United States District Court, S.D. Ohio, Eastern Division
Deavers Magistrate Judge.
OPINION & ORDER
L. GRAHAM UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss for Lack of Personal Jurisdiction. (Doc. 7).
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
Zaro, the Defendant, owned a dog named Pepe. 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 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
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.
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.
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).
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).
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.
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.
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.
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.”
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 ¶
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
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