Code § 2305.10, but if the bodily injury results from an
assault and battery, the one year statute of limitations applies. Leonhardt v. Strollo, No. 1:15CV-2507, 2016 WL 1465739, at *2 (N.D. Ohio Apr. 14, 2016) (citing Love v. City of Port
Clinton, 524 N.E.2d 166, 167 (Ohio 1988)).
Plaintiff’s amended complaint alleges that Parker physically assaulted him on numerous
occasions, and that Parker punched him on July 17 and 23, 2014, after which plaintiff did not
return to work for defendants. (AC ¶¶ 23-25.) Plaintiff’s complaint was filed on September 14,
2015. Taking as true the dates alleged in plaintiff’s amended complaint,2 plaintiff’s claims for
battery (Count IV) and assault (Count V) were brought more than one year after the alleged
assault and battery occurred, and are barred by Ohio’s applicable statute of limitations. Thus,
defendants are entitled to judgment on the pleadings with respect to Counts IV and V of the first
amended complaint.
2. Intentional infliction of emotional distress claim
The statute of limitations for an intentional infliction of distress claim varies depending
upon the type of action from which the claim arises. The generally applicable limitations period
is four years. If, however, the act underlying the intentional infliction of emotional distress claim
would support another tort, the statute of limitations for that tort governs the claim for intentional
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Plaintiff’s opposition to the motion is directed at the negligence claim—not the claims for assault and battery. (See
Pltf. Opp’n.)
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infliction of emotional distress. Albiola v. Pugh, No. 4:14CV1645, 2015 WL 1915289, at *7
(N.D. Ohio Apr. 27, 2015), appeal dismissed (Apr. 18, 2016) (citing Hambleton v. R.G. Barry
Corp., 465 N.E.2d 1298, 1302 (Ohio 1984)). “In essence, an intentional infliction of emotional
distress claim is parasitic to another claim for purposes of the statute of limitations. . . . a plaintiff
cannot obtain a longer statute of limitations simply by recharacterizing the fundamental nature of
his claim as one of intentional infliction of emotional distress.” Id. (citing Manin v. Diloreti, 641
N.E.2d 826, 827 (1994)).
Defendants contend that plaintiff’s intentional infliction of emotional distress claim is
based on intentional acts of offensive conduct, thus the one-year statute of limitations of Ohio
Rev. Code § 2305.11 applies. (Mot. at 60-61 (citing Vandiver v. Morgan Adhesive Co., 710
N.E.2d 1219, 1222 (Ohio Ct. App. 1998) (“We find that the essential nature of Vandiver’s claim
involves intentional acts of offensive contact.”) and Stafford v. Clever Investigations, Inc., No.
06AP-1204, 2007 WL 2800333, at *2 (Ohio Ct. App. Sept. 27, 2007) (“Because the essential
character of the alleged tort is actual and threatened offensive contact, the one-year statute of
limitations for assault and battery governs.”)).) Jones v. City of Cleveland, No. 1:15-CV-1190,
2016 WL 1626855, at *4 n. 25 (N.D. Ohio Apr. 25, 2016) (citing Stafford, 2007 WL 2800333, at
*2). Plaintiff’s opposition to defendants’ motion is silent with respect to dismissal of his claim
for the intentional infliction of emotional distress.
Plaintiff alleges both that Parker punched him on July 17 and 23, 2014 (after which
plaintiff did not return to work for defendants), and that “Defendant Parker routinely physically
threatened and ‘bullied’ employees, often encouraging other employees to assault plaintiff[,]”
and “defendant Parker physically assaulted employees on numerous occasions, including the
Plaintiff.” (AC at ¶¶ 22-23.) Incorporating the factual allegations of the complaint into his
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infliction of emotional distress claim (Count VIII), plaintiff alleges that “Defendants intended to
cause Plaintiff emotional distress when they repeatedly ridiculed and bullied plaintiff.
Defendants should have known that such conduct would result in serious emotional distress.”
(AC ¶ 85.)
While Count VIII does not directly reference the alleged physical assaults on July 17 and
23, 2014 as the source of plaintiff’s emotional distress claim, plaintiff does reference bullying
which, according to the amended complaint, involved threatened or actual offensive physical
contact. (AC ¶¶ 22-23.) Thus, the one-year statute of limitations of Ohio Rev. Code § 2305.11
applies, and plaintiff’s intentional infliction of emotional distress claim, like his claims for
assault and battery, are also barred. Jones, 2016 WL 1626855, at *4 (“Plaintiff’s assault and
battery claims therefore underlie Plaintiff’s infliction of emotional distress claims. As a result,
Ohio’s one-year statute of limitations for assault and battery applies.”)
III. CONCLUSION
For all of the foregoing reasons, defendants’ motion for judgment on the pleadings (Doc.
No. 20) is granted, and counts IV (battery), V (assault), and VIII (intentional infliction of
emotional distress) are dismissed with prejudice.
IT IS SO ORDERED.
Dated: July 11, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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