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Musto v. Zaro

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

March 30, 2018

DAVE MUSTO, et al., Plaintiffs,
v.
PAULA ZARO, Defendant.

          Deavers Magistrate Judge.

          OPINION & ORDER

          JAMES L. GRAHAM UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants' Motion to Dismiss for Lack of Personal Jurisdiction. (Doc. 7).

         1. Factual Background

         The Court derives the factual background from the Complaint and its attachment, (Docs. 2, 2-1), affidavits submitted with the motion briefing, (see, e.g., Zaro Aff., Doc. 7-1), and some exhibits attached to the affidavits, (see Docs. 9-3-9-13).

         Paula Zaro, the Defendant, owned a dog named Pepe[1]. Zaro gave Pepe to Dave Musto and Kathy Caton-Musto (referred collectively as the “Mustos”) to train him to be a champion show dog. After Zaro heard that Pepe wasn't doing well under the care and tutelage of the Mustos, she went to see Pepe at a dog show in Kentucky, but she didn't notify the Mustos that she would be there. Upon seeing Pepe, Zaro opened the cage, took Pepe, and absconded with him. The Mustos returned to Pepe's cage to find him missing. Chaos ensued. Only later did Zaro tell the Mustos that she had taken Pepe back.

         Plaintiffs[2] sued Zaro, asserting twelve causes of action, including claims for breach of contract, intentional infliction of emotional distress, defamation, and tortious interference with business relationships. Much of the factual support for these causes of action falls into two groups. The first group of facts concerns the agreement (or lack thereof) between Plaintiffs and Zaro regarding Pepe. These facts support the breach-of-contract and related claims. The second group of facts concerns statements made by Zaro regarding Plaintiffs. These facts support the defamation and related claims. The Court reviews both sets of facts in turn.

         First, the Court reviews the facts alleged about an agreement regarding Pepe. Zaro contacted Dave Musto on November 3, 2016 to solicit advice on how to best travel with Pepe internationally. (Dave Musto Aff. at ¶ 4, Doc. 9-1). Dave Musto complied, sending her some advice via email. (See Ex. A, Doc. 9-3). On December 15, 2016, Zaro sent Dave Musto another message asking how to promote Pepe, including how he could earn sufficient points to become a champion show dog. (Dave Musto Aff. at ¶ 5). Zaro and Dave Musto agreed that Zaro would bring Pepe to a dog show in Erie, Pennsylvania where the Mustos would be. (Id.). Kathy Caton-Musto registered Pepe for the Erie, Pennsylvania show, which was set for January 28-29, 2017. (Id.). Zaro brought Pepe from Massachusetts for the Erie show, and Kathy Caton-Musto showed Pepe that day. (Dave Musto Aff. at ¶¶ 11-12). Zaro and Kathy Caton-Musto met the next day, and, according to the Mustos, Zaro agreed to give Pepe to the Mustos to “campaign” him to achieve champion status. (Id. at ¶ 13). The Mustos then took Pepe to their home in Delaware, Ohio.

         Zaro and the Mustos had numerous discussions over phone, text, and email through December 2016 and January 2017 leading up to Zaro giving Pepe to the Mustos. The Mustos prepared an “Owner-Sponsor Agreement, ” which they say reflects the terms discussed with Zaro “regarding the potential breeder/handler relationship.” (Id. at ¶ 6). The parties communicated about the terms of the Owner-Sponsor Agreement numerous times over the course of these two months.

         The Owner-Sponsor Agreement (the “Agreement”) says that Dave Musto and Lucy Par-schauer would be co-owners of Pepe with Zaro; Dave Musto and Mrs. Parschauer would also be Pepe's “sponsors, ” meaning they would pay all fees associated with “campaigning” Pepe. (Agreement, Doc. 2-1). This included fees for handling, boarding, conditioning, and advertising Pepe. (Id. at 2). Kathy Caton-Musto would be Pepe's handler, and she would take Pepe to compete in whatever dog shows she thought best. (Id. at 3). In return for their labor with Pepe, Mrs. Parschauer and Dave Musto would receive 100% of the first four stud fees for Pepe, and the fees would be split 50/50 between Zaro and the co-owners after that. (Id. at 4). The Agreement identified Delaware County, Ohio as the venue for any legal action. (Id. at 6). The Agreement is not signed by any party. (Id. at 6-7).

