[Cite as Pearson v. Columbus, 2014-Ohio-5563.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


Phyllis L. Pearson,                              :

                Plaintiff-Appellant,             :
                                                                       No. 14AP-313
v.                                               :                  (C.P.C. No. 13CV-9497)

City of Columbus et al.,                         :                (REGULAR CALENDAR)

                Defendants-Appellees.            :




                                          D E C I S I O N

                                  Rendered on December 18, 2014


                Clifford O. Arnebeck, Jr., for appellant.

                Richard C. Pfeiffer, Jr., City Attorney, and Andrew D.M.
                Miller, for appellees.

                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Plaintiff-appellant, Phyllis L. Pearson, appeals a judgment of the Franklin
County Court of Common Pleas that dismissed her action against defendants-appellees,
Joseph Valiski and Donald Worthington.            For the following reasons, we affirm that
judgment.
        {¶ 2} On August 26, 2013, Pearson filed suit against the city of Columbus, the
Columbus Division of Police, and John Does 1 and 2. According to the complaint, the
John Doe defendants were police officers employed by the Columbus Division of Police
who unjustifiably shot and killed Pearson's son, Obee Shepard, on August 26, 2011. The
complaint referred to those police officers by fictitious names because their actual names
were then unknown and undiscoverable. Pearson, as administrator of Shepard's estate
No. 14AP-313                                                                             2

and Shepard's next of kin, asserted wrongful death and survivor claims against each
defendant.
       {¶ 3} Pearson instructed the Franklin County Clerk of Courts to serve copies of
the complaint upon the city, the Columbus Division of Police, and the John Doe
defendants by certified mail. Pearson directed the clerk to address the copies to the John
Doe defendants to the care of the Columbus Division of Police.           The clerk issued
summonses in the names of "John Doe 1" and "John Doe 2." Using certified mail, the
clerk served copies of the complaint and the summonses on the John Doe defendants at
the specified address.
       {¶ 4} On October 1, 2013, Pearson filed an amended complaint that substituted
the actual names of appellees in place of the "John Doe" designation. The amended
complaint alleged that Valiski and Worthington were the police officers who killed
Shepard. Per Pearson's instruction, the clerk served copies of the amended complaint,
along with summonses issued in appellees' actual names, on Valiski and Worthington.
       {¶ 5} Instead of answering the amended complaint, Valiski and Worthington
moved to dismiss it pursuant to Civ.R. 12(B)(6). They argued that Pearson failed to sue
them prior to the lapse of the two-year statute of limitations, and thus, Pearson's action
against them was time barred. Pearson responded that the allegations in the amended
complaint related back to the date of the original complaint pursuant to Civ.R. 15(C).
Since the original complaint was filed within the statute of limitations, Pearson asserted
that dismissal was unwarranted. Valiski and Worthington replied that Pearson could not
take advantage of Civ.R. 15(C) because she failed to meet the requirements of Civ.R.
15(D), which delineates the procedure for commencing an action against a defendant
when the plaintiff does not know the defendant's name.
       {¶ 6} The trial court agreed with Valiski and Worthington that Pearson had not
satisfied Civ.R. 15(D). The trial court found that Pearson had not met all the Civ.R. 15(D)
requirements because she failed to: (1) personally serve copies of the original complaint
and summonses on Valiski and Worthington, and (2) include in the summonses the
words "name unknown." Due to Pearson's failure to comply with Civ.R. 15(D), the
amended complaint did not relate back and, consequently, the two-year statute of
No. 14AP-313                                                                                          3

limitations barred Pearson from pursuing her claims against Valiski and Worthington.
The trial court issued a judgment dismissing Pearson's action on March 18, 2014.1
        {¶ 7} Pearson appeals the March 18, 2014 judgment, and she assigns the
following error:
                THE TRIAL COURT BELOW ERRED TO THE PREJUDICE
                OF PHYLLIS L. PEARSON BY DISMISSING HER FIRST
                AMENDED COMPLAINT ON THE GROUND THAT IT
                FAILED TO STATE CLAIMS FOR RELIEF AGAINST
                JOSEPH VALISKI AND DONALD WORTHINGTON.

