[Cite as Bahen v. Diocese of Steubenville, 2013-Ohio-2168.]
                           STATE OF OHIO, JEFFERSON COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


GREGG BAHEN,                                       )
                                                   )          CASE NO. 11 JE 34
        PLAINTIFF-APPELLANT,                       )
                                                   )
        - VS -                                     )                OPINION
                                                   )
DIOCESE OF STEUBENVILLE, et al.,                   )
                                                   )
        DEFENDANTS-APPELLEES.                      )


CHARACTER OF PROCEEDINGS:                                     Civil Appeal from Common Pleas
                                                              Court, Case No. 11 CV 508.


JUDGMENT:                                                     Reversed and Remanded.


APPEARANCES:
For Plaintiff-Appellant:                                      Attorney John Mascio
                                                              Mascio Law Offices
                                                              325 North 4th Street, Lower Level
                                                              Steubenville, OH 43952

For Defendants-Appellees:                                     Attorney Melanie Morgan-Norris
                                                              Steptoe & Johnson PLLC
                                                              1224 Main Street, Suite 300
                                                              Wheeling, WV 26003-0751




JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                              Dated: May 24, 2013
[Cite as Bahen v. Diocese of Steubenville, 2013-Ohio-2168.]
DeGenaro, P.J.
        {¶1}     Plaintiff-Appellant, Gregg Bahen, appeals the decision of the Jefferson
County Court of Common Pleas granting Defendants-Appellees', the Steubenville
Herald Star, Alex Marshall, and Ogden Newspapers of Ohio, Inc., motion to dismiss
his amended complaint for defamation, intentional infliction of emotional distress, and
negligent infliction of emotional distress. Bahen argues that the trial court erred in
dismissing his amended complaint because he stated a claim upon which relief can be
granted.     Further, he contends that the trial court erred in applying the neutral
reportage privilege.
        {¶2}     Upon review, Bahen's arguments are meritorious. The trial court erred in
applying the neutral reportage privilege because the Ohio Supreme Court has declined
to adopt the doctrine, and moreover, by dismissing Bahen’s Amended Complaint on
that basis alone. Accordingly, the judgment of the trial court is reversed and the case
remanded.
                                  Facts and Procedural History
        {¶3}     On January 3, 2011, the Diocese of Steubenville issued a press release
stating that a student at Steubenville Catholic Central High School had made an
allegation of physical abuse against Bahen, a teacher and head football coach, and
that the Diocese determined "there is a semblance of truth to the allegation." The
release further stated that pursuant to the Diocese's "Decree on Child Protection"
Bahen was placed on paid leave and the matter was referred to the Jefferson County
prosecuting attorney.
        {¶4}     On January 4, 2011, the Steubenville Herald Star reported on the
Diocese's press release and stated that Bahen would remain on paid leave while the
Diocese investigated a student's physical abuse allegation. In the article, the Herald
Star also reported biographical information about Bahen and information on the
Decree on Child Protection. At the end of the article, the Herald Star published a
statement from Judy Jones, the Midwest associate director of the Survivors Network of
Those Abused by Priests: "'We urge anyone who has been harmed by Gregg M.
Bahen, to report it to law enforcement, not the diocese. The police are the proper
officials to be investigating crimes against kids,' said Jones."
                                                                                       -2-


