[Cite as Leiby v. Univ. of Akron, 2011-Ohio-5329.]



                                                     Court of Claims of Ohio
                                                                        The Ohio Judicial Center
                                                                65 South Front Street, Third Floor
                                                                           Columbus, OH 43215
                                                                 614.387.9800 or 1.800.824.8263
                                                                            www.cco.state.oh.us



TODD LEIBY

       Plaintiff

       v.

THE UNIVERSITY OF AKRON

       Defendant
       Case No. 2010-08586

Judge Joseph T. Clark

ENTRY GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS



        {¶1} On July 13, 2011, plaintiff filed a motion for summary judgment pursuant to
Civ.R. 56(A). On July 14, 2011, defendant filed a cross-motion for summary judgment
pursuant to Civ.R. 56(B) or, in the alternative, motion to dismiss pursuant to Civ.R.
12(B)(1) and (6); however, inasmuch as the pleadings are closed, the court construes
defendant’s motion to dismiss as a motion for judgment on the pleadings pursuant to
Civ.R. 12(C).1 Defendant filed a response to plaintiff’s motion on July 26, 2011, and
plaintiff filed a response to defendant’s motion on July 27, 2011. The motions are now
before the court for a non-oral hearing.
        {¶2} Civ.R. 12(C) states: “After the pleadings are closed but within such times as
not to delay the trial, any party may move for judgment on the pleadings.” A motion for
judgment on the pleadings presents only questions of law and it may be granted only
where no material factual issues exist and when the moving party is entitled to judgment
as a matter of law.           Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165-166.
Case No. 2010-08586                              -2-                                         ENTRY

“Pursuant to Civ.R. 12(C), the pleadings must be construed liberally and in a light most
favorable to the party against whom the motion is made along with the reasonable
inferences drawn therefrom.” Burnside, supra.
        {¶3} Plaintiff, an alumnus of defendant, alleges that on June 1, 2008, he filed a
report with defendant’s Office of Student Judicial Affairs wherein he alleged that he
observed a student engage in “academic dishonesty” during the fall semester of 1999.
The crux of plaintiff’s complaint is that defendant failed to properly investigate and act
upon his report, that defendant engaged in “a massive cover-up to ignore the serious
academic dishonesty problems,” and that such actions “diminished the value” of the
degrees that defendant conferred upon him. Plaintiff asserts claims for defamation and
violation of the Ohio Consumer Sales Practices Act (CSPA).
        {¶4} For his claim of defamation, plaintiff alleges that defendant has falsely
represented “that his G.P.A. accurately reflects his skills, knowledge, and abilities,
against those of his peers, who have not earned or deserve[d] the so-called privileges of
the degrees and G.P.A.’s that they possess, due to the academic dishonesty that they
committed * * *.” (Complaint, ¶28.)
        {¶5} “To prevail on a defamation claim, whether libel or slander, a plaintiff must
prove the following elements: (1) a false statement, (2) about the plaintiff, (3) was
published without privilege to a third party, (4) with fault of at least negligence on the
part of the defendant, and (5) the statement was either defamatory per se or caused
special harm to the plaintiff.” Schmidt v. Northcoast Behavioral Healthcare, Franklin
App. No. 10AP-565, 2011-Ohio-777, ¶8.
        {¶6} Plaintiff’s complaint does not identify a specific statement attributable to
defendant, nor does he allege that any such statement was published to a third party.
Accordingly, plaintiff’s complaint fails to state a claim for relief sounding in defamation.


1
 See Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 402 (“Civ.R. 12(C) may be employed by a
defendant as a vehicle for raising the several defenses contained in Civ.R. 12(B) after the close of the
pleadings.”).
Case No. 2010-08586                         -3-                                    ENTRY

       {¶7} With respect to plaintiff’s claim under the CSPA, R.C. 1345.04, a portion of
the CSPA, states: “The courts of common pleas, and municipal or county courts within
their respective monetary jurisdiction, have jurisdiction over any supplier with respect to
any act or practice in this state covered by sections 1345.01 to 1345.13 of the Revised
Code, or with respect to any claim arising from a consumer transaction subject to such
sections.”
       {¶8} R.C. 2743.02(A)(1) provides in part: “The state hereby waives its immunity
from liability * * * and consents to be sued, and have its liability determined, in the court
of claims created in this chapter in accordance with the same rules of law applicable to
suits between private parties * * *. To the extent that the state has previously consented
to be sued, this chapter has no applicability.” The CSPA was enacted prior to the
enactment of the Court of Claims Act and it applies to consumer actions against a
“government, governmental subdivision or agency.” See R.C. 1345.01(B); Ridenour v.
Chillicothe Corr. Inst., Ct. of Cl. No. 2007-09178-AD, 2009-Ohio-3576, ¶5.
       {¶9} Inasmuch as CSPA claims must be brought in “[t]he courts of common
pleas, and municipal or county court” this court lacks subject matter jurisdiction to hear
such claims.     Based upon the foregoing, defendant’s motion for judgment on the
pleadings is GRANTED, plaintiff’s motion for summary judgment is DENIED, and
plaintiff’s complaint is DISMISSED. Court costs are assessed against plaintiff. The
clerk shall serve upon all parties notice of this judgment and its date of entry upon the
journal.




                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge

cc:
Case No. 2010-08586                 -4-                           ENTRY


Jennifer A. Adair                    Todd Leiby
Assistant Attorney General           2300 North Haven Blvd.
150 East Gay Street, 18th Floor      Cuyahoga Falls, Ohio 44223
Columbus, Ohio 43215-3130

RCV/dms
Filed September 6, 2011
To S.C. reporter October 13, 2011
