IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DECKER CONSTRUCTION CO., 

Plaintiff, 

-vsWESEX CORPORATION, et al., 

Defendants. 

 

Case No. 2:18-cv-00727 

JUDGE ALGENON L. MARBLEY 

MAGISTRATE JUDGE ELIZABETH A. 

PRESTON DEAVERS 

THIRD PARTY DEFENDANT MARK SCHRADER’S MOTION TO DISMISS 

CCL LABEL, INC.’S THIRD PARTY COMPLAINT 

Pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6), Third Party Defendant Mark Schrader 

(“Schrader”), by and through his undersigned counsel, Porter Wright Morris & Arthur LLP and 

Blumling & Gusky, LLP, moves to dismiss CCL Label, Inc.’s Third Party Complaint and in 

support thereof states as follows: 

1. Third Party Plaintiff CCL Label, Inc. (“CCL”) has failed to allege sufficient facts 

to establish that Schrader is subject to personal jurisdiction in this Court, and CCL’s Third Party 

Complaint must be dismissed as to Schrader pursuant to Fed. R. Civ. P. 12(b)(2), as more fully 

set forth in the Memorandum of Law in Support filed herewith. 

2. CCL has failed to state a cognizable claim against Schrader upon which relief can 

be granted, and CCL’s Third Party Complaint must be dismissed as to Schrader pursuant to Fed. 

R. Civ. P. 12(b)(6), as more fully set forth in the Memorandum of Law in Support filed herewith. 

WHEREFORE, for the reasons more fully set forth in the Memorandum of Law in 

Support filed herewith, Third Party Defendant Mark Schrader respectfully requests that this 

Honorable Court grant his Motion to Dismiss CCL Label, Inc.’s Third Party Complaint. 

 

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Respectfully Submitted, 

/s/ Ryan P. Sherman_______________ 

Ryan P. Sherman (0075081) 

PORTER WRIGHT MORRIS & ARTHUR LLP 

41 South High Street, Suite 2900 

Columbus, Ohio 43215 

Telephone: (614) 227-2000 

Facsimile: (614) 227-2100 

rsherman@porterwright.com 

Attorney for Third Party Defendant Mark Schrader 

Of Counsel: 

David A. Levine (pro hac vice application forthcoming) 

BLUMLING & GUSKY, LLP 

436 Seventh Avenue 

1200 Koppers Building 

Pittsburgh, Pennsylvania 15219 

Telephone: (412) 227-2500 

Facsmile: (412) 227-2050 

Of Counsel for Third Party Defendant Mark Schrader 

 

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MEMORANDUM OF LAW IN SUPPORT 

I. Background 

This matter arises from an Ohio State Court Complaint filed originally by Plaintiff 

Decker Construction, Inc. (“Decker”) against Defendants Wesex Corporation (“Wesex”) and 

CCL Label, Inc. (“CCL”) (“Decker’s Original Complaint”). At all times relevant hereto, CCL 

was the owner of a construction project, and Wesex was CCL’s general contractor. Plaintiff 

Decker was a subcontractor who performed work on the project for Wesex. The disputes 

underlying this litigation involve compensation claimed due for the work performed. 

After Decker’s Original Complaint was removed to this Court, CCL filed a Third Party 

Complaint attempting to state causes of action against three individual employees and/or officers 

of Wesex, including individual Third Party Defendant Mark Schrader (“Schrader”), alleging that 

those individuals should somehow bear personal financial liability arising from an alleged breach 

of contract between CCL and Wesex. 

For the reasons that follow, Schrader moves to dismiss CCL’s Third Party Complaint. 

II. Relevant Facts 

CCL is incorporated in Michigan with its principal place of business in Framingham, 

Massachusetts. (See Third Party Compl. ¶ 1.) Wesex is a general contractor incorporated in 

Pennsylvania with its principal place of business in West Middlesex, Pennsylvania. (Id. at ¶ 2.) 

CCL engaged Wesex by written agreement in April 2016 (“Agreement”) as a Design-Builder for 

the construction of a new production and office facility located in New Albany, Ohio (“Project”). 

Wesex employed Schrader as an accountant and accounting software specialist from 

January 2016 to October 2017, with a title of “Chief Financial Officer.” Such title, however, was 

in name only as a “perk” of his position as employee. (See Affidavit of Mark Schrader, attached 

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hereto as Exhibit A.) Schrader’s conduct on behalf of Wesex was at all times directed, 

controlled and limited by Owner and CEO Gregory Koledin (“Koledin”) and Chief Design 

Officer Melanie Panutsos (“Panutsos”). (Third Party Compl. ¶¶ 32 and 53; see also Exhibit A.) 

Schrader’s work for Wesex included compiling and signing Applications for Payment for 

all projects performed by Wesex, utilizing information provided and approved by Koledin and 

Panutsos. (See Exhibit A.) 

