Foley v. Univ. of Dayton

ANDREW FOLEY, et al., Plaintiffs, v. UNIVERSITY OF DAYTON, et al., Defendants.

Case No. 3:15-cv-96

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

December 7, 2015

JUDGE WALTER H. RICE

DECISION AND ENTRY SUSTAINING IN PART DEFENDANT DYLAN PARFITT'S AND DEFENDANT MICHAEL R. GROFF'S MOTIONS FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, TO CERTIFY QUESTIONS OF LAW TO THE OHIO SUPREME COURT (DOCS. ##26, 28); SUSTAINING DEFENDANT DYLAN PARFITT'S AND DEFENDANT MICHAEL R. GROFF'S MOTIONS FOR A STAY (DOCS. ##27, 29); STAYING PROCEEDINGS AS TO THESE TWO DEFENDANTS PENDING CERTIFICATION TO OHIO SUPREME COURT

This matter is currently before the Court on several motions filed by Defendants Dylan Parfitt and Michael R. Groff: (1) Motions for Judgment on the Pleadings or, in the Alternative, to Certify Questions of Law to the Ohio Supreme Court, Docs. ##26, 28; and (2) Motions for a Stay, Docs. ##27, 29. After reviewing the parties' briefs and the relevant case law, the Court concludes that there are several dispositive unresolved questions of state law. Accordingly, the Court sustains Defendants' alternative motions to certify those questions to the Ohio Supreme Court, and stays all proceedings with respect to Defendants Parfitt and Groff.

I. Background and Procedural History

According to the First Amended Complaint, Doc. #3, in the early morning hours of March 14, 2013, Plaintiffs Evan Foley, Andrew Foley and Michael Fagans, knocked on the door of a townhouse located on the campus of the University of Dayton ("UD"), mistakenly believing that this was where their friend lived. Defendant Michael Groff, who was allegedly intoxicated, opened the door. When Evan asked if his friend was at home, Groff allegedly became belligerent and began shouting profanities. Evan, realizing that he was at the wrong townhouse, extended his hand in an effort to apologize, but Groff allegedly slammed the door in his face. Evan knocked once more, and then he and the others turned to leave. After they began walking down the street toward Evan's apartment, Groff re-opened the door and yelled that he had contacted the UD Police Department.

Shortly thereafter, Sergeant Thomas Ryan of the UD Police Department approached Evan. Michael Fagans and Andrew Foley, who were walking slightly ahead of Evan, kept walking. Sergeant Ryan asked Evan if he knew why he was being stopped. Evan responded, "of course," and indicated that Groff said he had called the police. Ryan then handcuffed Evan and arrested him for burglary. After Evan was taken to jail, Sergeant Ryan interviewed Groff and his roommate, Defendant Dylan Parfitt. The following day, Andrew Foley and Michael Fagans were also arrested for burglary. Ultimately, the criminal charges against Andrew and Michael were dismissed, and the charges against Evan were resolved.

On March 13, 2015, Evan Foley, Andrew Foley and Michael Fagans filed suit against UD and eleven UD Police Department employees, seeking relief under 42 U.S.C. § 1983 for violations of their constitutional rights, and asserting state law claims of false arrest, false imprisonment, malicious prosecution, assault, battery, negligence, negligent hiring, supervision, training and retention, and intentional infliction of emotional distress.

Plaintiffs also asserted claims of "negligent misidentification" against Michael Groff and Dylan Parfitt. Plaintiffs allege that: (1) Groff and Parfitt owed them a duty of care when providing information to law enforcement authorities regarding their involvement in the commission of a crime; (2) Groff and Parfitt reported to UD law enforcement authorities that Plaintiffs had been involved in a criminal act, namely, the refusal to leave their property after being asked to do so, inferred an intent to cause harm, and claimed that they had been involved in a robbery or an attempted robbery; (3) Groff and Parfitt breached their duty of care to Plaintiffs by negligently, improperly identifying them as being responsible for a criminal act; and (4) because of this improper, negligent misidentification, Plaintiffs suffered economic and non-economic damages. Doc. #3, PageID##121-22.

