1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Jason A. Milner, et al., 

 Case No. 2:10-cv-00904 

 Plaintiffs, 

 Judge James L. Graham 

 v. 

 Magistrate Judge King 

Robin Biggs, et al., 

 Defendants. 

OPINION AND ORDER 

This matter is before the Court upon the Motion for Judgment on the Pleadings 

(doc. # 27) of Defendants Arrow Title Agency, LLC, Jonathan Holfinger, and Chris Moore. 

Defendants seek dismissal of six of the seven claims against them, as set forth in Plaintiffs 

Jason, Natasha, and Lexi Milner’s Complaint. For the reasons set forth below, Defendants’ 

motion is hereby GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND1

This matter concerns the transfer of real property from Defendant Robin Biggs to 

Plaintiffs Jason and Natasha Milner which occurred sometime in the spring of 2010.2 

Plaintiffs allege that mold appeared in two rooms of the house approximately four weeks 

after their purchase of the property. (Complaint, Doc. #3, ¶ 29.) According to their 

Complaint, Defendant Biggs intentionally concealed latent problems with “rotting floor 

joists, mold remediation, standing water under the home, insufficient depth of the 

foundation, a complete absence of drainage around the foundation of the house, and other 

 

1 This factual summary is based on allegations in Plaintiffs’ Complaint and attached exhibits, all 

presumed to be true for purposes of evaluating Arrow’s motion under Fed. R. Civ. P. 12(b)(6). 

2 Plaintiffs do not state the exact date of the sale, and the final Purchase Agreement is not attached 

to the Complaint. Instead, a “Real Estate Offer to Purchase Contract” is attached as Exhibit B. 

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problems.” (Id. at ¶ 27 – 28.) Plaintiffs allege, too, that Defendant Biggs misrepresented 

these problems on the requisite “Disclosure Form” (id. at ¶ 27; see also Exhibit A, attached 

to the Complaint) and that Defendant Frank Roberts, the home inspector hired by 

Plaintiffs, “missed or ignored” the problems with the property (id. at ¶ 30). As a result of 

the mold, according to Plaintiffs, both Plaintiff Natasha Milner and minor daughter Lexi 

Milner have developed allergies requiring medical care. 

Plaintiffs also claim that Defendants Arrow Title Agency, LLC; Jonathan Holfinger, 

its president; and Chris Moore, its regional sales manager (collectively, “Arrow” 3) 

improperly prepared the General Warranty Deed related to this real estate transaction. 

Plaintiffs allege that the General Warranty Deed should have transferred the property to 

Plaintiffs Jason Milner and Natasha Milner; instead, it transferred the property to Jason 

Milner only. 

Before the Court is Arrow’s Motion for Judgment on the Pleadings. Arrow seeks 

dismissal of Plaintiffs’ request for injunctive relief against Defendant Angela Shanks to 

permanently restrain her from “steering” customers to Arrow for title services (First 

Claim). In addition, Arrow seeks dismissal of six claims: violation of Ohio’s Consumer Sales 

Practices Act (Second Claim); negligence (Third Claim); negligent misrepresentation 

(Fourth Claim); civil conspiracy (Sixth Claim); unjust enrichment (Twelfth Claim). Arrow 

 

3 In the Complaint, Plaintiffs inconsistently refer to the Arrow Defendants. For example, some 

claims are alleged against Defendant Holfinger, others against Defendant Moore, and still others 

against Defendant Arrow Title. Determining which claims are actually alleged against each (or all) 

of the particular “Arrow Defendants” is not necessary to this Court’s determination of the instant 

motion. Therefore, this Court will refer to the Arrow Defendants collectively as “Arrow” in its 

analysis of all claims alleged against any Arrow Defendant. The result is the same. 

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does not seek dismissal of Plaintiffs’ Eleventh Claim, which alleges violation of the Real 

Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq.4 

Plaintiffs originally filed suit in Pike County, Ohio Common Pleas Court, and the 

action was removed to federal district court, pursuant to 28 U.S.C. § 1441. (Doc. # 1.) This 

Court has original jurisdiction pursuant to 28 U.S.C. § 1331. 

