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Nyce v. Jones

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

June 11, 2019

KINSLEY F. NYCE, Plaintiff,
v.
STEPHEN D. JONES, et al, Defendants.

          KIMBERLY A. JOLSON MAGISTRATE JUDGE

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. CHIEF JUDGE

         This matter is before the Court for consideration of the following:

• Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (ECF No. 25) filed by Defendants Richard Dove ("Defendant Dove"), Paul Demarco ("Defendant Demarco"), David Dingwell ("Defendant Dingwell"), Ashley Pike ("Defendant Pike"), and the Ohio Board of Professional Conduct ("the Board");
• Motion to Dismiss for Lack of Jurisdiction (ECF No, 26) filed by Defendants Thomas C. Nuovo ("Defendant Nuovo"), Eric G. Parker ("Defendant Parker"), and Bauer Gravel Farnham, LLP ("Defendant Bauer");
• Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (ECF No. 30) filed by Defendants Stephen D. Jones ("Defendant Jones"), Roetzel & Andress, LPA ("Defendant Roetzel"), Arthur R. Goldner & Associates, Inc. ("Defendant Goldner"), and NC Plaza, LLC ("Defendant NC Plaza");
• Motion to Dismiss for Failure to State a Claim (ECF No. 32) filed by Defendants Genesis Health Care, Inc. ("Defendant Genesis"), 300 Pearl St. Operations LLC d/b/a/ Burlington Health & Rehabilitation Center ("Defendant Burlington"), KHOI New Limited Partnership d/b/a Kindred Transitional Care & Rehabilitation-Birchwood Terrace ("Defendant Birchwood"), and Kindred Healthcare, LLC ("Defendant Kindred");
• Motion to Dismiss for Lack of Jurisdiction (ECF No. 34) filed by Defendants Kelly Hayes ("Defendant Hayes"), Erin Saylor ("Defendant Saylor"), and Elizabeth Stotler ("Defendant Stotler");
• Motion to Dismiss for Lack of Jurisdiction (ECF No. 35) filed by Defendants Renee L. Mobbs ("Defendant Mobbs"), and Sheehey Furlong & Behm P.C. ("Defendant Sheehey");
• Motion to Dismiss for Lack of Jurisdiction (ECF No. 3 9) filed by Defendant Terry K. Sherman ("Defendant Sherman");
• Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (ECF No.40) filed by Defendant Steven S. Nolder ("Defendant Nolder");
• Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (ECF No. 41) filed by Defendant Robert A. Brazil ("Defendant Brazil");
• Response in Opposition to Defendant Nolder and Defendant Sherman's Motions to Dismiss (ECF No. 42);
• Reply brief (ECF No. 43) filed by Defendant Nolder and Defendant Sherman;
• Response in Opposition to Defendant Nuovo, Defendant Parker, Defendant Bauer, Defendant Hayes, Defendant Saylor, and Defendant Stotler's Motions to Dismiss (ECF No. 44);
• Unified Responsive Pleading to Defendants' Motions to Dismiss (ECF No. 46);
• Reply brief (ECF No. 47) filed by Defendant Hayes, Defendant Saylor, and Defendant Stotler;
• Reply brief (ECF No. 48) filed by Defendant Nuovo, Defendant Parker, and Defendant Bauer;
• Combined Reply brief and Motion to Strike Document 46 (ECF No. 49) filed by Defendant Dove, Defendant Demarco, Defendant Dingwell, Defendant Pike, and the Board;
• Reply brief (ECF No. 50) filed by Defendant Jones, Defendant Roetzel, Defendant Goldner, and Defendant NC Plaza;
• Combined Reply brief and Motion to Strike Document 46 (ECF No. 51) filed by Defendant Mobbs and Defendant Sheehey;
• Reply brief (ECF No. 52) filed by Defendant Brazil;
• Reply brief (ECF No. 53) filed by Defendant Genesis, Defendant Burlington, Defendant Birchwood, and Defendant Kindred; and
• Combined Response in Opposition to Motion to Strike filed by Defendants Dove, Demarco, Dingwell, Pike, and the Board; and Motion to Appoint Special Master for Declaratory Action Review (ECF No. 55).

