IN THE COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OHIO

Robert Neinast Plaintiff, v. Board of Trustees of the Fairfield County District Library, Defendant.

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Case No. 09 CV 657 JUDGE CHRIS A. MARTIN ENTRY

This matter came before the court upon Plaintiff's Motion for Summary Judgment and Defendant's Motion to Dismiss asserting that Plaintiff's claims are barred by the doctrine of collateral estoppel. The parties filed their respective Memoranda Contra and Plaintiff filed a Reply.

The court will first address Defendant's Motion to Dismiss. Although not specifically stated in its Motion, it appears that in raising the defense of collateral estoppel, Defendant's Motion to Dismiss is premised on Plaintiff's failure to state a claim upon which relief may be granted. The defense of res judicata may not be raised by motion to dismiss for failure to state a claim upon which relief can be granted; instead, summary judgment is the preferred method by which to address res judicata. Jude v. Franklin County (May 18, 2004), Franklin App. No. 03AP-105305, 2004-Ohio-2528. The court finds the same is true of the defense of collateral estoppel.

Civ.R. 12(B)(6) provides, in pertinent part:

"When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56."

Upon consideration, therefore, this court, sua sponte, convert Defendant's Motion to Dismiss to a Motion for Summary Judgment pursuant to Civ.R. 56(C).

The court therefore ORDERS:

[1] Defendant to supplement its Motion to comply with Civ.R. 56(C) on or before January 8, 2010;

[2] Plaintiff may file a Supplemental Memorandum Contra on or before January 22, 2010;

[3] Defendant may file a Reply on or before January 29, 2010.

Plaintiff's and Defendant's Motions for Summary Judgment shall come on for a non-oral hearing on February 3, 2010. This matter shall proceed accordingly.

It is so ORDERED.

_______________________ CHRIS A. MARTIN, JUDGE

XC:

ROBERT A. NEINAST
8617 ASHFORD LANE
PICKERINGTON, OHIO 43147

ROY E. HART
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