       {¶5}   On September 1, 2011, Bahen filed a complaint against the Herald Star;
its publisher, Alex Marshall; and its parent company, Ogden Newspapers of Ohio, Inc.
(collectively, "the Newspaper Defendants"); WTOV-TV; its parent company, Cox
Enterprises, Inc.; and a number of its employees (collectively, "the Television
Defendants"); as well as the Diocese and its Communications Director. The complaint
was based upon the Diocese's press release, the Herald Star's article, and a
broadcast and online article by WTOV-TV based on the press release. After having
obtained leave, Bahen filed an amended complaint asserting a defamation claim, and
derivative claims of negligent and intentional infliction of emotional distress against the
same defendants. The press release, as published on WTOV-TV’s website, and the
article were attached to the amended complaint and incorporated by reference.
       {¶6}   The Newspaper Defendants filed a motion to dismiss the amended
complaint pursuant to Civ.R. 12(B)(6), arguing that the neutral reportage privilege
applied to the article and defeated Bahen’s claim. The Newspaper Defendants also
filed a supplemental motion to dismiss, arguing that because their article accurately
described the Diocese's press release, it was not false, warranting dismissal of the
defamation claim, and by extension the derivative claims.
       {¶7}   Bahen opposed both motions to dismiss, arguing that the neutral
reportage privilege does not apply because the Ohio Supreme Court had declined to
adopt the doctrine; and that the newspaper article went beyond "a mere recitation of
the press release itself" by including the following quote at the conclusion of the article:

       The announcement by the Diocese prompted a statement Monday
       afternoon from Judy Jones, Midwest Assistant Director of the
       organization known as Survivors Network for Those Abused By Priests.

       “We urge anyone who has been harmed by Gregg M. Bahen, to report it
       to law enforcement, not the Dioceses. The police are the proper officials
       to be investigating crimes against kids,” said Jones.
                                                                                           -3-


      {¶8}   Bahen argued that one could not read the article without concluding that
he physically abused a student, and this was especially damaging to his profession:
“When read in the context of the entire newspaper article the statements of Defendant
newspaper was [sic] in fact false and was injurious to him” noting that he “was later
cleared of this false allegation by Defendant, Diocese of Steubenville.”
      {¶9}   After a hearing, the trial court issued an entry granting the Newspaper
Defendants' motion to dismiss:

      The Newspaper Defendants accurately and disinterestedly re-published
      a news release which was disseminated by defendant Diocese of
      Steubenville. In addition, the Newspaper Defendants published some
      historical information related to the plaintiff, all of which is a matter of
      public record.    The Newspaper Defendants also included information
      regarding a decree which was announced by Bishop Daniel Conlon on
      behalf of Defendant Diocese of Steubenville and a statement made by
      Judy Jones, Midwest Associate Director of the organization known as the
      Survivors Network of Those Abused by Priests.

      The Court further finds that the statement published by the Newspaper
      Defendants was made by a “responsible and prominent organization or
      individual”, that the statement concerned a “matter of public interest” and
      that the Newspaper Defendants “accurately and disinterestedly” re-
      published the allegedly defamatory information.

      The Court, having found that the plaintiff has failed to state a claim for
      libel per se, further finds that the plaintiff’s claims for intentional infliction
      of emotional distress and negligent infliction of emotional distress are
      derivative of the libel per se claim and, therefore, each of the causes of
      action is hereby dismissed.
                                                                                       -4-


       Therefore, the court finds that the plaintiff has not stated a claim against
       the Newspaper Defendants upon which relief can be granted and,
       further, that the neutral reportage privilege does apply to the Newspaper
       Defendants under the facts and circumstances of this case and the
       evidence as presented to the court."

                                   Compliance with Civ.R. 8(A)
       {¶10} A substantive, but preliminary matter we must first address is the
Newspaper Defendants’ contention that we should apply the pleading standards set in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
to this case.
       {¶11} Civ.R. 8(A) provides that a party states a claim for relief if the complaint
contains "(1) a short and plain statement of the claim showing that the party is entitled
to relief, and (2) a demand for judgment for the relief to which the party claims to be
entitled." A complaint alleges the elements of the claim with sufficient particularity if it
gives reasonable notice of the claim to opposing parties. In re Election Contest of
Democratic Primary Held May 4, 1999 for Clerk, Youngstown Mun. Court, 87 Ohio
St.3d 118, 120, 717 N.E.2d 701 (1999). In other words, Ohio is a notice pleading,
rather than a fact pleading, jurisdiction. Id.
       {¶12} In Twombly, the United States Supreme Court examined the pleading
requirements pursuant to Fed.R.Civ.P. 8(a) in the context of an antitrust case. The
Court held that "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of
his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." (Citations omitted.) Id. at
555, quoting Fed.R.Civ.P. 8(a). In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009), the Court explained that the Twombly decision "expounded
the pleading standard for 'all civil actions' * * *." Id. at 684.
       {¶13} The Newspaper Defendants cite to one case for the proposition that Ohio
                                                                                    -5-


