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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Thursday, April 25, 2013 2:59:41 PM
CASE NUMBER: 2013 CV 01972 Docket ID: 18096606
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CRIMINAL DIVISION
HARLEY SHEPHERD, : CASE NO. 2013 CV 01972
Plaintiff, : (JUDGE DENNIS J. ADKINS)
vs. :
MONTGOMERY COUNTY DEPT. : MOTION OF DEFENDANTS
ENVIRONMENTAL SERVICES, et al., TO DISMISS
:
Defendants.
____________________________________________________________________
Now come the Defendants, Montgomery County Department of Environmental
Services and John Beckner, by and through counsel, and move this Court to dismiss
the above-captioned case for the reason that the Montgomery County Department of
Environmental Services is not sui juris and Plaintiff failed to state a claim for which relief
can be granted against John Beckner pursuant to Ohio Civil Rules of Procedure
12(B)(6). Defendants have attached a memorandum in support of this position.
Respectfully submitted,
MATHIAS H. HECK, JR.
PROSECUTING ATTORNEY
By: s/Julie A. Droessler
Julie A. Droessler #0068638
Assistant Prosecuting Attorney
301 West Third Street, P.O. Box 972
Dayton, Ohio 45422
Phone: (937) 225-3499
Fax: (937)225-4822
Email: droesslerj@mcohio.org
Attorney for Defendants Montgomery
County Dept. of Environmental
Services and John Beckner
MEMORANDUM
In his Complaint filed on March 29, 2013, the Plaintiff alleges that he was
employed by Montgomery County for fourteen years, most recently with the Department
of Environmental Services, Division of Solid Waste. (Complaint ¶¶ 4 & 8.) Plaintiff
further alleges that Defendant, John Beckner, was his supervisor. (Complaint ¶ 5.)
Plaintiff alleges that after becoming the subject of a “theft investigation” for removing
items from the North Yard, he notified the Montgomery County Commissioners, by way
of a letter, of other employees doing the same thing. (Complaint ¶¶ 10 & 13 (Ex. A).)
Plaintiff further alleges that after sending the letter attached to the Complaint as Exhibit
A, he was terminated. (Complaint ¶ 16.) It appears, as his “Cause of Action”, that
Plaintiff is alleging he was wrongfully terminated for allegedly reporting a crime which
violates public policy. (Complaint ¶¶ 24 & 25.) Plaintiff has alleged no specific facts
against Defendant John Beckner that resulted in his termination. Plaintiff has further
failed to allege what actions Montgomery County Department of Environmental Services
took which resulted in his termination.
With respect to both Defendants, a reading of the entire Complaint reveals that
Plaintiff is complaining about an alleged wrongful discharge; however, the Complaint
makes no factual allegations of wrongdoing on the part of the Defendants. Likewise,
the Complaint fails to allege who actually employed Plaintiff. For the reasons which
follow, Defendant Montgomery County Department of Environmental Services submits
that it is not a proper Defendant in this lawsuit and should be dismissed with prejudice,
as a matter of law. The Complaint further fails to allege any wrongdoing on Defendant
John Beckner’s part, thereby failing to assert a cause of action for which relief can be
granted.
1. Montgomery County Dept. Environmental Services Division of Solid
Waste is not sui juris.
Plaintiff has filed this action against Montgomery County Department of
Environmental Services; however, Plaintiff alleges he is employed by Montgomery
County Ohio. (Complaint ¶ 4) It is well settled that a “county” is nothing more than a
subdivision of the state, organized for judicial and political purposes. It is not a legal
person, capable of either suing or being sued. Hamilton County Board of Mental
Retardation and Developmental Disabilities v. Professional Guild of Ohio, 46 Ohio St.
3d 147, 156-157 (1989); Schaeffer v. Board of Trustees, 171 Ohio St. 228, 230 (1960)
(“…a county is a subdivision of the state, organized for judicial and political purposes. It
is not a legal person or a separate political entity.”); Board of County Commissioners v
Gates, 83 Ohio St. 19 (1910); Hunter v. Commissioners of Mercer Cty, 10 Ohio St. 515,
520 (1860); Board of County Commissioners v. Mighels, 7 Ohio St. 109 (1857); Picciuto
v. Lucas County Bd. Of Commissioners, 69 Ohio App. 3d 789, 795 – 796 (Ct. App.
Lucas Cy. 1990) (“In general, counties can neither sue nor be sued… The board of
county commissioners, as a quasi-corporate body, represents the county in legal
actions against the county.”); Batchelder v. Young, 2006-Ohio-6097 (Ct. App. Trumbull
Cy.), ¶ 33. Courts have recognized that “counties, as political entities, are not sui juris;
they are held accountable through their elected representatives, to-wit: their
commissioners.” McGuire v. Ameritech Services, Inc., 253 F. Supp. 2d 988, 1015 (S.D.
