Broadbent et al v. Americans For Affordable Healthcare Inc et al

Filing 373

REPORT AND RECOMMENDATIONS re 325 MOTION for Partial Summary Judgment filed by Plaintiffs Jennifer Weiler, Joseph Tritola, Lee Ann Sheonrock, Nicholas Berger, Colleen Weiler, Kevin Weiler, Sr., Bailey Broadbent, Melanie Berger, 337 MOTIO N for Summary Judgment filed by Defendants Wayne DeLawler, 352 MOTION to Dismiss filed by Defendants Jack M. Winebrenner, L.M. Winebrenner, Roberta B. Bastie, Gary Bastie. It is RECOMMENDED that these motions be DENIED, and that this matter proceed to trial. Objections to R&R due by 11/15/2013. Signed by Magistrate Judge Stephanie K. Bowman on 10/29/2013. (km1) (Additional attachment(s) added on 10/29/2013: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BAILEY BROADBENT, et al.,

Case No. 1:10-cv-943

Plaintiffs,
Dlott, C.J.
Bowman, M.J.

vs.
AMERICAN FOR AFFORDABLE
HEALTHCARE INC., et al.,
Defendants.

REPORT AND RECOMMENDATION
This civil action is now before the Court on Plaintiffs’ motion for partial summary
judgment (Doc. 325), Defendant Lawler’s cross motion for judgment (Doc. 337) and the
parties’ responsive memoranda. (Docs. 333-336, 340, 344, 350). Also before the Court
is Defendants Gary Bastie, Roberta B. Bastie, Jack M. Winebrenner, L.M. Winebrenner’s
pro se motion to dismiss. (Doc. 352). A hearing on the pending motions was held on
October 15, 2013. Attorney Kurt Anderson appeared for Plaintiffs. Attorney David Martin
appeared the for Spencer Defendants. Defendant Paul Olzeski appeared pro se. Pro Se
Defendants Wayne Delawler, Jack Winebrenner, Roberta Bastie and Gary Bastie appeared
by telephone. For the reasons outlined below, the undersigned finds that Defendant’s
motion to dismiss and the parties’ motions for summary judgment are not well-taken.
I. Background
On December 28, 2010, Plaintiffs Bailey Broadbent, Nicholas Berger, Melanie
Berger, Lee Ann Schoenrock, Joseph Tritola, Kevin Weiler, Sr., Jennifer Weiler, Jacqueline
Weiler, and Colleen Weiler (collectively “Plaintiffs”) commenced this action against
numerous Defendants for violations of federal and state law arising out of an alleged

fraudulent insurance scheme. (Doc. 1). That same day, Plaintiffs’ moved for an ex parte
temporary restraining order and order to show cause why a preliminary injunction should
not issue against Defendants Americans for Affordable Healthcare, Inc. (“AFAH”), National
Association of Consumers Direct (“NACD”), Spencer & Associates, LLC, Integrated
Insurance Marketing, Inc. (“IIM”), CEO Clubs, Inc., Bruce Spencer, Christie Spencer, and
Paul J. Olzeski. (Docs. 1-3.) On January 3, 2011, the Court granted Plaintiffs’ motion for
a temporary restraining order. Following a show cause hearing on January 12, 2011, the
Court issued a Preliminary Injunction against Defendants AFAH, NACD, Spencer &
Associates, LLC, IIM, CEO Clubs, Inc., Bruce Spencer, Christie Spencer, and Paul J.
Olzeski. (Doc. 12).
Thereafter, Plaintiffs filed an amended complaint on April 15, 2011. (Doc. 23). The
60 page amended complaint asserts fourteen causes of action against more than forty
known defendants and up to 100 unknown John Doe Defendants. The factual allegations
are summarized as follows:
Plaintiffs all suffer from cystic fibrosis, which often results in lengthy hospital stays.
Based on their condition, Plaintiffs became interested in hospital indemnity insurance
programs that would provide cash payments for a portion of the time that they were
hospitalized.