II. STANDARD OF REVIEW 

Motions for judgment on the pleadings brought pursuant to Federal Rule of Civil 

Procedure 12(c) are evaluated in much the same way as Rule 12(b)(6) motions to dismiss for 

failure to state a claim upon which relief may be granted. See E.E.O.C. v. J.H. Routh 

Packing Co., 246 F.3d 850, 851 (6th Cir. 2001); Grindstaff v. Green, 133 F.3d 416, 421 (6th 

Cir. 1998). The purpose of a motion under either rule is to test the sufficiency of the 

complaint. A complaint need not set down in detail all the particularities of a plaintiff's 

claim. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only a “short and plain 

statement of the claim showing that the pleader is entitled to relief.” However, “Rule 8 . . . 

does not unlock the doors of discovery for a plaintiff armed with nothing more than 

conclusions.” Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1950 (2009). “Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory statements, do 

not suffice.” Id. at 1949. See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

(“A formulaic recitation of the elements of a cause of action” is not enough). The complaint 

“must contain either direct or inferential allegations respecting all the material elements to 

 

4 This Court’s Opinion and Order does not reach the issue of whether Plaintiffs state a claim under 

RESPA, as that issue is not before the Court at this time. However, as Plaintiffs allege that 

“Defendants Shanks and/or Brenda DePugh violated RESPA by accepting fees, kickbacks, or things 

of value . . . with [sic] Defendant Arrow” (Complaint, ¶ 161), this claim potentially implicates Arrow. 

Arrow does not seek dismissal of this claim. 

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sustain a recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, 

Inc., 859 F.2d 434, 436 (6th Cir. 1988) (emphasis in original). 

Legal conclusions “must be supported by factual allegations” that give rise to an 

inference that the defendant is, in fact, liable for the misconduct alleged. Iqbal, 129 S.Ct. at 

1949-50. The factual allegations must show more than a possibility that the defendant 

acted unlawfully. “Where a complaint pleads facts that are ‘merely consistent with’ a 

defendant’s liability, it ‘stops short of the line between possibility and plausibility of 

‘entitlement to relief.’” Id. at 1949 (quoting Twombly, 550 U.S. at 557). 

When considering a motion for judgment on the pleadings, a court must construe the 

complaint in the light most favorable to the plaintiff and accept all well-pleaded material 

allegations in the complaint as true. See Grindstaff, 133 F.3d at 421. Even so, it will not 

accept conclusions of law or unwarranted inferences cast in the form of factual allegations. 

Id. The Court will, however, indulge all reasonable inferences that might be drawn from 

the pleading. See Fitzke v. Shappell, 468 F.2d 1072, 1076-77 n.6 (6th Cir. 1972). 

III. LAW AND ANALYSIS 

In their Complaint—in the “Common Facts” section and throughout the claims for 

relief—Plaintiffs allege facts against Arrow only with regard to Arrow’s preparation of the 

General Warranty deed and “other closing documents.”5 Plaintiffs allege no facts against 

Arrow with regard to the allegedly concealed mold and related problems. 

 

5 In the “Common Facts” section of the Complaint, Plaintiffs allege only the following against Arrow: 

“Defendants [Angela] Shanks and Brenda DePugh recommended the title agency, Defendant Arrow, 

to the [Plaintiffs] and led [Plaintiffs] to believe that Defendant Arrow would provide competent 

services.” (Complaint, ¶ 20.) In total, Plaintiffs allege only that Arrow “maintains a Waverly[, Ohio] 

office in the same building as Defendant Shanks”; Arrow “fail[ed] to provide executed copies of all 

documents signed or initialed by Plaintiffs”; Arrow “failed to prepare the closing documents in 

accordance with the Purchase Contract”; Arrow “failed to include the names of both” Jason and 

Natasha Milner on the General Warranty Deed; and Arrow was allegedly involved in a kickback or 

fee scheme with Defendants Shanks or Brenda DePugh. (Id., ¶¶ 41, 57, 59, 77, 161.) 

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With regard to Plaintiff’s First Claim for Relief (“Application for Injunctive Relief”), 

because Arrow is not a party to that claim—Plaintiffs seek to enjoin Defendant Shanks

from sending business to Arrow—Arrow’s motion with regard to this claim is MOOT.