Defendants Groff and Parfitt have each filed Motions for Judgment on the Pleadings or, in the alternative, to Certify Questions of Law to the Ohio Supreme Court. Docs. ##26, 28. They have also asked the Court to stay all proceedings pending resolution of those motions. Docs. ##27, 29.

II. Motions for Judgment on the Pleadings or, in the alternative, to Certify Questions of Law to the Ohio Supreme Court (Docs. ##26, 28)

A. Federal Rule of Civil Procedure 12(c)

Motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) are analyzed under the same standard as motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. National Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (internal citation and quotation marks omitted). However, the court need not accept as true legal conclusions or unwarranted factual inferences. Id. (citing Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)).

To withstand a Rule 12(c) motion for judgment on the pleadings, "a complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory." Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). "The factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead 'sufficient factual matter' to render the legal claim plausible, i.e., more than merely possible." Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.662 (2009)). A "legal conclusion couched as a factual allegation" need not be accepted as true, nor are recitations of the elements of a cause of action sufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

B. Summary of Parties' Arguments

Defendants Groff and Parfitt argue that the negligent misidentification claim is subject to dismissal under Rule 12(c) because: (1) statements made to a police officer implicating a third person in a crime are absolutely privileged; (2) the negligent misidentification claim is really a defamation claim in disguise, and is therefore time-barred; and (3) at the very least, their statements to UD police officers are subject to a qualified privilege, and Plaintiffs have failed to allege that those statements were made with actual malice.

In the alternative, Defendants argue that, because the law in this area is unsettled, the Court should certify several questions to the Supreme Court of Ohio, pursuant to Supreme Court Practice Rule 9.01(A), which permits a federal court to certify questions of law to the Ohio Supreme Court if "there is a question of Ohio law that may be determinative of the proceeding and for which there is no controlling precedent in the decisions of [the] Supreme Court." Defendants propose the following questions for certification:

(1) Does the absolute privilege recognized in M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St. 3d 497 (1994) extend to statements made to law enforcement officers?;(2) Are statements to law enforcement officers implicating another person in criminal activity entitled to an absolute privilege against civil liability?;

(3) Is the doctrine of absolute privilege applicable to claims of negligent misidentification?; and

(4) What is the statute of limitations for claims of negligent identification/misidentification?

Plaintiffs note that, while Defendants' arguments all rest on the faulty premise that a claim of negligent misidentification is treated the same as a defamation claim, Ohio courts have long recognized the tort of negligent misidentification, separate and distinct from a claim of defamation.

Plaintiffs argue that the doctrines of absolute and qualified privilege, which are common defenses to claims of defamation, are not available to shield Groff and Parfitt from civil liability for negligent misidentification. In the alternative, Plaintiffs argue that, even if their negligent misidentification claim is construed as a defamation claim, Defendants' statements are not subject to an absolute or qualified privilege under the circumstances presented here. Plaintiffs also deny that their claim of negligent misidentification is barred by the one-year statute of limitations applicable to defamation claims. Based on the foregoing, Plaintiffs contend that there is no reason to certify any of the above questions to the Supreme Court of Ohio.

C. Negligent Misidentification vs. Defamation

There appears to be no serious dispute that Ohio recognizes the tort of negligent misidentification, separate and apart from the tort of defamation, "forpersons who are negligently[,] improperly identified as being responsible for committing a violation of the law, and who suffer injury as a result of the wrongful identification." Wigfall v. Society Nat'l Bank, 107 Ohio App.3d 667, 673, 669 N.E.2d 313, 316 (Ohio Ct. App. 1995). See also Mouse v. Central Savings & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (Ohio 1929); Walls v. Columbus, 10 Ohio App.3d 180, 182, 461 N.E.2d 13, 16 (Ohio Ct. App. 1983); Barilla v. Patella, 144 Ohio App.3d 524, 534, 760 N.E.2d 898, 905 (Ohio Ct. App. 2001); Woods v. Summertime Sweet Treats, Inc., No. 08-MA-169, 2009 WL 3806179, at *5 (Ohio Ct. App. Nov. 13, 2009); Cummerlander v. Patriot Prep. Academy, Inc., 86 F. Supp.3d 808, 826 (S.D....