Eichenberger v. GrahamEichenberger v. Graham
Rendered on March 28, 2013
Raymond L. Eichenberger, pro se.
Weston Hurd LLP, and W. Charles Curley, for appellee Thomas Graham.
Law Offices of Daniel R. Mordarski LLC, and Daniel R. Mordarski, for appellee Ohio Capital Conference.
Steven L. Craig, for appellee Ohio High School Athletic Association.
William J. Mooney, for appellee Wayne R. Roller.
Loren L. Braverman, for appellee Columbus City School District.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Plaintiff-appellant, Raymond L. Eichenberger, appeals from a judgment of the Franklin County Court of Common Pleas granting judgment in favor of all defendants-appellees.
{¶ 3} Appellant removed the case to federal court based upon his age discrimination claim. He then filed an amended complaint that abandoned the age discrimination claim. This allowed the matter to return to the court of commоn pleas on remand. After answering the original complaint, Roller filed a legal ethics complaint against appellant, who is a licensed attorney in Ohio. Appellant then filed a second amended complaint adding a claim against Roller for defamation based upon Roller‘s purportedly frivolous ethics complaint.
{¶ 4} The trial court granted a
{¶ 5} Appellant has timely appealed and brings the following two assignments of error:
[I.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY GRANTING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED, IN THAT THE PLAINTIFF‘S COMPLAINT WAS
SUFFICIENT NOTICE TO THE DEFENDANTS OF THE CAUSES OF ACTION PURSUANT TO THE CIVIL RULES. [II.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY FAILING TO GRANT THE PLAINTIFF THE OPPORTUNITY TO AMEND HIS COMPLAINT BEFORE THE
CIVIL RULE 12(B) MOTIONS WERE GRANTED BY THE COURT AND THE CASE DISMISSED.
{¶ 6} Although the various defendants sought to terminate the case by differеnt procedural means, the substantive review by the trial court and by this court upon appeal is similar for each.
{¶ 7} When reviewing a judgment on a
{¶ 8} Pursuant to
{¶ 9} We will address appellant‘s assignments of error in inverse order. Appellant‘s second assignment of error asserts that the trial court erred as a matter of law by refusing to grant appellant the opportunity to further amend his complaint before ruling on the appellees’ motions to dismiss or grant judgment on the pleadings.
{¶ 10} Appellant‘s second assignment of error is therefore overruled.
{¶ 11} Appellant‘s first assignment of error argues thаt the trial court should not have dismissed his complaint for failure to state a claim under
{¶ 13} With respect to the validity of this claim against Columbus City Schools, the Supreme Court of Ohio has held that a board of education, and, thus, a school district, is not a “person” as defined under
{¶ 14} More generally, when applied to the other appellees, appellant‘s complaint also fails to state a claim upon which relief can be granted. The Valentine Act was modeled after the federal Sherman Antitrust Act, and the Supreme Court of Ohio has interpreted the Valentine Act in light of federal judicial construction of the Sherman Antitrust Act. C.K. & J.K., Inc. v. Fairview Shopping Ctr., 63 Ohio St.2d 201, 204 (1980); Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, ¶ 13; Schweizer v. Riverside Methodist Hosps., 108 Ohio App.3d 539, 542 (10th Dist.1996). To establish a restraint of trade claim, a plaintiff must show that there is a combination of effort by two or more actors thаt unreasonably restrains trade in a relevant market. N.H.L. Players’ Assn. v. Plymouth Whalers Hockey, 325 F.3d 712, 718 (2003). Anticompetitive practices include price fixing, artificial restrictions on supply, division of markets, group boycotts, and tying arrangements.
{¶ 15} The use of the term “anticompetitive” reflects the underlying purpose of antitrust laws, which are intended to protect efficiently functioning markets by preserving
{¶ 16} Appellant‘s complaint in the present case alleges, at worst, that the various defendants combined in various ways to deny him employment personally. Inferentially, he suggests a combination between the defendants that amounts to a boycott of his officiating services. “A group boycott, or ‘concerted refusal to deal,’ is an attempt by a group of competitors to exclude a fellow competitor or group from competition.” Szuch at ¶ 101 (Cosme, J., dissenting), citing E. States Retail Lumber Dealers’ Assn. v. United States, 234 U.S. 600, 609-11, (1914). Taking the allegations in the complaint as true, appellant may have been pеrsonally affected by a “concerted refusal to deal.” In antitrust terms, however, this did not result in unlawful restraint of trade.
{¶ 17} In terms of antitrust law and alleged anticompetitive impact on the market, appellant‘s complaint does not allege adverse imрact that amounts to restraint of trade. There is no allegation that his exclusion was meant to affect the availability or price of officiating services in the market; the desired officiating positions simply went to other qualified individuals in preference to appellant. There was no generalized restraint of trade or distortion of the market, even if appellant was denied employment for reasons that were otherwise actionable. Accepting all appellant‘s averments as true, the complaint does not meet the standard for establishing an antitrust claim. The trial court therefore did not err in granting, variously, the defendants’ motions to dismiss for failure to state a claim or motion for judgment on the pleadings.
{¶ 18} Appellant‘s second claim in his amеnded complaint asserts that he is an intended third-party beneficiary of any existing contracts between the various defendants, and can assert resulting contractual rights.
{¶ 19} In order to enforce contractual rights under a third-party beneficiary theory, the plaintiff must be an intended beneficiary of the contract between two or more other
{¶ 20} While the complaint in the present case does allege the existence of contracts between the various appellees pursuant to whiсh Roller and Graham would, on the one hand, procure the availability of licensed officials for high school sports, and, on the other hand, furnish them to schools and athletic conferences, appellant, as a credentialed referee whо had participated in the system before, is not a third-party beneficiary. There is no possible interpretation of the contractual relationships as alleged in the complaint that would give rise to a specific right intended by the contracting parties to have appellant personally be secured with refereeing work in preference to other possible candidates. We accordingly find that appellant‘s amended complaint did not state a claim upon which relief could bе granted and dismissal on this basis or on the pleadings was appropriate.
{¶ 21} Appellant‘s final claim in the amended complaint is against Roller, alleging defamation. This claim is based upon a disciplinary grievance filed by Roller with the Supreme Court of Ohio Disciplinary Counsel. This fails to state a cognizable claim. A disciplinary grievance is a judicial proceeding, and statements made in the course thereof, as well as the filing of the complaint itself, enjoy an absolute privilege against civil action.
{¶ 22} For these reasons, the trial court did not err in dismissing or granting judgment on the pleadings with respect to appellant‘s various claims. Appellant‘s first assignment of error is overruled.
{¶ 23} In summary, appellant‘s two assignments of error are without merit and are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and SADLER, JJ., concur.