In their Sixth and Twelfth Claims for Relief Plaintiffs do nothing more than provide 

rote allegations against Arrow, offering no factual allegations to support these claims that 

arise out of the mold-related allegations. Under Iqbal and Twombly, a plaintiff must do 

more than add a defendant to a claim for relief; factual allegations must support each 

claim, resulting in more than mere conclusory allegations of blame. Iqbal, 129 S.Ct. at 

1949; Twombly, 550 U.S. at 555. 

 Plaintiffs’ Sixth Claim—“Civil Conspiracy”—is bereft of any factual allegations in 

support. “The elements of civil conspiracy are (1) a malicious combination, (2) involving two 

or more persons, (3) causing injury to person or property, and (4) the existence of an 

unlawful act independent from the conspiracy itself.” Urbanek v. All State Home Mtg. Co.,

178 Ohio App.3d 493, ¶ 19, 898 N.E.2d 1015 (Ohio Ct. App. 8th Dist., 2008). See also Kenty 

v. TransAmerica Premium Ins Co., 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995). With 

regard to Arrow specifically, Plaintiffs state only as follows: “Based on information and 

belief, Defendants [Angela] Shanks, Brenda DePugh[ and] Arrow . . . are working together 

and steering customers to Defendants’ benefit.” (Complaint, ¶112.) Plaintiffs fail to allege 

any facts in support of any of the elements of the claim. Moreover, the action attributed to 

Arrow in the Complaint—that of incorrectly transferring the property to Jason Milner only 

instead of to both Jason and Natasha Milner—forms no part of the actions alleged to be 

part of the conspiracy. As a result, Arrow’s motion with regard to the Sixth Claim is 

GRANTED. 

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Similarly, in their Twelfth Claim for Relief—“Unjust Enrichment”—the facts alleged 

against Arrow do not support the claim. To state a claim for unjust enrichment, a plaintiff 

must allege all of the following: (1) a benefit conferred by a plaintiff upon a defendant; (2) 

knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant 

under circumstances where it would be unjust to do so without payment. Hambleton v. 

R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 (1984). Here, Plaintiffs allege 

that Arrow “was unjustly enriched by receiving the fees for drafting the general warranty 

deed which does not have both names of Buyers as required by the [Real Estate Offer to 

Purchase] Contract.” (Complaint, ¶ 172, emphasis added.) Plaintiff does not allege that 

they conferred any benefit upon Arrow—such as paying for the closing services—only that 

they conferred a benefit upon the seller, Defendant Biggs, by purchasing the property. (Id., 

¶168.) By failing to allege an essential element of the claim against Arrow, Plaintiffs do not 

state a claim of unjust enrichment. Therefore, with regard to Plaintiffs’ Twelfth Claim, 

Arrow’s motion is GRANTED.

Left for consideration under Arrow’s motion are Plaintiffs’ Second, Third, and 

Fourth Claims for Relief: claims for violation of Ohio’s Consumer Sales Practices Act, for 

negligence, and for negligent misrepresentation, respectively. 

A. Plaintiffs’ Second Claim for Relief: 

Violation of Ohio’s Consumer Sales Practices Act 

Ohio Revised Code Chapter 1345 

Plaintiffs, in their Second Claim for Relief, allege that Arrow violated Ohio’s 

Consumer Sales Practices Act (“the CSPA”), Ohio Revised Code Chapter 1345, while 

performing closing services in the real property transfer between Plaintiffs and Defendant 

Biggs. Specifically, Plaintiffs allege that Arrow failed “to provide executed copies of all 

documents signed or initialed by Plaintiffs” and “failed to prepare the closing documents in 

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accordance with the Purchase Contract.” (Complaint, ¶¶ 57, 59.) In its motion, Arrow 

argues that the CSPA is inapplicable to the services it performed at issue in this real estate 

transaction. This Court agrees. 

Ohio R.C. § 1345.02(A) prohibits unfair or deceptive consumer sales practices under 

the Ohio Consumer Sales Practices Act (“the Act”). 

No supplier shall commit an unfair or deceptive act or practice 

in connection with a consumer transaction. Such an unfair or 

deceptive act or practice by a supplier violates this section 

whether it occurs before, during, or after the transaction. 

