The opinion
[Cite as Porter v. United Dairy Farmers, 2026-Ohio-329.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Brian Porter, :
Plaintiff-Appellant, :
No. 25AP-251
v. : (C.P.C. No. 24CV-7739)
United Dairy Farmers, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
:
D E C I S I O N
Rendered on February 3, 2026
On brief: Brian Porter, pro se. Argued: Brian Porter.
On brief: Frost Brown Todd, LLP, Eric M. Coglianese, and
Madison L. Weaver for appellee. Argued: Eric M.
Coglianese.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Plaintiff-appellant, Brian Porter, appeals from the decision of the Franklin
County Court of Common Pleas granting the motion filed by defendant-appellee, United
Dairy Farmers (“UDF”), to dismiss his complaint for failure to state a claim upon which
relief may be granted under Civ.R. 12(B)(6). Because the trial court did not err when
granting the motion, we affirm.
{¶ 2} On October 8, 2024, Mr. Porter filed a complaint alleging that a UDF
employee named Sam had “physically assaulted” him on September 31, 2024. According
to Mr. Porter, he had frequented the store for many years because it was “literally a block
from [his] home.” (Oct. 8, 2024 Compl.) He alleged that the employee “deliberately
No. 25AP-251 2
elbowed” him and “was trying to start a fight unprovoked.” Id. Mr. Porter sought $310,000
in damages for “civil rights violations,” as well as punitive damages and attorney fees. Id.
{¶ 3} UDF filed a motion to dismiss Mr. Porter’s complaint under Civ.R. 12(B)(6)
for failure to state a claim upon which relief may be granted on December 11, 2024. UDF
argued that Mr. Porter’s claim seeking a remedy for a purported civil rights violation was
not viable because he described only “an act by a private individual employed by a private
company,” not the act of a state actor that such a claim under 42 U.S.C. 1983 may remedy.
(Dec. 11, 2024 Mot. to Dismiss at 3.) UDF also argued that even if Mr. Porter’s allegations
were construed to support a claim for an intentional tort such as battery, such a claim would
fail because UDF could not be held vicariously liable for acts of an employee that fall outside
the scope of employment.
{¶ 4} On December 16, 2024, Mr. Porter filed an entry captioned “Motion to Never
Dismiss,” to which he attached a notarized “Affidavit in Support of Motion.” He argued
that UDF’s motion to dismiss was “an admission [of] guilt” and that the trial court should
not dismiss his complaint. (Dec. 16, 2024 Mot. at 3.) He complained that he had “yet to
receive an apology or explanation” from UDF. Id. at 4. Mr. Porter also made several
additional allegations of threatening behavior by the store’s manager and customers.
{¶ 5} On January 28, 2025, Mr. Porter filed a motion captioned “Motion of
Complaint,” requesting that the trial court subpoena both UDF and the United States
Department of Agriculture to obtain video footage of the alleged incident. The trial court
summarily denied the motion on February 16, 2025.
{¶ 6} The trial court granted UDF’s motion to dismiss on March 3, 2025, agreeing
that Mr. Porter failed to state a claim for a civil rights violation under 42 U.S.C. 1983
because his complaint was devoid of “allegations that UDF conspired with state officials or
was otherwise acting under color of state law.” (Mar. 3, 2025 Decision & Entry at 3.)
{¶ 7} Mr. Porter appealed the trial court’s decision and asserts five assignments of
error. However, four of the assignments of error are duplicative because they assign error
to the same ruling of the trial court: the dismissal of his complaint under Civ.R. 12(B)(6).
In addition, each contains excessive argumentation that is outside the scope of a properly
stated assignment of error, which must state the alleged error “with reference to the place
in the record where each error is reflected.” App.R. 16(A)(3). Arguments in support of the
No. 25AP-251 3
assignment of error are to be presented in a separate section of an appellate brief, not in the
assignment of error itself. See App.R. 16(A)(7) (requiring in one section of an appellate
brief the “argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the contentions,
with citations to the authorities, statutes, and parts of the record on which appellant
relies”). Accordingly, we construe the first, second, third, and fifth assignments of error as
a single assignment of error asserting error in the trial court’s dismissal of the complaint,
and the fourth assignment of error to assert that the trial court erred when overruling Mr.
Porter’s January 28, 2025 motion seeking a subpoena.
