COURT OF COMMON PLEAS
Thursday, August 23, 2012 4:30:35 PM
CASE NUMBER: 2012 CV 02947 Docket ID: 17461522
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO2
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CITY OF HUBER HEIGHTS, OHIO.
DON ALLEN HOLBROOK, LLC
HEATHER DOBROTT, et al.
CASE NO: 2012-CV-02947
JUDGE MICHAEL TUCKER
Heather Dobrott, Cynthia Calvert,
and Hartburg Publications, LLC’s
Joint Reply Brief in Support of Their
Motions To Dismiss for
Lack of Personal Jurisdiction and
Motions to Quash Service of Process
Third-Party Defendants Heather Dobrott, Cynthia Calvert, and Hartburg Publications, LLC’s respectfully renew their request that this matter be dismissed for lack of personal jurisdiction.
Defendant / Third-Party Plaintiff Don Allen Holbrook, LLC’s Responses in
Opposition to have no merit for two reasons:
Holbrook fails to make a prima facie evidentiary showing that Dobrott, Calvert, or Hartburg’s publications “caus[ed] tortious injury…in this state,” which is a necessary requirement to confer personal jurisdiction under Ohio’s long-arm statute; and Holbrook fails to make a prima facie showing that Dobrott, Calvert, or Hartburg purposefully availed themselves of Ohio’s laws, which is a necessary requirement under the Due Process Clause of the United States Constitution.
For these reasons, Dobrott, Calvert, and Hartburg respectfully request this Court to dismiss Holbrook’s claims against them for lack of personal jurisdiction and improper service of process.
A. THERE IS NO JURISDICTION UNDER OHIO’S LONG-ARM STATUTE—THERE IS NO EVIDENCE THAT DOBROTT, CALVERT, AND HARTBURG CAUSED A TORTIOUS INJURY IN OHIO.
i. Holbrook has not presented any evidence or made a prima facie case supporting its claim for jurisdiction.
It is undisputed that Ohio’s long-arm statute requires Holbrook to show that Dobrott, Calvert, and Hartburg “caused] tortious injury…in this state” in order to prove personal jurisdiction over these out-of-state defendants. R.C. 2307.382(A). Holbrook has the burden of establishing the Court's jurisdiction. Kerger v. Dentsply Int'l, Inc., 8th Dist. No. 94430, 2011-
Ohio-84, ¶11. Holbrook must make a prima facie evidentiary showing of jurisdiction to withstand the motion to dismiss—an evidentiary showing sufficient to convince reasonable minds that this Court has jurisdiction. Id. (citing Giachetti v. Holmes, 14 Ohio App.3d 306, 471
N.E.2d 165 (1984) and Klug v. Trivison, 137 Ohio App.3d 838, 739 N.E.2d 1243 (2000)).
It is Holbrook’s burden, therefore, to come forward with sufficient evidence to make a prima facie showing of causation. He has not done so. Instead, he has provided this Court with abject speculation built upon hearsay. Holbrook has only provided inadmissible hearsay statements that Huber Heights representatives received a “strange” telephone call and had
researched information on the internet about him. He hopes that this Court will speculate, as he has, that the telephone call and the articles came from Dobrott, Calvert, or Hartburg and further speculate, as he has, that these statements caused Huber Heights to end its business
relationship with him. This Court cannot and should not hale three Texas residents to Ohio to participate in litigation built upon speculations based solely on hearsay.3
ii. There is no evidence that anyone in Ohio read anything published by Dobrott, Calvert, and Hartburg before Huber Heights ended its business relationship with Holbrook. Holbrook contends that its alleged injuries occurred on February 29, 2012. Def’s 2d Am. Third-Party Complaint, June 22, 2012, ¶12. Yet, there is no evidence or even an allegation
that anyone in Ohio had ever read the articles by Dobrott, Calvert, and Hartburg before February 29, 2012. Even Holbrook himself admits he was ignorant of these publications until after March 14, 2012. See Holbrook Aff. ¶6-9.
