The opinion
[Cite as Stepp v. Wiseco Piston Co., Inc., 2013-Ohio-5832.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
ALYSON R. STEPP, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-L-059
- vs - :
WISECO PISTON COMPANY, INC., :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 12 CV 003243.
Judgment: Affirmed.
Richard T. Seman, Jr., 7784 Reynolds Road, Mentor, OH 44060 (For Plaintiff-
Appellee).
Dale A. Nowak, Buckingham, Doolittle & Burroughs, L.L.P., 1375 East Ninth Street,
#1700, Cleveland, OH 44114 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Wiseco Piston Company, Inc., appeals the
Judgment of the Lake County Court of Common Pleas, denying its Motion to Dismiss
plaintiff-appellee, Alyson R. Stepp’s, discovery action. The issue before this court is
whether an action for discovery, brought pursuant to R.C. 2317.48, is subject to
dismissal where the plaintiff seeks to discover the source of allegedly defamatory
statements and where such statements are entitled to the qualified privilege that
attaches to workplace investigations. For the following reasons, we affirm the decision
of the court below.
{¶2} On December 14, 2012, Stepp filed a Complaint and/or Petition and/or
Action for Discovery in the Lake County Court of Common Pleas. The Complaint
contained the following factual averments, supported by Stepp’s attached affidavit:
{¶3} Plaintiff was working for Defendant Wiseco when, in the summer of
2012, she had an argument with her immediate supervisor. Later in
the same day she talked about that argument with a different co-
worker in a brief conversation, in person, at Plaintiff’s cubicle.
Some time thereafter Plaintiff was falsely accused (by somebody,
the exact identity of whom is not definitely known by Plaintiff at this
time, although it has been represented to Plaintiff that two people
made such allegations) of, as Plaintiff understands it, having spent
hours complaining about the incident to multiple people over
company phone lines, and as a result Plaintiff was suspended five
days without pay. Consequently, Plaintiff strongly believes and
avers herein as true that she has been defamed in matters relating
to her work, business and/or professional life in a manner which
would be legally actionable as defamation (slander and/or libel) if
Plaintiff knew the details of who said exactly what, and Plaintiff has
been damaged as a result, minimally in the form of emotional pain
and suffering, damages to her reputation (including but not limited
to the contents of Plaintiff’s personnel file and/or information at
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Defendant Wiseco), and lost wages in the approximate amount of
$1,000.00, plus her attorney fees.
{¶4} Stepp filed the lawsuit for the following stated purpose: “In order to fully
evaluate her potential claim(s), and/or to pursue same in court, Plaintiff needs more
information about exactly who said what about her, so she knows who to sue and
exactly upon what basis or bases.”
{¶5} Count One of the Complaint sought discovery, pursuant to Civil Rule
34(D), of “all documents * * * which contain all information relating to matters about
which Plaintiff is seeking discovery * * *, including but not necessarily limited to
information regarding the names of all persons who made allegations about Plaintiff in
Defendant Wiseco’s work environment in or about June and/or July 2012 * * *.”
{¶6} Count Two of the Complaint sought, pursuant to R.C. 2317.48, an order
compelling Wiseco to respond to the following interrogatories:
{¶7} INTERROGATORIES 1 & 2: Identify by full legal name and last
known residential address each and every person who made
allegations against Plaintiff Alyson Stepp in June and/or July of
2012 upon which Plaintiff Alyson[] Stepp’s five day suspension of
July, 2012 was based in whole or in part.
{¶8} INTERROGATORY 3: Set forth the substance of any and all
allegations which were made by any person identified in response
to Interrogatories 1-2 hereinabove, upon which allegations the five
day suspension of Plaintiff Alyson Stepp was based in whole or in
part in July of 2012.
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{¶9} On March 7, 2013, Wiseco filed a Motion to Dismiss, pursuant to Civil
Rule 12(B)(6), for “failure to state a claim upon which relief can be granted.” Wiseco
argued: “The Complaint filed in this matter fails to demonstrate the existence of a claim
for defamation, and is truly just a fishing expedition to see if one can be found.”
{¶10} On May 15, 2013, the trial court issued a Judgment Entry, denying the
Motion to Dismiss and ordering Wiseco to answer the discovery requests and
interrogatories within thirty days from the date of the Entry. The court determined that
“Plaintiff clearly alleges that she potentially has a defamation claim arising from specific
false statements that have been made about her.” Although she “knows the substance
of the statements,” she does not know “the identities of the individuals who made them
or exactly what the statements were.” The court concluded that “the discovery
requested by Plaintiff is necessary to ascertain the identity of the alleged wrongdoers
and the details of what exactly occurred,” and that “Plaintiff is otherwise unable to bring
the contemplated action.”
