Richard Goettle, Inc. v. Joy Global Conveyors, Inc.

Filing 26

ORDER granting 9 Motion to Dismiss. Signed by Judge Michael R. Barrett on 9/29/18. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Lisa Weiler,
Plaintiff,

Case No. 1:17cv673

v.

Judge Michael R. Barrett

Cecil Allf., et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon Defendant Bryan E. Allf’s Motion to Dismiss
(Doc. 29); Defendant Cecil E. Allf’s Partial Motion to Dismiss Complaint and Motion to
Dismiss Cross-claims (Doc. 31); and Defendant Key Caribe, LLC’s Motion to Dismiss
(Doc. 32). These motions have been fully briefed. (Docs. 37, 38, 41, 43, 44, 45, 46, 47,
48, 49, 50, 51, 52).
I.

BACKGROUND
This case stems from a dispute over the ownership of a shopping mall in Key

West, Florida. The ownership interest was transferred from the Knabe Family Limited
Partnership, which is not a party to this case. Plaintiff Lisa A. Weiler is the Co-Executor
of Edna Alice Knabe’s estate, Co-Trustee of the Edna Alice Knabe Trust, and CoTrustee of the Robert H. Knabe Trust. Lisa Weiler had been in a ten-year relationship
with Edna’s son, Scott Knabe, who is also deceased. Plaintiff claims Defendant Cecil
Allf, in concert with Bryan E. Allf, divested Edna Alice Knabe’s estate, the Edna Alice
Knabe Trust, and the Robert H. Knabe Trust of their entire ownership interest in Key
Caribe through fraud, misrepresentation, coercion, deception breach of fiduciary duty,

self-dealing or intimidation.
The original civil action was brought on September 7, 2017, in the Hamilton
County, Ohio Court of Common Pleas, Probate Division. Pursuant to Sections 1441
and 1446 of Title 28 of the United States Code, Cecil Allf removed the action to this
Court.
The following facts are alleged in the Complaint. (Doc. 3).
In December of 1986, Robert H. Knabe (Alice Knabe’s deceased husband) and
Cecil Allf jointly purchased the shopping mall, which is situated on a parcel of
commercial property located at 425-431 Front Street in Key West, Florida (“Key Caribe
property”). (Doc. 3). Immediately following this transaction, both Robert H. Knabe and
Cecil Allf each owned a fifty percent (50%) interest in the Key Caribe property. After
acquisition of the Key Caribe property, Cecil Allf transferred all of his interest in the
property to the Cecil Allf Trust.
At some point after the acquisition of the Key Caribe property, Robert H. Knabe
transferred some or all of his interest in the property to a legal entity known as the
Knabe Family Limited Partnership, a Georgia limited partnership registered as a foreign
partnership in the State of Florida where the Key Caribe property is located. At the time
of its creation, the Knabe Family Limited Partnership had two general partners and two
limited partners, both of whom were Robert H. Knabe and Alice Knabe. Robert H.
Knabe and Alice Knabe began a series of transactions of gifting general partnership
shares and limited partnership shares to their two sons, Scott A. Knabe and R. Craig
Knabe.
Robert H. Knabe died October 5, 2000. Robert H. Knabe was a resident of the

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State of Florida along with his wife, Alice Knabe, and his son, R. Craig Knabe. At the
time of Robert H. Knabe's death, all or substantially all of his ownership interest in the
Knabe Family Limited Partnership had been transferred to the Robert H. Knabe Trust.
Upon the passing of Robert H. Knabe, the Robert H. Knabe Trust allocated the
Trust's interest in the Knabe Family Limited Partnership between a “Fund A Trust” and a
“Fund B Trust.” The Fund A Trust provided lifetime income to Alice Knabe as his
surviving spouse, and such portions of the principal of the Fund A Trust as she may
request during her lifetime. After such allocation upon the death of Robert H. Knabe,
the Fund A Trust held Sixteen and Nine Hundredths percent (16.09%) of the Knabe
Family Limited Partnership.
Also upon the passing of Robert H. Knabe, the Robert H. Knabe Trust allocated
Twenty-Five and Thirteen Hundredths percent (25.13%) of the Knabe Family Limited
Partnership to the Fund B Trust of the Robert H. Knabe Trust. The Fund B Trust
provided lifetime income to Alice Knabe, and such portion of the principal of the Fund B
Trust, as determined in the discretion of the Trustee, to be necessary to provide for the
financial requirements of Alice Knabe.
Under the terms of the Robert H. Knabe Trust, upon the death of Alice Knabe,
any assets remaining in the Fund A Trust were to be rolled over and distributed as a
part of the Fund B Trust. The listed beneficiaries of Fund B Trust within the Robert H.
Knabe Trust Agreement upon the death of Alice Knabe were her sons, Scott A. Knabe
and R. Craig Knabe. Further, the Trust Agreement provided that if Scott A. Knabe and
R. Craig Knabe were both deceased, the beneficiaries of Fund B Trust at the time of
Alice Knabe's death would be those persons then living who would be entitled to receive

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distribution of Robert H. Knabe' s estate had Robert H. Knabe died intestate.
On August 26, 2003, Scott A. Knabe, a resident of the State of Ohio, died
intestate, and his entire estate, including his general partnership shares and limited
partnership shares in the Knabe Family Limited Partnership, were transferred to his
mother, Alice Knabe.

The Estate of Scott A. Knabe was administered in probate

through the Hamilton County, Ohio Probate Court, Case Number 2003004719. At the
request of Alice Knabe, Lisa Weiler served as the Administrator of the Scott A. Knabe
estate. Lisa Weiler had been in a committed relationship with Scott A. Knabe for more
than ten years prior to his death.
During the summer of 2015, while still residing in New Smyrna Beach, Florida,
Alice Knabe suffered a stroke which required her hospitalization.

A short time

thereafter, on August 31, 2015, while Alice Knabe was still recovering from her stroke,
R. Craig Knabe passed away.
With the passing of both Scott A. Knabe and R. Craig Knabe, the vested Robert
Knabe Trust Fund B beneficiaries became Robert H. Knabe's statutory next-of-kin: the
children of Robert H. Knabe’s deceased brothers Richard and Russell Knabe.
On or about September 9, 2015, Cecil Allf convinced Alice Knabe to sign a
Power of Attorney appointing himself and his daughter, Cynthia Allf, as Attorneys in
Fact for Alice Knabe. In early September, 2015, after her release from the hospital in
Florida following her stroke, Alice Knabe decided to return to Cincinnati, Ohio. Alice
Knabe then became a resident of Maple Knoll Retirement Community.
On September 22, 2015, Alice Knabe met alone with attorney Terrence
Donnellon at Maple Knoll Village for approximately ninety minutes to discuss matters

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concerning her estate plan.