{¶ 8} Under Civ.R. 12(B)(6), a party may assert the defense that a complaint fails
to state a claim upon which relief may be granted by filing a motion to dismiss on that basis
before filing an answer. “To grant a motion to dismiss, ‘it must appear beyond doubt that
the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff
to the relief sought.’ ” Valentine v. Cedar Fair, L.P., 2022-Ohio-3710, ¶ 12, quoting Ohio
Bur. of Workers’ Comp. v. McKinley, 2011-Ohio-4432, ¶ 12. When undertaking this
analysis, all “allegations of the complaint must be taken as true, and those allegations and
any reasonable inferences drawn from them must be construed in the nonmoving party’s
favor.” McKinley at ¶ 12, citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
St.2d 242, 245 (1975). An appellate court applies a de novo standard of review to a ruling
granting a motion to dismiss under Civ.R. 12(B)(6), with no deference to the trial court’s
reasoning. State ex rel. White v. Aveni, 2022-Ohio-1755, ¶ 10, citing State ex rel. McKinney
v. Schmenk, 2017-Ohio-9183.
{¶ 9} The only claim specifically asserted in Mr. Porter’s complaint is one for “civil
rights violations” against UDF. (Compl. at 1.) The trial court and UDF infer that Mr. Porter
is referencing 42 U.S.C. 1983, which states: “Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress . . . .”
{¶ 10} “To state a claim for relief in an action brought under § 1983,” a plaintiff must
allege the deprivation “of a right secured by the Constitution or laws of the United States,
No. 25AP-251 4
and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Mr. Porter’s complaint fails to identify any
constitutional or legal right allegedly infringed upon, and fails as well to describe how the
action of UDF’s employee was committed under color of state law. More fundamentally,
“the under-color-of-state-law element of § 1983 excludes from its reach ‘ “ merely private
conduct, no matter how discriminatory or wrongful,” ’ ” such as the conduct of an employee
of a public, nongovernmental corporation described in Mr. Porter’s complaint. Am. Mfrs.
Mut. Ins. Co. at 50, quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982).
{¶ 11} Mr. Porter’s allegations approach a description of the intentional tort of
battery, but fail to sufficiently describe a set of facts that might plausibly impute liability to
UDF. “A person is subject to liability for battery when he acts intending to cause a harmful
or offensive contact, and when a harmful contact results.” Love v. Port Clinton, 37 Ohio
St.3d 98, 99 (1988), citing Restatement of the Law 2d, Torts § 13 (1965). Even if one were
to construe Mr. Porter’s purported civil rights violation as a claim of battery arising from
the harmful contact of being elbowed in the back, UDF could not be held vicariously
responsible for the actions of its employee as described. “For an employer to be liable under
the doctrine of respondeat superior, an employee’s tortious act must be committed and, if
an intentional tort, it must be calculated to facilitate or promote the employer’s business or
interest.” Bauman v. Bob Evans Farms, Inc., 2007-Ohio-145, ¶ 13 (10th Dist.), citing
Browning v. Ohio State Hwy. Patrol, 2003-Ohio-1108, ¶ 60 (10th Dist.). “Generally, if the
employee tortfeasor acts intentionally and willfully for his own personal purposes, the
employer is not responsible, even if the acts are committed while the employee is on duty.”
Id. Mr. Porter fails to allege how the harmful conduct of UDF’s employee was calculated to
facilitate or promote its business, as required to state a claim against a tortfeasor’s
employer.
{¶ 12} Mr. Porter’s arguments on appeal largely center on ad hominem attacks on
the trial court judge, which we decline to address. The record contradicts his assertion that
there was no pending motion to dismiss when the judge ruled on UDF’s motion. (Compare
Dec. 11, 2024 Mot. to Dismiss and Mar. 3, 2025 Decision & Entry Granting Def.’s Mot. to
Dismiss.) Finally, Mr. Porter’s assertion that the trial court’s ruling dismissing his
complaint amounts to a violation of his due process rights under the United States
No. 25AP-251 5
Constitution and the Ohio Constitution is without merit. He received both notice of UDF’s
motion and was afforded the opportunity to respond to it, as the trial court’s decision noted.
See State ex rel. Castrilla v. Hansley, 2003-Ohio-5228, ¶ 15 (11th Dist.) (reversing trial
court’s dismissal of complaint where “appellants’ opportunity to be heard was nonexistent”
and therefore violated due process, as dismissal was “made only one day after appellees’
motion to dismiss was filed with the trial court and served upon appellants”). For the
foregoing reasons, the first, second, third, and fifth assignments of error are overruled.
{¶ 13} In the fourth assignment of error, Mr. Porter challenges the trial court’s
decision to overrule his “Motion of Complaint,” in which he sought to commence discovery
to obtain any video UDF possessed relevant to the allegations in the complaint. However,
“discovery is of no consequence until a motion to dismiss is ruled upon.” Tinch v. Fedders,
1996 Ohio App. LEXIS 433, *3 (12th Dist. Feb. 12, 1996). Mr. Porter’s request for discovery
was “rendered moot by the trial court’s decision” granting UDF’s motion to dismiss his
complaint. Id. Because the trial court did not err when overruling Mr. Porter’s motion, the
fourth assignment of error is overruled.
{¶ 14} Having overruled all five assignments of error asserted, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BOGGS, P.J. and EDELSTEIN, J., concur.
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