Jones v. Russell

[Cite as Jones v. Russell, 2024-Ohio-1857.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

MARY ELIZABETH JONES, CASE NO. 2023-P-0100

Plaintiff-Appellant,

Civil Appeal from the

- vs - Court of Common Pleas

JOHN RUSSELL, et al.,

Trial Court No. 2022 CV 00584

Defendants-Appellees.

OPINION

Decided: May 13, 2024

Judgment: Affirmed in part, reversed in part; remanded

Mary Elizabeth Jones, P.O. Box 5, Aurora, OH 44202 (Plaintiff-Appellant).

John Russell, 879 Kickapoo Avenue, Akron, OH 44305 (Defendant-Appellee).

Christopher E. Cotter and Emily K. Anglewicz, Roetzel & Andress, LPA, 222 South Main

Street, Suite 400, Akron, OH 44308 (For Defendant-Appellee, Match Group, Inc.)

EUGENE A. LUCCI, P.J.

{¶1} Appellant, Mary Elizabeth Jones, appeals from the judgment awarding her

damages on her claims against appellee John Russell, after the court dismissed her

claims against appellee Match Group, Inc. We affirm in part, reverse in part, and remand

this matter for further proceedings consistent with this opinion.

{¶2} In 2022, Jones filed a multiple-count complaint against Russell and Match

Group, alleging that she met Russell through the website “PlentyofFish.com,” owned by

Match Group. Jones maintained that Match Group failed to provide appropriate

background checks or install proper safety measures to protect its users. She also

alleged that Match Group used deceitful advertising to lure users onto its website. After

meeting Russell through the website, Jones alleged that Russell deceived her into

pregnancy, he sexually transmitted a disease to her, and he physically attacked her

during the course of their relationship. Jones asserted that Russell and Match Group

were liable to her on the following causes of action: “negligence/personal injury,”

“intentional infliction of emotional distress,” and “fraud/negligent misrepresentation.”

{¶3} Thereafter, Jones moved for default judgment against Russell.

Subsequently, Match Group filed a “Motion to Compel Arbitration and Alternative Motion

to Dismiss[.]” Match Group’s motion maintained, in part, that when Jones created her

account, she had agreed to certain terms of use (“TOU”), including a mandatory

arbitration provision.

{¶4} In November 2022, the trial court issued an order granting Match Group’s

motion to dismiss on the basis that Jones’ claims were subject to mandatory arbitration

and the trial court lacked “subject matter jurisdiction.” The court denied Jones’ motion for

default judgment against Russell, as it determined that service had not yet been perfected

on Russell.

{¶5} Jones noticed an appeal from the November 2022 order. This court

dismissed the attempted appeal for lack of a final, appealable order. Jones v. Russell,

11th Dist. Portage No. 2022-P-0076, 2023-Ohio-351, ¶ 1, appeal not accepted, 170 Ohio

St.3d 1419, 2023-Ohio-1507, 208 N.E.3d 853, ¶ 1.1

1. As will be further addressed in our discussion of Jones’ second assigned error, we emphasize that the

trial court dismissed the claims against Match Group on the basis of the arbitration provision. It did not

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{¶6} Thereafter, Jones again moved for default judgment against Russell,

maintaining that service had been perfected. The trial court granted Jones’ motion and

set the matter for a hearing on damages.

{¶7} Subsequently, Jones filed three requests for the court to reconsider its

November 2022 order dismissing her claims against Match Group. On July 19, 2023, the

trial court issued an order summarily denying Jones’ requests. Jones then filed two

combined motions to set aside the July 19, 2023 order, to appoint a new judge, and to

continue the damages hearing. On July 26, 2023, the trial court issued an order denying

Jones’ requests to set aside the July 19, 2023 order and to appoint a new judge and

granting Jones’ motion to continue the damages hearing. Jones noticed an appeal from

the July 2023 orders. This court again dismissed the attempted appeal for lack of a final,

appealable order. Jones v. Match Group, Inc., 11th Dist. Portage No. 2023-P-0064, 2023-

Ohio-3418, ¶ 6, 9.

{¶8} Thereafter, this matter was heard by a magistrate on the issue of damages.

Prior to the decision of the magistrate being filed, the trial court issued a decision on

December 6, 2023, adopting the magistrate’s decision and entering judgment in the

amount of $1,000.00 against Russell. On December 7, 2023, the magistrate’s decision

was filed.