Following the meeting, Alice Knabe executed an

Agreement of Representation with Donnellon authorizing him to act as her Attorney at
Law with respect to her estate plan.
On September 23, 2015, Alice Knabe met again with Donnellon and executed a
substitute Power of Attorney authorizing Lisa Weiler to act as her attorney in fact. The
Power of Attorney executed in favor of Lisa Weiler on September 23, 2015 revoked all
prior powers of attorney, including the earlier power of attorney which had authorized
Cecil Allf and his daughter Cynthia Allf to act as Attorneys-in-Fact for Alice Knabe.
At the September 23, 2015 meeting to discuss and update her Power of
Attorney, Donnellon and Alice Knabe, meeting alone, discussed her updated estate
plan. At the meeting Alice Knabe, identified several individual beneficiaries and various
non-profit organizations which were important in her life and which she wanted to honor.
Alice Knabe then updated her plan on September 30, 2015.
On October 7, 2015, Cecil Allf and his lawyer met with Alice Knabe and
Donnellon. During this meeting, Cecil Allf demanded that he be reappointed Attorneyin-Fact for Alice Knabe and demanded that Alice Knabe execute an operating
agreement for Key Caribe which Cecil Allf's attorney had prepared.

The operating

agreement was intended to hold the Key Caribe property in a limited liability corporation
with the Cecil Allf Trust and the Knabe Family Limited Partnership as equal members.
Attorney Fred Keith and Cecil Allf requested to meet privately in the hallway with
Donnellon. The two attorneys and Cecil Allf left the room. When Donnellon re-entered
the room, he observed Cecil Allf demanding that Alice Knabe make a decision.
Cecil Allf’s attorney, Fred Keith, prepared another Power of Attorney which Cecil

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Allf presented to Alice Knabe on October 9, 2015 without any prior notice to or
knowledge of Donnellon. Alice Knabe signed another Power of Attorney re-appointing
Cecil Allf to act as her Attorney in Fact.
About this same time, Donnellon began negotiating the operating agreement for
the Key Caribe property with attorney Fred Keith. Donnellon wanted the operating
agreement to reflect not only the management of the Key Caribe property, but he
suggested to Cecil Allf’s attorney, who agreed, that language should be added detailing
how the Cecil Allf Trust would purchase the Knabe family interest in the Key Caribe
property in the event of Alice Knabe's death so a forced liquidation of the Key Caribe
property would not be required.
The operating agreement negotiated by Donnellon provided that upon the death
of Alice Knabe, the Key Caribe property would be appraised, and Bryan Allf, as Trustee
of the Cecil Allf Trust, would have a first right to purchase the membership interests of
the Key Caribe property held by the Knabe Family Limited Partnership for one-half the
appraised value of the Key Caribe property. The operating agreement also provided
that there would be no compensation paid in managing Key Caribe and Cecil Allf would
serve as Manager.
Cecil Allf and his attorney took the document to Alice Knabe on October 28, 2015
and had it signed before Donnellon could review the final version of the operating
agreement with her.
On November 6, 2015, Donnellon met again with Alice Knabe and reviewed with
her a letter he had prepared for her addressed to Fred Keith, Cecil Allf and Lisa Weiler
advising that:

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(1) Alice Knabe desired Donnellon to handle all matters pertaining to her
estate planning and Key Caribe and that Donnellon be permitted the
opportunity to review and approve all documents related to Key Caribe
prior to signature,
(2) Cecil Allf would serve as her Power of Attorney and administer her
son's estate in Florida because Cecil Allf qualified as a resident
fiduciary, and,
(3) Fred Keith would advise and assist Cecil Allf in administering R. Craig
Knabe’s estate.
This letter was signed by Alice Knabe and delivered to attorney Fred Keith;
counsel for Cecil Allf, putting Cecil Allf on notice once again that Alice Knabe was
represented by independent counsel.
Cecil Allf then petitioned the Volusia County, Florida Court on November 9, 2015
to be appointed Administrator of R. Craig Knabe's estate. Cecil Allf was later appointed
by the Volusia County, Florida Circuit Court, Probate Division, in Case Number 2015
12215 PRDL. An asset of R. Craig Knabe estate was his Twenty-Four and TwentySeven Hundredths percent (24.27%) interest in the Knabe Family Limited Partnership.
Thereafter, on November 23, 2015, Cecil Allf and his attorney prepared another
revised and Amended Operating Agreement, which was not known to, reviewed or
approved by Donnellon.

This Amended Operating Agreement inserted a clause

authorizing Cecil Allf to receive a fee for managing Key Caribe.

The Amended

Operating Agreement was signed by Alice Knabe, and then later sent to Donnellon in
December 2015.
On or about this same time on November 4, 2015, counsel for Cecil Allf advised
Donnellon that Cecil Allf was planning to have the Key Caribe property appraised, as
Cecil Allf was interested in purchasing the Knabe Family Limited Partnership's interest

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in Key Caribe. Counsel for Cecil Allf promised Donnellon to give him a copy of the
appraisal for review with Alice Knabe.
At some point during December 2015, Cecil Allf received the appraisal of the Key
Caribe property which indicated that the property had a market value of approximately
Nine Million Dollars ($9,000,000). Neither Cecil Allf nor his attorney gave a copy of this
appraisal to Attorney Donnellon or Alice Knabe.
In November and December 2015, Donnellon continued to prepare and review
Alice Knabe's estate plan with her. The last Amendment and Restatement of her estate
plan was reviewed and executed by Alice Knabe on November 13, 2015. A courtesy
copy was presented to Cecil Allf by Donnellon through Cecil Allf's attorney, Fred Keith.
As with the previous Amended Agreement of Trust shared with Cecil Allf, the principal
beneficiaries of Alice Knabe’s estate would be the six Non­Profit Organization
Beneficiaries: the Christ Hospital Foundation, the University of Dayton, St. BernardElmwood Place City School District Board of Education, Shelterhouse Volunteer Group,
Inc., Ohio State School of Dentistry, and the Cincinnati State Technical and Community
College Foundation.
In December of 2015, Donnellon worked with Alice Knabe on her estate plan.
Among the steps taken at the close of 2015 were to properly designate beneficiaries of
her Individual Retirement Accounts, to transfer individual assets to the Edna Alice
Knabe Trust including her personal investment account and her partnership interests
in the Knabe Family Limited Partnership, draw down the remaining principal from the
Robert H. Knabe Fund A Trust into her personal Trust, and to draw down income and a
five percent (5%) distribution of principal from the Fund B Trust. At the same time new