        {¶ 8} A motion to dismiss for failure to state a claim upon which relief can be
granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt., Inc.,
125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11. A court may dismiss a complaint under Civ.R.
12(B)(6) for failing to comply with the applicable statute of limitations when the face of
the complaint conclusively shows that the action is time barred. Ohio Bur. of Workers'
Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, ¶ 13. Appellate courts review
de novo a trial court's decision to dismiss pursuant to Civ.R. 12(B)(6). Id. at ¶ 12.
        {¶ 9} Here, the parties agree that a two-year statute of limitations applies,
although they differ regarding the source of that statute of limitations. Pearson points to
R.C. 2125.02(D)(1), which establishes a two-year statute of limitations for wrongful death
actions. Defendants, on the other hand, reference R.C. 2744.04(A), which states that:
                action[s] against a political subdivision to recover damages for
                injury, death, or loss to person or property allegedly caused by
                any act or omission in connection with a governmental or
                propriety function * * * shall be brought within two years after
                the cause of action accrues, or within any applicable shorter
                period of time for bringing the action provided by the Revised
                Code.

        {¶ 10} The limitations period in R.C. 2744.04(A) applies to both political
subdivisions and their employees. Davis v. Clark Cty. Bd. of Commrs., 2d Dist. No. 2011-
CA-84, 2013-Ohio-2758, ¶ 23; Nadra v. Mbah, 10th Dist. No. 06AP-829, 2007-Ohio-501,
¶ 20, rev'd on other grounds, 119 Ohio St.3d 305, 2008-Ohio-3918; Gnezda v. N.
Royalton, 8th Dist. No. 83268, 2004-Ohio-1678, ¶ 15. R.C. 2744.04(A) is a special

1The trial court found the city and Columbus Division of Police immune from liability under R.C. Chapter
2744 and dismissed the claims against them for that reason. Pearson does not challenge that ruling.
No. 14AP-313                                                                               4

provision governing the statute of limitations in tort cases against political subdivisions
and their employees and, thus, it prevails over general statutes of limitations. Davis at
¶ 23; Gnezda at ¶ 15. Here, appellees are city employees who allegedly engaged in tortious
conduct.    Accordingly, we conclude that the statute of limitations found in R.C.
2744.04(A) applies and, pursuant to R.C. 2744.04(A), Pearson had to file her action
within two years of its accrual.
       {¶ 11} Pearson's claim accrued on August 26, 2011, so the statute of limitations
lapsed on August 26, 2013.         Pearson did not bring her claims against Valiski and
Worthington until October 1, 2013—over a month after the statute of limitations ran. Her
claims, therefore, are barred by the statute of limitations unless they fall within the aegis
of Civ.R. 15(C). According to Civ.R. 15(C), "[w]henever the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment relates back to the date
of the original pleading." If Civ.R. 15(C) applies, then Pearson's claims against Valiski and
Worthington, which Pearson asserted in the amended complaint, will relate back to the
original pleading. Since the original pleading was filed within the statute of limitations,
the "relation back" will render the claims timely.
       {¶ 12} Pearson, however, cannot rely on Civ.R. 15(C) unless she properly complied
with the requirements of Civ.R. 15(D). LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d
324, 2008-Ohio-3921, ¶ 1. Civ.R. 15(D) states:
              When the plaintiff does not know the name of a defendant,
              that defendant may be designated in a pleading or proceeding
              by any name and description. When the name is discovered,
              the pleading or proceeding must be amended accordingly.
              The plaintiff, in such case, must aver in the complaint the fact
              that he could not discover the name. The summons must
              contain the words "name unknown," and a copy thereof must
              be served personally upon the defendant.

       {¶ 13} Civ.R. 15(D) allows a plaintiff to name a fictitious defendant when the
plaintiff knows the identity and whereabouts of a defendant, but not the defendant's
name. Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, ¶ 24. To invoke Civ.R.
15(D), the plaintiff must identify the defendant in the complaint with enough specificity
that personal service can be obtained on the defendant. Id., quoting Varno v. Bally Mfg.
No. 14AP-313                                                                             5