{¶9} Jones appeals, assigning two errors for our review. In her first assigned

error, Jones argues:

The trial court erred because it failed to acknowledge the

permanent medical injuries that were provided in the exhibits

at the hearing. By this failure to acknowledge the permanent

issue a stay pending arbitration. Compare with R.C. 2711.02(C) (order granting or denying a stay pending

arbitration is a final, appealable order).

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medical injuries; it significantly undervalued the total dollar

amount owed to the appellant for her damages.

{¶10} At the outset, we address a procedural irregularity affecting our review of

Jones’ first assigned error.

{¶11} As discussed above, the trial court issued a judgment on December 6, 2023

“adopt[ing], in whole, the Magistrate’s Decision without modification,” and the court then

awarded a judgment of $1,000.00 in favor of Jones against Russell. However, the

magistrate’s decision was not filed until December 7, 2023.

{¶12} Jones filed no objections to the magistrate’s decision. When matters are

referred to a magistrate for decision, Civ.R. 53(D)(3)(b)(iv) provides that “[e]xcept for a

claim of plain error, a party shall not assign as error on appeal the court’s adoption of any

factual finding or legal conclusion, whether or not specifically designated as a finding of

fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that

finding or conclusion as required by Civ.R. 53(D)(3)(b).”

{¶13} Civ.R. 53(D)(3)(b) allows parties to file objections to a magistrate’s decision

within fourteen days of the filing of the decision. Although a court may adopt a

magistrate’s decision and enter a judgment during the fourteen-day objection period, the

rule does not contemplate the situation present here, where the trial court’s entry adopting

the magistrate’s decision and entering judgment is filed a day prior to the filing of the

magistrate’s decision. See Civ.R. 53(D)(4)(e)(i) (court may adopt a magistrate’s decision

and enter judgment “during the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for the

filing of objections to a magistrate’s decision or after the fourteen days have expired”).

Although the timely filing of objections automatically stays a trial court’s judgment “during

the fourteen days permitted by Civ.R. 53(D)(3)(b)(i) for the filing of objections,” here,

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because the trial court issued judgment prior to the filing of the magistrate’s decision, it

effectively terminated the matter prior to the fourteen-day objection period.

{¶14} As the trial court entered judgment outside of the procedure contemplated

by Civ.R. 53, we conclude that Jones’ argument advanced in her first assigned error is

not forfeited by operation of Civ.R. 53(D)(3)(b)(iv). See Mix v. Mix, 11th Dist. Portage No.

2003-P-0124, 2005-Ohio-4207, ¶ 22 (where magistrate’s decision was not issued in

accordance with Civ.R. 53(D), in that the required language of Civ.R. 53(D)(3)(a)(iii) was

not included on the magistrate’s decision, the appellant who failed to file objections was

not barred from assigning error to the trial court’s adoption of the magistrate’s decision);

see also State v. Wheeler, 2016-Ohio-2964, 65 N.E.3d 182, ¶ 15 (2d Dist.).

{¶15} Nonetheless, Jones’ first assigned error alleges that the trial court failed to

recognize her exhibits presented at the hearing before the magistrate when calculating

her damages. However, Jones did not secure a transcript of the damages hearing for

submission on appeal.

{¶16} “The duty to provide a transcript for appellate review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing error

by reference to matters in the record.” Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199, 400 N.E.2d 384 (1980), citing State v. Skaggs, 53 Ohio St.2d 162, 372 N.E.2d

1355 (1978). App.R. 9(B)(1) provides, “Except as provided in App.R. 11.2(B)(3)(b), it is

the obligation of the appellant to ensure that the proceedings the appellant considers

necessary for inclusion in the record, however those proceedings were recorded, are

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transcribed in a form that meets the specifications of App. R. 9(B)(6).”2 Exhibits admitted

at the hearing are to be included with the transcript pursuant to App.R. 9(B)(6)(g). “When

portions of the transcript necessary for resolution of assigned errors are omitted from the

record, the reviewing court has nothing to pass upon and thus, as to those assigned

errors, the court has no choice but to presume the validity of the lower court’s

proceedings, and affirm.” Knapp at 199.

{¶17} Accordingly, because Jones’ first assigned error is dependent upon review

of the transcript of the magistrate’s hearing, and she has failed to secure a copy of the

transcript for submission on appeal, she cannot meet her burden of establishing error by

reference to matters in the record.

{¶18} Therefore, Jones’ first assigned error lacks merit.