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Trustees were appointed for the Robert H. Knabe Fund A Trust and Fund B Trust. The
new Co-Trustees of the Fund A Trust and Fund Trust were Lisa Weiler and Cecil Allf.
With the full knowledge of Lisa Weiler and Cecil Allf, these estate assets were aligned
with Alice Knabe's existing plan to direct the substantial portion of her estate to her
designated Non-Profit Organization Beneficiaries.
On February 2, 2016, Attorney Donnellon was advised by a third party that Cecil
Allf was going to present sale documents to Alice Knabe to purchase the Knabe Family
Limited Partnership’s interest in Key Caribe for a price which the third party believed
was well below market value.
A few hours later that same day, Cecil Allf, met with Alice Knabe. There were no
attorneys present at the meeting. During this meeting, Cecil Allf presented certain
documents to Alice Knabe, which he had requested another attorney prepare in order to
create a private annuity which he would use to acquire all of Key Caribe. Alice Knabe
was asked to immediately sign the documents with a promise that copies would be
given to her later.

Cecil Allf told Alice Knabe that the documents she was being

requested to sign were for the purpose of allowing him to get her some money out of
Key Caribe, which would be directly deposited to her bank account to take care of her
bills. Alice Knabe allegedly signed the Private Annuity Agreement at that time.
On February 5, 2016, Donnellon met with Alice Knabe. During this meeting,
Alice Knabe advised Donnellon that Cecil Allf had her sign some forms that Cecil Allf
indicated to her were necessary to enable him to put some money into her bank
account to pay nursing home expenses associated with her stay at the Maple Knoll
Village. Alice Knabe said nothing about having signed the Private Annuity Agreement

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or deed and said nothing about selling her interest in Key Caribe. Donnellon asked
Alice Knabe if she had a copy of the documents so he could review the documents with
her, but she did not have a copy.
On February 18, 2016, Cynthia Allf, Cecil Allf's daughter, texted Lisa Weiler
telling her she was going to stop in to see Alice Knabe the next day to get wiring
information to send Alice Knabe her part of the store rent from Key Caribe, as it was
piling up. Instead, on February 19, 2016, Cecil Allf caused Alice Knabe to formally
execute the Private Annuity Agreement and Deed relieving Alice Knabe of all interest in
Key Caribe.
On February 25, 2016, less than one week later, Bryan Allf, acting through Cecil
Allf, had Alice Knabe sign another operating agreement (“Operating Agreement”) for
Key Caribe which reaffirmed the sales provisions for the Knabe Family Limited
Partnership in Key Caribe upon the death of Alice Knabe. On February 26, 2016, Alice
Knabe allegedly signed an assignment conveying all interest in the Knabe Family
Limited Partnership to Cecil Allf Trust.
Within the next few days, Cecil Allf completed the transfer of the Key Caribe
property from the Knabe Family Limited Partnership to Key Caribe, LLC, which the Cecil
Allf Trust now purportedly exclusively owned.
According to the Complaint, Cecil Allf had Alice Knabe sign:
(1)

a Private Annuity Agreement providing a monthly annuity of $20,000 per
month that terminated upon the death of Alice Knabe, and

(2)

a deed and other legal documents necessary for Alice Knabe to transfer
the interest of the Knabe Family Limited Partnership in the Key Caribe
property to or for the benefit of Cecil Allf and/or the Cecil Allf Trust, and

(3)

an Assignment of Limited Liability Company Ownership Interest
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purportedly transferring the Knabe Family Limited Partnership's 50%
ownership interest in Key Caribe, LLC to the Cecil Allf Trust, and
(4)

a self-serving letter addressed to himself setting the value of the Knabe
Family Limited Partnership interest at $1,429,750.

Just a few days later, Alice Knabe suffered another stroke on February 27, 2016.
After Alice Knabe's stroke, Donnellon demanded a copy of the Key Caribe property
appraisal from Cecil Allf's attorney.

Donnellon was given copies of the executed

documents which purported to strip Alice Knabe and her beneficiaries of any interest in
the Key Caribe property. Upon learning of the deception, Donnellon demanded that the
transaction be rescinded. Cecil Allf, through his attorney, refused.
Alice Knabe passed away on March 5, 2016.
Plaintiff Lisa Weiler brings the following claims against Cecil Allf, Bryan Allf as
Trustee of the Allf Trust, and Key Caribe: declaratory judgment that Alice Knabe lacked
authority to enter into the agreements by which the Knabe Family Limited Partnership
transferred its membership interest in the Key Caribe property to the Cecil Allf Trust
(Count One); breach of fiduciary duty (Count Two); fraud (Count Three); negligent
misrepresentation (Count Four); conversion (Count Five); civil theft under Ohio Revised
Code §2307.60 (Count Six); and breach of contract (Count Eight).
Plaintiff’s remaining claims are for “Injunction” (Count Seven), “Constructive
Trust” (Count Nine),” “Restitution” (Count Ten), and “Accounting” (Count Eleven).
In the Complaint, Plaintiff also named as defendants: The Christ Hospital
Foundation; the University of Dayton; the Board of Education of the St. BernardElmwood Place City School District; Shelterhouse Volunteer Group, Inc.; the Ohio State
University College of Dentistry; the Cincinnati State Technical and Community College

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Foundation; Cynthia L. Frost; Terry Knabe Bennett; Nancy E. Knabe; Karen S. Knabe;
Timothy A. Knabe; and the State of Ohio. These defendants are beneficiaries of either
the Edna Alice Knabe Trust or the Robert H. Knabe Trust. These defendants have
brought cross-claims against Bryan Allf for intentional interference with expectancy of
inheritance, and seek the remedies of restitution, constructive trust, and disgorgement.
(Docs. 4, 6, 7).
Defendant Cecil Allf has moved for partial dismissal on the Claims and CrossClaims brought against him for failing to state a claim upon which relief may be granted.
Defendant Bryan Allf, as Trustee of the Cecil Allf Trust, has moved to dismiss the
Complaint and Cross-Claims against him based on lack of personal jurisdiction, or in the
alternative, for failing to state a claim upon which relief may be granted.
Defendant Key Caribe has also moved to dismiss the Complaint and CrossClaims based on lack of personal jurisdiction, or in the alternative, for failing to state a
claim upon which relief may be granted.
II.

