Hittle et al v. Wal-Mart Stores East, LP et al
Filing
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OPINION AND ORDER granting 5 Motion to Dismiss for Failure to State a Claim filed by Defendant Michael DeWine. Signed by Judge Gregory L. Frost on 11/30/2015. (kk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROCHELE HITTLE, et al.,
Case No. 2:15-cv-2295
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers
Plaintiffs,
v.
WAL-MART STORES EAST, LP, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of Defendant Ohio Attorney General
Mike DeWine’s (“OAG”) motion to dismiss for failure to state a claim. (ECF No. 5.) The
motion is unopposed. For the reasons that follow, the Court GRANTS the motion.
I.
BACKGROUND
This litigation involves an incident in which Plaintiff Rochelle Hittle claims she was
sexually assaulted on Defendant Wal-Mart’s premises. Plaintiffs (Mrs. Hittle and her
husband) assert a claim for declaratory relief as to the constitutionality of the state statutory
caps on the recovery of non-economic damages in tort cases, in addition to other claims.
Plaintiff brought her claims in the Muskingum County, Ohio, Court of Common Pleas.
Plaintiffs joined the OAG as a defendant to this lawsuit pursuant to Ohio Revised
Code § 2721.12(A), which provides that “all persons who have or claim any interest that
would be affected by the declaration shall be made parties to the action or proceeding.”
O.R.C. § 2721.12(A). Plaintiffs claimed that the OAG has an interest in this case because he
would be affected by the declaration Plaintiffs seek.
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The OAG filed a motion to dismiss him from this action. The OAG noted that,
although Ohio Revised Code § 2721.12(A) provides him with discretion to be heard in actions
seeking a declaratory judgment regarding the constitutionality of a state statute, it does not
require that he be named as a party. Indeed, § 2712.12(A) states: “if any statute . . . is alleged
to be unconstitutional, the attorney general also shall be served with a copy of the complaint.”
The OAG stated that he “does not seek to be heard at this time pursuant to R.C. 2712.12.”
(ECF No. 5, at PAGEID # 49.)
Defendants removed this case to this Court on diversity grounds. Plaintiffs moved to
remand this case to state court on the ground that no diversity exists because the OAG is a
real party in interest to this case.
The Magistrate Judge rejected Plaintiff’s argument. In a report and recommendation
dated October 22, 2015, the Magistrate Judge found that the OAG is not a real party in
interest with respect to the declaratory judgment claim. The Magistrate Judge based her
holding on the language of § 2721.12(A) and on case law interpreting the same.
The Court accepted the Magistrate Judge’s recommendation and denied Plaintiffs’
motion to remand. As such, the Court has already determined that the OAG is not a real party
in interest to Plaintiffs’ claim for declaratory relief.
The issue presented in the OAG’s motion to dismiss is the same issue that the parties
argued in their briefing on the motion to remand. Plaintiff did not respond to the OAG’s
motion to dismiss or otherwise argue that different analysis should apply.
II.
ANALYSIS
Dismissal pursuant to Rule 12(b)(6) is proper if the complaint fails to state a claim
upon which the Court can grant relief. Fed. R. Civ. P. 12(b)(6). The court must construe the
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pleading in favor of the party asserting the claim, accept the factual allegations contained
therein as true, and determine whether those factual allegations present a plausible claim. See
Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). To be considered plausible, a claim
must be more than merely conceivable. Id. at 556; Ass’n of Cleveland Fire Fighters v. City of
Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(emphasis added). “Factual content” requires more than “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. In
other words, a court need not “accept as true a legal conclusion couched as a factual
allegation.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Here, the Court has already determined that the OAG is not a real party in interest to
Plaintiffs’ claim for declaratory relief. Because Plaintiffs do not allege that the OAG played
any role in the facts underlying this lawsuit, the Court agrees with the OAG that the complaint
fails to state a claim against him. Dismissal of the OAG from this action, therefore, is proper.
III.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant OAG’s motion to dismiss
the claims against him. The Court DIRECTS the Clerk to terminate Michael DeWine, Ohio
Attorney General, as a defendant in this lawsuit.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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