{¶19} In her second assigned error, Jones asserts:

The trial court erred and made a prejudicial error in originally

dismissing the action against the appellee Match Group as

they had already made an admission of liability in their motion

filed on 10/31/2022, no contract and/or terms and conditions

can be legally enforced that contains fraud or misleading

statements, not honoring Ohio Consumer Protection laws,

and most importantly, appellee Match Group never requested

or provided discovery going on two years without discovery,

what can the appellee Match Group possibly argue at this

point? It’s only “assumptions and other people case laws that

has nothing to do with this personal injury lawsuit[.]”

{¶20} In response, Match Group raises the following cross-assignments of error:

1. An Arbitrator must decide the arbitrability of the dispute.

2. Jones sued the wrong legal entity.

2. Where no transcript is available, App.R. 9(C) provides a method whereby a statement of the evidence

may be prepared. Further, App.R. 9(D) establishes a procedure whereby the parties may prepare a

statement of the case “in lieu of the record on appeal[.]” However, neither App.R. 9(C) or 9(D) statement

were approved by the trial court and submitted in this appeal.

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3. In alternative to mandatory Arbitration, Texas is the proper

forum under the mandatory forum selection clause.

4. Match is Immune under Section 230 of the CDA.

5. Match Owed No Duty to Jones.

6. The TOU disclaimers and limitations on liability bar Jones’

claims.

{¶21} As briefly discussed in our recitation of the facts above, on October 13,

2022, Match Group filed a motion entitled “Motion to Compel Arbitration and Alternative

Motion to Dismiss[.]” For clarity, we note that, in this motion, Match Group first sought

dismissal on the basis of the arbitration provisions contained in the TOU, then sought

dismissal on several other bases, and, if the court did not dismiss for any of the bases set

forth therein, Match Group alternatively requested a stay pending arbitration. See R.C.

2711.02(B) (permitting court to stay trial of an action pending arbitration). In its motion,

Match Group cited Civ.R. 12(B)(1) and 12(B)(6) as providing the procedural mechanisms

for dismissal. Match Group attached to its motion an affidavit of Ron Lo, who attested

that he is the Chief Product Officer at PlentyofFish Media ULC, of which Match Group is

the ultimate parent company. Match Group set forth several arguments for dismissal of

Jones’ claims against it based on Jones’ complaint and Lo’s affidavit, which incorporated

attached exhibits.

{¶22} On November 8, 2022, the trial court granted Match Group’s motion to

dismiss, holding that Jones’ “claims against Match Group, Inc. are subject to mandatory

arbitration. The Court therefore dismisses Plaintiff’s claims against Defendant Match

Group Inc. pursuant to Civ.R. 12(B)(1) for lack of subject matter jurisdiction.”

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{¶23} In support of Jones’ second assigned error, she maintains that the trial

court erred in determining that it lacked subject matter jurisdiction.

{¶24} We review de novo a trial court’s decision to dismiss pursuant to Civ.R.

12(B)(1) for lack of subject matter jurisdiction. Johnsonite, Inc. v. Welch, 11th Dist.

Geauga No. 2011-G-3012, 2011-Ohio-6858, ¶ 51. “The trial court is not confined to the

allegations of the complaint when determining its subject-matter jurisdiction pursuant to

a Civ.R. 12(B)(1) motion to dismiss, and it may consider material pertinent to such inquiry

without converting the motion into one for summary judgment.” Southgate Dev. Corp. v.

Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph one

of the syllabus.

{¶25} Here, Match Group relied on Lo’s affidavit to assert that, in order for Jones

to create a PlentyofFish account, she was required to accept the TOU, which included a

mandatory arbitration clause. Match Group argued that, “[b]ecause [Jones’] claims

against Match are subject to binding arbitration, dismissal pursuant to Rule 12(B)(1) for

lack of subject matter jurisdiction is warranted.”

{¶26} However, “[s]ubject-matter jurisdiction is the power of a court to entertain

and adjudicate a particular class of cases.” (Citation omitted.) Bank of Am., N.A. v.

Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19. “A court’s subject-

matter jurisdiction is determined without regard to the rights of the individual parties

involved in a particular case.” (Citations omitted.) Id. This case “involves a

constitutionally created common pleas court.” See id. at ¶ 20. “Ohio’s common pleas

courts are endowed with ‘original jurisdiction over all justiciable matters * * * as may be

provided by law.’” Id. at ¶ 20, quoting Article IV, Section 4(B), Ohio Constitution.