ANALYSIS
A. Applicable motion to dismiss standards
1. Failure to state a claim under Rule 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6), this Court must “construe the complaint in the light
most favorable to the plaintiff, accept its allegations as true and draw all reasonable
inferences in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d
426, 430 (6th Cir. 2008) (quoting Directv, Inc. v Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). Federal Rule of Civil Procedure 8 provides that all pleadings must contain “a

12

short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Although particular detail is not generally necessary, the factual
allegations “must be enough to raise a right to relief above the speculative level” such
that the claim “is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55657 (2007). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Twombly, 550 U.S. at 555). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556).
2. Lack of personal jurisdiction under Rule 12(b)(2)
Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may seek
dismissal if the court lacks personal jurisdiction over that defendant. “The party seeking
to assert personal jurisdiction bears the burden of demonstrating that such jurisdiction
exists.” Schneider v. Hardesty, 669 F.3d 693, 697 (6th Cir. 2012) (quoting Bird v.
Parsons, 289 F.3d 865, 871 (6th Cir. 2002)). In the face of a supported motion to
dismiss, the plaintiff may not rest on his pleadings, but must, by affidavit or otherwise,
set forth specific evidence supporting jurisdiction. Theunissen v. Matthews, 935 F.2d
1454, 1458 (6th Cir. 1991) (citing Weller v. Cromwell Oil Co., 504 F.2d 927, 930 (6th
Cir. 1974)). When a court considers a motion to dismiss pursuant to Rule 12(b)(2)
without an evidentiary hearing, as this Court does here, the plaintiff “‘need only make a
prima facie showing of jurisdiction.’” Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002)
(quoting Neogen, 282 F.3d at 887) (internal citation omitted).

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B. Cecil Allf’s Motion to Dismiss
Cecil Allf moves this Court to dismiss Counts One, Five, Six, Nine, Ten and
Eleven of the Complaint and the entirety of the Cross-Claims filed against him for failing
to state a claim upon which relief may be granted.
With regard to Plaintiff’s claim for declaratory judgment (Count One), Cecil Allf
argues that this Court cannot grant declaratory relief to remedy a past alleged
wrongdoing because the purpose of declaratory relief is to guide parties in resolving a
dispute as to future or contemplated conduct or rights that might affect that conduct.
The Declaratory Judgment Act provides “[i]n a case of actual controversy within
its jurisdiction, ... any court of the United States, upon the filing of an appropriate
pleading, may declare the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C.
§ 2201(a). The phrase “case of actual controversy” in the Act refers to the type of cases
and controversies that are justiciable under Article III of the Constitution. MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118, 126-27 (2007). A declaratory judgment action will
satisfies the case or controversy requirement if the dispute (i) is “definite and concrete,”
meaning that it touches on the legal relations of parties having adverse legal interests;
(ii) is “real and substantial”; and (iii) admits of specific relief “through a decree of a
conclusive character, as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts.” Id. at 127 (internal quotation marks omitted).
Under Ohio law, “[a] declaratory judgment action provides a means by which
parties can eliminate uncertainty regarding their legal rights and obligations.” Mid-Am.
Fire & Cas. Co. v. Heasley, 113 Ohio St. 3d 133, 136, 863 N.E.2d 142, 145 (Ohio

14

2007). Although Ohio's declaratory judgment statutes are broad in scope, they are not
without limitation. Id. “Most significantly, in keeping with the long-standing tradition that
a court does not render advisory opinions, they allow the filing of a declaratory judgment
only to decide ‘an actual controversy, the resolution of which will confer certain rights or
status upon the litigants.’ ” Id. (quoting Corron v. Corron, 531 N.E.2d 708, 712 (Ohio
1988)). Not every controversy is an actual one. For a justiciable question to exist,
“‘[t]he danger or dilemma of the plaintiff must be present, not contingent on the
happening of hypothetical future events ... and the threat to his position must be actual
and genuine and not merely possible or remote.’” Id. (quoting League for Pres. of Civil
Rights & Internal Tranquility, Inc. v. Cincinnati, 28 N.E.2d 660, 661 (Ohio Ct. App.
1940)).
Cecil Allf argues that declaratory judgment is not possible here because Plaintiff
is seeking to correct an alleged past wrong. Declaratory actions are generally reserved
for situations where “some additional harm, not merely waiting for the natural plaintiff to
sue, will befall the declaratory plaintiff in the meantime.” AmSouth Bank v. Dale, 386
F.3d 763, 786 (6th Cir. 2004). In the tort context, “when a putative tortfeasor sues an
injured party for a declaration of nonliability, courts will decline to hear the action in favor
of a subsequently-filed coercive action by the ‘natural plaintiff.’” Id.

That tendency

stems from the fact that the “‘useful purpose’ served by the declaratory judgment action
is the clarification of legal duties for the future, rather than the past harm a coercive tort
action is aimed at redressing.” Id. Here, Plaintiff is “not merely waiting for the natural
plaintiff to sue,” but is seeking a declaration regarding the ownership interests in the Key
Caribe property through a determination as to whether Alice Knabe had authority to

15

transfer the Knabe Family Limited Partnership’s ownership interest in the Key Caribe
property. The Court concludes that based on the allegations in the Complaint, Plaintiff
has sufficiently plead a claim for declaratory judgment. Therefore, Cecil Allf’s Partial
Motion to Dismiss is DENIED on this basis.
In Counts Five and Six, Plaintiff alleges that Cecil Allf is liable for conversion and
civil theft in connection with the disputed transaction.