Ohio 2003) (noting that Ohio Revised Code §305.12 provides that a county’s board of
county commissioners has the authority to sue and be sued as the quasi-corporate
entity representing the county). Furthermore, county agencies are not sui juris either as
the agencies are “no more than arms of the government of which they are a part.”
McGuire, 253 F. Supp. 2d at 1015.
The Defendant identified as “Montgomery County Department of Environmental
Services” in this action is not sui juris, and is not a proper party to this litigation, nor is it
a party against whom any claim for relief can be granted. For this reason, Montgomery
County Department of Environmental Services submits that it is entitled to be dismissed
from this lawsuit as a matter of law.
2. Plaintiff has failed to allege a cause of action against Defendants for
which relief can be granted.
Rule 8(A) of the Ohio Rules of Civil Procedure provides that any pleading setting
forth a claim for relief shall contain (1) a short and plain statement of the claim showing
that the party is entitled to relief and (2) a demand for judgment for the relief to which
the party claims to be entitled. Plaintiff’s Complaint does not allege a claim against the
named Defendants in which he is entitled to relief. The Complaint fails to allege any
misconduct or wrongdoing whatsoever on the part of Montgomery County Department
of Environmental Services or John Beckner. In fact, the Complaint fails to allege who is
the proper employer or appointing authority who employed Plaintiff or Defendant John
Beckner. Wherefore, the Complaint is devoid of factual allegations which would give
rise to a claim for which relief may be granted.
CONCLUSION
For the reasons set forth above, Defendant Montgomery County Department of
Environmental Services submits that it is not a proper Defendant in this lawsuit and that
it should be dismissed with prejudice, as a matter of law. Further, Plaintiff has failed to
alleged a claim against Defendant John Beckner for which relief can be granted
pursuant to Ohio Civil Rules of Procedure 12(B)(6).
Respectfully submitted,
MATHIAS H. HECK, JR.
PROSECUTING ATTORNEY
By: s/Julie A. Droessler
Julie A. Droessler #0068638
Assistant Prosecuting Attorney
301 West Third Street, P.O. Box 972
Dayton, Ohio 45422
Phone: (937) 225-3499
Fax: (937)225-4822
Email: droesslerj@mcohio.org
Attorney for Defendants Montgomery
County Dept. of Environmental
Services and John Beckner
CERTIFICATE OF SERVICE
I hereby certify that on April 25, 2013, the foregoing document was served on all
parties or their counsel of record through the Montgomery County Electronic Filing
System, if they are registered users or, if they are not, by placing a true and correct
copy in the United States mail, postage prepaid, to their address of record.
David M. Duwel
130 W. Second St., Suite 2101
Dayton, Ohio 45402
Counsel for Plaintiff
s/ Julie A. Droessler
Julie A. Droessler, #0068638
Assistant Prosecuting Attorney
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Thursday, April 25, 2013 2:59:41 PM CASE NUMBER: 2013 CV 01972 Docket ID: 18096606 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CRIMINAL DIVISION HARLEY SHEPHERD, : CASE NO. 2013 CV 01972 Plaintiff, : (JUDGE DENNIS J. ADKINS) vs. : MONTGOMERY COUNTY DEPT. : MOTION OF DEFENDANTS ENVIRONMENTAL SERVICES, et al., TO DISMISS : Defendants. ____________________________________________________________________ Now come the Defendants, Montgomery County Department of Environmental Services and John Beckner, by and through counsel, and move this Court to dismiss the above-captioned case for the reason that the Montgomery County Department of Environmental Services is not sui juris and Plaintiff failed to state a claim for which relief can be granted against John Beckner pursuant to Ohio Civil Rules of Procedure 12(B)(6). Defendants have attached a memorandum in support of this position. Respectfully submitted, MATHIAS H. HECK, JR. PROSECUTING ATTORNEY By: s/Julie A. Droessler Julie A. Droessler #0068638 Assistant Prosecuting Attorney 301 West Third Street, P.O. Box 972 Dayton, Ohio 45422 Phone: (937) 225-3499 Fax: (937)225-4822 Email: droesslerj@mcohio.org Attorney for Defendants Montgomery County Dept. of Environmental Services and John Beckner MEMORANDUM In his Complaint filed on March 29, 2013, the Plaintiff alleges that he was employed by Montgomery County for fourteen years, most recently with the Department of Environmental Services, Division of Solid Waste. (Complaint ¶¶ 4 & 8.) Plaintiff further alleges that Defendant, John Beckner, was his supervisor. (Complaint ¶ 5.) Plaintiff alleges that after becoming the subject of a “theft investigation” for removing items from the North Yard, he notified the Montgomery County Commissioners, by way of a letter, of other employees doing the same thing. (Complaint ¶¶ 10 & 13 (Ex. A).) Plaintiff further alleges that after sending the letter attached to the Complaint as Exhibit A, he was terminated. (Complaint ¶ 16.) It appears, as his “Cause of Action”, that Plaintiff is alleging he was wrongfully terminated for allegedly reporting a crime which violates public policy. (Complaint ¶¶ 24 & 25.) Plaintiff has alleged no specific facts against Defendant John Beckner that resulted in his