Co., 19 Ohio St.3d 21, 24 (1985). In other words, a plaintiff cannot merely add a generic
"John Doe" defendant to the complaint and expect to use Civ.R. 15(D) to later amend to
include the actual defendant. In addition to designating "John Doe" as a defendant, the
plaintiff must provide enough identifying information about "John Doe" to enable
personal service.
       {¶ 14} Unfortunately, no precedent sets out the exact degree of specificity
necessary to properly identify a fictitiously named defendant. Both the Supreme Court of
Ohio and the staff notes to Civ.R. 15(D) indicate that the rule would allow a plaintiff who
files an action against a defendant in the defendant's last name only to later amend to set
forth the defendant's full name. Erwin at ¶ 37. On the other end of the spectrum, the
Supreme Court found that Civ.R. 15(D) did not apply where a plaintiff brought an action
"using the generic description of a doctor licensed in Ohio, whose actions caused her
husband's death." Id. at ¶ 34.
       {¶ 15} In addition to identifying the defendant in the original complaint, the
plaintiff seeking to take advantage of Civ.R. 15(D) must also: (1) aver in the original
complaint that she could not discover the name of the fictitious defendant; (2) include the
words "name unknown" in the summons, and (3) personally serve the defendant with
copies of the original complaint and the summons containing the words "name
unknown." Erwin at ¶ 31; Easter v. Complete Gen. Constr. Co., 10th Dist. No. 06AP-763,
2007-Ohio-1297, ¶ 45. If a plaintiff performs each of these requirements, then Civ.R.
15(D) permits the plaintiff to amend the original complaint to designate the defendant by
the correct name once the plaintiff discovers that name.
       {¶ 16} Here, Pearson did not include the words "name unknown" in the
summonses, and she did not personally serve appellees with copies of the original
complaint and summonses. Pearson, therefore, did not comply with the Civ.R. 15(D)
requirements. Pearson resists this conclusion. First, Pearson argues that the trial court
could not decide whether she complied with Civ.R. 15(D) because, to do so, the court had
to look to evidence outside of the complaint.
       {¶ 17} A court cannot rely on evidence outside of the complaint to decide a Civ.R.
12(B)(6) motion. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997).
However, a court can take judicial notice of "appropriate matters" in determining a Civ.R.
No. 14AP-313                                                                                6

12(B)(6) motion without converting it to a motion for summary judgment. State ex rel.
Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, ¶ 10. These "appropriate
matters" include prior proceedings in the immediate case. Charles v. Conrad, 10th Dist.
No. 05AP-410, 2005-Ohio-6106, ¶ 26; Brubaker v. Ross, 10th Dist. No. 00AP-1159
(Apr. 17, 2001). Applying this rule, the trial court took judicial notice of the circumstances
surrounding the service of the John Doe defendants. The trial court determined those
circumstances from documents contained in the record, including copies of the original
summonses directed to the John Doe defendants, the instructions for service that
Pearson's attorney submitted to the clerk, and documents evincing certified mail service
on the John Doe defendants.
       {¶ 18} Pearson contends that taking judicial notice was error because service of a
complaint and summons does not constitute a "proceeding." We disagree. The term
"proceeding" refers to "[t]he regular and orderly progression of a lawsuit" and includes
"[a]n act or step that is part of a larger action." Black's Law Dictionary (9th Ed.2009).
Service of the original complaint and summonses, therefore, is part of the proceedings of
this case.
       {¶ 19} Pearson next maintains that Civ.R. 12(B) limits consideration of matters
outside of the complaint to those specifically enumerated in Civ.R. 56, and consideration
of evidence taken by judicial notice is not specifically enumerated in Civ.R. 56. Pearson
bases this argument on the portion of Civ.R. 12(B) that states:
              When a motion to dismiss for failure to state a claim upon
              which relief can be granted presents matters outside the
              pleading and such matters are not excluded by the court, the
              motion shall be treated as a motion for summary judgment
              and disposed of as provided in Rule 56. Provided however,
              that the court shall consider only such matters outside the
              pleadings as are specifically enumerated in Rule 56.

Pursuant to this provision, after a trial court converts a motion to dismiss into a motion
for summary judgment, the court must decide the converted motion based on Civ.R.
56(C) evidence. State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 473 (1998). This
provision does not apply here because the trial court did not convert appellees' Civ.R.
12(B) motion into a motion for summary judgment.
No. 14AP-313                                                                                              7