Cecil Allf argues he did not

receive property or benefit by virtue of the disputed transaction to which he was not a
party, had no beneficial interest, and has never possessed the property which Plaintiff
alleges was converted or stolen. Cecil Allf maintains that Georgia law applies to these
claims because Key Caribe is a Georgia corporation, and therefore Georgia is the
location of the alleged wrong.
Plaintiff argues that Ohio law controls because the “place of the wrong” is where
the wrongful disposition of the asset occurred, not where the asset later came to rest.
Plaintiff also argues that it is immaterial that Cecil Allf never personally took possession
of Plaintiff’s property after the wrongful act, or that he did not derive any personal
benefit from the wrongful disposition of Plaintiff’s property because such elements are
unnecessary to state a claim for conversion or civil theft.
As this Court has observed, “Ohio has not adopted a test for determining the
place of injury.” Sky Techs. Partners, LLC v. Midwest Research Inst., 125 F. Supp. 2d
286, 296 (S.D. Ohio 2000). However, the Sixth Circuit has applied the Restatement
(Second) of Conflict of Laws to a make that determination, explaining:
A conversion does not occur when there is only a taking of property from
its rightful owner.
A conversion occurs when someone exercises
dominion over the property without the owner's consent or authority. As
the court stated in Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 619 (5th
16

Cir.1989), “[t]he conversion is complete when the defendant takes,
detains, or disposes of the chattel.” (quoting Prosser and Keeton on Torts
106 (5th ed. 1984)).
Charash v. Oberlin Coll., 14 F.3d 291, 297 (6th Cir. 1994).

Based on Plaintiff’s

allegations, Cecil Allf exercised dominion over the membership shares in Ohio when he
had Alice Knabe sign documents which transferred the interest of the Knabe Family
Limited Partnership in the Key Caribe property to the Cecil Allf Trust.
Ohio Revised Code § 2307.60 creates a civil cause of action for damages
resulting from any criminal act. Jacobson v. Kaforey, 149 Ohio St. 3d 398, 401 (Ohio
2016). Under Ohio criminal law, theft is defined as follows:
(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services
in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent;
(2) Beyond the scope of the express or implied consent of the owner or
person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
Ohio Rev. Code § 2913.02. The Court concludes that based on the allegations in the
Complaint, Plaintiff has sufficiently plead a plausible claim for civil theft.
Under Ohio law, the elements of a conversion claim are: “1) plaintiff's ownership
or right to possession of the property at the time of the conversion; 2) defendant's
conversion by a wrongful act or disposition of plaintiff's property rights; and 3)
damages.” NPF IV, Inc. v. Transitional Health Servs., 922 F. Supp. 77, 81 (S.D. Ohio
1996) (citing Haul Transport of VA, Inc. v. Morgan, No. CA 14859, 1995 WL 328995
17

(Ohio Ct. App. 1995)).

The Court concludes that based on the allegations in the

Complaint, Plaintiff has sufficiently plead a plausible claim for conversion.
Therefore, Cecil Allf’s Partial Motion to Dismiss is DENIED as to Plaintiff’s clams
for conversion (Count Five) and civil theft under Ohio Revised Code §2307.60 (Count
Six).
Cecil Allf argues that Counts Nine, Ten and Eleven—seeking a constructive trust,
restitution or an accounting—are remedies, not causes of action. Plaintiff does not
disagree, but explains that these remedies are requested or sufficiently implied in the
Complaint. Plaintiff asks that this matter should proceed without the necessity of a
specific and formal amendment to Plaintiff’s Complaint. The Court agrees. See Morgan
v. Del Glob. Techs. Corp., No. 3-05-CV-123, 2007 WL 3227068, at *18, n.13 (S.D. Ohio
Oct. 29, 2007) (“Since a constructive trust is a remedy, it will not be considered as one
of Morgan’s claims.”) (citing Ferguson v. Owens, 459 N.E.2d 1293, 1295 (Ohio 1984)).
Therefore, Cecil Allf’s Partial Motion to Dismiss is GRANTED as to that Counts Nine,
Ten and Eleven.
Cecil Allf also moves to dismiss the Cross-Claims for intentional interference with
expectancy of inheritance, and the remedies of restitution, constructive trust, and
disgorgement. Cecil Allf argues that the Cross-Claims seek damages for property that
was owned at all times by a separate business entity, and in which they had no legal
interest. Cecil Allf points out that there was never a change in the trust documents or
Alice Knabe’s will to support their claims for tortious interference. Cecil Allf argues that
Cross-Claimants could only ever inherit or stand to inherit property owned by the Alice
Knabe estate, the Alice Knabe Trust or the Robert Knabe Trust at the time that property

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was to be distributed.
The elements of the intentional interference with expectancy of inheritance are:
“(1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional
interference by a defendant(s) with that expectancy of inheritance; (3) conduct by the
defendant involving the interference which is tortious, such as fraud, duress or undue
influence, in nature; (4) a reasonable certainty that the expectancy of inheritance would
have been realized, but for the interference by the defendant; and (5) damage resulting
from the interference.” Firestone v. Galbreath, 67 Ohio St. 3d 87, 88, 616 N.E.2d 202,
203 (Ohio 1993). The Court finds that that based on the allegations in the CrossClaims, Cross-Claimants have sufficiently plead a plausible claim for intentional
interference with expectancy of inheritance. In her Complaint, Plaintiff alleges:
The last Amendment and Restatement of [Alice Knabe’s] estate plan was
reviewed and executed by Alice Knabe on November 13, 2015 (Plaintif f's
Exhibit B). A courtesy copy was presented to Cecil Allf by Attorney
Donnellon through Cecil Allf's attorney, Fred Keith. As with the previous
Amended Agreement of Trust shared with Cecil Alli, the principal
beneficiaries of Alice Knabe's estate would be the six Non­ Profit
Organization Beneficiaries: The Christ Hospital Foundation, University of
Dayton, St. Bernard-Elmwood Place City School District Board of
Education, Shelterhouse Volunteer Group, Inc., Ohio State School of
Dentistry, and Cincinnati State Foundation.
...
On January 13, 2016, Lisa Weiler, Cecil Alli, Alice Knabe, Attorney
Donnellon and the financial advisors for Alice Knabe at UBS chosen by
Cecil Alli met to review Alice Knabe' s estate plan and to review her assets
and the update of her plan. During this meeting at Maple Knoll Village,
everyone reviewed Alice Knabe's estate plan naming the Non-Profit
Organization Beneficiaries and the anticipated value of the assets
including an estimated value of Key Caribe that would pass to the
beneficiaries on her death.
(Doc. 3, ¶¶ 79, 81). Therefore, Cecil Allf’s Partial Motion to Dismiss is DENIED as to

