United States District Court, S.D. Ohio, Western Division
Michael R. Barrett, United States District Court Judge
matter is before the Court on Defendant West Union Volunteer
Life Squad, Inc.'s Motion for Judgment on the Pleadings.
(Doc. 50). Plaintiffs have filed a memorandum in opposition
(Doc. 51), to which Defendant has replied (Doc. 52). For the
reasons that follow, Defendant's Motion will be GRANTED.
are a father, Brandon Friend, and his now-adult daughter,
Kelsey Friend. (Doc. 36 ¶¶ 3-4 at PageID 192).
On December 29, 2014, Kelsey-then a minor-was staying with
her mother at her mother's home in Adams County, Ohio.
(Id. ¶¶ 22, 24 at PageID 195). At that
time, Kelsey's mother was dating Defendant Jeff McCarty,
who was working as an Adams County Deputy Sheriff and as a
supervisor for Defendant West Union Volunteer Life Squad.
(Id. ¶¶ 8, 23 at PageID 193, 195). McCarty
gave Ambien to Kelsey in order to put her to sleep and then
sexually assaulted her. (Id. ¶ 25 at PageID
195). McCarty “obtained [the Ambien] pursuant to his
employment” with West Union. (Id.). Kelsey
reported the assault to her basketball coach the next day.
(Id. ¶ 28). A DNA test confirmed the presence
of McCarty's saliva and semen. (Id. ¶¶
35-36 at PageID 196). McCarty pleaded guilty and received
jail time for this crime. (Id. ¶ 38).
Two of Plaintiffs' Third Amended Complaint alleges a state
law claim of negligent hiring, retention, and supervision
against both the Adams County Sheriff,  also a defendant,
and the West Union Volunteer Life Squad. (Doc. 36
¶¶ 48-52 at PageID 197-98). Pursuant to
Fed.R.Civ.P. 12(c), West Union moves for judgment on the
pleadings. (Doc. 50).
Rule of Civil Procedure 12(c) permits a party to move for
judgment on the pleadings “[a]fter the pleadings are
closed-but early enough not to delay trial-[.]” The
legal standard for adjudicating a Rule 12(c) motion is the
same as that for adjudicating a Rule 12(b)(6) motion.
Gascho v. Global Fitness Holdings, LLC, 918
F.Supp.2d 708, 716 (S.D. Ohio 2013) (citing Lindsay v.
Yates, 498 F.3d 434, 437 n.5, 438 (6th Cir.
2007)); see Warrior Sports, Inc. v.
Nat'l Collegiate Athletic Ass'n, 623 F.3d 281,
284 (6th Cir. 2010).
12(b)(6) allows a party to move to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To withstand a
dismissal motion, a complaint must contain “more than
labels and conclusions [or] a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). The Court does not
require “heightened fact pleading of specifics, but
only enough facts to state a claim for relief that is
plausible on its face.” Id.
at 570 (emphasis added). “A claim has facial
plausibility when the plaintiff pleads 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). A
district court examining the sufficiency of a complaint must
accept the well-pleaded allegations of the complaint as true.
Id.; DiGeronimo Aggregates, LLC v. Zemla,
763 F.3d 506, 509 (6th Cir. 2014).
on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary
judgment under Rule 56.” Fed.R.Civ.P. 12(d) (emphasis
added). In this circumstance, “[a]ll parties must be
given a reasonable opportunity to present all the material
that is pertinent to the motion.” Id.
Ohio law, the elements for the torts of negligent hiring,
negligent retention, and negligent supervision are the same.
They are: “(1) the existence of an employment
relationship; (2) the employee's incompetence; (3) the
employer's actual or constructive knowledge of such
incompetence; (4) the employer's act or omission causing
plaintiff's injuries; and (5) the employer's
negligence in hiring or retaining the employee as the
proximate cause of plaintiff's injuries.”
Bricker v. R. & A Pizza, Inc., 804 F.Supp.2d
615, 622 (S.D. Ohio 2011) (quotations and citations omitted).
Yet in order to maintain a claim for negligent hiring,
retention and supervision, “the threshold
issue of whether the employee was ‘on
the clock' when the criminal or tortious act was
committed must be established.”
State Farm Mut. Auto Ins. Co. v. King, Nos.