        {¶ 20} In sum, we reject each of Pearson's judicial-notice arguments. Therefore,
we conclude that the trial court did not err in taking judicial notice of the manner of
service and the documents served on the John Doe defendants.
        {¶ 21} Second, Pearson argues that, by alleging in the original complaint that
Valiski's and Worthington's names were unknown, she met the requirement that the
summonses include the words "name unknown." We are not persuaded. The plain,
unambiguous language of Civ.R. 15(D) mandates that the words "name unknown" appear
in the summons, not the complaint. We cannot alter that language. State ex rel. Fifth
Third Mtge. Co. v. Russo, 129 Ohio St.3d 250, 2011-Ohio-3177, ¶ 16 (holding that, if a
court rule is unambiguous, then a court must apply it as written).
        {¶ 22} Third, Pearson argues that the trial court committed plain error by not
delaying its decision on appellees' motion to dismiss to allow her additional time to
personally serve Valiski and Worthington with the necessary documents. Pearson points
out that, pursuant to Civ.R. 3(A) and 15(C), an amendment substituting the actual
defendant's name for a fictitious name will relate back to the filing of the original
complaint if the plaintiff obtains service within one year of the filing of the original
complaint.2 Pearson filed her original complaint on August 26, 2013, and, thus, she had
until August 26, 2014 to personally serve copies of the original complaint and summonses
(with the words "name unknown") on Valiski and Worthington. The trial court issued a
judgment granting appellees' dismissal motion on March 18, 2014—approximately five
months before the service deadline. Pearson maintains that the trial court should have,
on its own initiative, (1) notified her that she still had time to properly serve appellees and
(2) withheld judgment until the August 26, 2014 deadline expired.
        {¶ 23} In response to this argument, appellees rely on Anetomang v. OKI Sys. Ltd.,
10th Dist. No. 10AP-1182, 2012-Ohio-822, wherein this court stated that, "in Erwin, [125
Ohio St.3d 519, 2010-Ohio-2202,] the court * * * stated that service on the fictitiously
named defendant, using the original complaint and a summons containing the words
'name unknown,' must be completed prior to the expiration of the applicable statute of
limitations."    Anetomang at ¶ 18.            (Emphasis omitted.)         Based on this statement,

2In relevant part, Civ.R. 3(A) states, "A civil action is commenced by filing a complaint with the court, if
service is obtained within one year from such filing upon * * * a defendant identified by a fictitious name
whose name is later corrected pursuant to Civ.R. 15(D)."
No. 14AP-313                                                                                8

appellees argue that Pearson had to personally serve appellees by August 26, 2013—the
date the statute of limitations expired—and not August 26, 2014.
       {¶ 24} In Erwin, the Supreme Court of Ohio held that "Civ.R. 15(D) does not
authorize a claimant to designate defendants using fictitious names as placeholders in a
complaint filed within the statute-of-limitations period and then identify, name, and
personally serve those defendants after the limitations period has elapsed."            Id. at
paragraph two of the syllabus. The court went on to state, "To construe the rule to allow
the use of placeholders for unidentified defendants would eliminate the statute of
limitations for every cause of action." Id. at ¶ 4.
       {¶ 25} The Erwin court drew a distinction between knowing the name of a
defendant and knowing the identity of a defendant. In order to use Civ.R. 15(D), a
plaintiff who does not know the name of the defendant must still identify the defendant in
the original complaint. Id. at ¶ 24, 30, 38. A plaintiff identifies a defendant by alleging in
the complaint a sufficient description of the defendant to allow personal service of the
defendant.    Id. at ¶ 24, 31, 40.        An insufficiently identified defendant is a mere
"placeholder," and Civ.R. 15(D) does not apply to such placeholders. Id. at ¶ 30. Thus, a
plaintiff cannot name a placeholder in a timely filed complaint and expect to rely on
Civ.R. 15(D) to amend the complaint after the statute of limitations has run. Civ.R. 15(D)
does not provide a means for a plaintiff to pursue an action against a defendant who the
plaintiff fails to identify prior to the lapse of the statute of limitations.
       {¶ 26} Lack of appreciation for the difference between naming and identifying a
defendant results in an incorrect interpretation of Erwin.             As we stated above, the
Supreme Court held that a plaintiff cannot use placeholders, i.e., non-identified
defendants, in a timely filed complaint "and then identify, name, and personally serve
those defendants after the limitations period has elapsed." Id. at paragraph two of the
syllabus. By this holding, the court did not require service of the original complaint and
summons on fictitiously named defendants prior to the expiration of the statute of
limitations. Rather, the court was condemning the use of placeholders and prohibiting
the application of Civ.R. 15(D) when a plaintiff uses a placeholder in an attempt to extend
the statute of limitations.
No. 14AP-313                                                                                9