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“Jurisdiction has been ‘provided by law’ in R.C. 2305.01, which states that courts of

common pleas have ‘original jurisdiction in all civil cases in which the sum or matter in

dispute exceeds the exclusive original jurisdiction of county courts.’” Kuchta at ¶ 20.

{¶27} Assuming, without deciding, that the claims against Match Group are

subject to mandatory arbitration, Match Group did not address why an agreement to

arbitrate would divest the trial court of subject matter jurisdiction. Further, this court has

determined that, as arbitration agreements may be waived, such agreements do not affect

the subject matter of a trial court, as lack of subject matter jurisdiction cannot be waived

by the parties. Bank of Am. v. Telerico, 11th Dist. Portage No. 2015-P-0026, 2015-Ohio-

4544, ¶ 29. See also Ponyicki v. Monterey Homes, 8th Dist. Cuyahoga No. 65549, 1994

WL 197226 (May 19, 1994). Thus, here, dismissal of the claims on the basis of the lack

of subject matter jurisdiction was in error. See R.C. 2711.02 and 2711.03 (providing that

trial court may compel arbitration and stay proceedings on motion by a party); see also

Taylor v. Norfolk Southern Ry. Co., 8th Dist. Cuyahoga No. 85699, 2005-Ohio-4576, ¶ 12

(“[W]hen a dispute is subject to arbitration, the trial court should stay the lawsuit rather

than dismiss it[.]”) (Citations omitted).

{¶28} Accordingly, Jones’ second assigned error has merit to the extent that the

trial court erred in determining that it lacked subject matter jurisdiction over her claims

against Match Group.

{¶29} However, “[a] reviewing court is not authorized to reverse a correct

judgment merely because erroneous reasons were assigned as a basis thereof.”

(Citations omitted.) State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 92, 637 N.E.2d

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306 (1994). In support of affirming the trial court’s dismissal of the claims against it on

alternative bases, Match Group raises the cross-assignments of error set forth above.

{¶30} We review the cross-assignments of error mindful that again, despite

captioning its motion as a “Motion to Compel Arbitration and Alternative Motion to

Dismiss,” Match Group first sought dismissal of all claims against it on the basis of the

arbitration provisions. Match Group then provided several other bases for dismissal of

the claims. Match Group did not seek a stay pending arbitration unless its motion for

dismissal was overruled. As the trial court dismissed the claims, the propriety of a stay

pending arbitration is not before us, and we review only whether the remaining bases for

blanket dismissal of the claims was warranted. Next, we again note that Match Group

maintained that dismissal of Jones’ claims against it was appropriate pursuant to Civ.R.

12(B)(1) and Civ.R. 12(B)(6), and we review its arguments in accordance with these rules.

{¶31} Aside from its arguments that dismissal of the claims was warranted due to

the arbitration clause, we cannot discern any other argument in Match Group’s motion to

dismiss that relied upon Civ.R. 12(B)(1). Match Group’s first cross-assigned error

pertains to its argument that arbitrability should be decided by the arbitrator. However,

as determined above, because an agreement to arbitrate does not divest a trial court of

subject matter jurisdiction, Match Group’s first cross-assigned error is not well-taken.

{¶32} The remaining bases for dismissal do not appear to address the trial court’s

subject matter jurisdiction. Thus, we review whether dismissal on the remaining grounds

was appropriate under Civ.R. 12(B)(6).

{¶33} “We review de novo a decision granting a motion to dismiss under Civ.R.

12(B)(6).” State ex rel. Taylor v. Montgomery Cty. Court of Common Pleas, Ohio

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Supreme Court Slip No. 2024-Ohio-1127, ¶ 12 (Mar. 28, 2024), citing Alford v. Collins-

McGregor Operating Co., 152 Ohio St.3d 303, 2018-Ohio-8, 95 N.E.3d 382, ¶ 10. “In

conducting this review, we accept all factual allegations in the petition as true, and we will

not affirm the dismissal unless it appears beyond doubt that the nonmoving party can

prove no set of facts that would entitle him to relief.” Taylor at ¶ 12, citing Alford at ¶ 10.

“A motion to dismiss for failure to state a claim upon which relief can be granted is

procedural and tests the sufficiency of the complaint. * * * Thus, the movant may not rely

on allegations or evidence outside the complaint; otherwise, the motion must be treated,

with reasonable notice, as a Civ.R. 56 motion for summary judgment.” State ex rel.

Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378

(1992).

{¶34} Here, Match Group’s alternative arguments for dismissal on the bases that

Jones brought her claims against the incorrect legal entity, that Texas is the proper forum

under the mandatory forum selection clause, and that the TOU disclaimers and limitations

on liability bar Jones’ claims, rely on Lo’s affidavit and exhibits. Accordingly, these

arguments for dismissal rely on facts outside the allegations of the complaint and could

not serve as an alternative basis for dismissal under Civ.R. 12(B)(6), as the court did not

convert the motion to dismiss into a motion for summary judgment. Consequently, Match

Group’s second, third, and sixth cross-assignments of error are not well-taken.

{¶35} In regard to Match Group’s fourth and fifth cross-assignments of error, we

note that, in its motion to dismiss, Match Group provided no discussion of the elements

of each of the three claims against it. Instead, it focused on the factual allegations of the

complaint in arguing that the claims be dismissed without drawing a nexus between

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those factual allegations and the elements of the claims. Accordingly, this court will

review only whether a blanket dismissal of the claims was appropriate for the reasons

set forth in Match Group’s motion.

{¶36} With respect to Match Group’s fourth cross-assignment of error, it relies on

statutory immunity under the Communications Decency Act (“the CDA”). The Eighth

District has summarized the CDA as follows:

The CDA establishes immunity “‘against causes of action of

all kinds’” for interactive service providers and users. US

Dominion, Inc. v. Byrne, D.D.C. Civil Action No. 1:21-cv-

02131 (CJN), 2022 U.S. Dist. LEXIS 72634, 19, 2022 WL

1165935 (Apr. 20, 2022), quoting Marshall’s Locksmith Serv.

Inc. v. Google, L.L.C., 925 F.3d 1263, 1267, 441 U.S. App.

D.C. 196 (D.C. Cir. 2019). Section 230(c)(1) of the CDA

states, “No provider or user of an interactive computer service

shall be treated as the publisher or speaker of any information

provided by another information content provider.” 47 U.S.C.

230(c)(1). Furthermore, the CDA expressly preempts civil

claims under state law: “No cause of action may be brought

and no liability may be imposed under any State or local law

that is inconsistent with this section.” 47 U.S.C. 230(e)(3).

The CDA defines an “interactive computer service” as “any

information service, system, or access software provider that

provides or enables computer access by multiple users to a

computer server, including specifically a service or system

that provides access to the Internet and such systems

operated or services offered by libraries or educational

institutions.” 47 U.S.C. 230(f)(2). An “information content

provider” is “any person or entity that is responsible, in whole

or in part, for the creation or development of information

provided through the Internet or any other interactive

computer service.” Id. at 47 U.S.C. 230(f)(3). Section

230(c)(1) does not extend immunity to information content

providers. While “user” is not defined within the statute,

Merriam-Webster’s dictionary defines “user” as “one that

uses.” Merriam-Webster Online, https://www.merriam-

webster.com/dictionary/user (accessed May 18, 2022); See

State v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d

918, ¶ 39 (“In the absence of a definition of a word or phrase

used in a statute, words are to be given their common,

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ordinary, and accepted meaning.”); State v. Jackson, 12th

Dist. Butler No. CA2011-06-096, 2012-Ohio-4219, ¶ 34

(“Courts have used dictionary definitions to determine the

plain and ordinary meaning of a statutory term.”).

Holmok v. Burke, 8th Dist. Cuyahoga No. 110900, 2022-Ohio-2135, ¶ 13-14, appeal not

allowed, 168 Ohio St.3d 1407, 2022-Ohio-3546, 195 N.E.3d 1052.

{¶37} Therefore, the CDA “precludes courts from entertaining claims that would

place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a

service provider liable for its exercise of a publisher’s traditional editorial functions—such

as deciding whether to publish, withdraw, postpone or alter content—are barred.” Zeran

v. America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997)

{¶38} Here, Match Group maintained that Jones’ claims against it are barred by

the CDA because: (1) Match Group is a provider of an “interactive computer service;” (2)

Match Group is not an "information content provider" with respect to the content on which

Jones’ claims are based; and (3) Jones’ claims effectively treat Match Group as

responsible for that content. In support, Match Group contends that dating websites are

consistently treated as “interactive computer services,” and Jones’ claims against Match

Group arise from communications from Russell.