Schrader at all times resided in Pennsylvania and at all times reported to work at the 

Wesex corporate office located in West Middlesex, Pennsylvania. (See Exhibit A.) When the 

Applications for Payment were sent to CCL, they were sent via email to CCL’s Director of 

Finance, Deborah O’Toole, located at CCL’s Wilkes-Barre, Pennsylvania office. (See 

Exhibit A.) 

III. CCL’s Third Party Complaint Must Be Dismissed as to Defendant Schrader for 

Lack of In Personam Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(2). 

A. Standard of Proof for Dismissal for Lack of In Personam Jurisdiction 

It is well-accepted that, “in opposing a motion to dismiss for lack of personal jurisdiction, 

the burden is on the Plaintiff [CCL] to demonstrate that jurisdiction is proper.” Hutchison v. 

Parent, 2014 WL 198798 (N.D. Ohio 2014); citing Schneider v. Hardesty, 669 F.3d 693, 697 

(6th Cir. 2012); quoting Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2001). Moreover, when 

confronted with a “properly supported motion for dismissal, the plaintiff may not stand on his 

pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has 

jurisdiction.” See Theunissen v. Matthews, 935 F.2d 1454,1458 (6th Cir. 1991) citing Weller v. 

Cromwell Oil Co., 504 F.2d 927, 930 (6th Cir. 1974). 

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B. In Personam Jurisdiction 

In a diversity case such as this, in order to subject a defendant to the in personam 

jurisdiction of the court, the Court must employ a two-part analysis. First, the Court must find 

that Ohio’s long-arm statute permits the exercise of jurisdiction. Second, the Court must find 

that assertion of its jurisdiction over the party is within the limits dictated by due process. See 

Embs v. Jordan Outdoor Enters. 2004 U.S. Dist. Lexis 27962 (S.D. Ohio 2004)(Court granted 

Motion to Dismiss for lack of personal jurisdiction, as to all claims against the individual officer 

of the corporate defendant). Neither of those criteria are met here, nor can CCL properly plead 

any facts that would satisfy those criteria. 

C. Ohio’s Long-Arm Statute 

Ohio’s long-arm statute establishes the statutory requirements for exercising jurisdiction 

over foreign defendants. Ohio Rev. Code Ann. § 2307.382(A). Schrader has not, and is not 

alleged by CCL to have, undertaken any activity in the State of Ohio. To the contrary, CCL’s 

only allegation with regard to the Court’s personal jurisdiction over Schrader is that Schrader is 

subject to the personal jurisdiction of the district because “the events giving rise to CCL’s claims 

occurred in Licking County, Ohio.” However, only Wesex, Schrader’s employer, participated in 

any events occurring in Ohio. CCL disregards the fact that Schrader, the individual, was and is a 

resident of Pennsylvania, who performed all of his job responsibilities in Pennsylvania, and 

communicated with CCL via email with CCL’s office in Pennsylvania. That is to say, although 

jurisdiction might be exercised over his employer Wesex, there is no basis for exercising 

jurisdiction over Schrader individually. None of the bases for jurisdiction under Ohio Rev. Code 

§ 2301.382(A) are satisfied. 

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D. Due Process and Minimum Contacts 

In U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K's Foods, Inc., 624 N.E.2d 

1048 (Ohio 1994), the Ohio Supreme Court observed that the United States Supreme Court has 

held that in order for a state court to subject a party to in personam jurisdiction, the party must 

have certain minimum contacts with [the state] such that the maintenance of the suit does not 

offend "traditional notions of fair play and substantial justice." See Id. (citing Internat’l Shoe 

Co. v. Washington, 326 U.S. 310, 316 (1945)). In formulating this rule, the United States 

Supreme Court emphasized that the analysis "cannot simply be mechanical or quantative," but 

rather whether due process is satisfied depends “upon the quality and nature of the activity.” Id. 

at 319. 

The consideration of minimum contacts serves two functions: first, it protects the 

nonresident defendant ‘against the burdens of litigating in a distant or inconvenient forum’; and 

second, it ensures that the states do not encroach on each other's sovereign interest. World-Wide 

Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). 

Under the Internat’l Shoe doctrine, a non-resident has purposefully established minimum 

contact “where the contacts proximately result from actions by the defendant himself that create 

a ‘substantial connection’ with the forum State...where the defendant ‘deliberately’ has engaged 

in significant activities within a State... or has created ‘continuing obligations’ between himself 

and residents of the forum...” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-476 (1945). 

See also Hutchison v. Parent, Id. (concluding that an Indiana accountant’s contacts with Ohio 

were merely in furtherance of his employment by an Indiana business, precluding the exercise of 

jurisdiction over the individual accountant). 

