UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

W.G. TOMKO, INC.,

Plaintiff,

Case No.: 2:13-CV-0055

-v- JUDGE SMITH

Magistrate Judge Deavers

FRANKLIN COUNTY BOARD

OF COMMISSIONERS, et al.,

Defendants.

OPINION AND ORDER

Plaintiff W.G. Tomko, Inc. (“Tomko”) brings this action against Defendants Franklin

County Board of Commissioners and Affiliated FM Insurance Company to recover its costs for

repairs made in 2009 during the construction of the Huntington Park Baseball Stadium in

Columbus, Ohio. This matter is before the Court on Defendant Franklin County Board of

Commissioners’ (“Commissioners”) Motion to Dismiss (Doc. 21) and Defendant Affiliated FM

Insurance Company’s (“Affiliated FM”) Motion to Dismiss, or in the Alternative Motion to

Sever (Doc. 26). The motions are fully briefed and ripe for review. For the reasons that follow,

Defendant Commissioners’ Motion to Dismiss is GRANTED and Defendant Affiliated FM’s

Motion is MOOT.

I. BACKGROUND

On January 8, 2008, Plaintiff Tomko and the Commissioners entered into a construction

contract (“the Contract”) to perform plumbing work in connection with the building of the

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Huntington Park Baseball Stadium. (Am. Compl. ¶5). As part of the Contract, the

Commissioners were to maintain a builders risk insurance policy to insure against loss including

losses owing to vandalism and malicious mischief. Section 12.2 of the General Conditions of the

Contract provides:

12.2 BUILDER’S RISK – NEW CONSTRUCTION

12.2.1 Unless otherwise specified in the Contract Documents, the Project

Representative [Commissioners] shall provide and maintain, during the progress

of the Work and until the execution of the certificate of Contract Completion by

the County, a Builder’s Risk insurance policy to cover all Work in the course of

construction including falsework, temporary buildings and structures, equipment

and materials used in the construction process, stored on or off site, or while in

transit. Such insurance shall be on a “All Risk of Direct Physical Loss” form

policy and shall insure against the perils for direct physical loss or damage

including, without limitation, fire, theft, vandalism, malicious mischief,

earthquake, tornado, lightning, explosion, breakage of glass, flood, collapse and

water damage. It shall also include debris removal, demolition occasioned by

enforcement of any applicable legal requirement, and shall cover reasonable

compensation for the County’s services and expenses required to limit further

loss.

(Section 12.2 of the Contract attached in pertinent part as Exhibit A to the Complaint and

attached in its entirety to Defendant Commissioners’ Motion to Dismiss).

Pursuant to the Contract, the Commissioners purchased a Builder’s Risk Policy (“the

Policy”) from Affiliated FM Insurance Company. (Am. Compl. ¶ 7). Before the stadium

opened, leaks from the underground fire sprinkler line were discovered and vandalism was

suspected. Additionally, the sanitary waste and vent system, and other portions of the plumbing

system installed at the Stadium were also vandalized, resulting in significant damages and costs. 

(Am. Compl. ¶¶ 15-25). On September 29, 2009, Plaintiff Tomko submitted a claim with

Affiliated FM, purportedly under the Policy, for the cost of the remedial work. (Am. Compl. ¶

28). On October 19, 2009, Affiliated FM rejected Tomko’s claim, indicating that Tomko was

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not an insured or additional insured under the Policy and therefore had no right to file a claim

under the Policy. 

Plaintiff Tomko initiated this action on January 18, 2013, alleging claims for breach of

contract and unjust enrichment. (See Compl., Doc. 1). Plaintiff then sought leave to amend its

Complaint and filed the Amended Complaint on August 15, 2013, asserting three claims for

breach of contract, as well as claims for breach of the duty of good faith and fair dealing and

unjust enrichment. (Doc. 20). Defendants Commissioners and Affiliated FM then moved to

dismiss. Defendant Commissioners moves to dismiss based on the forum selection clause of the

contract and Defendant Affiliated FM asserts that Plaintiff Tomko lacks standing to assert a

claim against it because Tomko was not insured under the Policy. 

 II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a lawsuit for “failure to

state a claim upon which relief can be granted.” A Rule 12(b)(6) motion to dismiss is directed

solely to the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon Steel Corp.,

705 F.2d 134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at

issue on a motion to dismiss for failure to state a claim. Consequently, a complaint will be

dismissed pursuant to Rule 12(b)(6) only if there is no law to support the claims made, or if the

facts alleged are insufficient to state a claim, or if on the face of the complaint there is an

insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.

1978). Rule 12(b)(6) must be read in conjunction with Rule 8(a) of the Federal Rules of Civil

Procedure, which requires the complaint to contain a “short and plain statement of the claim

showing that the pleader is entitled to relief[.]”

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A court, in considering a 12(b)(6) motion to dismiss, must “construe the complaint in the

light most favorable to the plaintiff,” accepting as true all the plaintiff’s factual allegations. 

Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Although in this context all of the

factual allegations in the complaint are taken as true, a court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). Consequently, “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

Furthermore, to survive dismissal pursuant to Rule 12(b)(6), a claim must contain

sufficient factual matter to “state a claim to relief that is plausible on its face.” Twombly, at 570.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, at

1950. While a complaint need not contain “detailed factual allegations,” its “factual allegations

must be enough to raise a right to relief above the speculative level on the assumption that all the

allegations in the complaint are true.” Twombly, at 555. “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged

– but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” Iqbal, at 1950 (quoting Fed.

R. Civ. P. 8(a)(2)). In the final analysis, the task of determining plausibility is “context-specific

[and] requires the reviewing court to draw on its judicial experience and common sense.” Id.

Under Rule 12(b)(3), a case may be dismissed for improper venue. Fed. R. Civ. P.

12(b)(3). However, a motion to dismiss for improper venue pursuant to Rule 12(b)(3) will only

be granted if the case was not filed in a venue prescribed by 28 U.S.C. § 1391. Kerobo v. Sw.

Clean Fuels, Corp., 285 F.3d 531, 536 (6th Cir. 2002). The Sixth Circuit has suggested that the

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proper mechanism for enforcing a forum selection clause that mandates jurisdiction in a state

court is a motion to dismiss to enforce the clause premised on Rule 12(b)(6) or on the doctrine of

forum non conveniens. Wong v. PartyGaming Ltd., 589 F.3d 821, 824, 830 (6th Cir. 2009)

(denying the defendants’ Rule 12(b)(3) motion to dismiss based on a forum selection clause, and

instead, dismissing the action sua sponte on forum non conveniens grounds); Langley v.

Prudential Mortg. Capital Co., LLC, 546 F.3d 365, 366 (6th Cir. 2008) (reversing and

remanding dismissal based on an invalidity of contracts that contained forum selection clauses

requiring suit in New York state or federal court, and directing the district court “to entertain a

motion to enforce the forum selection clause under Fed. R. Civ. P. 12(b)(6) or 28 U.S.C. §

1404(a)”); Stepniewski v. Ticketmaster Entm’t, LLC, No. 3:10-cv-00760, 2010 U.S. Dist. LEXIS

109385 (M.D. Tenn. Oct. 13, 2010) (analyzing Wong and Langley, and concluding that in light of

those cases, “when a forum selection clause mandates exclusive jurisdiction in a state court, a

motion to dismiss to enforce the clause may be premised either on Rule 12(b)(6) or on the forum

non conveniens doctrine”). On a motion pursuant to Rule 12(b)(6), “the court only needs to

determine whether the forum selection clause is enforceable and applicable; if it is, then the suit

should be dismissed.” Stepniewski, 2010 U.S. Dist. LEXIS 109385, at *12 (citing Langley, 546

F.3d at 366; Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369, 375-76 (6th Cir. 1999)).

 III. DISCUSSION

Defendants Commissioners and Affiliated FM have both moved to dismiss Plaintiff’s claims

against them raising different grounds for dismissal. The Commissioners argue that this case should

be dismissed because the Forum Selection Clause in the Contract between Plaintiff and the

Commissioners requires that the action be filed in the Franklin CountyCourt of Common Pleas. The

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Court will first address the venue issue and if necessary the remaining arguments. 

A. Venue / Forum Selection Clause

The General Provisions of the Contract contain a forum selection clause, which provides:

1.1.4 The State of Ohio shall have exclusive jurisdiction over any action or

proceeding concerning the Contract and performance thereunder. Any such action

or proceeding arising out of or related in any way to the Contract or performance

thereunder shall be brought only in the Franklin County Common Pleas Court,

General Division, Franklin County, Ohio and the Contractor irrevocably consents to

such jurisdiction. The Contract shall be construed in accordance with the laws of the

State of Ohio.

(Section 1.1.4 of the Contract). Defendant asserts that based on this forum selection clause, this

action must be dismissed as it could only have been brought in the Common Pleas Court of Franklin

County, Ohio. 

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In interpreting the Contract between Plaintiff and the Commissioners, the Court will apply

Ohio law, which is the law of the jurisdiction selected by the parties. (See Section 1.1.4 of the

Contract). Enquip Techs. Group Inc. v. Tycon Technoglass S.R.I., 2012 Ohio 6181 (Ohio Ct. App.

2012) (the parties’ choice of law should be used to interpret their forum-selection clause). The goal

of contract interpretation is to ascertain and effectuate the parties’ intent. Graham v. Drydock Coal

Co., 76 Ohio St. 3d 311 (Ohio 1996). When parties to a contract dispute the meaning of the contract

language, courts must first look to the four corners of the document to determine whether an

ambiguity exists. BuckeyeCorrugated, Inc. v. DeRycke, 2003 Ohio App. LEXIS 5703, at *12 (Ohio

App. Nov. 26, 2003). If the contract terms are clear and precise, then the contract is not ambiguous

 Defendant notes that it is not seeking remand because this matter was originally filed in 1

Federal Court. Further, it is not requesting the Court transfer this case pursuant to 28 U.S.C. §

1404(a) because the requested transfer is not to another federal court, but to state court. As

discussed above in the Standard of Review, the proper relief sought by Defendant is dismissal

under Rule 12(b)(6).