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the Cross-Claimants’ claim for intentional interference with expectancy of inheritance.
C. Bryan Allf’s Motion to Dismiss
Defendant Bryan Allf, as Trustee of the Cecil Allf Trust, moves to dismiss the
Complaint and Cross-Claims against him based on lack of personal jurisdiction, or in the
alternative, for failing to state a claim upon which relief may be granted.
Bryan Allf is a resident of North Carolina, where he administers the Cecil Allf
Trust as its sole trustee. (Bryan Allf Decl. ¶2-4). The Cecil Allf Trust is a Florida trust.
(Doc. 34, Ex. B). The property in dispute is located in Florida. Key Caribe, LLC is a
Florida limited liability company. The Knabe Family Limited Partnership, which owned
an interest in the Key Caribe property before the disputed transaction, is a Georgia
limited partnership. Bryan Allf argues that personal jurisdiction over him does not exist
because neither of the parties to the transaction Plaintiff seeks to rescind were
domiciled in Ohio at the time of Bryan Allf purchased the Key Caribe ownership interest
in dispute. Bryan Allf also maintains that he signed the documents to effectuate the
sale of the Knabe Family Limited Partnership’s interest to the Cecil Allf Trust in North
Carolina. Bryan Allf states that did not travel to Ohio in connection with the transaction
and did not have direct discussions with Alice Knabe about the sale of the ownership
interest.
“Under Ohio law, personal jurisdiction over non-resident defendants is available
only if (1) the long-arm statute confers jurisdiction and (2) jurisdiction is proper under the
Federal Due Process Clause.” Conn v. Zakharov, 667 F.3d 705, 712 (6th Cir. 2012)
(citing Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 930 N.E.2d 784,
790 (2010); Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541, 543 (1994)).

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Under Ohio’s long-arm statute, a court “may exercise personal jurisdiction over a
person who acts directly or by an agent, as to a cause of action arising from the
person’s:”
(1) Transacting any business in this state,
...
(3) Causing tortious injury by an act or omission in this state,
(4) Causing tortious injury in this state by an act or omission outside this
state if he regularly does or solicits business, or engages in any other
persistent course of conduct, or derives substantial revenue from goods
used or consumed or services rendered in this state,
...
(6) Causing tortious injury in this state to any person by an act outside this
state committed with the purpose of injuring persons, when he might
reasonably have expected that some person would be injured thereby in
this state.
(7) Causing tortious injury to any person by a criminal act, any element of
which takes place in this state, which he commits or in the commission of
which he is guilty of complicity.
(8) Having an interest in, using, or possessing real property in this state;
Ohio Rev. Code § 2307.382(A).
The Sixth Circuit has a three-part test for determining whether due process
permits the exercise of personal jurisdiction over a defendant:
First, the defendant must purposefully avail himself of the privilege of
acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant’s activities
there. Finally, the acts of the defendant or consequences caused by the
defendant must have a substantial enough connection with the forum state
to make the exercise of jurisdiction over the defendant reasonable.
Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 680 (6th Cir. 2012) (quoting S. Mach.
Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968)).
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Plaintiff and Cross-Claimants argue that Bryan Allf, as Trustee of the Cecil Allf
Trust, acted directly and through the Trust’s agents to perform acts in Ohio that gave
rise to the claims set forth in the Complaint.
Plaintiff and Cross-Claimants maintain that Allf Trust transacted business in Ohio
under Ohio Revised Code §2307.382(A)(1) because the Private Annuity Agreement,
which purports to transfer Knabe Family Limited Partnership’s ownership interest in Key
Caribe to Bryan Allf as Trustee of the Allf Trust, is by its terms governed by Ohio law.
Plaintiff and Cross-Claimant also explain that the Private Annuity Agreement created an
ongoing obligation of Bryan Allf, as Trustee of the Allf Trust, to make payments to Alice
Knabe in Ohio for the rest of her life. However, as a point of clarification, Bryan Allf
points out that the Private Annuity Agreement provides that payments were to the
“Seller.” While Alice Knabe is listed as the “Seller” in the agreement, it is only in her
capacity as “General Partner of the Knabe Family Limited Partnership.” In other words,
the payments were made not made to Alice Knabe personally, but were made to Alice
Knabe in her capacity as General Partner of the Knabe Family Limited Partnership.
The Ohio Supreme Court has interpreted “transacting” broadly:
“Transact,” as defined by Black's Law Dictionary (5 Ed.1979) 1341, “ * * *
means to prosecute negotiations; to carry on business; to have dealings *
* *.” The word embraces in its meaning the carrying on or prosecution of
business negotiations but it is a broader term than the word ‘contract’ and
may involve business negotiations which have been either wholly or partly
brought to a conclusion * * *.
Ky. Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53 Ohio St. 3d 73, 75, 559 N.E.2d
477 (1990) (emphasis and omissions in original).

In determining what constitutes

“transacting business,” courts typically consider two factors: (1) whether the defendant
initiated the “business dealing,” and (2) whether the parties conducted their negotiations
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in Ohio or with terms affecting Ohio. Thomas v. Dykstra, 309 F. Supp. 3d 480, 484
(N.D. Ohio 2018) (citing Shaker Constr. Grp., LLC v. Schilling, 2008 WL 4346777, at *3
(S.D. Ohio 2008)). In addition, the plaintiff must demonstrate there is a “substantial
connection” between the defendant and the forum state. Id.
Bryan Allf did not personally transact business on behalf of the Cecil Allf Trust.
Instead, Plaintiff’s and the Cross-Claimant’s argument relies on the premise that the
Cecil Allf Trust was transacting business in Ohio because Cecil Allf was acting as agent
on behalf of the Cecil Allf Trust.
“Under Ohio law, agency is a fiduciary relationship which results from (1)
manifestation of consent by one person to another that the other; (2) shall act on his
behalf; and (3) subject to his control; and (4) consent by the other so to act.” Moro
Aircraft Leasing, Inc. v. Keith, 789 F. Supp. 2d 841, 846 (N.D. Ohio 2011) (citing Berge
v. Columbus Cmty. Cable Access, 136 Ohio App.3d 281, 301, 736 N.E.2d 517 (1999)
(citing Restatement (Second) of Agency § 1 (1958)). There are no allegations in the
Complaint or the Cross-Claims which would support a finding that Cecil Allf was acting
as an agent on behalf of Bryan Allf or the Cecil Allf Trust. While there is a familial
relationship between Bryan Allf and Cecil Allf, there are no allegations supporting an
agency relationship under Ohio law. Another Ohio federal court examined a similar
relationship between a husband and wife and determined that an agency relationship
did not exist under Ohio law. Thomas v. Dykstra, 309 F. Supp. 3d 480, 485 (N.D. Ohio
2018). The court reached this conclusion after examining two cases interpreting Ohio
agency law in the context of personal jurisdiction: AgriSales Dynamix, LLC v. RECON
Technologies, LLC, 2012 WL 13027094 (W.D. Mich. 2012), and Stolle Machinery Co. v.

