[Cite as Jones v. Doherty, 2024-Ohio-2958.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
MARY ELIZABETH JONES, CASE NO. 2024-P-0033
Relator, Original Action for - vs - Writ of Mandamus
JUDGE BECKY DOHERTY,
Respondent.
PER CURIAM OPINION
Decided: August 5, 2024 Judgment: Petition dismissed
Mary Elizabeth Jones, P.O. Box 5, Aurora, OH 44202 (Relator).
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).
PER CURIAM.
{¶1} Respondent, Judge Becky Doherty, moves to dismiss the petition and
amended petition for a writ of mandamus filed by relator, Mary Elizabeth Jones. We
dismiss.
{¶2} This original action stems from a lawsuit filed by Jones against John Russell
and Match Group, Inc. in the Portage County Court of Common Pleas, Case No. 2022
CV 00584, over which Judge Doherty presides. In that case, in 2022, Judge Doherty
issued an entry 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.”
Thereafter, the court granted judgment in favor of Jones against Russell in the amount of
$1,000.00.
{¶3} Jones appealed, and this court affirmed the judgment against Russell,
reversed the dismissal of the claims against Match Group, and remanded the case to the
trial court for further proceedings consistent with the opinion. Jones v. Russell, 2024-
Ohio-1857 (11th Dist.).
{¶4} On remand, Judge Doherty issued a judgment staying Case No. 2022 CV
00584 pending arbitration.
{¶5} On May 24, 2024, Jones filed the present action for a writ of mandamus. In
her petition, as amended, Jones maintains that, on remand in Case No. 2022 CV 00584,
Judge Doherty failed to abide by this court’s mandate.
{¶6} On June 26, 2024, Judge Doherty moved to dismiss Jones’ petition, arguing
that it fails to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6).
{¶7} “‘A Civ.R. 12(B)(6) motion to dismiss must be based solely on the factual
assertions set forth in the complaint.’” State ex rel. Paldino v. Gibson, 2021-Ohio-238, ¶
13 (11th Dist.), quoting State ex rel. Lemons v. Kontos, 2009-Ohio-6518, ¶ 6 (11th Dist.).
“‘In construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. . . . Then, before we may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts warranting a recovery. . . . Unsupported conclusions . . . are not sufficient to withstand such a motion.’”
(Emphasis in original.) Paldino at ¶ 14, quoting Wilk v. Discover Bank, 2019-Ohio-3842,
¶ 6 (11th Dist.), quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192-93 (1988). 2
Case No. 2024-P-0033 “When entertaining a motion to dismiss a writ complaint, a court may take notice of the
docket and record in a closely related case to determine whether the current complaint
states a claim for relief.” State ex rel. Neguse v. McIntosh, 2020-Ohio-3533, ¶ 18.
{¶8} Thus, to survive the motion to dismiss, Jones’ petition, as amended, when
viewed in conjunction with the record of the trial court case, must state a claim for a writ
of mandamus upon which this court may grant the requested relief. “‘To be entitled to a
writ of mandamus . . . [Jones] must establish that (1) [s]he has a clear legal right to the
relief requested, (2) Judge [Doherty] is under a clear legal duty to perform the requested
acts, and (3) [Jones] has no plain and adequate remedy in the ordinary course of the
law.’” Paldino at ¶ 12, quoting State ex rel. Daniels v. Russo, 2018-Ohio-5194, ¶ 7. A writ
of mandamus is appropriately issued to compel a trial court to comply with the mandate
of an appellate court. Paldino at ¶ 11.
{¶9} In her amended petition, Jones maintains that Judge Doherty failed to
comply with our mandate in Jones, 2024-Ohio-1857 (11th Dist.) because, on remand,
Judge Doherty issued a stay pending arbitration and failed to enter monetary judgment
against Match Group on Jones’ claims.
{¶10} However, Jones misconstrues our mandate, which ordered the trial court to
proceed in a manner consistent with our opinion. In the opinion, we reversed the dismissal
of the claims against Match Group based on Jones’ second assigned error, in which she
argued:
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, 3
Case No. 2024-P-0033 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[.]”