courts have used Twombly and Iqbal in applying Ohio Civ.R. 8(A). Vagas v. City of
Hudson, 9th Dist. No. 24713, 2009-Ohio-6794, ¶13. While that may be the case, the
application has also been rejected. See, Sacksteder v. Senney, 2d Dist. No. 24993
2012-Ohio-4452. This court has not applied the standards in Twombly and Iqbal and,
significantly, the Ohio Supreme Court has not adopted those pleading standards.
      {¶14} Consistent with federalism, it is the Ohio Supreme Court, rather than the
United States Supreme Court, which has the sole authority to construe Ohio civil
procedure.    There is no Supremacy Clause conflict here; each court has the
constitutional autonomy to construe the rules of pleadings governing cases filed in,
respectively, Ohio and the federal courts. Accordingly, the pleading standards for
interpreting Civ.R. 8(A) consistently applied in Ohio, In re Election Contest of May 4,
1999, will be applied here. We expressly reject the Newspaper Defendants’ call to
extend Twombly and Iqbal to Ohio civil procedure jurisprudence.
                                     Standard of Review
      {¶15} Dismissal of a complaint for failure to state a claim upon which relief can
be granted is appropriate if, after all factual allegations of the complaint are presumed
true and all reasonable inferences are made in favor of the nonmoving party, it
appears beyond doubt that the nonmoving party can prove no set of facts entitling him
to the requested relief. Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853,
883 N.E.2d 420, ¶13. A Civ.R. 12(B)(6) motion to dismiss is procedural, and tests the
sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.,
65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). In resolving a Civ.R. 12(B)(6) motion
to dismiss, a court must confine its review to the allegations contained in the
complaint. Butler v. Jordan, 92 Ohio St.3d 354, 356, 750 N.E.2d 554 (2001), fn. 4.
Whether a trial court properly granted a motion to dismiss for failure to state a claim
presents a question of law and is therefore subject to a de novo review on appeal.
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶5.
Despite Bahen arguing the trial court abused its discretion by dismissing his Amended
Complaint, this court will employ a de novo review.
                                                                                      -6-


                                        Neutral Reportage Privilege
       {¶16} In his sole assignment of error, Bahen alleges:
       {¶17} "The trial court abused its discretion in granting Appellees [sic] Civil Rule
12(B)(6) motion to dismiss based upon failure to state a claim upon which relief can be
granted and the neutral reportage privilege."
       {¶18} Bahen raises two distinct issues which we will address in inverse order,
because resolution of the second issue is dispositive of the appeal. Citing federal
case law, the Fourth District set forth the elements of the neutral reportage privilege:

       First, an allegedly defamatory accusation must be made by a
       responsible, prominent organization or individual.             Second, the
       accusation must concern a matter of public interest.        Third, a media
       defendant must have accurately and disinterestedly republished the
       defamatory accusation.           Accurate and disinterested publication is
       present “where the journalist believes, reasonably and in good faith, that
       his report accurately conveys the charges made.” Edwards, supra, at
       120. If these tests are met, the privilege will attach even though the
       journalist “has serious doubts regarding [the] truth [of newsworthy
       statements].”    Id. Further, the journalist is under no duty to “take up
       cudgels against dubious charges in order to publish them without fear of
       liability for defamation.” Id.