In order to gain access to such benefits, Plaintiffs joined consumer

membership associations that offered access to such programs to its members. However,
Plaintiffs allege that the hospital indemnity insurance programs offered by such
membership organizations were never properly underwritten by legitimate insurance
companies. Thus, although Plaintiffs made the required monthly premium payments and
filed valid claims under the terms of the relevant policies, no claims were ever paid.
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In light of the foregoing, Plaintiff’s amended complaint asserts the following claims
against the Defendants individually and collectively:
Count I - RICO Civil Action
Count II - Breach of Contract (AFAH Plan)
Count III - Breach of Contract (NACHP Supplement)
Count IV - Fraudulent Misrepresentation
Count V - Negligent Misrepresentation
Count VI - Negligent Procurement of Insurance
Count VII- Promissory Estoppel
Count VIII- Unjust Enrichment
Count IX - Declaratory Judgment
Count X - Bad Faith
Count XI - Liability for Criminal Conduct
Count XII - Conversion
Count XIII - Intentional Interference with Contract
Count XIV - Individual and Vicarious Liability
(Doc. 23).1
On November 17, 2011, the Clerk entered default against the following Defendants:
Americans for Affordable Healthcare, Inc.; Benetrust Corp.; Craig Cooke; Donald
Densmore; IRG Brokerages, LLC; Gary L. Karns; Karns, Inc.; Steven K. McLaughlin;
National Alliance of Consumers and Healthcare Professionals; National Association of
Consumers Direct; Nuera Direct, Inc; Nuera Meds, Inc.; William Prouty; RX Card Services,
Inc. and Robert Stehlin. (Doc. 188). Thereafter, on March 14, 2013 an R&R was issued
granting Default Judgment as to those Defendants. That R&R remains pending.
On December 5, 2012, Plaintiffs filed Applications to Clerk for entry of default against
Association for Independent Managers, Inc; Integrated Insurance Marketing, Inc.; Louis
DeLuca; Real Benefits Association; Tannile Ortiz; Viking Administrators, Inc. (Doc. 287).
The Clerk has yet to enter default. Currently, the docket reflects the remaining active
1

Notably, Plaintiffs’ also filed a second amended complaint on January 16, 2012, adding
additional supporting factually allegations. (Doc. 201). Plaintiffs’ asserted causes of action remained
unchanged.

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defendants as follows: Gary Bastie, Roberta Bastie, Jack Winebrenner, L.M. Winebrenner,
Paul Olzeski, Spencer and Associates, Bruce Spencer, Christie Spencer, David Spencer
and Wayne Lawler.
II. Relevant Facts Relating to the Pending Cross-Motions for Judgment
Association for Independent Managers
Plaintiffs’ claims arise out of Plaintiffs Melanie Berger, K. Weiler and J. Weiler’s
membership with Association for Independent Managers (AFIM). The Weilers joined AFIM
to have access to AFIM’s hospital indemnity program. AFIM was created in the mid-1970's
by Defendant Jack Winebrenner. (Doc. 85). For nearly 30 years AFIM provided advice
and education to small businesses regarding payroll, accounting, tax, regulatory
compliance, insurance, marketing, and other aspects of business management. Id.
Defendant Gary Bastie took over daily operations of AFIM in 2002. During the
relevant time from 2006 through 2010, Defendants Gary Bastie, Roberta Bastie, Jack
Winebrenner and Larry Winebrenner were all officers AFIM. Defendant Lawler was AFIM’s
compliance attorney. Near the end of 2006, Louis DeLuca ("DeLuca") proposed packaging
AFIM memberships with his hospital indemnity insurance plan.