The applicable definitional section of the Act provides in relevant part as follows: 

“Consumer transaction” means a sale, lease, assignment, 

award by chance, or other transfer of an item of goods, a 

service, a franchise, or an intangible, to an individual for 

purposes that are primarily personal, family, or household, or 

solicitation to supply any of these things. . . . 

“Supplier” means a seller, lessor, assignor, franchisor, or other 

person engaged in the business of effecting or soliciting 

consumer transactions, whether or not the person deals 

directly with the consumer. 

R.C. § 1345.01(A) and (C), respectively. In Brown v. Liberty Clubs, Inc., the Supreme Court 

of Ohio noted that the Act “has no application in a ‘pure’ real estate transaction.” 45 Ohio 

St.3d 191, 192, 543 N.E.2d 783 (1989). The Brown Court did make an exception, however, 

where the real estate transaction was “inextricably intertwined” with personal property or 

services. In that type of situation, the Act applies to the personal property or services 

portion of such a “mixed” transaction. Id. at 195. 

 Since the Supreme Court’s decision in Brown, Ohio courts have struggled with what 

constitutes a mixed transaction in the area of real estate for the purposes of the CSPA. In 

Keiber v. Spicer Constr. Co., 85 Ohio App.3d 391, 619 N.E.2d 1105 (Ohio Ct. App. 1992), the 

appeals court considered what real-estate services fall within the parameters of the CSPA. 

The court concluded that although the CSPA “does not apply to isolated, pure real-estate 

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transactions involving the purchase and sale of land and any pre-existing improvements,” it 

does apply to transactions involving a contract to construct a residence. Id. at 392 (internal 

quotation marks omitted). The Keiber court differentiated between the sale of land—clearly 

excluded from the CSPA—and a contract to build a home, comparing favorably the 

construction contract to other situations in which the CSPA had been applied by Ohio 

courts: “mobile homes, modular homes, and residential construction goods and services 

where there was no concurrent purchase of land.” Id. at 395-96. 

Although there are similarities between the purchase of an 

existing residence and the purchase of land coupled with a 

contract for the construction of a residence, there are reasons to 

distinguish these transactions in light of the purposes of the 

[CPSA]. The buyer of an existing residence has the 

opportunity, if not the obligation, to inspect the premises before 

purchasing them. However, the purchaser of a contract to 

build a house has no such opportunity; he is dependent upon 

the integrity and ability of the construction contractor. 

Because of this distinction, there is a valid reason to extend the 

protections of the Act to the purchaser of a contract to build a 

house, even though the Act has been deemed not to apply to the 

mere purchase of existing real property. 

Id. at 396. Here, there is nothing in Plaintiffs’ claim against Arrow that distinguishes it 

from a typical purchase of existing real property, and, therefore, the CSPA is inapplicable. 

See also Hanlin v. Ohio Builders and Remodelers, Inc., 212 F.Supp.2d 752, 757 (S.D. Ohio 

2002) (finding that a mortgage lender’s closing services were “part and parcel of the real 

estate transaction,” and, therefore, did not fall within the CSPA); Hurst v. Enterprise Title 

Agency, Inc., 157 Ohio App.3d 133, 144, 809 N.E.2d 689, 2004-Ohio-2307 (11th Dist. Ct. 

App. 2004) (finding that an escrow agent’s services were “collateral” to the real estate 

transaction, precluding application of the CSPA). 

 Plaintiffs allege that Arrow “fail[ed] to provide executed copies of all documents 

signed or initialed by Plaintiffs”; “represent[ed] that title documents were properly 

prepared, when some documents were not”; “fail[ed] to prepare the closing documents in 

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accordance with the Purchase Contract”; did not take steps “to insure their employees 

complied with the CSPA”; and “said things” and “made misleading statements of opinion[.]” 

(Complaint, ¶¶ 57, 58, 59, 60, 67, 68.) Each of these actions relates directly to the real 

estate transaction. Further, nothing in Plaintiffs’ allegations relates to the purpose behind 

the CSPA: “to eliminate overreaching, to eliminate inequality in the positions of seller and 

buyer, and to equalize access to key information.” Rose v. Zaring Homes, Inc., 122 Ohio 

App.3d 739, 747, 702 N.E.2d 952 (Ohio Ct. App. 1997). Plaintiffs allege no facts to support 

any inference that Arrow over-reached in providing closing services, that Arrow was in a 

superior position to Plaintiffs with regard to reviewing the closing documents’ compliance 

with the Purchase Agreement, or that Arrow had greater access to key information. 