Jones at ¶ 19. This court also addressed Match Group’s cross-assignments of error,
including that “[a]n [a]rbitrator must decide the arbitrability of the dispute.” Id. at ¶ 20.
{¶11} In our discussion, we noted for clarity that, in its motion filed in the trial court,
“Match Group first sought dismissal on the basis of the arbitration provisions contained in
the [terms of use], 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.” (Emphasis in original.) Jones at ¶ 21.
{¶12} Upon review of the second assigned error, this court held that Jones’
assignment had merit “to the extent that the trial court erred in determining that it lacked
subject matter jurisdiction over her claims against Match Group.” Id. at ¶ 28. We then
concluded that Match Group’s cross-assignments of error advanced in “support of
affirming the trial court’s dismissal of the claims against it on alternative bases,” were not
well-taken. (Emphasis in original.) Id. at ¶ 29, 42. In our discussion, we specifically noted:
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.
Case No. 2024-P-0033 (Emphasis in original.) Id. at ¶ 30. Then, again, at the conclusion of our opinion, this court
stated, “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 first instance.” Id. at ¶ 42. We reversed the trial court’s
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[Cite as Jones v. Doherty, 2024-Ohio-2958.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
MARY ELIZABETH JONES, CASE NO. 2024-P-0033
Relator, Original Action for - vs - Writ of Mandamus
JUDGE BECKY DOHERTY,
Respondent.
PER CURIAM OPINION
Decided: August 5, 2024 Judgment: Petition dismissed
Mary Elizabeth Jones, P.O. Box 5, Aurora, OH 44202 (Relator).
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).
PER CURIAM.
{¶1} Respondent, Judge Becky Doherty, moves to dismiss the petition and
amended petition for a writ of mandamus filed by relator, Mary Elizabeth Jones. We
dismiss.
{¶2} This original action stems from a lawsuit filed by Jones against John Russell
and Match Group, Inc. in the Portage County Court of Common Pleas, Case No. 2022
CV 00584, over which Judge Doherty presides. In that case, in 2022, Judge Doherty
issued an entry 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.”
Thereafter, the court granted judgment in favor of Jones against Russell in the amount of
$1,000.00.
{¶3} Jones appealed, and this court affirmed the judgment against Russell,
reversed the dismissal of the claims against Match Group, and remanded the case to the
trial court for further proceedings consistent with the opinion. Jones v. Russell, 2024-
Ohio-1857 (11th Dist.).
{¶4} On remand, Judge Doherty issued a judgment staying Case No. 2022 CV
00584 pending arbitration.
{¶5} On May 24, 2024, Jones filed the present action for a writ of mandamus. In
her petition, as amended, Jones maintains that, on remand in Case No. 2022 CV 00584,
Judge Doherty failed to abide by this court’s mandate.
{¶6} On June 26, 2024, Judge Doherty moved to dismiss Jones’ petition, arguing
that it fails to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6).
{¶7} “‘A Civ.R. 12(B)(6) motion to dismiss must be based solely on the factual
assertions set forth in the complaint.’” State ex rel. Paldino v. Gibson, 2021-Ohio-238, ¶
13 (11th Dist.), quoting State ex rel. Lemons v. Kontos, 2009-Ohio-6518, ¶ 6 (11th Dist.).
“‘In construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. . . . Then, before we may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts warranting a recovery. . . . Unsupported conclusions . . . are not sufficient to withstand such a motion.’”
(Emphasis in original.) Paldino at ¶ 14, quoting Wilk v. Discover Bank, 2019-Ohio-3842,
¶ 6 (11th Dist.), quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192-93 (1988). 2
Case No. 2024-P-0033 “When entertaining a motion to dismiss a writ complaint, a court may take notice of the
docket and record in a closely related case to determine whether the current complaint
states a claim for relief.” State ex rel. Neguse v. McIntosh, 2020-Ohio-3533, ¶ 18.
