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UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

WHITNEY M. MOORE, DDS, et al., 

 

 Plaintiffs, 

 Case No. 2:12-cv-1163 

 v. JUDGE GREGORY L. FROST 

 Magistrate Judge Terence P. Kemp 

JOHN F. GALLAGHER, et al., 

 Defendants. 

 

 ORDER

 This matter is before the Court for consideration of Plaintiffs’ motion for summary 

judgment. (ECF No. 67.) In that motion, Plaintiffs, Whitney M. Moore, DDS and Columbus 

Dental Care – Whitney M. Moore, DDS, Inc., seek summary judgment on the four claims set 

forth in their complaint.1

 For the reasons that follow, the Court finds the motion not well taken. 

 Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In viewing the evidence, the Court must 

draw all reasonable inferences in favor of the nonmoving party, which must set forth specific 

facts showing that there is a genuine issue of material fact for trial. See Muncie Power Prods., 

Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Matsushita Elec. Indus. 

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 The motion also seeks summary judgment on a counterclaim that the motion states 

Defendants John Gallagher and Our Rental Paradise assert. (ECF No. 67.) Subsequent to the 

filing of the motion, this Court filed an Order in which it explained that the counterclaim was 

actually asserted by only Gallagher and against only Moore. (ECF No. 68, at Page ID # 705 

n.2.) In that same Order, the Court granted a motion to dismiss the counterclaim. (Id. at Page ID 

# 709.) Accordingly, that part of Plaintiffs’ motion for summary judgment targeting the 

counterclaim is moot. 

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Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 

328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists “if the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party.” Muncie, 328 F.3d at 

873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Consequently, the 

central issue is “ ‘whether the evidence presents a sufficient disagreement to require submission 

to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Hamad, 

328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52). 

Plaintiffs have failed to show that there is no genuine dispute as to any material fact and 

that they are entitled to judgment as a matter of law. To support their motion, Plaintiffs rely 

upon two declarations as their only evidence. Plaintiffs state in their briefing that “Dr. Moore 

and her office manager have verified the facts set forth herein and the damages calculation. 

Their declarations are attached as Exhibits A and B.” (ECF No. 67, at Page ID # 676.) But the 

exhibit declarations do not provide Plaintiffs the necessary support they state exists. 

The first declaration, Exhibit A, is titled “Declaration of Dr. Whitney M. Moore.” (ECF 

No. 67-1, at Page ID # 701.) The body of the document indicates, however, that it is a 

declaration made and signed by Michelle Watkins, not by Moore. The entirety of the declaration 

reads as follows: 

I, Michelle Watkins, hereby state as follows based upon my own personal 

knowledge: 

1. I am the office manager and book keeper for Dr. Moore’s practice, and 

am over the age of eighteen. 

2. I work for Columbus Dental care – Whitney M. Moore DDS, Inc. 

3. I previously worked for 1151 South High Dentist Group – Whitney M. 

Moore DDS, Inc. (a/k/a Dental care of Columbus). 

4. I have read the Motion for Summary Judgment to which this 

Declaration is attached. 

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5. I know that Dr. Moore and her practice incurred $759,000.00 in 

damages. I reviewed the records concerning this loss amount. 

6. I had no knowledge of the defendants’ fraud scheme and did not 

participate in it. When Dr. Moore discovered it, she stopped it and 

terminated her relationship with them. 

7. Finally, Dr. Moore and her practice have incurred attorneys’ fees and 

costs to prosecute this case. 

(ECF No. 67-1, at Page ID # 701.) The problem is that none of these paragraphs indicate that 

Watkins is verifying the pages and pages of factual contentions set forth in the summary 

judgment briefing. Instead, the declaration paragraphs indicate Watkins’ current and former 

employment, indicate that she read the summary judgment motion, provide a conclusory 

assertion of damages, deny prior knowledge of and participation in a fraud scheme, indicate that 

Moore stopped a fraud scheme, and indicate that Moore and her practice have incurred legal 

fees. The declaration therefore does not provide the factual allegations supporting the motion to 

show that there is no genuine dispute as to any material fact so that Plaintiffs are entitled to 

judgment as a matter of law. 

 The second declaration, Exhibit B, is even more problematic. That exhibit is also titled 

“Declaration of Dr. Whitney M. Moore,” but the body of that declaration is simply the same 

introductory line and seven numbered paragraphs as Exhibit B, right down to the statement that 

the document is the declaration of Michelle Watkins. (ECF No. 67-2, at Page ID # 703.) The 

second page of the declaration is then a signature by Moore. It appears to this Court that 

Plaintiffs have filed the wrong page as the first page of the Moore declaration. 

 These two declarations leave this Court without summary judgment evidence supporting 

the numerous factual allegations set forth in the briefing and upon which Plaintiffs base not only 

their account of the facts, but the entirety of their consequent argument for summary judgment. 

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This Court cannot say based on the record before it that sufficient facts are established, much 

less material facts not in dispute, demonstrating an entitlement to judgment as a matter of law. 

Moreover, the Court expresses no opinion here as to whether Plaintiffs could meet this burden by 

seeking to remedy the current issues by obtaining leave to file a second motion for summary 

judgment that is accompanied by sufficient evidentiary support. Rather, the Court simply must 

hold at this juncture that Plaintiffs have failed to demonstrate that summary judgment is 

warranted. 

The Court DENIES Plaintiffs’ motion for summary judgment. (ECF No. 67.) 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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