Holbrook’s responses to Dobrott’s and Calvert’s motions include affidavits from three individuals: Shelli Nestle, Roger Reynolds, and Steven Carne. All three affiants claimed that they accessed Dobrott’s publications on the internet. Conspicuously absent, however, is any testimony suggesting that the affiants—or anyone else in the State of Ohio—viewed Dobrott’s
publications before February 29, 2012. The closest Holbrook comes to establishing this essential part of its prima facie case is the following statement in Carne’s affidavit: I spoke to Mayor Fisher on March 15, 2012 and Mayor Fisher told me that Jim Borland, Acting City Manager…gave [Council Member Mark] Campbell copies of internet research on Don Allen Holbrook and that Mr. Campbell gave copies to Mr. Fisher.
Carne Aff., ¶6. Of course, Carne’s statement about what Mayor Fisher told him is pure hearsay and is not admissible evidence. But even if this Court were willing to consider the statement, there is no evidence that this alleged “internet research” included any publication by Calvert,
Dobrott, or Hartburg. Moreover, it fails to identify (among other things): the date on which the “internet research” was performed; the date on which the documents were provided to Council Member Campbell; a description of the documents that were included in the “copies” that were
provided to Council Member Campbell; or any description of any action taken by anyone in response to this “internet research.”4
Holbrook’s response to Calvert and Hartburg’s motion to dismiss was also supported by an affidavit of Don Allen Holbrook.
Therein, he claims:
On February 29, 2012, I received an e-mail from Gary Adams, City Manager at
the time, in which Mr. Adams told me that he had been contacted by a reporter in a city near Houston, Texas asking if the city had a contract with [Holbrook],
which Mr. Adams said he confirmed, and then Mr. Adams told me in the e-mail
that it was a “strange conversation”, but that he was not concerned about it
because it did not pertain to the City.
Holbrook Aff. ¶3. Holbrook’s statement about what Gary Adams said is also inadmissible hearsay, and Holbrook’s statement about what Adams said that an unidentified reporter said is inadmissible double hearsay. Once again, however, even if this Court were willing to consider this testimony, it does not identify the name of the reporter or the substance of the conversation.
If anything, this statement exonerates Dobrott, Calvert, and Hartburg because, by Holbrook’s own admission, the “strange conversation . . . did not pertain to the City.” Finally, Holbrook offers no support for its suggestion that this Court must accept the conclusory allegations in its pleadings as true. Holbrook alleges that Huber Heights ended its business relationship with him as a result of publications by Dobrott, Calvert, and/or Hartburg.
But he has provided not a scintilla of actual evidence that anyone in Ohio read any publications before February 29, 2012. Because Holbrook has no evidence to support its allegations that Dobrott, Calvert, or Hartburg “caus[ed] tortious injury…in this state,” on or before that date, he has not made a prima facie showing that the Ohio long-arm statute can establish personal
jurisdiction over them. Accordingly, this Court should grant the motion to dismiss.
Nestle, Reynolds, and Crain’s affidavits were also attached to Holbrook’s response to Calvert and Hartburg’s motion. None of these affidavits make any direct reference to publications by Calvert or Hartburg. To the extent
they can be read to do so indirectly, Calvert and Hartburg incorporate the same arguments and objections raised in
the preceding paragraph.5
B. AN EXERCISE OF JURISDICTION WOULD OFFEND DUE PROCESS; HOLBROOK HAS FAILED TO OFFER ANY EVIDENCE TO SHOW THAT DOBROTT, CALVERT, OR HARTBURG PURPOSEFULLY AVAILED THEMSELVES OF OHIO LAW.
Even if this Court were to conclude that Holbrook has come forward with sufficient evidence to invoke the Ohio long-arm statute—which he plainly has not—Holbrook has no evidence or legal authority to support its claim that Dobrott, Calvert, and Hartburg’s due process rights would not be violated if this Court were to assert personal jurisdiction over them.