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“Personal jurisdiction can be either general or specific, depending upon the nature of the 

contacts that the individual has with the forum state.” Kauffman Racing Equip., 930 N.E.2d 784, 

790 (Ohio 2010). "General jurisdiction is proper only where 'a defendant's contacts with the 

forum state are of such a continuous and systematic nature that the state may exercise personal 

jurisdiction over the defendant even if the action is unrelated to the defendant's contacts with the 

state.'" Id., quoting Bird v. Parsons, supra at 873. No such continuous or systematic contacts 

with the state of Ohio exist here with regard to individual defendant Schrader, nor are they 

alleged. 

“A court has specific jurisdiction where a suit arises out of or is related to the defendant's 

contacts with the forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 

414, fn. 8 (1984)). “Specific jurisdiction is consistent with due process only where: (1) the 

nonresident defendant purposely availed himself of the privilege of acting in the forum state or 

caused a consequence in that state, (2) the cause of action arose from the defendant's activities in 

the forum state, and (3) the acts of the defendant or consequences caused by the defendant have a 

substantial enough connection with the forum state to make the exercise of jurisdiction over the 

defendant reasonable.” Id. See also S. Mach.Co. v. Mohasco Indus., Inc., 401 F.2d 381 (6th Cir. 

1968). 

“The purposeful availment requirement ensures that a defendant will not be hailed into a 

jurisdiction solely as a result of random, fortuitous, or attenuated contact, or of the unilateral 

activity of another party or third person.” Schneider, 669 F.3d at 701 (6th Cir. 2012). See also, 

Hutchison, supra, at 7-9. 

CCL must also show that Schrader has a sufficiently substantial connection to Ohio such 

that the exercise of jurisdiction is not unreasonable. The court should consider, among other 

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things, the following factors: (1) the burden on Schrader; (2) the interest of Ohio; (3) CCL’s 

interest in obtaining relief; and (4) other states’ interest in securing the most efficient resolution 

of the policy. Id. Here, the burden on Schrader is significant. As a former employee of Wesex, 

who maintains no contacts with Ohio, and who resides and works in Pennsylvania, Schrader 

should not be made subject to the jurisdiction of the Courts in Ohio. CCL’s relief is as to the 

corporate party, Wesex, with whom CCL had its contract. The claims against Schrader are 

attenuated, at best, where the pleadings admit that Schrader was at all times acting at the 

direction of the principals of Wesex, and not on his own authority. Moreover, CCL 

acknowledges that “Defendant Koledin completely controlled Wesex to such a degree that 

Wesec had no separate mind, will, or existence of its own.” (See Third Party Compl. ¶¶ 32, 53.) 

To the extent that Schrader is alleged to have been a corporate officer, that title in and of 

itself cannot form the basis for the exercise of jurisdiction. “Jurisdiction over the individual 

officers of a corporation cannot be predicated merely upon jurisdiction over the corporation.” 

Weller v. Cromwell Oil Co., 504 F.2d 927, 929 (6th Cir. 1974). See also Costaras v. NBC 

Universal, Inc., 409 F.Supp.2d 897, 905 (N.D.Ohio 2005) citing Galloway v. Lorimar Motion 

Picture Mgmt., Inc., 562 N.E.2d 949 (Ohio App. 5 Dist. 1989). In determining personal 

jurisdiction as to Schrader, the Court must look only at Schrader’s actions taken as an individual. 

See Interior Servs. v. Iverson, 2003 Ohio App. LEXIS 1133 (Ct. App. Ohio 2003). CCL cannot 

“piggy back” jurisdiction over Schrader individually, based on jurisdiction over Schrader’s 

employer Wesex. 

E. The Fiduciary Shield Doctrine 

Generally, the fiduciary shield doctrine prevents a court from considering an individual's 

acts done in an official capacity when analyzing whether the individual is subject to personal 

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jurisdiction in the forum state. State ex rel. DeWine v. S & R Recycling, Inc., 961 N.E.2d 1153, 

¶ 27 (Ohio App., 7th App. Dist. 2011)(Complaint against corporate shareholders and officers 

dismissed for lack of personal jurisdiction); see also Embs v. Jordan Outdoor Enters., 2004 U.S. 

Dist. LEXIS 27962 (S.D. Ohio 2004)(Complaint against CEO of corporate defendant dismissed 

for lack of personal jurisdiction). 

Although there are limited exceptions to the fiduciary shield doctrine, those exceptions 

are not addressed unless the Court first can establish personal jurisdiction. As set forth in this 

Court’s analysis in Embs, supra., “in order for the doctrine to come into issue, plaintiff must first 

demonstrate that this Court has personal jurisdiction over [individual defendant]. ... Before 

Plaintiff gets to the exceptions to the doctrine, he must first demonstrate that [individual 

defendant] is subject to jurisdiction in Ohio.” Id. at 20. Neither the fiduciary shield doctrine, nor 

the exceptions to the fiduciary shield doctrine sought to be argued by CCL, are triggered here, as 

there is no basis in the first instance for the exercise of the Court’s jurisdiction over Schrader. 

