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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Kelsey Friend, et al.,

 Plaintiffs,

 vs.

Adams County Sheriff, et al.,

 

 Defendants.

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Case No.: 1:17-cv-00766

Judge Michael R. Barrett

ORDER 

This matter is before the Court on Defendant West Union Volunteer Life Squad, 

Inc.’s Motion for Judgment on the Pleadings. (Doc. 50). Plaintiffs have filed a 

memorandum in opposition (Doc. 51), to which Defendant has replied (Doc. 52). For 

the reasons that follow, Defendant’s Motion will be GRANTED.

I. BACKGROUND

Plaintiffs are a father, Brandon Friend, and his now-adult daughter, Kelsey 

Friend.

1 (Doc. 36 ¶¶ 3–4 at PageID 192). On December 29, 2014, Kelsey—then a 

minor—was staying with her mother at her mother’s home in Adams County, Ohio. (Id.

¶¶ 22, 24 at PageID 195). At that time, Kelsey’s mother was dating Defendant Jeff 

McCarty, who was working as an Adams County Deputy Sheriff and as a supervisor for 

Defendant West Union Volunteer Life Squad. (Id. ¶¶ 8, 23 at PageID 193, 195). 

McCarty gave Ambien to Kelsey in order to put her to sleep and then sexually assaulted 

 1 To distinguish between the Plaintiffs, they will be referred to by their first names. Kelsey turned 18 

years-old on July 26, 2017, some two-and-one-half years after the sexual assault that prompted this 

lawsuit. (Doc. 36 ¶ 3 at PageID 192). 
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her. (Id. ¶ 25 at PageID 195). McCarty “obtained [the Ambien] pursuant to his 

employment[]” with West Union. (Id.). Kelsey reported the assault to her basketball 

coach the next day. (Id. ¶ 28). A DNA test confirmed the presence of McCarty’s saliva 

and semen. (Id. ¶¶ 35–36 at PageID 196). McCarty pleaded guilty and received jail 

time for this crime. (Id. ¶ 38). 

Count Two of Plaintiffs’ Third Amended Complaint2 alleges a state law claim of 

negligent hiring, retention, and supervision against both the Adams County Sheriff,

3 also 

a defendant, and the West Union Volunteer Life Squad. (Doc. 36 ¶¶ 48–52 at PageID 

197–98). Pursuant to Fed. R. Civ. P. 12(c), West Union moves for judgment on the 

pleadings. (Doc. 50). 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on 

the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial—[.]” 

The legal standard for adjudicating a Rule 12(c) motion is the same as that for 

adjudicating a Rule 12(b)(6) motion. Gascho v. Global Fitness Holdings, LLC, 918 F. 

Supp. 2d 708, 716 (S.D. Ohio 2013) (citing Lindsay v. Yates, 498 F.3d 434, 437 n.5, 

 2 Count One alleges federal constitutional claims against the Adams County Sheriff and McCarty brought 

pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 42–47 at PageID 197). Count Three alleges a state law claim for 

assault and battery against McCarty. (Id. ¶¶ 53–55 at PageID 198). Finally, Count Four also alleges a 

state law claim against McCarty, this one for negligent infliction of emotional distress. (Id. ¶¶ 56–59 at 

PageID 198–99).

3 Plaintiffs have since abandoned their state law claim against the Sheriff. (Doc. 42 at PageID 246 

(“Having reviewed the evidence uncovered to date and the current state of the law, the Plaintiffs dismiss 

their Negligent Hiring, Retention, and Supervision Claims against the Adams County Sheriff’s 

Department[.]”)
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438 (6th Cir. 2007)4); see Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 

281, 284 (6th Cir. 2010). 

Rule 12(b)(6) allows a party to move to dismiss a complaint for “failure to state a 

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To withstand a 

dismissal motion, a complaint must contain “more than labels and conclusions [or] a 

formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). The Court does not require “heightened fact 

pleading of specifics, but only enough facts to state a claim for relief that is plausible on 

its face.” Id. at 570 (emphasis added). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). A district court examining the sufficiency of a complaint must accept the wellpleaded allegations of the complaint as true. Id.; DiGeronimo Aggregates, LLC v. 

Zemla, 763 F.3d 506, 509 (6th Cir. 2014).

“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are 

presented to and not excluded by the court, the motion must be treated as one for 

summary judgment under Rule 56.” Fed. R. Civ. P. 12(d) (emphasis added). In this 

circumstance, “[a]ll parties must be given a reasonable opportunity to present all the 

material that is pertinent to the motion.” Id.\

 4 In contrast to a Rule 12(c) motion, a Rule 12(b)(6) motion “must be made before pleading if a 

responsive pleading is allowed.” Fed. R. Civ. P. 12(b)(6) (emphasis added); Lindsay, 498 F.3d at 437 

n.4.
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III. ANALYSIS

Under Ohio law, the elements for the torts of negligent hiring, negligent retention, 

and negligent supervision are the same. They are: “(1) the existence of an 

employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or 

constructive knowledge of such incompetence; (4) the employer’s act or omission 

causing plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining the 

employee as the proximate cause of plaintiff’s injuries.” Bricker v. R. & A Pizza, Inc., 

804 F. Supp. 2d 615, 622 (S.D. Ohio 2011) (quotations and citations omitted). Yet in 

order to maintain a claim for negligent hiring, retention and supervision, “the threshold

issue of whether the employee was ‘on the clock’ when the criminal or tortious act 

was committed must be established.” State Farm Mut. Auto Ins. Co. v. King, Nos. 