Because DeLuca’s

insurance agency was based in New York, he proposed that he market and sell the
packages and forward AFIM membership dues to the AFIM office in Florida. Hospital
indemnity claims would be processed through DeLuca's Insurance Resource Group
("IRG"). Thereafter, DeLuca obtained a business partner, Gary Karns, who helped to run
AFIM Health Plans. DeLuca not only sold AFIM memberships, he also created the
Association of Independent Managers ("AIM"); CEO Clubs, Inc.; and Integrated Insurance

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Marketing ("IIM") which did business as AIM Health Benefits/AIM Health Benefits Plan/AIM
Health Solutions/AIM Health Solutions Plan.
Initially, DeLuca obtained hospitalization indemnity policies issued in AFIM’s name
through existing, reputable insurance companies, American Medical and Life Insurance
Company (“AMLI”), and NOVA Casualty Company (“NOVA”). (See Doc. 85-1, Ex. 6).
However, in July 2009, NOVA refused to insure further AFIM memberships, issued a Cease
and Desist letter to DeLuca, and notified the New York Department of Insurance of
DeLuca’s improper claims administration and possible fraud. DeLuca promptly began
seeking other insurance.
Ultimately, DeLuca began selling insurance programs to individuals that were not
properly underwritten. In other words, he was selling insurance coverage that did not exist.
DeLuca did not accurately report the full extent of his membership sales to the AFIM
Officers. DeLuca reported 7,000 new AFIM memberships, but the AFIM Officers admit that
later state insurance investigations have suggested as many as 12,000 members. (Id. ;
Doc. 201, Ex. 5). DeLuca also offered additional memberships and “supplemental”
insurance programs to “AIM” members, such as the National Alliance of Consumers and
Healthcare Professionals (NACHP) Supplement, which were purportedly only gimmicks to
draw additional premiums.
The AFIM Officers claim that on January 27, 2010, both Gary Bastie and the
Association’s compliance attorney, Wayne Lawler, sent Cease and Desist orders to
DeLuca, advising he was no longer authorized to sell AFIM memberships or collect dues.
(Doc. 85, Ex. 2) The Cease and Desist letters assert that the AFIM memberships
themselves were being retroactively cancelled, effective November 30, 2009, for failure to
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“receive” premiums. Id. The AFIM Officers contend they totally disconnected themselves
from any conduct by DeLuca, and therefore have no responsibility for his actions.
It was not until February and March, 2010, that Plaintiffs discovered that their
insurance coverage lapsed in July 2009 (when NOVA refused to insure AFIM members).
The discovery was delayed because premiums were still being deducted for membership
and insurance.
Americans for Affordable Healthcare and AFIM
In 2008, Defendant Lawler became familiar with Bruce Spencer, who opened an
insurance agency in Springfield, OH known as Spencer and Associates. Defendant Olzeski,
was employed by Spencer and Associates as a licensed insurance agent. Purportedly at
Lawler’s initiation, Spencer purchased the ownership rights and corporate records to
Association for Affordable Healthcare, a memberships based insurance plan offering a
hospital indemnity plan. The initial underwriter of Spencer’s hospital indemnity insurance
backed out of the arrangement, leaving no marketable insurance plan.

Thereafter,

Defendant Olzeski recommended that Spencer use AIM Health plans, through DeLuca’s
insurance company.
Spencer understood that “AIM Health Plans” was not itself an insurer, but believed
it was a licensed third party administrator (“TPA”) for AIM members. Based on guidance
from Lawler, Spencer essentially sub-contracted TPA services for AFAH to DeLuca, and
soon thereafter also for members of National Association of Consumers Direct (NACD) and
Real Benefits Association (RBA) through an arrangement where AFAH, NACD, and RBA
members were considered AIM members.

