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IN THE DELAWARE COUNTY, OHIO COURT OF COMMON PLEAS
K.K., a minor child by and through Case No. 23 CV H 11 0898
natural parent MEGAN FUGETT,
etal., Judge David M. Gormley
Plaintiffs,
vs.
MOTION OF DEFENDANT
OLENTANGY LOCAL SCHOOL “OLENTANGY LOCAL SCHOOL
DISTRICT, et al., DISTRICT” TO DISMISS
PLAINTIFF’S COMPLAINT
Defendants.
Pursuant to Ohio Rule of Civil Procedure 12(B)(6), Defendant “Olentangy Local School
District” moves this Court for an Order dismissing all claims against it because “Olentangy Local
School District” is not a legal entity with the capacity to sue or be sued. This Motion is supported
by the attached memorandum, which is incorporated herein by reference.!
Respectfully submitted,
nO
Sandia R. McIntosh (0077278)
Jessica L. Dawso (0082842)
Jessica K. Philemond (0076761)
Scott Scriven LLP
250 E. Broad Street, Suite 900
Columbus, OH 43215-3742
(614) 222-8686; FAX (614) 222-8688
andra@scottscrivenlaw.com
jdawso@scottscrivenlaw.com
jessica@scottscrivenlaw.com
Attorneys for Defendant
“Olentangy Local School District”
1 This Motion addresses the preliminary issue of whether a correct party defendant has been named.
Defendant reserves the right to raise any additional defenses, including, but not limited to, all
defenses listed in Fed. R. Civ. P. 8(C) and 12(B) if the case proceeds beyond the initial pleading
phase
CLERK OF COURTS - DELAWARE COUNTY, OH - COMMON PLEAS COURT
23 CV H 11 0898 - GORMLEY, DAVID M
FILED: 11/22/2023 03:14 PM
MEMORANDUM IN SUPPORT
I INTRODUCTION
Plaintiff K.K. is a student of Olentangy Local Schools. Complaint, 1. K.K. was charged
for an offense that took place off school grounds, and the prosecution of this matter is pending in
the Delaware County Juvenile Court Id, 15 Plaintiffs believe this information was
inappropriately disclosed to an Olentangy Local School District Athletic Director, and that the
disclosure resulted in the school taking “adverse action” against K.K. Id., 431, 33. Through this
lawsuit, Plaintiffs seek to prevent Olentangy Local School District from taking adverse action
against K.K. Id., 935. Plaintiff's Complaint is without merit and must be dismissed because
“Olentangy Local School District” is not an entity capable of being sued.
IL. STANDARD OF REVIEW
Ohio Rule of Civil Procedure 12(B) provides, “Every defense, in law or fact, to a claim for
relief in any pleading * * * shall be asserted in the responsive pleading thereto if one is required,
except that the following defenses may at the option of the pleader be made by motion: * * *
(6) failure to state a claim upon which relief can be granted * * * .”
A motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd.
of Comm’rs., 65 Ohio St.3d 545, 548, 1992-Ohio-73. A motion to dismiss must be granted where,
taking the factual allegations set forth in the complaint as true, with all reasonable inferences to be
drawn therefrom, the party opposing the motion is unable to prove any set of facts that would
entitle the party to the relief requested. Helfrich v. Branstool, 5th Dist. No. 08 CA 0072, 2009-
Ohio-2865, 924 (citing Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 1995-Ohio-187;
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988); Kenty v. Transamerica Premium
Ins. Co., 72 Ohio St.3d 415, 418, 1995-Ohio-61; York v. Ohio State Hwy. Patrol, 60 Ohio St.3d
-2-
143 (1991))
Here, all claims asserted by Plaintiffs against “Olentangy Local School District” are subject
to dismissal for failure to state a claim upon which relief can be granted because “Olentangy Local
School District” is not an entity capable of being sued.