CA2005-04-045, CA2005-04-049, 2006 WL 216051, at * 6, 2006-Ohio-336, ¶ 42 (12th 

Dist. Ct. App. May 2, 2008) (quoting Saleh v. Marc Glassman, Inc., No. 86010, 2005 WL 

3081507, at *4, 2005-Ohio-6127, ¶ 28 (8th Dist. Ct. App. Nov. 17, 2005) (emphasis 

added). See Gebhart v. College of Mt. St Joseph, 106 Ohio App. 3d 1, 665 N.E.2d 223, 

225 (1995) (negligent supervision claim failed because sexual assaults occurred in 

employee’s private residence at night; employer had no right or duty to supervise 

employee outside the employment context); Malone v. Miami Univ., 89 Ohio App. 3d 

527, 625 N.E.2d 640, 642–43 (1993) (employer not liable for injuries caused when its 

employee, having drank alcohol during his lunch break, left work intoxicated and 

became involved in a head-on collision; employer had no duty or right to control 

employee’s activities away from work). Because Plaintiffs do not allege that McCarty 
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was “on the clock” at the time he sexually assaulted Kelsey, Defendant West Union 

asks this Court to enter judgment in its favor.

As an initial matter, the Court must decide if it will consider the Affidavit of Darrell 

Rockey (Doc. 49-1), which is appended to the Answer filed by Defendant West Union 

and referenced in its Motion (Doc. 50-1 at PageID 283 & n.1). In it, Rockey testifies that 

he was a Lieutenant in the squad in December 2014 and that, specific to December 29, 

2014—the date on which Kelsey was sexually assaulted—McCarty was not “on the 

clock.” (Doc. 49-1 ¶ 3 at PageID 278).5 Encouraging the Court to consider the 

affidavit, West Union notes that the Sixth Circuit has taken “a liberal view of what 

matters fall within the pleadings for purposes of Rule 12(b)(6).” Armengau v. Cline, 7 F. 

App’x 336, 344 (6th Cir. 2001). Documents attached to a motion to dismiss form part of 

the pleadings “[i]f referred to in [the] complaint and [are] central to the claim.” Id. (citing 

Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)). While one might 

argue that Rockey’s testimony is “central” to Plaintiffs’ negligent hiring, supervision and 

retention claim, his affidavit plainly is not referred to in the Third Amended Complaint. 

Hence, the Court finds it to be outside the pleadings. See Bricker, 804 F. Supp. 2d at 

619–20. Were the Court to consider Rockey’s affidavit, it would convert Defendant 

West Union’s Rule 12(c) motion into one for summary judgment. See Max Arnold & 

Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 502–03 (6th Cir. 2006). This 

conversion is wholly unnecessary to resolve the legal question presented by West 

 5 Rockey additionally testifies that, prior to the criminal charges filed in connection with Kelsey’s assault, 

West Union Volunteer Life Squad received no complaints about McCarty “either before or during the 

course of his employment with West Union.” (Id. ¶ 4 at PageID 279). Finally, McCarty testifies that 

“Ambien has never been a substance ordered, kept, stored, maintained, held or otherwise in the inventory 

of West Union.” (Id. ¶ 6).
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Union. Thus, the Court will exclude the Affidavit of Darrell Rockey, as well as the 

Affidavits of Charles Friend (Doc. 42-1) and Kristian Hughes (Doc. 42-2) offered by 

Plaintiffs in opposition to Defendant West Union’s Rule 12(c) Motion.

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The Court has carefully reviewed the Third Amended Complaint, and West Union 

is correct: Plaintiffs do not allege that McCarty was “on the clock” when he sexually 

assaulted Kelsey. But Plaintiffs counter that the issue of “on the clock” is irrelevant 

because McCarty “was not rank and file in the Life Squad, but supervisory.” (Doc. 51 at 

PageID 294; see also Doc. 36 ¶ 8 at PageID 193). Moreover, because Defendant West 

Union “is a ‘volunteer’ squad that gets expense reimbursement, it is erroneous to 

declare that there are periods when Lt. McCarty was ‘off the clock’ at all, with the 

possible exception of times that he was on Sheriff’s duty.” (Doc. 51 at PageID 294).

Plaintiffs cite no authority—from Ohio or any other jurisdiction—in support of this 

contention, and the Court is aware of none. To accept this premise would put an 

employer at continuous risk for the off-duty behavior of its supervisory staff. And it 

would contradict Saleh. Accordingly, it is rejected. The Court likewise rejects Plaintiffs’ 

alternative theory. McCarty’s off-duty sexual assault cannot ride the coattails of his “on 

the clock” acquisition of Ambien, even if one made possible the other. Saleh is

straightforward. This Court’s review begins—and here, ends—with asking whether 

Plaintiffs did—or could—allege that McCarty’s sexual assault of Kelsey Friend occurred 

while he was “on the clock” with the West Union Volunteer Life Squad. Because no 

such allegation is contained in Plaintiffs’ Third Amended Complaint, and because 

 6 The Friend and Hughes affidavits were filed in opposition to the pending Motion of Adams County Sheriff 

K.R. Rogers for Judgment on the Pleadings (Doc. 39).
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counsel does not represent that it could be alleged in a putative fourth amended 

complaint, West Union is entitled to judgment on the pleadings. 

IV. CONCLUSION

Consistent with the foregoing, Defendant West Union Volunteer Life Squad, 

Inc.’s Motion for Judgment on the Pleadings (Doc. 50) is GRANTED. Count Two of 

Plaintiffs’ Third Amended Complaint is DISMISSED with PREJUDICE as to Defendant 

West Union Volunteer Life Squad, Inc. 

IT IS SO ORDERED.

 __s/ Michael R. Barrett___

Michael R. Barrett, Judge

United States District Court