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RAM Precision Industries, 2011 WL 6293323 (S.D. Ohio 2011). The court explained:
Although these cases support the general proposition that an agent's
contacts with a forum may be imputed to the principal, they are easily
distinguishable from this case. In AgriSales Dynamix, the court imputed
an individual's contacts to a company with which he had a formal
consulting relationship. AgriSales Dynamix, 2012 WL 13027094, at *3–4.
The court concluded that because the company had contracted with the
individual to “derive benefits from his ongoing Michigan contacts,” it could
not “disclaim those same contacts” to limit personal jurisdiction. Id. at *4.
Stolle Machinery involved a misappropriation of trade secrets claim. The
court found an agency relationship existed between a company and its
CEO because the CEO allegedly stole the trade secrets at issue and then
used them to establish the company. Stolle Mach., 2011 WL 6293323, at
*3–4, *7–8. The company subsequently ratified its CEO's conduct by
“knowingly using those trade secrets ... for its own financial gain.” Id. at
*8. Both AgriSales Dynamix and Stolle Machinery involved developed
business relationships and companies that ratified the other party's
contacts by intentionally misusing the information gleaned from the
contacts for their own benefit. Neither of these factors is present in this
case.
309 F. Supp. 3d at 485. Therefore, the court concluded that the husband did not create
an agency relationship with his wife by merely agreeing that his wife's parents could
move in with their family. Id. Similarly, Plaintiff has not alleged that there was a formal
agreement or understanding that Cecil Allf would act an agent on behalf of Bryan Allf or
the Cecil Allf Trust. Therefore, there was no agency relationship between Cecil Allf and
Bryan Allf.
Moreover, the only connection to Ohio is the payments to be made to Alice
Knabe, who happened to be living in Ohio at the time she signed the Private Annuity
Agreement.

Such an arrangement does not satisfy the “purposeful availment”

requirement under the federal due process analysis. See Calphalon Corp. v. Rowlette,
228 F.3d 718, 722-23 (6th Cir. 2000) (“[I]n International Technologies Consultants v.
Euroglas, 107 F.3d 386, 395 (6th Cir. 1997), we found it ‘purely fortuitous’ that the

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foreign defendant-seller had any contact with Michigan. The defendant was not
attempting to ‘exploit any market for its products’ in the state of Michigan, but rather had
contact with the state only because the plaintiff chose to reside there.”). Therefore, this
Court lacks jurisdiction personal jurisdiction over Bryan Allf under both the under
Section 2307.382(A)(1) of the Ohio long-arm statute and the Due Process Clause.
Next, Plaintiff and Cross-Claimants argue that this Court has personal jurisdiction
over Bryan Allf under Sections 2307.382(A)(4) and (7) of Ohio’s long-arm statute. The
Complaint and the Cross-Claims allege that Cecil Allf’s conduct was tortious and
constituted theft. Plaintiffs and Cross-Claimants argue that this permits the Court to
exercise personal jurisdiction. However, this argument rests on the premise that Cecil
Allf acted as agent for the Cecil Allf Trust. Because the Court has determined that there
are no allegations to support the conclusion that Cecil Allf was acting as an agent for
Cecil Allf Trust, this Court lacks personal jurisdiction over Bryan Allf under Sections
2307.382(A)(4) and (7) of Ohio’s long-arm statute.
Finally, Plaintiff and Cross-Claimants explain the Cecil Allf Trust has owned
various parcels of real estate in Ohio; and the Cecil Allf Trust continues to own the sole
membership interest in Allf Family, LLC, an Ohio limited liability company, which owns
commercial real estate in Ohio. Plaintiff and Cross-Claimants maintain that this Court
has personal jurisdiction over Bryan Allf under Sections 2307.382(A)(1) and (8) based
on this ownership. However, Ohio’s long-arm statute provides that “[w]hen jurisdiction
over a person is based solely on this section, only a cause of action arising from acts
enumerated in this section may be asserted against him.” Ohio Rev. Code §
2307.382(C). The claims in the Complaint and the Cross-Claims do not arise from the

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Cecil Allf Trust’s ownership of property in Ohio. Therefore, despite this ownership of
property in Ohio, the Court does lacks personal jurisdiction over Bryan Allf under
Sections 2307.382(A)(1) and (8) of Ohio’s long-arm statute.
Because this Court does not have personal jurisdiction over Bryan Allf, as
Trustee for the Allf Family Trust, Defendant Bryan E. Allf’s Motion to Dismiss is
GRANTED. This dismissal is without prejudice. Accord Intera Corp. v. Henderson, 428
F.3d 605, 620–21 (6th Cir. 2005).
D. Key Caribe’s Motion to Dismiss
Defendant Key Caribe has also moved to dismiss the Complaint and CrossClaims based on lack of personal jurisdiction or, in the alternative, for failing to state a
claim upon which relief may be granted.
Key Caribe argues that this Court lacks personal jurisdiction over it. Plaintiff and
Cross-Claimants respond that this Court has personal jurisdiction over Key Caribe
under Sections 2307.382(A)(1), (3), (4), (6) and (7) of Ohio’s long-arm statute.
Key Caribe, LLC was formed on January 19, 2016. (Doc. 3, Ex. I, PAGEID#
370). According to the Operating Agreement, Cecil Allf is Key Caribe’s Manager. (Doc.
3, Ex. I, PAGEID # 372). As Manager, Cecil Allf has “exclusive power and authority to
manage and control all Company business.” (Doc. 3, Ex. I, PAGEID# 372). Plaintiff
alleges that Cecil Allf conducted business, caused tortious injury and committed civil
theft in Ohio on behalf of, and for the benefit of, Key Caribe.