Holbrook’s entire argument on this issue is based on selective quotations from the Ohio Supreme Court’s opinion in Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St. 3d 81, 2010-Ohio-2551, 930 N.E.2d 784. The Kauffman Court held that an out-of-state defendant could be subject
to the jurisdiction of Ohio’s courts for defamatory statements posted on the internet about an Ohio corporation. This holding, however, turned on the fact that the plaintiff came forward with evidence of the following to make a prima facie showing that the defendant’s had purposefully
availed himself of Ohio’s laws:
[The defendant] knew that [the plaintiff] was an Ohio company. [The defendant] impugned the activities that [the defendant] undertakes in Ohio. [The defendant] hoped that his commentary would have a devastating effect on [the plaintiff] and that if there were fallout from his comments, the brunt of the harm would be felt in Ohio.
Id. at ¶56. The Kauffman Court held that, to find jurisdiction in Ohio, the tortious activity must have been “calculated to cause injury in a focal point where the brunt of the injury would occur.” Id. at ¶66 (internal quotations omitted). As discussed at length in Dobrott, Calvert, and Hartburg’s motions to dismiss, the facts of this case are clearly distinguishable: (1) Holbrook is not an Ohio-based entity—it’s an Arizonaregistered entity, and Holbrook, the individual, is a Nevada resident; (2) none of Dobrott,
Calvert, and Hartburg’s publications about Holbrook before February 29, 2012 involved its activities in Ohio—they were all about projects in Nevada and Texas; and (3) neither Dobrott,6 Calvert, nor Hartburg had reason to believe that “the brunt” of any alleged harm from their
publications would be felt in Ohio—none of them had any reason to suspect that he was operating in Ohio until February 29, 2012. Accordingly, Holbrook has not made a prima facie showing of purposeful availment, a required element of this Court’s due-process analysis.
As discussed in their motions to dismiss, the facts of this case are properly analogized to Reynolds v. International Amateur Ath. Fedn., 23 F.3d 1110 (6th Cir. 1994), 2 Cadle Co. v. Schlichtmann, 6th Cir. No. 04-3145, 123 Fed. Appx. 675 (Feb. 8, 2005), and Oasis Corp. v. Judd, 132 F.Supp.2d 612, 614 (S.D. Ohio 2001). In all three cases, the courts concluded that Ohio courts did not have personal jurisdiction over non-resident defendants for defamation
claims that arose from out-of-state publications that were not targeted at an Ohio audience or an Ohio entity. The same result should follow here.
Holbrook has not made a prima facie showing that either the Ohio long-arm statute or the due process clause of the United States Constitution would permit this Court to exercise personal jurisdiction over Dobrott, Calvert, or Hartburg. Accordingly, Dobrott, Calvert, or Hartburg
respectfully request that all of Holbrook’s claims against them be dismissed pursuant to Civ.R.
Contrary to Holbrook’s assertion, the Ohio Supreme Court’s opinion in Kauffman did not “reject” the Sixth Circuit’s analysis in Reynolds. Instead, it concluded that “the distinguishing aspects in Reynolds are not in play
here.” Kauffman, at ¶ 60. As discussed in detail in the motions to dismiss, the distinguishing aspects in Reynolds are analogous to the present case.7
/s/ Adam R. Webber_________
ADAM R. WEBBER, Esq.
Bar No. 0080900
FALKE & DUNPHY, LLC
30 Wyoming Street
Dayton, Ohio 45409
KEVIN W. KITA, Esq.
Bar No. 0088029
3600 Erieview Tower
1301 East Ninth Street
Cleveland, Ohio 44114
Phone: (216) 928-2200
Fax: (216) 928-4400
MATTHEW J. KITA, Esq.
Admitted Pro Hac Vice
Ohio Bar No. PHV – 2978-2012
Texas Bar No. 24050883
P.O. Box 5119
Dallas, Texas 75208
Phone: (214) 699-1863
Fax: (214) 347-7221
Attorneys for Third-Party Defendants
Heather Dobrott, Cynthia Calvert, and
Hartburg Publications, LLC8