 Citing to an unreported Ohio appeals case for the proposition that “[a] title 

company’s failure to provide to homeowners documents required by law at a closing is a 

violation of the CSPA[,]” Plaintiffs contend that their mere allegation that Arrow “failed to 

provide documents required by law to Plaintiffs at closing” is sufficient to withstand a 

motion to dismiss. (Addendum to Mem. Contra, page 2, citing to Property Asset Mgt. v. 

Shaffer, 2008 WL 4193251, 2008-Ohio-4645 (Ohio Ct. App., Third Dist.)) 6 But there is an 

important distinction between the facts alleged in Property Asset and the lack of facts 

alleged in Plaintiffs’ Complaint. 

 In Property Asset, the Court of Appeals held that the trial court erred in dismissing 

the plaintiffs’ CSPA claims against a title agency, finding that the plaintiffs had “minimally 

connected [the title agency] with the wrongdoings.” 2008-Ohio-4645 at ¶6. The 

“wrongdoings” consisted of an alleged fraud perpetrated by the plaintiff’s wife, who 

allegedly caused plaintiff’s mentally disabled son to impersonate plaintiff in securing a 

 

6 Plaintiffs submitted Property Asset Mgt. in an “Addendum to Plaintiffs’ Memorandum Contra, Doc. 

# 31, filed a few days after their Memorandum Contra and not opposed by Defendants. 

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second mortgage on plaintiff’s property. In his complaint, plaintiff alleged that the title 

company—along with the lender and real estate agent—misrepresented and concealed facts 

regarding, inter alia, arranging a fraudulent mortgage transaction, participating in the 

forgery of plaintiff’s signature on mortgage documents, and concealing the lien on plaintiff’s 

property. The court found that the complaint “specifies that irregularities in the provision 

of appraisal, title, closing, and other services existed[,] among other things.” Id. at ¶ 11. 

“[The complaint] also states that [the title agency] failed to produce statutorily required 

documents to [plaintiff] as the home owner.” Id. The facts of Property Asset reflect a 

number of serious irregularities within the closing process—not merely the failure to 

produce required documents. This is the type of over-reaching the CSPA contemplates. 

 Here, though, Plaintiffs only vaguely allege that the Arrow Defendants failed to 

adequately complete the closing documents—which, even if true, do not fall within the 

limits of the CSPA. Although Plaintiffs recite CSPA language—alleging that Arrow has 

“knowingly taken advantage of the inability of Plaintiffs to reasonably protect their 

interests” because of Plaintiffs’ purported inability to understand the real-estate documents 

involved (Complaint, ¶ 61)—this allegation is so unclear that it is impossible to draw any 

sufficient inferences that the CSPA was violated. 

 As a result, Defendants Arrow’s motion with regard to Plaintiffs’ claim under Ohio’s 

Consumer Sales Practices Act is hereby GRANTED. 

B. Plaintiffs’ Third Claim for Relief: 

Negligence 

In their Third Claim for Relief, Plaintiffs claim that Arrow acted negligently in the 

drafting of the General Warranty Deed conveying title from Defendant Biggs to Plaintiffs 

Jason and Natasha Milner. (Complaint, ¶¶ 74 – 84.) Specifically, Plaintiffs allege that 

Arrow failed to include the names of both Jason and Natasha; instead, the deed conveys 

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title to Jason only.7 Arrow argues that Plaintiffs’ claim fails because (1) Plaintiffs failed to 

allege that Arrow proximately caused Plaintiffs’ alleged damages, and (2) Arrow’s duty, as 

alleged, arises out of a contract to which Arrow was not a party. (Motion, pages 8 – 9.) 

It is fundamental that to state a claim of negligence, a plaintiff must allege a duty, breach 

of that duty, causation, and damages. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 

N.E.2d 265, 270 (1989). Although Plaintiffs fail to clearly allege that any action by Arrow 

was the proximate cause of their damages, this Court reasonably infers that Arrow’s 

alleged failure to properly prepare the deed was the cause of Plaintiffs’ damages related to 

that negligence. Fitzke v. Shappell, 468 F.2d 1072, 1076-77 n.6 (6th Cir. 1972) (“In judging 

the sufficiency of the complaint we are bound to indulge in all reasonable inferences which 

might be drawn therefrom.”) 