{¶11} On June 13, 2013, Wiseco filed a Notice of Appeal and Motion to Stay
Judgment pending Appeal.
{¶12} On July 12, 2013, the trial court granted Wiseco’s Motion to Stay
Judgment pending Appeal.
{¶13} On appeal, Wiseco raises the following assignment of error:
{¶14} “[1.] The trial court committed reversible error when it denied Appellant’s
motion to dismiss the complaint and ordered Appellant to provide discovery pursuant to
O.R.C. 2317.48.”
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{¶15} In order for a trial court to dismiss a complaint under Civ.R.
12(B)(6) for failure to state a claim upon which relief can be
granted, 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. O’Brien v. Univ. Community Tenants Union, Inc.
(1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 327 N.E.2d 753;
LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-
3608, 872 N.E.2d 254, ¶ 14. The 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. Id. Appellate review of a trial court’s decision to
dismiss a complaint pursuant to Civ.R. 12(B)(6) is de novo.
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362,
814 N.E.2d 44, ¶ 5.
Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956
N.E.2d 814, ¶ 12; Sizemore v. ESIS, Inc., 9th Dist. Medina No. 11CA0107-M, 2012-
Ohio-4004, ¶ 8 (“the question of whether the plaintiff has met the requirements for an
Action for Discovery is a question of law”); Riverview Health Inst., LLC v. Kral, 2nd Dist.
Montgomery No. 24931, 2012-Ohio-3502, ¶ 15 (“[w]e review the trial court’s dismissal of
a Civ.R. 34(D) petition for pre-suit discovery on a de novo basis”).
{¶16} Ohio Revised Code 2317.48 provides:
{¶17} When a person claiming to have a cause of action or a defense to
an action commenced against him, without the discovery of a fact
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from the adverse party, is unable to file his complaint or answer, he
may bring an action for discovery, setting forth in his complaint in
the action for discovery the necessity and the grounds for the
action, with any interrogatories relating to the subject matter of the
discovery that are necessary to procure the discovery sought.
{¶18} Civil Rule 34 provides that “a person who claims to have a potential cause
of action may file a petition to obtain discovery,” when “[t]he discovery is necessary to
ascertain the identity of a potential adverse party.” Civ.R. 34(D)(1) and (3)(a).
{¶19} Wiseco’s first argument under its sole assignment of error is that Stepp’s
Complaint is subject to dismissal on the grounds that the pleading fails to establish “that
a viable cause of action actually exists,” i.e., “a suspicion or hunch of a false and
defamatory statement is insufficient to support a discovery-only action.” Appellant’s
Brief at 7. Poulos v. Parker Sweeper Co., 44 Ohio St.3d 124, 127, 541 N.E.2d 1031
(1989) (an action for discovery “occupies a small niche between an unacceptable
‘fishing expedition’ and a short and plain statement of a complaint or a defense filed
pursuant to the Civil Rules”); Baker v. Cooper Farms Cooked Meats, 3rd Dist. Van Wert
No. 15-09-03, 2009-Ohio-3320, ¶ 11 (“[a]n action for discovery is to be used only to
uncover facts necessary for pleading, not to gather proof to support a claim or to
determine whether a cause of action exists”); Cleveland Constr., Inc. v. Carr, 11th Dist.
Ashtabula No. 98-A-0002, 1998 Ohio App. LEXIS 6145, 9 (Dec. 18, 1998) (“a potential
cause of action is not a sufficient ground for a court to grant a complainant discovery
under R.C. 2317.48”).
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{¶20} We agree with the trial court that Stepp adequately pled the elements of a
cause of action for defamation, only omitting the identity of the persons making the
defamatory statements. In the Complaint, Stepp alleged that a person or persons,
whose identity is unknown, made false statements of fact about her which were
communicated to her employer with the result that she suffered damage as a proximate
result thereof. Braun v. Ultimate Jetcharters, Inc., N.D.Ohio No. 5:12cv1635, 2013 U.S.
Dist. LEXIS 22325, 38 (Feb. 19, 2013) (“[u]nder Ohio law, a plaintiff alleging defamation,
whether libel or slander, must show that ‘a defendant published defamatory and
actionable statements to a third party who understood the defamatory nature of the
publication”) (citation omitted) (cases cited).
