Kellum v. Standard Register Co

Filing 8

REPORT AND RECOMMENDATIONS re 4 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND FAILURE TO JOIN A REQUIRED PARTY filed by Standard Register Co, 2 Complaint filed by Charles E Kellum, Sr Objections to R&R due by 12/22/2014. Signed by Magistrate Judge Michael R Merz on 12/3/2014. (ead1)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHARLES E. KELLUM, SR.,
Plaintiff,

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vs

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Case No. 3:14-cv-357

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

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STANDARD REGISTER CO.,

Defendant.

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REPORT AND RECOMMENDATIONS

Plaintiff Charles E. Kellum, Sr., brought this action pro se to recover for injuries he
suffered at the Standard Register Company. He alleges in his Complaint that his foreman
ordered him to adjust a moveable blade on a shredder in a particular way and it ended up injuring
his wrist (Complaint, Doc. No. 1, PageID 14.) He seeks compensatory damages in the amount of
$100 million dollars and unspecified punitive damages. Id. at PageID 15. Mr. Kellum filed suit
October 19, 2014. Id.
Standard Register has moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12 on
the grounds that Mr. Kellum has failed to state a claim upon which relief can be granted. It notes
that if Mr. Kellum was an employee, his claim falls under the Ohio Workers Compensation
statute (Motion, Doc. No. 4, PageID 19). On the other hand, if he was an employee of an

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independent contractor, he has failed to join that entity as a party. Id. Finally, it notes that Mr.
Kellum fails to state when his injury occurred. Id.
Mr. Kellum’s response (captioned Plaintiff’s Motion Not to Dismiss, Doc. No. 7) clears
up some of the confusion. He clarifies that he was an employee of Standard Register at the time
the injury occurred. Id. at PageID 24. He states he was injured on July 20, 1962, and gives
more detail about how the injury occurred. He then was sent to the company doctor, Dr.
Madden, who prescribed pain pills, wrapped the injured wrist in an ace bandage, and told him
the company had some one-handed work he could do. Id. at PageID 25. As proof that he was
injured on the job, he attaches two sheets he says were created by Standard Register and given to
the newspaper after he picketed. PageID 26. The sheets in question show he was injured July
20, 1962, and an industrial claim (i.e. under Workers’ Compensation – Workman’s
Compensation as it was then called) was filed (PageID 27) In May 1963 he was laid off as part
of a reduction in force. His grievance for that layoff was denied. Id. In July 1963 he filed for
permanent partial disability, but the Industrial Commission denied that claim on Octobr 15,
1063. Two days later he picketed the company, blaming both Standard Register for the injury
and his union, Local 768, for not protecting him. As a result of these actions, and entering the
building and refusing to leave, he was discharged. Id.
Taking all of these facts, which have been pled by Mr. Kellum by attaching them to his
pleadings, the Magistrate Judge concludes this case must be dismissed for failure to state a claim.
At the time Mr. Kellum worked for Standard Register and was injured, it was the law in Ohio
that workman’s compensation was the sole remedy an injured employee had for workplace
injuries. Section 35, Article II of the Ohio Constitution; Ohio Revised Code § 4123.74 and
4123.71. About twenty years later, the Ohio Supreme Court began to recognize an exception for

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injuries to employees intentionally inflicted by the employer.

Blankenship v. Cincinnati

Milacron Chemicals, Inc., 69 Ohio St. 2d 608 (1982). However, even assuming Mr. Kellum’s
Complaint can be read as alleging an intentional injury, the statute of limitations for intentional
torts in Ohio is one year, and Mr. Kellum has filed more than fifty years after he was injured.
Because Mr. Kellum’s Complaint was filed many years after the statute of limitations
expired, it should be dismissed with prejudice.

December 3, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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