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Spencer billed AFAH, NACD, and RBA

members their dues and insurance premiums, and passed on the premiums to DeLuca and
AIM. (Spencer Dep., 171-172, 208).
Bruce Spencer testified that he rarely spoke with DeLuca and allowed Paul Olzeski
to handle that relationship. Olzeski’s daughter, Tanille Ortiz, was the office manager in
charge of AFAH operations. (Spencer Dep., pp. 75-77). Spencer was only in the office
approximately four days each month. (Spencer Dep., p. 76). Bruce Spencer further
testified that after their termination, he discovered “large amounts of theft, embezzlement,
fraud, forgery, you name it, were discovered on behalf of Tanille Ortiz and her father, Paul
Olzeski….” (Spencer Dep., p. 17:19-24). As a result, there was neither insurance nor funds
with Spencer to pay the Plaintiffs’ claims. Thus, Plaintiffs’ discovered that the hospital
indemnity plans under AFAH were never properly underwritten and no coverage existed.

Plaintiffs now move this Court for partial summary judgment against Defendants
Gary Bastie, Roberta Bastie, Jack Winebrenner, Larry Winebrenner; Wayne Lawler; Bruce
Spencer; Spencer & Associates, LLC; and Paul Olzeski on Plaintiff’s claims for Breach of
Contract, Negligent Misrepresentation, Negligent Procurement of Insurance and Breach
of Fiduciary Duty. (Doc. 325) Plaintiffs also seek joint and several liability. Gary and
Roberta Bastie, Defendant Lawler, and the Spencers filed responses to Plaintiffs’ motion.
The Winebrenner’s and Olzeski did not respond to the motion, although they appeared at
the hearing and made statements to the Court. Defendant Lawler also filed his own cross
motion, asserting that he is entitled to judgment as a matter of law. (Doc. 337)
Lawler’s cross motion for summary judgment asserts that he is entitled to judgment
as a matter of law because Plaintiffs have failed to establish that he contracted with any of
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Plaintiffs or made any representations or false statements to Plaintiffs. Lawler further
asserts that as an attorney, he has qualified immunity from liability to third parties for acts
or omission concerning the representations of a client.
III. Standard of Review
Summary judgment is proper “if the movant shows that there is no genuine issue as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a) (emphasis added). A court may therefore grant a motion for summary judgment if
the nonmoving party who has the burden of proof at trial fails to make a showing sufficient
to establish the existence of an element that is essential to that party's case. See Muncie
Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir.2003) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
The “party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions” of the
record which demonstrate “the absence of a genuine issue of material fact.” Celotex Corp.,
477 U.S. at 323. The burden then shifts to the nonmoving party who “must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). “The evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.
at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). A genuine issue
of material fact exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Muncie Power Prods., Inc., 328 F.3d at 873 (quoting Anderson,
477 U.S. at 248). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (a “genuine” dispute means that there must be more than some
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metaphysical doubt as to the material facts). The inquiry at summary judgment is “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 243 (1986).
IV. Factual Disputes Preclude Summary Judgment
Plaintiffs’ motion for partial summary judgment asserts that by creating, approving,
and enabling DeLuca, Karns, and Olzeski’s alleged unsupervised control of membership
dues, insurance premiums, and insurance claims, Defendants Gary Bastie, Roberta Bastie,
Jack Winebrenner, L.M. Winebrenner, Paul Olzeski, Spencer and Associates, Bruce
Spencer, Christie Spencer, David Spencer and Wayne Lawler breached their duties of care
to the associations and their members, including the Plaintiffs, and are jointly and severally
liable for the Plaintiffs’ damages. As explained below, Plaintiff’s contentions, however,
require to the Court to make factual determinations that are not established by the evidence
of record. As such, summary judgment cannot be granted.
A. Vicarious Liability
Plaintiffs’ motion for summary judgment relies on the assumption that they are
entitled to judgment as a matter of law because Defendants are vicariously liable for the
actions of Defendant DeLuca.2 (Doc. 325 at 14-15). Plaintiffs’ contend that it is a
fundamental principal of the law of agency that a principal is liable for the acts of an agent
where the principal has granted actual authority to the agent to enter the transactions

2

As noted above Defendant DeLuca has not answered this lawsuit despite being
properly served. An application for Default as to Defendant DeLuca is currently pending before
the Court. (See Doc. 287).