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and must be enforced as written. Id. 

In the case at bar, the parties agreed that “Any such action or proceeding arising out of or

related in any way to the Contract or performance thereunder shall be brought only in the Franklin

County Common Pleas Court, General Division, Franklin County, Ohio.” (Section 1.1.4 of the

Contract). 

Forum selection clauses are presumed valid. Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22,

29-30 (1988); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972). A Forum selection

clause should be enforced unless (1) it was obtained by fraud, duress, abuse of economic power, or

other unconscionable means; (2) the chosen forum would be closed to the suit or would not handle

it effectively or fairly; or (3) the transferee forum would be so seriously inconvenient that to require

the plaintiff to bring suit there would be unjust. Security Watch Inc. v. Sentinel Sys., Inc., 176 F.3d

369, 374-75 (6th Cir. 1999). Plaintiff does not dispute the validity of the Contract, or that it would

otherwise be applicable to the claims asserted in this case. However, Plaintiff does argue that

Defendant Commissioners waived the right to assert the defense of improper venue based on the

forum selection clause in the contract. Specifically, Defendant filed an Answerto Plaintiff’s original

Complaint and failed to raise the forum selection clause. Defendant also failed to raise the defense

when filing the Rule 26(f) report with the Court and in the Preliminary Pretrial Conference. 

Therefore, Plaintiff argues that pursuant to Rule 12(h), Defendant waived its right to raise this issue

at this time by failing to file a motion to dismiss the original Complaint. 

Defendant Commissioners, however, argue that the original causes of action did not concern

the terms and conditions of the Contract, and therefore, raising the forum selection clause at that time

would have been futile. Defendant concedes that Plaintiff asserted a breach of contract action in the

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first Complaint, but that the cause of action sounds in tort. Specifically, Plaintiff alleged that “[the

County] improperly and unfairly interfered with Affiliated FM’s investigation and handling of the

claim, with the intent of causing Affiliated to wrongfully deny Tomko’s claims, including, but not

limited to, providing false and misleading information, and refusing to produce Project

documentation and public information in its possession, including photographs and surveillance

video.” (Compl. ¶ 48). Further, the second cause of action for unjust enrichment does not implicate

the forum selection clause as it does not originate from the underlying Contract. 

A defendant maywaive improper venue as a defense because venue is not jurisdictional. See

Neirbo v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939) (objection to venue “may be lost

by failure to assert it seasonably, by formal submission in a cause, or by submission through

conduct”). Pursuant to Rule 12(h)(1) of the Federal Rules of Civil Procedure, a defendant waives

any challenge to venue if it fails to raise that objection in a pre-answer motion or in its first

responsive pleading. 

An exception to Rule 12(h) allows a defendant to make an otherwise untimely objection to

venue if that objection was not available at the time of the filing of the pre-answer motion or

responsive pleading. See Fed. R. Civ. P. 12(g)(2). However, “[t]he filing of an amended complaint

will not revive the right to present by motion defenses that were available but were not asserted in

timely fashion prior to the amendment of the pleading.” 5C Charles Alan Wright, Federal Practice

& Procedure § 1388, at 491 (4th ed. 2009). Accordingly, if the venue argument was not available

to Defendant at the time of filing its first answer, then it may be raised at a later time. Therefore, the

Court must determine whether the venue argument was available in response to Plaintiff’s first

Complaint. 

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Defendant argues, and the Court agrees, that Plaintiff’s original Complaint against only the

Commissioners technically alleged a breach of contract claim, but it sounded in tort. In substance,

Plaintiff essentially alleged that Defendant tortiously interfered with Affiliated FM’s investigation

of the insurance claim. It was not until the Amended Complaint that Plaintiff alleged breaches of

the terms and conditions of the Contract. Further, as argued by Defendant, Plaintiff’s claim for

unjust enrichment does not implicate the forum selection clause of the Contract as the claim does

not originate from the underlying Contract. Therefore, the Court finds that Defendant did not waive

the venue defense by failing to raise it in the answer to the original Complaint because it was not

available at that time. 

Accordingly, finding that the forum selection clause contained in the construction Contract

between Plaintiff and Defendant Commissioners is valid and that Defendant did not waive the

defense, this action must be dismissed because it can only be brought in the Franklin County Court

of Common Pleas. 

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IV. CONCLUSION

Based on the aforementioned, the Court GRANTS Defendant the Franklin CountyBoard of

Commissioners’ Motion to Dismiss. The Court declines to address Defendant Affiliated FM

Insurance Company’s Motion to Dismiss and it is therefore DENIED AS MOOT since the case is

dismissed. 

The Clerk shall remove Documents 21 and 26 from the Court’s pending motions list and

dismiss this case. 

IT IS SO ORDERED.

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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