CA2005-04-045, CA2005-04-049, 2006 WL 216051, at * 6,
2006-Ohio-336, ¶ 42 (12th Dist. Ct. App. May 2, 2008)
(quoting Saleh v. Marc Glassman, Inc., No. 86010,
2005 WL 3081507, at *4, 2005-Ohio-6127, ¶ 28 (8th Dist.
Ct. App. Nov. 17, 2005) (emphasis added). See Gebhart v.
College of Mt. St Joseph, 106 Ohio App.3d 1, 665 N.E.2d
223, 225 (1995) (negligent supervision claim failed because
sexual assaults occurred in employee's private residence
at night; employer had no right or duty to supervise employee
outside the employment context); Malone v. Miami
Univ., 89 Ohio App.3d 527, 625 N.E.2d 640, 642-43 (1993)
(employer not liable for injuries caused when its employee,
having drank alcohol during his lunch break, left work
intoxicated and became involved in a head-on collision;
employer had no duty or right to control employee's
activities away from work). Because Plaintiffs do not allege
that McCarty was “on the clock” at the time he
sexually assaulted Kelsey, Defendant West Union asks this
Court to enter judgment in its favor.
initial matter, the Court must decide if it will consider the
Affidavit of Darrell Rockey (Doc. 49-1), which is appended to
the Answer filed by Defendant West Union and referenced in
its Motion (Doc. 50-1 at PageID 283 & n.1). In it, Rockey
testifies that he was a Lieutenant in the squad in December
2014 and that, specific to December 29, 2014-the date on
which Kelsey was sexually assaulted-McCarty was not
“on the clock.” (Doc. 49-1 ¶ 3 at PageID
278). Encouraging the Court to consider the
affidavit, West Union notes that the Sixth Circuit has taken
“a liberal view of what matters fall within the
pleadings for purposes of Rule 12(b)(6).” Armengau
v. Cline, 7 Fed.Appx. 336, 344 (6th Cir. 2001).
Documents attached to a motion to dismiss form part of the
pleadings “[i]f referred to in [the] complaint and
[are] central to the claim.” Id. (citing
Jackson v. City of Columbus, 194 F.3d 737, 745 (6th
Cir. 1999)). While one might argue that Rockey's
testimony is “central” to Plaintiffs'
negligent hiring, supervision and retention claim, his
affidavit plainly is not referred to in the Third Amended
Complaint. Hence, the Court finds it to be outside the
pleadings. See Bricker, 804 F.Supp.2d at 619-20.
Were the Court to consider Rockey's affidavit, it would
convert Defendant West Union's Rule 12(c) motion into one
for summary judgment. See Max Arnold & Sons, LLC v.
W.L. Hailey & Co., Inc., 452 F.3d 494, 502-03 (6th
Cir. 2006). This conversion is wholly unnecessary to resolve
the legal question presented by West Union. Thus, the Court
will exclude the Affidavit of Darrell Rockey, as well as the
Affidavits of Charles Friend (Doc. 42-1) and Kristian Hughes
(Doc. 42-2) offered by Plaintiffs in opposition to Defendant
West Union's Rule 12(c) Motion.
Court has carefully reviewed the Third Amended Complaint, and
West Union is correct: Plaintiffs do not allege that
McCarty was “on the clock” when he sexually
assaulted Kelsey. But Plaintiffs counter that the issue of
“on the clock” is irrelevant because McCarty
“was not rank and file in the Life Squad, but
supervisory.” (Doc. 51 at PageID 294; see also
Doc. 36 ¶ 8 at PageID 193). Moreover, because Defendant
West Union “is a ‘volunteer' squad that gets
expense reimbursement, it is erroneous to declare that there
are periods when Lt. McCarty was ‘off the clock' at
all, with the possible exception of times that he was on
Sheriff's duty.” (Doc. 51 at PageID 294).
cite no authority-from Ohio or any other jurisdiction-in
support of this contention, and the Court is aware of none.
To accept this premise would put an employer at continuous
risk for the off-duty behavior of its supervisory staff. And
it would contradict Saleh. Accordingly, it is
rejected. The Court likewise rejects Plaintiffs'
alternative theory. McCarty's off-duty sexual assault
cannot ride the coattails of his “on the clock”
acquisition of Ambien, even if one made possible the other.
Saleh is straightforward. This Court's review
begins-and here, ends-with asking whether Plaintiffs did-or
could-allege that McCarty's sexual assault of Kelsey
Friend occurred while he was “on the clock” with
the West Union Volunteer Life Squad. Because no such