         The parties had other communication about a deal for Pepe. Text messages between Kathy Caton-Musto and Zaro show that they agreed that if Pepe did not “work out as a ‘campaigning' special, then you [Zaro] will have yourself a new champion at no cost.” (Doc. 9-6 at PageID 216). On February 1, 2017, Zaro sent a message to Dave Musto asking for his address “for co-own transfer.” (Ex. F, Doc. 9-8). Dave Musto says that he understood this to mean that Zaro was “going to sign Pepe's AKC Registration and send it to me so that Mrs. Parschauer and I could also sign it, which would memorialize that Ms. Zaro had agreed to both of us becoming co-owners of Pepe.” (Dave Musto Aff. at ¶ 15). Two weeks later, Zaro told Dave Musto that, after looking for the AKC Registration, she couldn't locate it and had asked for a replacement registration and would mail it to him when she received it. (Id. at ¶ 18; Ex. G).

         Throughout February and March 2017, the Mustos showed Pepe at various dog shows, accruing enough “points” to have Pepe ranked as “the #4 AKC Cane Corso.” (Id. at ¶ 19). Dave Musto claims that on March 1, 2017, Zaro “communicated to my wife and I that she agreed to the Backing Contract [the Owner-Sponsor Agreement].” (Id. at ¶ 21). On March 7, Dave Musto asked Zaro if she would “send a copy of the signed agreement.” (Id. at ¶ 22). Zaro replied that she had already “mailed one out a month ago. But I'll print another and send.” (Ex. I, Doc. 9-11). She never did. On March 11, 2017, Zaro stated that she had received the replacement AKC Registration for Pepe and was sending it to Ohio but was thwarted by a faulty system at her local post office. (Id. at ¶ 25; Ex. J, Doc. 9-12).

         That brings us to March 18, 2018-the day Zaro took Pepe back. The Mustos took Pepe to Louisville, Kentucky for a dog show. The Mustos had Pepe in a crate while he awaited part of the competition. Dave Musto returned to the crate to retrieve Pepe, but Pepe was gone. Chaos ensued: the chairperson of the dog show put the property on “lock down” while many people ran, used golf carts, and drove cars, all looking for Pepe. (Id. at 33). The Mustos learned over the police radio that a blue minivan with Massachusetts plates had gone through a barricaded back exit that was unguarded. (Id.). The blue minivan was Zaro's-she had taken Pepe back, and she told Kathy Caton-Musto as much over text message: “I have my dog Pepe.” (Ex. K, Doc. 9-13).

         That's the first set of facts, those relating to the claim for breach of contract and related claims. The second set of facts is short, and these facts support Plaintiffs' claim of defamation and related claims.

         The Mustos assert that Zaro “made multiple disparaging statements about [us] mistreating Pepe while he was in our possession in Ohio.” (Dave Musto Aff. at ¶ 35). They provide examples of false statements from Zaro's affidavit in this case, but they don't cite any specific statements Zaro made outside of her affidavit. Plaintiffs assert that Zaro made disparaging comments through “at least telephone calls, emails, and Cane Corso forum posts to and/or viewed by others in the pure-bred dog community, including residents of the State of Ohio.” (Id.).

         Zaro asserts that she has virtually no contacts with Ohio. Zaro never went to Ohio to negotiate any agreement involving Pepe. (Zaro Aff. at ¶ 13, Doc. 7-1). Zaro has only set foot in Ohio while driving or passing through en route to another state. (Id. at ¶ 14). She asserts that she has never transacted business in Ohio. (Id. at ¶ 15).

         II. Legal Standard

         A defendant may assert by motion the defense of a lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). The party asking a Court to assert jurisdiction bears the burden of showing that personal jurisdiction exists. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir. 1996). Here, Plaintiffs ask the Court to assert jurisdiction over Zaro, so Plaintiffs bear the burden of showing personal jurisdiction exists.

         Neither party requested discovery or an evidentiary hearing, so the Court will decide the motion upon the affidavits alone. See Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). When a district court rules on a motion to dismiss for lack of personal jurisdiction “without conducting an evidentiary hearing, the court must consider the pleadings and affidavits in a light most favorable to the plaintiff.” CompuServe, 89 F.3d at 1262. “In that instance . . . the district court should not weigh ‘the controverting assertions of the party seeking dismissal.'” Air Prod. & Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 549 (6th ...


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