According to the

Complaint, Cecil Allf came to Ohio on several occasions and met with Alice Knabe so
that he could force Alice Knabe, an Ohio resident, to execute Key Caribe’s Operating
Agreement. (Doc. 3, ¶¶ 58-59, ¶ 76). Plaintiff alleges that on multiple days in February

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of 2016, Cecil Allf met with Alice Knabe in Ohio to have her sign documents, including
the Operating Agreement, which purportedly transferring the Knabe Family Limited
Partnership’s ownership interest in the Key Caribe property into Key Caribe, LLC. (Doc.
3, ¶¶ 82, 92, 93). Cross-Claimants allege that Cecil Allf’s actions in Ohio form the basis
of their claims for intentional interference with expectancy of inheritance which it brings
against Key Caribe.
The Court concludes that Plaintiff and the Cross-Claimants have set forth
allegations which establish personal jurisdiction over Key Caribe under Sections
2307.382(A)(1), (3), (6) and (7) of Ohio’s long-arm statute. The Complaint and the
Cross-Claims allege that Cecil Allf was acting as an agent for Key Caribe and
transacted business in Ohio when he travelled to Ohio to meet with Alice Knabe and
have her sign documents. These documents included the Operating Agreement and
documents which purportedly transferred the Knabe Family Limited Partnership’s
ownership interest in the Key Caribe property to Key Caribe, LLC. Also included in
these documents was the Private Annuity Agreement, which provided that Alice Knabe
would receive an annuity which would pay her $20,000 a month for the rest of her life.
Plaintiff alleges that Key Caribe has breached the Operating Agreement. Plaintiff and
Cross-Claimants allege that by having Alice Knabe sign the documents which
transferred of the Knabe Family Limited Partnership’s ownership interest in the Key
Caribe property to Key Caribe, LLC, Cecil Allf committed civil theft in Ohio which caused
tortious injury to them. Plaintiff also brings a claim of conversion based on the acts of
Cecil Allf. This same tortious injury forms the basis of the Cross-Claimants’ claim for
interference with the expected inheritance of the Cross-Claimants. Plaintiff and Cross-

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Claimants have alleged that Cecil Allf might reasonably have expected that the CrossClaimants would be tortuously injured because Allf had knowledge of Alice Knabe’s
estate plan. Therefore, Key Caribe acted through its agent to perform acts in Ohio that
gave rise to the claims set forth in the Complaint.
The Court also concludes that the exercise of personal jurisdiction over Key
Caribe, LLC is consistent with Due Process. First, Key Caribe, through its agent, Cecil
Allf, purposefully availed itself to this forum. The “transacting any business” in Ohio’s
long-arm statute is coextensive with the Due Process clause. Burnshire Dev., LLC v.
Cliffs Reduced Iron Corp., 198 F. App'x 425, 432 (6th Cir. 2006). In addition, Plaintiff
alleges that Cecil Allf committed civil theft in Ohio in order to transfer the Key Caribe
property from the Knabe Family Limited Partnership to Key Caribe, LLC.
Second, Plaintiff’s and Cross-Claimant’s claims against Key Caribe arise from
Cecil Allf’s activities in Ohio. The Operating Agreement for Key Caribe and documents
purporting to transfer the ownership interest from the Knabe Family Limited Partnership
to Key Caribe were negotiated, drafted and signed in Ohio. Plaintiff and the CrossClaimants claim that these documents were a result of the civil theft committed by Cecil
Allf in Ohio. Plaintiff and the Cross-Claimants also claim that Key Caribe breached the
Operating Agreement by failing to make certain payments to Alice Knabe in Ohio.
“When the first two prongs of our personal jurisdiction test are met, there is an
inference of reasonableness and ‘only the unusual case will not meet this third criteria.’”
MAG IAS Holdings, Inc. v. Schmuckle, 854 F.3d 894, 903-904 (6th Cir. 2017) (quoting
Air Prod. & Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 554 (6th Cir. 2007)).
Courts look to the following factors in making a reasonableness determination: “(1) the

28

burden on the defendant; (2) the forum state’s interest; and (3) the plaintiffs' interest in
obtaining relief.” Id. (citing City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399
F.3d 651, 666 (6th Cir. 2005)). Cecil Allf’s multiple trips to Ohio to negotiate the terms
of the Operating Agreement and other documents do not evince that exercising
personal jurisdiction over Cecil Allf as agent for Key Caribe, LLC would not create a
burden on Key Caribe. Therefore, the Court concludes that the acts of Cecil Allf on
behalf of Key Caribe, LLC have a substantial enough connection with Ohio to satisfy
Due Process.
Because this Court concludes that it has personal jurisdiction over Key Caribe,
LLC, Key Caribe’s Motion to Dismiss for lack of personal jurisdiction is DENIED.
Key Caribe also argues that Plaintiff has failed to state a claim upon which relief
can be granted. Key Caribe argues that Plaintiff’s only claim against Key Caribe is for
breach of contract (Count Eight) for failure to make finance distributions under the terms
of the Operating Agreement. Key Caribe asserts that Plaintiff cannot demonstrate that
she is entitled to the relief she seeks from Key Caribe for breach of the Operating
Agreement because the language of the Operating Agreement requires the Manager of
Key Caribe to make distributions, not Key Caribe.

However, as noted above, the

Manager has “exclusive power and authority to manage and control all Company
business.” (Doc. 3, Ex. I, PAGEID# 372). There is nothing in the language of the
Operating Agreement which would indicate that the Manager’s responsibility to make
distributions is divorced from the power and authority to manage and control all
Company business. Therefore, the Court concludes that based on the allegations in the
Complaint, Plaintiff has sufficiently plead a plausible claim for breach of contract.

29

Finally, Key Caribe argues that the Cross-Claimants have failed to state a claim
for intentional interference with expectancy of inheritance.

The Court has already

determined that the Cross-Claimants have stated a claim for intentional interference
with expectancy of inheritance against Cecil Allf. The Court has also concluded that
Plaintiffs and Cross-Claimants have alleged that as Manager of Key Caribe, Cecil Allf
acted as an agent of Key Caribe. Therefore, the Court concludes that based on the
allegations in the Cross-Claims, Cross-Claimants have sufficiently plead a plausible
claim for intentional interference with expectancy of inheritance.
Accordingly, Key Caribe, LLC, Key Caribe’s Motion to Dismiss for failure to state
a claim is DENIED.
III.

CONCLUSION
Based on the foregoing, Defendant Bryan E. Allf’s Motion to Dismiss (Doc. 29) is

GRANTED; Defendant Cecil E. Allf’s Partial Motion to Dismiss Complaint and Motion to
Dismiss Cross-claims (Doc. 31) is DENIED in PART and GRANTED in PART; and
Defendant Key Caribe, LLC’s Motion to Dismiss (Doc. 32) is DENIED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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