termination. Plaintiff has further failed to allege what actions Montgomery County Department of Environmental Services took which resulted in his termination. With respect to both Defendants, a reading of the entire Complaint reveals that Plaintiff is complaining about an alleged wrongful discharge; however, the Complaint makes no factual allegations of wrongdoing on the part of the Defendants. Likewise, the Complaint fails to allege who actually employed Plaintiff. For the reasons which follow, Defendant Montgomery County Department of Environmental Services submits that it is not a proper Defendant in this lawsuit and should be dismissed with prejudice, as a matter of law. The Complaint further fails to allege any wrongdoing on Defendant John Beckner’s part, thereby failing to assert a cause of action for which relief can be granted. 1. Montgomery County Dept. Environmental Services Division of Solid Waste is not sui juris. Plaintiff has filed this action against Montgomery County Department of Environmental Services; however, Plaintiff alleges he is employed by Montgomery County Ohio. (Complaint ¶ 4) It is well settled that a “county” is nothing more than a subdivision of the state, organized for judicial and political purposes. It is not a legal person, capable of either suing or being sued. Hamilton County Board of Mental Retardation and Developmental Disabilities v. Professional Guild of Ohio, 46 Ohio St. 3d 147, 156-157 (1989); Schaeffer v. Board of Trustees, 171 Ohio St. 228, 230 (1960) (“…a county is a subdivision of the state, organized for judicial and political purposes. It is not a legal person or a separate political entity.”); Board of County Commissioners v Gates, 83 Ohio St. 19 (1910); Hunter v. Commissioners of Mercer Cty, 10 Ohio St. 515, 520 (1860); Board of County Commissioners v. Mighels, 7 Ohio St. 109 (1857); Picciuto v. Lucas County Bd. Of Commissioners, 69 Ohio App. 3d 789, 795 – 796 (Ct. App. Lucas Cy. 1990) (“In general, counties can neither sue nor be sued… The board of county commissioners, as a quasi-corporate body, represents the county in legal actions against the county.”); Batchelder v. Young, 2006-Ohio-6097 (Ct. App. Trumbull Cy.), ¶ 33. Courts have recognized that “counties, as political entities, are not sui juris; they are held accountable through their elected representatives, to-wit: their commissioners.” McGuire v. Ameritech Services, Inc., 253 F. Supp. 2d 988, 1015 (S.D. Ohio 2003) (noting that Ohio Revised Code §305.12 provides that a county’s board of county commissioners has the authority to sue and be sued as the quasi-corporate entity representing the county). Furthermore, county agencies are not sui juris either as the agencies are “no more than arms of the government of which they are a part.” McGuire, 253 F. Supp. 2d at 1015. The Defendant identified as “Montgomery County Department of Environmental Services” in this action is not sui juris, and is not a proper party to this litigation, nor is it a party against whom any claim for relief can be granted. For this reason, Montgomery County Department of Environmental Services submits that it is entitled to be dismissed from this lawsuit as a matter of law. 2. Plaintiff has failed to allege a cause of action against Defendants for which relief can be granted. Rule 8(A) of the Ohio Rules of Civil Procedure provides that any pleading setting forth a claim for relief shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief and (2) a demand for judgment for the relief to which the party claims to be entitled. Plaintiff’s Complaint does not allege a claim against the named Defendants in which he is entitled to relief. The Complaint fails to allege any misconduct or wrongdoing whatsoever on the part of Montgomery County Department of Environmental Services or John Beckner. In fact, the Complaint fails to allege who is the proper employer or appointing authority who employed Plaintiff or Defendant John Beckner. Wherefore, the Complaint is devoid of factual allegations which would give rise to a claim for which relief may be granted. CONCLUSION For the reasons set forth above, Defendant Montgomery County Department of Environmental Services submits that it is not a proper Defendant in this lawsuit and that it should be dismissed with prejudice, as a matter of law. Further, Plaintiff has failed to alleged a claim against Defendant John Beckner for which relief can be granted pursuant to Ohio Civil Rules of Procedure 12(B)(6). Respectfully submitted, MATHIAS H. HECK, JR. PROSECUTING ATTORNEY By: s/Julie A. Droessler Julie A. Droessler #0068638 Assistant Prosecuting Attorney 301 West Third Street, P.O. Box 972 Dayton, Ohio 45422 Phone: (937) 225-3499 Fax: (937)225-4822 Email: droesslerj@mcohio.org Attorney for Defendants Montgomery County Dept. of Environmental Services and John Beckner CERTIFICATE OF SERVICE I hereby certify that on April 25, 2013, the foregoing document was served on all parties or their counsel of record through the Montgomery County Electronic Filing System, if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record. David M. Duwel 130 W. Second St., Suite 2101 Dayton, Ohio 45402 Counsel for Plaintiff s/ Julie A. Droessler Julie A. Droessler, #0068638 Assistant Prosecuting Attorney