Til. LAW & ARGUMENT
The only way to sue a school is to sue the Board of Education for the district where the
school is located. Ohio Revised Code 3313.17 provides, in pertinent part, “The board of education
of each school district shall be a body politic and corporate, and, as such, capable of suing and
being sued * * * .” (Emphasis added). When interpreting this statute, Ohio courts have held, “A
board of education, pursuant to R.C. Title 33, is the legal entity which is * * * capable of being
sued.” Harris v. Davis Constr. Systems, Inc., 34 Ohio App. 3d 350, 355 (1986). Thus, “[s]uit
must be brought against a board of education in its entirety and in its corporate name * * * .” Id.,
at paragraph three of the syllabus (citing Halliday v. Marchington, 44 Ohio App. 132, 184 N.E.2d
698 (10th Dist. 1932));, see also, McGath v. Hamilton Local Sch. Dist., 848 F. Supp. 2d 831, 838
(S.D. Ohio 2012) (“As an initial matter, the Hamilton Local School District is not an entity which
can be sued. Accordingly, the School district is dismissed with prejudice.”); Estate of Olsen _v
Fairfield City Sch. Dist. Bd. of Educ., 341 F.Supp.3d 793, 799 (S.D. Ohio 2018) (collecting cases).
Here, as was the case in McGath and Olsen, Plaintiffs brought suit against “Olentangy
Local School District” which is a non-entity and is incapable of being sued. Thus, Plaintiffs’
Complaint must be dismissed.
IV. CONCLUSION
Plaintiffs failed to sue an entity capable of being sued by naming “Olentangy Local School
District” as a Defendant in this case. As such, Plaintiffs’ Complaint fails to state a claim upon
-3-
which relief can be granted Accordingly, Defendant “Olentangy Local School District”
respectfully requests that Plaintiffs Complaint be dismissed with prejudice.
Respectfully submitted,
Cn. sca
Sandra R. McIntosh (0077278)
Jessica L. Dawso (0082842)
Jessica K. Philemond (0076761)
Scott Scriven LLP
250 E. Broad Street, Suite 900
Columbus, OH 43215-3742
(614) 222-8686; FAX (614) 222-8688
sandra@scottscrivenlaw.com
jdawso@scottscrivenlaw.com
jessica@scottscrivenlaw.com
Attorneys for Defendant
“Olentangy Local School District”
CERTIFICATE OF SERVICE
Thereby certify that a true and accurate copy of the foregoing was served this 22nd day of
November, 2023, upon the following via the Court’s Electronic Filing System and/or electronic
mail:
Matthew S. Brown
Bryan M. Pritikin
Grace E. Dunn
950 Goodale Blvd., Suite 200
Columbus, OH 43212
mbrown@cpmlaw.com
bpritikin@cpmlaw.com
gdunn@cpmlaw.com
ay
“ "tae
€
Sandra R. McIntosh
-4-
Preview
IN THE DELAWARE COUNTY, OHIO COURT OF COMMON PLEAS K.K., a minor child by and through Case No. 23 CV H 11 0898 natural parent MEGAN FUGETT, etal., Judge David M. Gormley Plaintiffs, vs. MOTION OF DEFENDANT OLENTANGY LOCAL SCHOOL “OLENTANGY LOCAL SCHOOL DISTRICT, et al., DISTRICT” TO DISMISS PLAINTIFF’S COMPLAINT Defendants. Pursuant to Ohio Rule of Civil Procedure 12(B)(6), Defendant “Olentangy Local School District” moves this Court for an Order dismissing all claims against it because “Olentangy Local School District” is not a legal entity with the capacity to sue or be sued. This Motion is supported by the attached memorandum, which is incorporated herein by reference.! Respectfully submitted, nO Sandia R. McIntosh (0077278) Jessica L. Dawso (0082842) Jessica K. Philemond (0076761) Scott Scriven LLP 250 E. Broad Street, Suite 900 Columbus, OH 43215-3742 (614) 222-8686; FAX (614) 222-8688 andra@scottscrivenlaw.com jdawso@scottscrivenlaw.com jessica@scottscrivenlaw.com Attorneys for Defendant “Olentangy Local School District” 1 This Motion addresses the preliminary issue of whether a correct party defendant has been named. Defendant reserves the right to raise any additional defenses, including, but not limited to, all defenses listed in Fed. R. Civ. P. 8(C) and 12(B) if the case proceeds beyond the initial pleading phase CLERK OF COURTS - DELAWARE COUNTY, OH - COMMON PLEAS COURT 23 CV H 11 0898 - GORMLEY, DAVID M FILED: 11/22/2023 03:14 PM MEMORANDUM IN SUPPORT I INTRODUCTION Plaintiff K.K. is a student of Olentangy Local Schools. Complaint, 1. K.K. was charged for an offense that took place off school grounds, and the prosecution of this matter is pending in the Delaware