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complained of. Master Consol. Corp. v. BancOhio Nat'l Bank, 61 Ohio St. 3d 570, 574, 575
N.E.2d 817 (1991). Plaintiffs, however, fail to present sufficient evidence that the relevant
Defendants’ granted DeLuca actual authority to engage in the acts of fraud alleged by
Plaintiffs.
B. Breach of contract
“There are four main elements of a breach of contract claim: (a) the existence of a
contract; (b) performance by the plaintiff; (c) breach by the defendant; and (d) damage or
loss to the plaintiff.” Thomas v. Publishers Clearing House, Inc., 29 Fed. Appx. 319, 322,
2002 WL 193935 (6th Cir. 2002). Plaintiffs assert that they are entitled to judgment as a
matter of law against the relevant Defendants because the Defendants directly created,
authorized, and/or ratified DeLuca's interactions with the Plaintiffs. As such, Plaintiffs’
contend that Defendants are liable for DeLuca's failure to fulfill the contractual obligations.
With respect to the Bastie Defendants, Plaintiffs have failed to show that they had
membership in AFIM, i.e. the existence of a contract. Instead, it appears Plaintiffs were
members of DeLuca’s AIM plan. Plaintiffs have admitted in their complaint that they had
membership in AIM to have access to hospital indemnity insurance.

Notably, the

AIM/NOVA plan was only in effect from August 1, 2009, to August 1, 2010. Plaintiffs have
failed to show they had a valid contract with AFIM or that they were entitled to insurance
payments after August 1, 2010.
Plaintiffs claim that NACHP premiums were still deducted after they requested
cancellation. However, Plaintiffs have produced no evidence that they had a NACHP plan
or that premiums were deducted. Plaintiffs have produced no evidence connecting these
Defendants to the NACHP plan. Therefore, summary judgment is not appropriate against
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the Bastie Defendants on Plaintiff’s breach of contract claims.
Next, as to the Spencers and Spencer & Associates, Bruce Spencer’s deposition
establishes that Spencer & Associates was a third party administrator for AFAH. While
Plaintiffs have submitted sufficient evidence that Defendants Paul Olzeski, Bruce Spencer,
and Spencer & Associates, LLC were involved with DeLuca, Plaintiffs have not submitted
sufficient

evidence

showing

that

these

Defendants

collected

money

for

DeLuca/IIM/IRG/AIM from these Plaintiffs or that a contract existed between them.
Therefore, summary judgment is not appropriate against Olzeski, Spencer, and Spencer
& Associates on Plaintiffs’ breach of contract claims.
C. Negligent Misrepresentation
Ohio law recognizes a cause of action for negligent misrepresentation within a
business transaction. Carpenter v. Long, 196 Ohio App.3d 376, 396, 963 N.E.2d 857 (Ohio
Ct.App.2011). As one Ohio court has described:
“The elements of negligent misrepresentation are as follows: ‘One who, in
the course of his business, profession or employment, or in any other
transaction in which he has a pecuniary interest, supplies false information
for the guidance of others in their business transactions, is subject to liability
for pecuniary loss caused to them by their justifiable reliance upon the
information, if he fails to exercise reasonable care or competence in obtaining
or communicating the information.’ ” “A negligent misrepresentation occurs
when one ‘supplies false information for the guidance of others.’] In other
words, a ‘[n]egligent misrepresentation does not lie for omissions; there must
be some affirmative false statement.
Id. (internal citations omitted).
Plaintiffs’ contend that Defendants are liable for negligent misrepresentation
because they placed DeLuca in position and authorized him to communicate with the
Plaintiffs on precisely the subject matters in which he deceived them. (Doc. 325 at 17-18).

