United States District Court, S.D. Ohio, Western Division
DECISION AND ENTRY SUSTAINING MOTION TO DISMISS
DEFENDANT DONNA WARD'S COUNTERCLAIM (DOC. #24);
DISMISSING COUNTERCLAIM WITHOUT PREJUDICE; DEFENDANT WARD MAY
SEEK LEAVE TO AMEND WITHIN 10 DAYS OF THE DATE OF THIS
DECISION AND ENTRY
H. RICE UNITED STATES DISTRICT JUDGE
John Stafford and U.S. Diamonds and Gold, Inc., d/b/a
Stafford Jewelers, allegedly entered into a contract with
Defendant Donna Ward, whereby Ward agreed to sell her 4.42
carat diamond ring to Plaintiffs for $130, 000.00. When Ward
failed to follow through with the transaction, Plaintiffs
filed suit against her and her ex-husband, Merrill Solomon,
who allegedly also participated in the business proposal and
claims an ownership interest in the diamond. The First
Amended Complaint asserts several causes of action, seeking
declaratory and injunctive relief, as well as damages. Doc.
Ward has asserted a counterclaim for "Unsolicited
Business." Doc. #23. This matter is currently before the
Court on Plaintiffs' Motion to Dismiss Defendant Donna
Ward's Counterclaim. Doc. #24. Plaintiffs contend that
the facts alleged fail to support a cause of action upon
which the Court may grant relief. They seek dismissal under
Plaintiffs attack Defendant Ward's Counterclaim as pled,
Rule 8(a) and 12(b)(6) standards apply. Federal Rule of Civil
Procedure 8(a)(2) requires a "short and plain statement
of the claim showing that the pleader is entitled to
relief...." This Rule "does not require
'detailed factual allegations, ' but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citations omitted).
Rule of Civil Proced ure 12(b)(6) allows a party to move for
dismissal of a claim on the basis that it "fail[s] to
state a claim upon which relief can be granted." The
moving party bears the burden of showing that the opposing
party has failed to adequately state a claim for relief.
DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55
(6th Cir. 1991)). The relevant question is whether, assuming
that the factual allegations are true, the claimant is
entitled to legal relief. Mayer v. Mylod, 988 F.2d
635, 638 (6th Cir. 1993). In ruling on a 12(b)(6) motion, a
court must construe the claim in the light most favorable to
the non-moving party, accept all well-pled allegations as
true, and draw all reasonable inferences in favor of the
non-moving party. Handy-Clay v. City of Memphis, 695
F.3d 531, 538 (6th Cir. 2012).
Counterclaim will withstand Plaintiffs' Rule 12(b)(6)
Motion as long as Defendant Ward alleges "sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Iqbal, 556 U.S.
at 678. A claim has facial plausibility if its factual
allegations allow "the court to draw the reasonable
inference that the [opposing party] is liable for the
misconduct alleged." Id.
relevant portions of Defendant Ward's Counterclaim for
"Unsolicited Business" allege as follows:
3. Plaintiffs allege that Defendant "solicited"
business with them regarding the sale of a diamond ring
belonging to the Defendant and her ex-husband, Defendant,
Merrill Solomon. That allegation is false.
4. Defendant and her ex-husband . . . placed a 4.42 ct. round
diamond ... as a res of a trust. . .
5. The institution of the litigation by Plaintiffs prevents a
sale of the diamond ring for a fair market value, thereby
preventing this Defendant the benefit of any bargain for the
sale and a disposition of the ring.
6. The fair market value of the ring at the time of transfer
to the Trust Agreement was $230, 000, far in excess of
Plaintiffs' alleged attempted purchase of the ring for
One Hundred Thirty Thousand Dollars ($130, 000).
Doc. #23, PagelD#378.
contend that "Unsolicited Business" is not a
recognized cause of action under Ohio tort law. This appears
correct. Defendant Ward cites no case supporting the
existence of any such cause of action. Neither does she
identify what the elements of any such cause of action might
be. The Court finds that, even accepting the factual
allegations as true, and drawing all reasonable inference in
Defendant's favor, the facts alleged do not appear to
give rise to any cause of action under federal or
state law. Although Ward may dispute whether there was a
valid contract, and although the pending litigation may well
prevent Defendants from selling the diamond to a third party,
Ward has failed to state a claim to relief that is plausible
on its face.
Court notes that Defendant Ward, in her Memorandum in
Opposition to the Motion to Dismiss, states that she plans to
seek leave to amend her Counterclaim to restate it "in a
more appropriate fashion." Doc. #25, PagelD#393. Three
months have passed since that filing, however, and Defendant
has not yet sought leave to amend. Plaintiffs argue that any
motion for leave to amend would lack merit. The Court ...