{¶8} Thus, to survive the motion to dismiss, Jones’ petition, as amended, when
viewed in conjunction with the record of the trial court case, must state a claim for a writ
of mandamus upon which this court may grant the requested relief. “‘To be entitled to a
writ of mandamus . . . [Jones] must establish that (1) [s]he has a clear legal right to the
relief requested, (2) Judge [Doherty] is under a clear legal duty to perform the requested
acts, and (3) [Jones] has no plain and adequate remedy in the ordinary course of the
law.’” Paldino at ¶ 12, quoting State ex rel. Daniels v. Russo, 2018-Ohio-5194, ¶ 7. A writ
of mandamus is appropriately issued to compel a trial court to comply with the mandate
of an appellate court. Paldino at ¶ 11.
{¶9} In her amended petition, Jones maintains that Judge Doherty failed to
comply with our mandate in Jones, 2024-Ohio-1857 (11th Dist.) because, on remand,
Judge Doherty issued a stay pending arbitration and failed to enter monetary judgment
against Match Group on Jones’ claims.
{¶10} However, Jones misconstrues our mandate, which ordered the trial court to
proceed in a manner consistent with our opinion. In the opinion, we reversed the dismissal
of the claims against Match Group based on Jones’ second assigned error, in which she
argued:
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, 3
Case No. 2024-P-0033 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[.]”
Jones at ¶ 19. This court also addressed Match Group’s cross-assignments of error,
including that “[a]n [a]rbitrator must decide the arbitrability of the dispute.” Id. at ¶ 20.
{¶11} In our discussion, we noted for clarity that, in its motion filed in the trial court,
“Match Group first sought dismissal on the basis of the arbitration provisions contained in
the [terms of use], 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.” (Emphasis in original.) Jones at ¶ 21.
{¶12} Upon review of the second assigned error, this court held that Jones’
assignment had merit “to the extent that the trial court erred in determining that it lacked
subject matter jurisdiction over her claims against Match Group.” Id. at ¶ 28. We then
concluded that Match Group’s cross-assignments of error advanced in “support of
affirming the trial court’s dismissal of the claims against it on alternative bases,” were not
well-taken. (Emphasis in original.) Id. at ¶ 29, 42. In our discussion, we specifically noted:
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.
Case No. 2024-P-0033 (Emphasis in original.) Id. at ¶ 30. Then, again, at the conclusion of our opinion, this court
stated, “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 first instance.” Id. at ¶ 42. We reversed the trial court’s
dismissal of the claims against Match Group and remanded the matter to the trial court for
further proceedings consistent with our opinion. Id. at ¶ 42.
{¶13} Nowhere within our judgment and opinion in the aforementioned appeal did
this court preclude the trial court from issuing a stay pending arbitration; to the contrary,
as set forth above, we specifically noted that Match Group’s request for a stay pending
arbitration remained pending for the trial court to decide in the first instance. Further,
nowhere in our judgment and opinion did this court instruct the trial court to enter judgment
against Match Group. Instead, as discussed, we repeatedly emphasized that we
addressed only whether dismissal of the claims against Match Group was appropriate.
{¶14} Accordingly, Jones’ petition, as amended, for a writ of mandamus fails on
its face, as Jones has no clear legal right to the relief she has requested, and Judge
Doherty was under no clear legal duty to perform the requested acts.
{¶15} Moreover, as we referenced in a footnote in Jones, an “order granting or
denying a stay pending arbitration is a final, appealable order.” (Emphasis added.) Id.,
2024-Ohio-1857, at ¶ 5, fn. 1 (11th Dist.), citing R.C. 2711.02(C). Accordingly, Jones had
an alternative remedy in the ordinary course of law insofar as she challenges the propriety
of the order staying the claims against Match Group pending arbitration.
Case No. 2024-P-0033 {¶16} Based on the foregoing, Judge Doherty’s motion to dismiss is granted.
Jones’ petition, as amended, for a writ of mandamus is dismissed.
EUGENE A. LUCCI, P.J., MARY JANE TRAPP, J., MATT LYNCH, J., concur.
Case No. 2024-P-0033