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Bevan & Associates, LPA v. Dewine

United States District Court, S.D. Ohio, Eastern Division

June 15, 2017

BEVAN & ASSOCIATES, LPA, et al., Plaintiffs,
RICHARD MICHAEL DEWINE, et al., Defendants.

          Jolson Magistrate Judge.

          OPINION & ORDER


         This matter is before the Court on two motions to dismiss: (1) that of Defendants Thomas H. Bainbridge, Jodie M. Taylor and Karen L. Gillmor, in their official capacities as Commissioners of the Industrial Commission of Ohio, and Sarah Morrison, in her Official Capacity as Administrator of the Bureau of Worker's Compensation (the “Commission Defendants”) (Doc. 20); and (2) that of Defendant Ohio Attorney General Mike DeWine (Doc. 21.) For the reasons that follow, the Court DENIES the motions.

         I. BACKGROUND

         This case involves a First Amendment challenge to an Ohio statute that arguably prohibits a law firm's practice of advertising to potential workers' compensation clients through the mail. Plaintiffs are a law firm and its principals practicing in the field of workers' compensation and Social Security disability benefits (collectively, “Bevan”). (Doc. 1 at ¶¶ 6-8, 25-28.) Defendants are the Ohio Attorney General, as well as employees of the Commission Defendants, who Plaintiffs sue in their official capacities. (Id. at ¶¶ 9-13.)

         Plaintiffs use mailings to advertise their legal services. (Id. at ¶¶ 21-23.) To reach their targeted audience, Plaintiffs collect the addresses and phone numbers of workers compensation claimants from a journalist entitled under Ohio Revised Code § 4123.88(D) to receive them. (Id. ¶ 21.) Plaintiffs provide this information, as well as information gleaned from other sources, to a bulk mail service company that prepares and sends the mailings. (Id. ¶ 22.)

         Plaintiffs attach two mailings to their complaint. One mailing contains the heading “ATTENTION INJURED <<COUNTY>> COUNTY WORKERS! DO YOU (OR DOES A MEMBER OF YOUR HOUSEHOLD) HAVE A WORKERS COMPENSATION CLAIM WITH AN INJURY DATE OF 1/1/2008 TO PRESENT?” (Id. at Page Id. # 11.) It continues, “[i]f so, you may be entitled to an additional CASH AWARD for your injury that the Ohio Bureau of Workers Compensation (BWC) has not told you about! We'll tell you about it.” (Id.) The mailing goes on to list categories of disability payment, request that claimants call the law firm free-of-charge, advertise the firm's success, and implore claimants to call “immediately, as time may be running out!” (Id.) It lists a phone number, and then promotes the firm's Social Security disability practice. (Id.) It contains a disclaimer in smaller type: “This ADVERTISING MATERIAL is not intended to be a SOLICITATION under Ohio's Rules governing lawyers, as it is unknown whether the recipient is in need of legal services.” (Id.) Plaintiffs also mail a letter, which contains substantially the same information. (Id. at Page Id. # 12.)

         Plaintiffs claim that Ohio Revised Code § 4123.88 and Ohio Administrative Code 4121-2-01(B) interfere with their First Amendment Rights to send these advertisements to workers' compensation claimants. Ohio Revised Code § 4123.88 prohibits, among other things, solicitation of workers compensation claimants for representation:

. . . No person shall directly or indirectly solicit authority, or pay or give anything of value to another person to solicit authority, or accept or receive pay or anything of value from another person for soliciting authority, from a claimant . . . to take charge of, or represent the claimant . . . in respect of, any claim or appeal which is or may be filed with the bureau or commission[.]