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Plaintiffs, however, fail to present any evidence of any “affirmative false statements[s] made
by Defendants to Plaintiffs. As such, the undersigned cannot conclude that Plaintiffs are
entitled to judgment as a matter of law with respect to this claim.
D. Negligent Procurement of Insurance and Breach of Fiduciary Duty
Insurance agents and insurance claims administrators owe fiduciary duties to their
insured, which are actually codified in O.R.C. 3905.14 and O.A.C. 3901-1-07. As one Ohio
court found:
Whether the defendant owed a duty to the plaintiffs presents a legal question
that depends upon the foreseeability of the plaintiffs' injury. An injury is
foreseeable if a reasonably prudent person would have anticipated that an
injury was likely to result from the performance or nonperformance of an act.
In the insurance context, an action for negligence may be based upon an
insurance agent's failure to procure insurance. An agent will be held liable
if, as a result of his or her negligent failure to perform that obligation [to
procure insurance], the other party to the [insurance] contract suffers a loss
because of a want of insurance coverage contemplated by the agent's
undertaking.
Carpenter v. Scherer-Mountain Ins. Agency, 135 Ohio App.3d 316, 326, 733 N.E.2d 1196,
1203 (4th Dist.1999) (citations omitted).
In support of their motion for summary judgment, Plaintiffs contend that Defendants
knew that legitimate insurance was essential to their plans, and relied upon DeLuca to
obtain such insurance. DeLuca's failure to accomplish what the Defendants engaged him
to do, and what the Plaintiffs relied upon and paid for, makes the Defendants liable for
DeLuca's negligent failure to procure insurance. However, Plaintiffs fail to provide sufficient
evidence supporting this contention. Notably, Plaintiffs offer only the deposition testimony
of Bruce Spencer, wherein he admits that, as an insurance agent, he had the responsibility
to determine whether or not a policy issued and whether or not the policy met the needs

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of what was being administered. (Doc. 326, Spencer Dep at 159). However, Spencer goes
on to testify that he did not see the policies that were generated under AFAH by DeLuca.
Id. Thus, according to Spencer’s testimony he could not determine whether the policies
issued by DeLuca were proper because he never saw them. As detailed above, Spencer
essentially sub-contracted TPA services for AFAH to DeLuca, however, he rarely spoke to
DeLuca and was not in the office full-time. It could be argued that Spencer had an
obligation to inquire about the validity of the polices issued by DeLuca. However, there has
been no evidence presented that Spencer was put on notice of DeLuca’s bad acts which
would have required further inquiry by Spencer. Additionally, Plaintiffs offer no evidence
relating to the Bastie Defendants alleged misrepresentation. Accordingly, Plaintiffs have
failed to show that they are entitled to judgment as a matter of law with respect to this
claim.
E. The parties cross-motions for judgment relating to Defendant Lawler are not welltaken
Plaintiffs also move for summary judgment against Defendant Lawler on their claims
of breach of contract, negligent misrepresentation, negligent procurement of insurance, and
breach of fiduciary duty. Plaintiffs argue that, as counsel for AFAH, Spencer & Associates,
LLC, and AFIM, Lawler breached fiduciary duties to the members who were in privity with
AFAH, Spencer and AFIM. (Doc. 325). In response, Defendant Lawler filed his own
motion for summary judgment arguing, inter alia, that he owed no duty to the Plaintiffs; his
services with AFAH, Bruce Spencer, and Spencer & Associates, LLC (collectively “AFAH”)
were terminated before Plaintiffs’ causes of action or damages accrued; and he was not
engaged by AFIM until after Plaintiffs’ damages had accrued. (Doc. 347). Defendant