         For the reasons that follow, the Court GRANTS Defendants' Motions to Dismiss. (ECF Nos. 25, 26, 30, 32, 34, 35, 39, 40, and 41). The Court DENIES Defendants' Motions to Strike (ECF Nos. 49 & 51), and the Court DENIES as moot Plaintiffs Motion to Appoint a Special Master (ECF No. 55). Plaintiffs claims against Defendants Dove, Demarco, Dingwell, Pike, Nuovo, Parker, Bauer, Jones, Roetzel, Goldner, NC Plaza, Genesis, Burlington, Birchwood, Kindred, Hayes, Saylor, Stotler, Mobbs, Sheehey, Sherman, Nolder, Brazil, and the Board are DISMISSED with PREJUDICE.

         I.

         A. Factual Background

         This case arises from the disbarment of Plaintiff, a formerly licensed attorney living in Columbus, Ohio. (Compl. ¶ 1 & 3, ECF No. 1). Plaintiff was admitted to the practice of law in Ohio in 1982. Columbus Bar Association v. Nyce, 152 Ohio St.3d 501, 501 (2018).[1] As part of his practice, Plaintiff represented Defendants NC Plaza and Goldner in a commercial landlord-tenant action. Id., at 502. Defendants NC Plaza and Goldner did not prevail in the action. Id. Dissatisfied with Plaintiffs representation, Defendants NC Plaza and Goldner threatened to sue Plaintiff for malpractice and demanded that he provide proof of professional liability insurance. Id. According to Plaintiff, Defendants Jones and Roetzel assumed legal representation of Defendants NC Plaza and Goldner after Plaintiffs withdrawal as counsel. (Compl. ¶ 8).

         On May 18, 2018, the Columbus Bar Association filed an amended complaint against Plaintiff, alleging that he: (1) "failed to notify his clients [Defendants NC Plaza and Goldner] in writing that he does not maintain professional-liability insurance," (2) "failed to maintain his clients' signed acknowledgements that they had received that notice," (3) failed to maintain "required records documenting the funds held in his client trust account," (4) "commingled personal and client funds," and (5) "made false statements of material fact in connection with the ensuing disciplinary investigation." Nyce, 152 Ohio St.3d at 502. After a two-day hearing, the Board issued a recommendation that Plaintiff be permanently disbarred from the practice of law in Ohio. Id. According to Plaintiff, Defendants Dove, Demarco, Dingwell, and Pike served on the Board which handled Plaintiffs disciplinary proceedings. (Compl. ¶ 41). Upon appeal, the Supreme Court of Ohio adopted the Board's findings and permanently disbarred Plaintiff from the Ohio Bar. Id. at 502. On March 12, 2018, this Court issued an Order disbarring Plaintiff from the practice of law in the Southern District of Ohio. (Id. r 1; see In the Matter of Kinsley F. Nyce, No. 2:18-MC-017).

         In his Complaint, Plaintiff claims "Defendants acted by subterfuge and intention utilizing the Ohio attorney discipline process to deprive Plaintiff of rights in multiple [threatened] and or active filed civil litigation, cases in, Franklin County Ohio, State of Vermont (multiple venues), United States District Court Vermont." (Id.). First, Plaintiff alleges that out-of-state Defendants Nuovo, Parker, Mobbs, Tymula, Hayes, Stotler, Lorrah, Saylor, Brazil, Bauer, Sheehey, Burgeon, Genesis, Burlington, Birchwood, and Kindred "acted in unison and in interchanged roles and representations publishing, filing, stating that Plaintiff had been dishonest in many forms and forums" even though such claims "were knowingly made false." (Id. ¶ 4).[2] Plaintiff further contends that numerous Defendants forced him to violate the Rules of Professional Conduct by "requiring Plaintiff to [d]isclose sealed records and documents Plaintiff was not permitted to disclose." (Id. ¶ 6). Plaintiff alleges these forced disclosures were achieved through "acts of extortion, intimidation, includ[ing] multiple physical acts of actual violence, threatened criminal charges, threatened acts of administrative authority actions and charges, including express verbal threats wanting Plaintiff[']s death." (Id. ¶ 6).

         Plaintiff claims that Defendants Nolder, Sherman, Clous, Campbell, and Brown were members of the Certified Grievance Committee which investigated his purported misconduct. (Id. ¶ 41). In Plaintiffs view, neither Defendant Nolder nor Defendant Sherman "received [the] required training[, ] education and development of requisite skills adequate to properly perform the role that each intentionally and maliciously undertook regarding Plaintiff at the direction of Defendants Clous, Campbell, Brown, and the Columbus Bar Association ["CBA"]. (Id. ΒΆ 49). Specifically, Plaintiff alleges that Defendants Nolder, Sherman, Clous, Campbell, Brown, and the CBA improperly failed to provide the Board with a "three-ring binder ...


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