§ 4123.88(A). It also provides that the Commission Defendants' claim files are “not public records, ” and are kept “for the exclusive use and information of the commission and the bureau in the discharge of their official duties[.]” Id. §§ 4123.88(B), (C). Journalists, however, may obtain the addresses and telephone numbers of claimants and their dependents if they send a written request containing, among other items, “[a] statement that the disclosure of the information sought is in the public interest.” Id. §§ 4123.88(D)(1), (D)(3)(c). Violation of § 4123.88 is a second degree misdemeanor. Ohio Rev. Code § 4123.99. Ohio Administrative Code 4121-2-01(B) prohibits “person[s] who solicit[] or who cause[] claims to be solicited [from] practic[ing] or represent[ing] parties before the industrial commission or the bureau (section 4123.96 of the Revised Code).” On February 22, 2016, the Ohio Attorney General's Office served grand jury subpoenas on Plaintiffs' business partners-the journalist, the bulk mailing company, and a company affiliated with the journalist. (Doc. 1 at ¶ 30.) The subpoenas seek records related to their relationship with the Bevan Firm. (Id.) Consequently, Plaintiffs believe that they are under investigation for violations of Ohio Revised Code § 4123.88(A). (Id. ¶¶ 30-31.) This belief has caused Plaintiffs to “curtail[] . . . [their] legitimate advertising activity and chill[] the exercise of their First Amendment right to engage in protected commercial speech.” (Id. ¶ 31.)

         Plaintiffs seek a declaratory judgment under 28 U.S.C. § 2201 and 42 U.S.C. § 1983 that Ohio Revised Code § 4123.88(A)[1] and Ohio Administrative Code 4121-2-01(B) are invalid on their face because they restrict speech in violation of the First Amendment to the United States Constitution, as imported to the states via its incorporation into the Due Process Clause of the Fourteenth Amendment. (Doc. 1 at 9.) Plaintiffs also allege that these provisions are invalid as applied to them, and seek a permanent injunction enjoining Defendants from their enforcement, as well as money damages. (Id.)

         The Commission Defendants moved to dismiss the complaint on the grounds that: (a) Plaintiffs lack standing to sue; (b) Plaintiffs have failed to support their claims for monetary damages; and (c) Plaintiffs have failed to state a First Amendment claim under Rule 12(b)(6). (Doc. 20.) The Attorney General also moved to dismiss the complaint under Rule 12(b)(6), and incorporated the arguments contained in the Commission Defendants' motion. (Doc. 21.) In response to the Commission Defendants' Motion to Dismiss, Plaintiffs agreed to dismiss their claims for monetary damages. (Doc. 23 at 9.) Both motions to dismiss are fully briefed and are ripe for review.


         Defendants bring their motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

         Motions to dismiss under Rule 12(b)(1) “are categorized as either a facial attack or a factual attack.” Bell v. United States, 4 F.Supp.3d 908, 913 (S.D. Ohio 2014) (quoting McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012)). A facial attack on subject-matter jurisdiction is a “challenge to the sufficiency of the pleading itself, ” and therefore is resolved under the familiar Rule 12(b)(6) standard. Id. Here, Defendants present a facial attack. (Doc. 20 at 5.) The plaintiff bears the burden of proving jurisdiction. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).

         Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a cause of action for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Such a motion “is a test of the plaintiff's cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations.” Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). Thus, the Court “must construe the complaint in the light most favorable to the plaintiff” and “accept all well-pled factual allegations as true[.]” Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783, 790 (6th Cir. 2012). If more than one inference may be drawn from an allegation, the Court must resolve the conflict in favor of the plaintiff. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). The Court cannot dismiss a complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id.

         Generally, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The allegations need not be detailed but must “give the defendant fair notice of what the claim is, and the grounds upon which it rests.” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). A complaint's factual allegations “must be enough to raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A claim is plausible when it contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         III. ANALYSIS

         The Commission Defendants argue for the dismissal of Plaintiffs' complaint because: (a) Plaintiffs lack standing to sue; and (b) Plaintiffs have failed to state a First Amendment claim under Rule 12(b)(6). (Doc. 20.) The Attorney General adopts the Commission Defendants' arguments, and adds two of its own: (a) the Attorney General is not a required party to the litigation under Ohio Revised Code § 2721.12(A); and (b) Plaintiffs have not alleged an adequate connection between the Attorney General and the alleged unconstitutional acts. (Doc. 21.) The Court will address each argument in turn.

         A. Plaintiffs Have Standing to Sue

         Plaintiffs may not litigate in federal court without establishing Article III constitutional standing which requires a showing that they have suffered: (1) “an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be ...

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