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                                150897975
                                                 150897975

                       IN THE COURT OF COMMON PLEAS
                           CUYAHOGA COUNTY, OHIO
FRANK J. GORI                                                Case No: CV-23-973767
     Plaintiff
                                                             Judge: SHERRIE MID AY

PAUL E. KIBBLER IV, ET AL.
      Defendant

                                                             JOURNAL ENTRY


DEFENDANT DOE LLC ENTITIES' MOTION TO DISMISS FILED 03/17/2023 IS GRANTED.

THE COURT HAS CONSIDERED DEFENDANTS' MOTION FILED 03/17/2023, PLAINTIFF'S BRIEF IN OPPOSITION FILED
03/27/2023, PLAINTIFF'S REPLY BRIEF FILED 04/14/2023 AND DEFENDANTS' REPLY BRIEF FILED 04/20/2023.
DEFENDANTS HAVE MOVED TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO CIV. RULE 12(B)(6) AND 12(B)(5).

"A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED TESTS THE
SUFFICIENCY OF THE COMPLAINT. THUS, THE MOVANT MAY NOT RELY ON ALLEGATIONS OR EVIDENCE
OUTSIDE THE COMPLAINT; SUCH MATTERS MUST BE EXCLUDED, OR THE MOTION MUST BE TREATED AS A
MOTION FOR SUMMARY JUDGMENT. 'THE FACTUAL ALLEGATIONS OF THE COMPLAINT AND ITEMS PROPERLY
INCORPORATED THEREIN MUST BE ACCEPTED AS TRUE. FURTHERMORE, THE PLAINTIFF MUST BE AFFORDED
ALL REASONABLE INFERENCES POSSIBLY DERIVED THEREFROM.' IT MUST APPEAR BEYOND DOUBT THAT
PLAINTIFF CAN PROVE NO SET OF FACTS ENTITLING HER TO RELIEF." VOLBERS-KLARICH V. MIDDLETOWN
MGMT., 125 OHIO ST.3D 494, 497 (2010), CITING CIV.R. 12(B), QUOTING MITCHELL V. LAWSON MILK CO., 40 OHIO
ST.3D 190, 192 (1988), OTHER INTERNAL CITATIONS OMITTED.

CIV. R. 15(D) ALLOWS A PLAINTIFF TO NAME A FICTITIOUS DEFENDANT WHEN THE PLAINTIFF KNOWS THE
IDENTITY AND WHEREABOUTS OF A DEFENDANT, BUT NOT THE DEFENDANT'S NAME. ERWIN V. BRYAN, 125
OHIO ST.3D 519, 2010-OHIO-2202, U 24, 929 N.E.2D 1019. TO INVOKE CIV. R. 15(D), THE PLAINTIFF MUST IDENTIFY
THE DEFENDANT IN THE COMPLAINT WITH ENOUGH SPECIFICITY THAT PERSONAL SERVICE CAN BE OBTAINED
ON THE DEFENDANT. ID., QUOTING VARNO V. BALLY MFG. CO., 19 OHIO ST.3D 21, 24, 19 OHIO B. 18, 482 N.E.2D 342
(1985).

PLAINTIFF HAS NAMED FIVE DOE LLC DEFENDANTS IN THE COMPLAINT. THE COURT FINDS THAT PLAINTIFF
HAS NOT INDENTIFIED THESE FIVE DEFENDANTS WITH ENOUGH SPECIFICITY THAT PERSONAL SERVICE COULD
BE OBTAINED ON THEM.

HAVING CONSTRUED THE MATERIAL ALLEGATIONS IN THE PLEADINGS WITH REASONABLE INFERENCES TO BE
DRAWN THEREFROM IN FAVOR OF THE NON-MOVING PARTY, THE COURT FINDS THAT PLAINTIFF'S COMPLAINT
DOES NOT STATE FACTS DEMONSTRATING VIABLE CLAIMS FOR RELIEF AS TO THE DOE DEFENDANTS. AS SUCH,
THE COURT FINDS THAT DISMISSAL OF COMPLAINT IS PROPER AND MOVANTS ARE ENTITLED TO JUDGMENT AS
A MATTER OF LAW PURSUANT TO CIV. R. 12(B)(6)




06/28/2023
                                              RECEIVED FOR FILING
                                                06/29/2023 12:20:56
                                            NAILAH K. BYRD, CLERK
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06/28/2023
                  RECEIVED FOR FILING
                    06/29/2023 12:20:56
                NAILAH K. BYRD, CLERK
                                          Page 2 of 2