COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OH


ROBERT A. NEINAST
Plaintiff,
v.
BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY,
Defendants.

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Case No. 09 CV 0657

Judge Chris Martin



PLAINTIFF’S MOTION FOR THE COURT TO AMEND ITS ENTRY OF DEC. 9, 2009

Now comes Plaintiff Robert A. Neinast, who respectfully moves the court to amend its entry of December 9, 2009 converting Defendant’s Motion to Dismiss into a Motion for Summary Judgment for the reason that the Rules of Civil Procedure contain no provision for doing so. A memorandum in support is attached.


  Respectfully submitted,
_______________________
Robert A. Neinast, Plaintiff
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net


MEMORANDUM IN SUPPORT

In its Entry of December 9, 2009, this Court construed Defendant’s Motion to Dismiss as a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief may be granted. This Court then, sua sponte, converted Defendant’s Motion to Dismiss to a Motion for Summary Judgment, and ordered further briefing consistent with that conversion.

With great respect to this Court, Plaintiff believes that the Court is in error.

Defendant’s Motion to Dismiss simply cannot be construed as a Civ.R. 12(B)(6) motion. Civ.R. 12(B)(6) motions must be made before a defendant answers: “A motion making any of these defenses shall be made before pleading if a further pleading is permitted.” Defendant has not only Answered the Complaint, it has even Amended those Answers. If anything, its Motion to Dismiss should be construed as a 12(C) motion for judgment on the pleadings. “A Civ.R. 12(C) motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted.” Whaley v. Franklin County Board of Commissioners (2001), 2001-Ohio-1287, 92 Ohio St.3d 574, 581. The motion for judgment on the pleadings is the motion that is similar to a motion to dismiss for failure to state a claim upon which relief can be granted, but occurring after the pleadings are closed. Civ.R. 12(C).

However, as this Court correctly notes, res judicata (and collateral estoppel) cannot be decided on such motions:

“The affirmative defense of res judicata is not properly raised in a Civ.R. 12(B)(6) motion because it requires reference to materials outside the complaint (i.e., the previous action upon which the defense is based) and, therefore, is a matter which should be raised on summary judgment.” Nelson v. Pleasant (1991), 713 Ohio App.3d 479, 482, 597 N.E.2d 1137, 1139. Furthermore, since a motion for judgment on the pleadings has been characterized as nothing more than a belated Civ.R. 12(B)(6) motion, the same standards of review apply to both motions. Id.”

Estate of Sherman v. Millhon (10th Dist. 1995), 104 Ohio App.3d 614, 618. The correct vehicle is a Motion for Summary Judgment. “The doctrine of res judicata is not grounds for dismissal pursuant to Civ.R. 12(C). Rather, the proper mode for raising the defense of res judicata is through a motion for summary judgment after an answer is filed.” Business Data Systems, Inc. v. Figetakis (9th Dist. 2006), 2006-Ohio-1036, ¶11. (Internal citations removed.)

This Court has no authority to convert Defendant’s Motion to Dismiss into a Motion for Summary Judgment. “[T]he trial court improperly converted Appellee’s motion into a summary judgment motion as ‘[n]o mechanism exists under the civil rules to convert a Civ.R. 12(C) motion to one for summary judgment[.]’” Business Data Systems, at ¶17. See also Piersant v. Bryngelson (8th Dist. 1989), 61 Ohio App.3d 359, 363:

Further, this court can find no authority to support the beliefs of counsel that a motion made pursuant to Civ.R. 12(C) can be converted to a motion for summary judgment. This theory is mistaken.

The language of Civ.R. 12(C) does not provide for conversion. Cf. Civ.R. 12(B)(6).

Piersant is also cited with approval by the Court of Appeals of Fairfield County in Pollack v. Watts (Aug. 10, 1998), 5th Dist. No. 97CA0084.

This Court has the authority, via Civ.R. 12(B)(6), only to convert a motion to dismiss for failure to state a claim upon which relief can be granted, and Defendant’s motion is clearly not a Civ.R. 12(B)(6) motion.

Thus, Plaintiff moves this Court to amend its Entry of December 9, 2009 to make it comport with the relevant law. Defendant’s Motion to Dismiss should not be converted; no supplemental briefing schedule is warranted. The Court should schedule the hearing based upon the briefs already before it.



  Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net



CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion was served, by hand delivery to his office, upon Mr. Roy E. Hart, Assistant Prosecuting Attorney, Attorney for Defendants, 201 South Broad Street – Suite 400, Lancaster, OH, 43130, this 14th day of December, 2009.

 
_______________________
Robert A. Neinast
Plaintiff, pro se