So, too, Plaintiffs sufficiently allege that Arrow owed them a duty: “[Arrow] had a 

duty of care to transfer the property and prepare the general warranty deed as required by 

the [Purchase] Contract.” (Complaint, ¶ 76.) See Waffen v. Summers, 2009 WL 1741731, 

2009-Ohio-2940, ¶ 42 (Ohio Ct. App.) (noting that an escrow agent can be held to a 

standard of ordinary care in its duty to disburse funds) and Smith v. ABN Amro Mortgage 

Group, Inc., 2007 WL 950334, *7 (S.D. Ohio 2007) (duty can exist without privity of contract 

for title services). The existence of a duty is ordinarily a question of law. Mussivand v. 

David, 45 Ohio St.3d 314, 544 N.E.2d 265, 270 (1989). The existence of duty depends upon 

the foreseeabilty of harm: if a reasonably prudent person would have anticipated that an 

injury was likely to result from a particular act, the court could find that the duty element 

of negligence is satisfied. Commerce & Industry Ins. Co., 45 Ohio St.3d 96, 543 N.E.2d 

1188, 1192 (1989). This Court finds that Arrow owed Plaintiffs a duty to prepare the 

 

7 Plaintiffs did not attach the General Warranty Deed to their Complaint. The only issue with the 

deed is whether title was conveyed to Jason Milner only, rather than to both Jason and Natasha 

Milner. This Court accepts Plaintiffs’ allegation as true, for the purpose of this Opinion. 

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closing documents as directed. How Arrow was directed and whether Arrow breached that 

duty and the issues of causation and contributory negligence are not before the Court at 

this time. 

However, with regard to damages, although Plaintiffs seek damages in excess of 

$25,000.00 for their claim of negligence, as to Arrow it would seem that the only damages 

related to this claim could be the costs associated with correcting the deed. Plaintiffs have 

not alleged any other damages related to Arrow’s actions. 

 Arrow’s motion with regard to Plaintiffs’ Third Claim is DENIED. 

C. Plaintiffs’ Fourth Claim for Relief: 

Negligent Misrepresentation 

 In Plaintiffs’ Fourth Claim for Relief—“Negligent Misrepresentation”—they allege 

that Arrow, failing to exercise “reasonable care,” misrepresented to Plaintiffs that the 

General Warranty Deed was correct—and that Plaintiffs “justifiably relied” on these 

representations. (Complaint, ¶¶ 96 – 99.) Inasmuch as Plaintiffs do not state just what 

was allegedly misrepresented about the deed, presumably they are referring to their 

contention in paragraph 77 of the Complaint that the deed failed to include the names of 

both buyers. Proving reliance on such an alleged misrepresentation may be a challenge if 

the deed was at the closing and Plaintiffs are able to read. In any event, the allegations are 

at least minimally sufficient to state a claim. Arrow’s motion is DENIED as to this claim. 

IV. CONCLUSION 

 Based on the foregoing, this Court GRANTS Defendants Arrow Title Agency, LLC, 

Jonathan Holfinger, and Chris Moore’s Motion to Dismiss for Failure to State a Claim (doc. 

# 27) with regard to Plaintiffs’ Second, Sixth, and Twelfth Claims for Relief. Those claims 

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are DISMISSED with prejudice8 as to Defendants Arrow Title Agency, LLC, Jonathan 

Holfinger, and Chris Moore only. Defendants’ Motion as to Plaintiffs’ First Claim for Relief 

is MOOT. Defendants’ Motion with regard to Plaintiffs’ Third and Fourth Claims for Relief 

is DENIED. 

IT IS SO ORDERED. 

June 7, 2011 /s/ James L. Graham 

 Judge James L. Graham 

 United States District Court 

 

8 A “dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a 

‘judgment on the merits,’ ” and is therefore done with prejudice. Pratt v. Ventas, Inc. 365 F.3d 514, 

522 (6th Cir. 2004) (citing Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, (1981)). 

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