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Lawler further asserts that Plaintiffs’ Complaint allegedly fails to state a claim for relief
against him.3
Upon careful review, the evidence is insufficient to establish that either party is
entitled to judgment as a matter of law. The fact that Lawler represented AFIM does not,
in itself, prove he was one "of the masterminds behind the AFAH Plan scam." Plaintiffs
have also presented evidence that Lawler prepared a transfer agreement which transferred
AFAH to Spencer & Associates. Again, legal representation in and of itself in the absence
of privity, is not enough to prove he is vicariously liable. As noted by Defendant Lawler, "an
attorney is immune from liability to third persons arising from his performance as an
attorney in good faith on behalf of, and with the knowledge of his client, unless such third
party is in privity with the client or the attorney acts maliciously". Simon v. Zipperstein, 32
Ohio St.3d 74, 512 N.E.2d 636 (Ohio 1987).
The undersigned recognizes that lawyers for associations owe direct fiduciary duties
to the members of those associations and are liable to such members when their
self-serving actions damage the rights and interests of the members. Arpadi v. First MSP
Corp., 68 Ohio St.3d 453, 458, 1994-Ohio-491, 628 N.E.2d.1335 (1994). Those persons
to whom a fiduciary duty is owed are in privity with the fiduciary such that an attorney-client
relationship established with the fiduciary extends to those in privity therewith regarding
matters to which the fiduciary duty relates. Elam v. Hyatt Legal Serv. 44 Ohio St.3d 175,

3

Lawler also argues that Plaintiffs’ motion for partial summary judgment should be
denied because he was not properly served with pleadings, motions and discovery notices,
including the deposition of Bruce Spencer. In response, Plaintiff asserts that Lawler was
properly servived with all pleading and further asserts that Lawler never answered the Second
Amended Complaint and is in default. However, because the parties have activity litigated this
matter, such assertions are not well-taken.

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541 N.E.2d 616 (1989). Plaintiffs contend that they are in privity with the associations
which they joined, and also with Spencer as third party administrator of Plaintiffs' claims.
However, as detailed above, whether the Bastie’s, Winebrenner’s, Spencer’s and/or
Spencer and Associates owed fiduciary duties to Plaintiffs, remains disputed and cannot
be resolved on summary judgment. As such, the Court cannot find that Defendant Lawler
was in privity with the Plaintiffs. Given the current record before the Court, the undersigned
is left with no choice but to recommend denial the parties’ cross motions for summary
judgment.
V. Defendants Gary Bastie, Roberta B. Bastie, Jack M. Winebrenner, L.M.
Winebrenner’s motion to dismiss (Doc. 352) is not well-taken.
Defendants also move to dismiss Plaintiffs’ claims against them, raising the same
if not similar arguments raised in their previous motions to dismiss. As in their prior
motions, these Defendants assert, inter alia, that the allegations contained in the second
amended complaint are false, unsupported, and amount to a fraud on the Court. As such,
Defendants assert that the second amended complaint should be dismissed. (Doc. 352).
However, such arguments were addressed and rejected by the Court in its Orders denying
these Defendants motion to dismiss and motion for summary judgment. (Docs. 275, 311).
Moreover, the motion was filed nearly 4 months after the dispostive motion deadline of April
30, 2013, and is therefore untimely. Accordingly, the undersigned finds that Defendants’
motion to dismiss (Doc. 325) should be denied.

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VI. Conclusion
For the foregoing reasons, the undersigned RECOMMENDS that: (1) Plaintiffs’
motion for partial summary judgment (Doc. 325) be DENIED; (2) Defendant Lawler’s
motion for summary judgment (Doc. 337) be DENIED; (3) Defendants Gary Bastie, Roberta
B. Bastie, Jack M. Winebrenner, L.M. Winebrenner's motion to dismiss be DENIED; and
(4) and this matter proceed to trial.
s/Stephanie Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BAILEY BROADBENT, et al.,

Case No. 1:10-cv-943

Plaintiffs,
Dlott, C.J.
Bowman, M.J.

vs.
AMERICAN FOR AFFORDABLE
HEALTHCARE INC., et al.,
Defendants.
NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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