{¶39} However, in the first three paragraphs of her complaint, Jones alleged:

1. A relationship was established between both the Plaintiff,

Mary Elizabeth Jones and the Defendant (A), John Russell on

September 30, 2019. They interacted and met off the dating

website, Plentyoffish.com, Match Group Inc. (Defendant B) is

the owner.

2. Defendant (B) Match Group, Inc. misleadingly advertises

and portray that their website is “fun and cool" for the user

who signs up to use their service. They use deceptive

advertising techniques with phrases such as “success stories

for finding real love” or “use images with married couples” to

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lure the prospective customer in to signing up for their

services and to give false hope that the user would find “true

love” (Shown in Exhibit A). Defendant (B) would send dozens

of emails to the Plaintiff about “likes” and “favorites” and the

constant persuasion of “love is just a click away” and causing

her the belief that she would find a good relationship,

Defendant (B) is common for implementing deceptive

advertising techniques to lure and entice consumers even if it

means causing them emotional distress for their own

monetary gain, “Federal Trade Commission vs. Match Group,

2019”, Ohio Revised Code 2305.09.

3. Defendant (B) claims to work with numerous law

enforcement agencies, but it does not offer any type of

protective feature, but instead, it will allow anyone with any

type of sinister motive, or illegal background to prey on users

who are genuinely looking for a real relationship with pure

intentions. Additionally, there is no “disclaimer”, or “warning”,

or “use at your own risk” on its homepage that clearly states

that they do not provide screening, or any type of due

diligence on its users which makes it too easy for anyone who

utilizes the site to become a “victim”. This type of disclaimer

would allow the user to make a better choice, similar to

cigarette and tobacco companies who places a warning label

on their products. Defendant (B) partnered with a service on

or around the years between 2021-2022 called “Noon light”'

which protects members by providing “backup” on every

meeting. This option was not available to the Plaintiff and she

would have never agreed to meet Defendant (A) offline, or

continued the date with Defendant (A) if this protective, or

screening option were available because the Plaintiff was

“pressured, intimidated, manipulated, and bullied” into

continuing the date with Defendant (A). He is 6’1, 400 pounds

and the Plaintiff is 4’11 and 135 pounds. Defendant (A) is also

on parole for Summit County for a prior conviction of drug

trafficking in 2013, he was sleeping on different people

couches, practically homeless and fresh out of the halfway

house. He misrepresented himself and conned the Plaintiff

into believing that he was looking for “marriage and a family

to call bis own”. Plaintiff has both a Bachelors and a Master’s

Degree with no criminal background and has stable housing.

Therefore, Defendant (B) did not offer the Plaintiff any type of

safety measures such as Noon light, no disclaimers, or

warnings on its very first homepage before sign-up when she

was a user of its service.

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Thus, Jones’ allegations refer not only to communications made by Russell, but also

communications made by Match Group, such as its advertising emails. Accordingly,

construing all allegations in Jones’ favor, dismissal of her claims was not warranted under

the CDA for the reasons advanced in Match Group’s motion. Therefore, Match Group’s

fourth cross-assignment of error is not well-taken.

{¶40} Last, with respect to Match Group’s fifth cross-assignment of error, it

maintained in its motion to dismiss:

It is well settled in Ohio that “there is no duty to control the

conduct of a third person to prevent the commission of

physical harm to another person ‘unless (a) a special relation

exists between the actor and the third person which imposes

a duty upon the actor to control the third person’s conduct, or

(b) a special relationship exists between the actor and the

other which gives to the other the right to protection.’” Godwin

v. Facebook, Inc., 8th Dist. No. 109203, 2020-Ohio- 4834, 160

N.E.3d 372, ¶ 17 (quoting Hite v. Brown, 100 Ohio App.3d

606, 613, 654 N.E.2d 452 (8th Dist.1995)).

{¶41} However, as set forth above, Jones’ allegations include that Match Group

deceived her into using its service and are not based entirely on its failure to control

Russell’s conduct. Accordingly, Match Group’s fifth cross-assignment of error is not well-

taken.

{¶42} Having found that Jones’ first assigned error lacks merit, the judgment

against Russell is affirmed, and having found the Jones’ second assignment of error has

merit, and Match Group’s cross-assignments of error are not well-taken, the order

dismissing the claims against Match Group is reversed. We reiterate that we take no

position on the propriety of a stay pending arbitration with respect to the claims against

Match Group. The request for a stay remains pending for the trial court to decide in the

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first instance. This matter is remanded to the trial court for further proceedings consistent

with this decision.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

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