{¶21} Wiseco cites to the statement in the Complaint that Stepp “is basically
looking for information and/or confirmation regarding the identity of the person(s) that
made false allegations against her in Defendant Wiseco’s work environment,” and “also
seeking in this action the exact nature of the false allegations against Plaintiff, or ‘who
exactly said what exactly.’” The statements reflect the fact that the ultimate form of
Stepp’s claims might be affected by the discovery obtained from Wiseco. The
statements do not detract from the fact that Stepp has satisfied the pleading
requirements for a discovery action by setting forth “[a] statement of the subject matter
of the petitioner’s potential cause of action and the petitioner’s interest in the potential
cause of action.” Civ.R. 34(D)(1)(a); Rood v. FRJ, Ltd., 11th Dist. Lake No. 2010-L-077,
2011-Ohio-2712, ¶ 39 (“[t]he fact that the requested discovery may lead to discovery of
other causes of action does not justify denial of the petition”).
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{¶22} In contrast to the cases cited by Wiseco, which affirm the dismissal of
discovery actions, Stepp has averred sufficient facts to reveal a potential cause of
action. Bridgestone/Firestone v. Hankook Tire Mfg. Co., Inc., 116 Ohio App.3d 228,
232, 687 N.E.2d 502 (9th Dist.1996) (a complaint must “aver sufficient facts to reveal a
‘potential cause of action’”). Every element of a cause of action for defamation is
present, absent only the identity of the person or persons making the allegedly
defamatory statements.
{¶23} Wiseco’s second argument is that, since the alleged defamatory
statements are qualifiedly or conditionally privileged, Stepp “must plead facts sufficient
to demonstrate that the allegedly false and defamatory statement * * * was made * * *
with ‘actual malice’ in order to defeat [the] privilege.” Appellant’s Brief at 11. See
Gintert v. WCI Steel, Inc., 11th Dist. Trumbull No. 2002-T-0124, 2007-Ohio-6737, ¶ 21
(“[u]nder the doctrine of qualified privilege, statements made in good faith on a matter of
common interest between an employer and an employee, or between two employees,
concerning a third employee are protected in an action for defamation”).
{¶24} Wiseco fails to cite any binding or persuasive authority for the proposition
that a plaintiff must plead actual malice until the defense of qualified privilege is raised
in a responsive pleading. Wiseco cites to several out of state cases which we do not
find persuasive, inasmuch as they conflict with the principles of Ohio law set forth
below.
{¶25} Under Ohio law, the doctrine of qualified privilege is an affirmative defense
which the defendant bears the burden of raising.
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{¶26} In an action for defamation, the plaintiff’s prima facie case is made
out when he has established a publication to a third person for
which defendant is responsible, the recipient’s understanding of the
defamatory meaning, and its actionable character. Defendant may
then invoke various defenses, if available. One of these is known
as “qualified privilege,” in which the interest that the defendant is
seeking to vindicate is conditioned upon publication in a reasonable
manner and for a proper purpose. It is also referred to as a
conditional privilege.
Hahn v. Kotten, 43 Ohio St.2d 237, 243, 331 N.E.2d 713 (1975). “Once [defendant]
asserted the defense that its statements were made in good faith, [plaintiff] had the
burden of showing that [defendant] acted with actual malice and could not merely rely
on allegations in the complaint.” Evely v. Carlon Co., Div. of Indian Head, Inc., 4 Ohio
St.3d 163, 166, 447 N.E.2d 1290 (1983).
{¶27} Accordingly, the affirmative defense of qualified privilege is waived if not
properly raised. Isquick v. Dale Adams Ents., Inc., 9th Dist. Summit No. 20839, 2002-
Ohio-3988, ¶ 24; Morrison v. Gugle, 142 Ohio App.3d 244, 258, 755 N.E.2d 404 (10th
Dist.2001).
{¶28} Since the defense of qualified privilege is an affirmative defense which
must be raised in a responsive pleading, Stepp’s failure to plead actual malice is not
grounds for dismissing her discovery action.
{¶29} The sole assignment of error is without merit.
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{¶30} For the foregoing reasons, the Judgment of the Lake County Court of
Common Pleas, denying Wiseco’s Motion to Dismiss and ordering discovery, is
affirmed. Costs to be taxed against the appellant.
COLLEEN MARY O’TOOLE, J., concurs,
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion.
_______________________________
TIMOTHY P. CANNON, P.J., concurring.
{¶31} I respectfully concur with the opinion of the majority. I write separately
only to emphasize, as the majority notes, that this appeal is considered only under a
Civ.R. 12(B)(6) analysis. In the context of a Civ.R. 12(B)(6) motion and the limited
information in the current record, we are unable to consider whether appellant may be
entitled to summary judgment on other defenses such as qualified privilege or expiration
of the statute of limitations on the underlying claims.
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