County Juvenile Court Id, 15 Plaintiffs believe this information was inappropriately disclosed to an Olentangy Local School District Athletic Director, and that the disclosure resulted in the school taking “adverse action” against K.K. Id., 431, 33. Through this lawsuit, Plaintiffs seek to prevent Olentangy Local School District from taking adverse action against K.K. Id., 935. Plaintiff's Complaint is without merit and must be dismissed because “Olentangy Local School District” is not an entity capable of being sued. IL. STANDARD OF REVIEW Ohio Rule of Civil Procedure 12(B) provides, “Every defense, in law or fact, to a claim for relief in any pleading * * * shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted * * * .” A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Comm’rs., 65 Ohio St.3d 545, 548, 1992-Ohio-73. A motion to dismiss must be granted where, taking the factual allegations set forth in the complaint as true, with all reasonable inferences to be drawn therefrom, the party opposing the motion is unable to prove any set of facts that would entitle the party to the relief requested. Helfrich v. Branstool, 5th Dist. No. 08 CA 0072, 2009- Ohio-2865, 924 (citing Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 1995-Ohio-187; Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988); Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 418, 1995-Ohio-61; York v. Ohio State Hwy. Patrol, 60 Ohio St.3d -2- 143 (1991)) Here, all claims asserted by Plaintiffs against “Olentangy Local School District” are subject to dismissal for failure to state a claim upon which relief can be granted because “Olentangy Local School District” is not an entity capable of being sued. Til. LAW & ARGUMENT The only way to sue a school is to sue the Board of Education for the district where the school is located. Ohio Revised Code 3313.17 provides, in pertinent part, “The board of education of each school district shall be a body politic and corporate, and, as such, capable of suing and being sued * * * .” (Emphasis added). When interpreting this statute, Ohio courts have held, “A board of education, pursuant to R.C. Title 33, is the legal entity which is * * * capable of being sued.” Harris v. Davis Constr. Systems, Inc., 34 Ohio App. 3d 350, 355 (1986). Thus, “[s]uit must be brought against a board of education in its entirety and in its corporate name * * * .” Id., at paragraph three of the syllabus (citing Halliday v. Marchington, 44 Ohio App. 132, 184 N.E.2d 698 (10th Dist. 1932));, see also, McGath v. Hamilton Local Sch. Dist., 848 F. Supp. 2d 831, 838 (S.D. Ohio 2012) (“As an initial matter, the Hamilton Local School District is not an entity which can be sued. Accordingly, the School district is dismissed with prejudice.”); Estate of Olsen _v Fairfield City Sch. Dist. Bd. of Educ., 341 F.Supp.3d 793, 799 (S.D. Ohio 2018) (collecting cases). Here, as was the case in McGath and Olsen, Plaintiffs brought suit against “Olentangy Local School District” which is a non-entity and is incapable of being sued. Thus, Plaintiffs’ Complaint must be dismissed. IV. CONCLUSION Plaintiffs failed to sue an entity capable of being sued by naming “Olentangy Local School District” as a Defendant in this case. As such, Plaintiffs’ Complaint fails to state a claim upon -3- which relief can be granted Accordingly, Defendant “Olentangy Local School District” respectfully requests that Plaintiffs Complaint be dismissed with prejudice. Respectfully submitted, Cn. sca Sandra R. McIntosh (0077278) Jessica L. Dawso (0082842) Jessica K. Philemond (0076761) Scott Scriven LLP 250 E. Broad Street, Suite 900 Columbus, OH 43215-3742 (614) 222-8686; FAX (614) 222-8688 sandra@scottscrivenlaw.com jdawso@scottscrivenlaw.com jessica@scottscrivenlaw.com Attorneys for Defendant “Olentangy Local School District” CERTIFICATE OF SERVICE Thereby certify that a true and accurate copy of the foregoing was served this 22nd day of November, 2023, upon the following via the Court’s Electronic Filing System and/or electronic mail: Matthew S. Brown Bryan M. Pritikin Grace E. Dunn 950 Goodale Blvd., Suite 200 Columbus, OH 43212 mbrown@cpmlaw.com bpritikin@cpmlaw.com gdunn@cpmlaw.com ay “ "tae € Sandra R. McIntosh -4-