April v. Reflector-Herald, Inc. 46 Ohio App.3d 95, 99, 546 N.E.2d 466, 470 (Ohio App.,
1988), quoting Edwards v. Natl. Audubon Soc., Inc. (C.A.2, 1977), 556 F.2d 113.
       {¶19} Although several Ohio appellate districts have recognized the neutral
reportage privilege, this court has never recognized or considered the privilege.
Wheat v. Wright, 2d Dist. No. 8614, 1985 WL 17381, *28 (Oct. 10, 1985); Watson at
*2-*3; April v. Reflector-Herald, Inc., 46 Ohio App.3d 95, 98-99, 546 N.E.2d 466 (6th
Dist.1988); Celebrezze v. Netzley, 8th Dist. Nos. 53864, 53865, 1988 WL 87566, *9-
*10 (Aug. 4, 1988), rev'd in part on other grounds, 51 Ohio St.3d 89, 554 N.E.2d 1292
                                                                                       -7-


(1990); J. V. Peters & Co., Inc. v. Knight Ridder Co., 9th Dist. No. 11335, 1984 WL
4803, *5-*6 (Mar. 21, 1984).
       {¶20} Significantly, subsequent to these decisions, the Ohio Supreme Court in
Young v. The Morning Journal, 76 Ohio St.3d 627, 669 N.E.2d 1136 (1996) expressly
stated: “This court has never recognized the ‘neutral reportage’ doctrine and we
decline to do so at this time. Accordingly, we will not uphold the grant of summary
judgment based on the ‘neutral reportage’ doctrine.” Id. at 629, N.E.2d at 1138.
       {¶21} Since Young, the Ohio Supreme Court has not revisited the issue, nor
has another appellate court applied the privilege.         We will not do so here, and
expressly reject the neutral reportage privilege.
       {¶22} Thus, the trial court erred by dismissing the defamation claim upon the
neutral reportage privilege. Importantly, the trial court’s judgment entry demonstrates
that the privilege was the sole basis for the dismissal.
       {¶23} The trial court made the following findings. First, it found the Newspaper
Defendants ‘accurately and disinterestedly’ re-published four statements: 1) the
Diocese’s press release; 2) historical information about Bahen that was public record;
3) the Diocese protection decree; and 4) the Jones statement. Next, it found the
published statement was made by a ‘responsible and prominent organization or
individual’ about a ‘matter of public interest’. And finally, the trial court found that the
Newspaper Defendants “‘accurately and disinterestedly’ re-published the allegedly
defamatory information.”       (Emphasis added).      This language exactly tracks the
elements of the neutral reportage privilege. Based upon these findings, the trial court
found that Bahen failed to state a claim upon which relief can be granted and that the
neutral reporting privilege applied.   As this court has rejected the applicability of the
privilege to defamation claims, the trial court erred by dismissing Bahen’s Amended
Complaint based upon the neutral reportage privilege.
       {¶24} Because the privilege was the only basis expressed for the dismissal, the
defamatory nature of the article was never tested by the trial court. The privilege
applies regardless of whether or not the statement at issue is true or defamatory—
                                                                                         -8-


either per se or per quod. To make that determination would defeat the purpose of the
privilege: to be able to publish newsworthy statements, despite the dubious nature of
their veracity, without fear of liability for defamation. April at * 99.
         {¶25} The trial court must be afforded the first opportunity to resolve these
issues. “In such a situation, the appellate court should reserve judgment until such
time as the undecided issues are considered by the trial court and that decision is
appealed.”     Crestmont Cleveland Partnership v. Ohio Dept. of Health, 139 Ohio
App.3d 928, 935, 746 N.E.2d 222, 227 (10 Dist., 2000).                 Accordingly, Bahen’s
assignment of error is meritorious; the trial court erred by dismissing his defamation
claim.
         {¶26} Since we have concluded the trial court erred by dismissing the
defamation claim, it also erred by dismissing Bahen’s derivative claims of negligent
and intentional infliction of emotional distress.
         {¶27} In sum, Bahen's arguments are meritorious.            The trial court erred in
applying the neutral reportage privilege because the Ohio Supreme Court has declined
to adopt the doctrine, and further by dismissing Bahen’s Amended Complaint solely on
that basis.     Additionally, the dismissal of the derivative claims was erroneous.
Accordingly, the judgment of the trial court is reversed and the case remanded for
further proceedings.
Donofrio, J., concurs.
Waite, J., concurs.