       {¶ 27} This interpretation of Erwin is consistent with prior Supreme Court
precedent addressing Civ.R. 15(D) in conjunction with Civ.R. 3(A) and 15(C). In LaNeve,
the court held that Civ.R. 3(A) "specifically permits an amendment made pursuant to
Civ.R. 15(D) to relate back to the filing of an original complaint, provided service is
obtained within one year of the filing of the original complaint." LaNeve, 119 Ohio St.3d
324, 2008-Ohio-3921, at ¶ 12, citing Amerine v. Haughton Elevator Co., 42 Ohio St.3d
57, 59 (1989). Thus, as long as the plaintiff files the original complaint prior to the
expiration of the applicable statute of limitations, a plaintiff does not have to personally
serve the fictitiously named defendant within the statute of limitations. Id. Instead, the
plaintiff has one year from the date of filing of the original complaint to achieve personal
service of the fictitiously named defendant.
       {¶ 28} Erwin did not overrule LaNeve or Amerine.            In fact, the Erwin court
recognized that "a plaintiff may benefit from the one-year period allowed in Civ.R. 3(A) to
perfect personal service upon the fictitiously named defendant if the plaintiff has
otherwise complied with Civ.R. 15(D) in filing the complaint."          (Emphasis omitted.)
Erwin at ¶ 25, citing LaNeve at ¶ 15; Amerine at 58.
       {¶ 29} Based on all of the foregoing, we conclude that we contravened Supreme
Court precedent and Civ.R. 3(A) in Anetomang when we held that a plaintiff must serve
the original complaint and summons on a fictitiously named defendant before the
expiration of the applicable statute of limitations. To that limited extent, we overrule
Anetomang. Within the statute of limitations, a plaintiff must file an original complaint
that identifies the fictitiously named defendant and alleges the inability to discover that
defendant's name.      After filing its original complaint, a plaintiff has one year to
accomplish personal service of the original complaint and summons, which must include
the words "name unknown," on the fictitiously named defendant. The expiration of the
statute of limitations after the filing of the complaint does not truncate that one year.
       {¶ 30} Applying Civ.R. 3(A) to the instant case, we conclude that Pearson had until
August 26, 2014 to personally serve the John Doe defendants with copies of the original
complaint and summonses that included the words "name unknown." We, however,
cannot conclude that the trial erred in not sua sponte withholding its ruling on appellees'
motion to dismiss so that Pearson could obtain proper service. Pearson controlled both
No. 14AP-313                                                                                      10

the method and timing of service.           Pearson, thus, had the responsibility to ensure
compliance with Civ.R. 15(D) in a timely fashion. Unfortunately, Pearson did not fulfill
her responsibility. Pearson chose to serve the John Doe defendants by certified mail, a
type of service which does not satisfy Civ.R. 15(D). In her service instructions, she
omitted the words "name unknown" in relation to the John Doe defendants, thus leading
the clerk to omit those words from the summonses. Pearson had time to fix her initial
mistakes once appellees pointed them out in the motion to dismiss. However, in the four
months the Civ.R. 12(B)(6) motion was pending, Pearson made no attempt to correct the
deficiencies in the method of service or the content of the summonses.                   Moreover,
Pearson failed to request that the trial court delay its ruling to allow her to achieve proper
service. Given these circumstances, the trial court was under no obligation to defer its
decision on the motion to dismiss.3 Pearson simply failed to obtain proper service of the
original complaint on defendants by August 26, 2014.
       {¶ 31} In sum, we conclude that Pearson failed to comply with Civ.R. 15(D) and,
consequently, her amended complaint does not relate back to the filing of her original
complaint. The trial court, therefore, did not err in granting appellees' Civ.R. 12(B)(6)
motion on statute-of-limitations grounds.
       {¶ 32} For the foregoing reasons, we overrule Pearson's sole assignment of error,
and we affirm the judgment of the Franklin County Court of Common Pleas.
                                                                              Judgment affirmed.

                        BROWN and LUPER SCHUSTER, JJ., concur.




3
  We note that, even after the trial court issued its decision, Pearson could have obtained the time
necessary to properly serve defendants by requesting a stay of the decision. Pearson did not do this.