F. Analysis 

The sole action undertaken by Schrader which CCL has alleged is the execution of 

purportedly fraudulent Payment Applications. Those payment applications are standard forms 

used in the industry, and the forms required by the contract between CCL and Wesex. 

Schrader’s job responsibility at Wesex required him to compile and sign those documents under 

Koledin’s direction and oversight. Schrader did not prepare the language of the Payment 

Applications, nor did Schrader have the final authority to itemize the amounts paid or to be paid 

and lacked authority to write or sign checks. (See Exhibit A.) Rather, that information was 

supplied to Schrader by Koledin and Panutsos. (See Exhibit A.) Schrader had no independent 

knowledge with regard to the status of the CCL project; rather he relied at all times on 

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information provided by Koledin and Panutsos. No other action, at any time or of any kind, is 

alleged by CCL with regard to Schrader. 

As to the allegedly wrongful filing of a mechanic’s lien by Wesex in 2018, the Court may 

take judicial notice of the fact that Schrader was no longer employed by Wesex after October 13, 

2017, and had no actual or alleged role in the filing of the mechanic’s lien. (See Exhibit A.) 

Certainly, there is no allegation that Schrader individually was a party to the alleged lien claim, 

or any other legal action in Ohio. 

CCL does not contend that Schrader has any, let alone continuous and systematic, contact 

with Ohio such that Schrader would be subject to either general or specific jurisdiction in Ohio. 

Schrader resides in Pennsylvania (Third Party Compl. ¶ 5) and has no business, real estate, home 

or employment in the State of Ohio. (See Exhibit A.) During his employment at Wesex, 

Schrader reported to work at the Wesex corporate office located in West Middlesex, 

Pennsylvania. (See Exhibit A.) He is a licensed Certified Public Accountant in the 

Commonwealth of Pennsylvania, but is not licensed in the State of Ohio. (See Exhibit A.) 

The Applications for Payment were prepared and executed in Pennsylvania and those 

Applications were emailed to CCL, which is headquartered in Massachusetts, at its Pennsylvania 

office. (See Exhibit A.) These actions undertaken by Schrader on behalf of Wesex cannot be 

considered the “purposeful availment of the privilege of acting” in Ohio. 

IV. CCL’s Third Party Complaint Must Be Dismissed as to Defendant Schrader for 

CCL’s Failure to State a Claim Upon Which Relief Can Be Granted. 

A. Fed. R. Civ. P. 12(b)(6) 

In Count Two of its Third Party Complaint, CCL asserts a claim alleging Schrader’s 

fraudulent misrepresentation during the course of his employment by Wesex. CCL appears to 

allege that Schrader, under the direction of Koledin and Panutsos, prepared and executed 

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Applications for Payment for the work performed by Wesex and its subcontractors. (See Third 

Party Compl. ¶¶ 32, 53.) 

Under Federal Rule of Civil Procedure 12(b)(6), a purported cause of action may be 

dismissed when the complaint fails to state a claim upon which relief can be granted. To survive 

a motion to dismiss under Rule 12(b)(6), the complaint must meet two criteria: 

1. It must assert a plausible claim; and 

2. It must set forth sufficient factual allegations to support the claim. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 

544 (2007)). 

Pleadings are no longer satisfied by “an unadorned the-defendant-unlawfully-harmed me 

accusation.” Iqbal, 556 U.S at 678 (citing Twombly, 550 U.S. at 555). Neither a “formulaic 

recitation of the elements of a cause of action” nor “naked assertions [of fact] devoid of further 

factual enhancement” is sufficient to withstand dismissal. Id. A claim is plausible on its face 

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Id. at 1940 (citing Twombly, 550 U.S. at 

556). 

The facts in the complaint must “raise a right to relief above the speculative level,” and 

into the “realm of plausible liability.” See Twombly, 550 U.S. at 555. In other words, the 

complaint must allege enough facts to move past possibility and on to plausibility of “entitlement 

to relief.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 558. 

Determining whether a complaint states a plausible claim for relief [is]...a 

context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense. But where 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, 556 U.S. at 663-664 (quoting Fed. R. Civ. P. 8(a)(2)) (internal citation omitted). 

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B. Fraudulent Misrepresentation 

Under Ohio law, the elements of a cause of action for fraudulent misrepresentation or 

concealment are (a) a representation or, where there is a duty to disclose, concealment of a fact, 

(b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or 

with such utter disregard and recklessness as to whether it is true or false that knowledge may be 

inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance 

upon the representation or concealment, and (f) a resulting injury proximately caused by the 

reliance. Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709 (Ohio 1987). 

Factual allegations with regard to fraud or mistake, as alleged here by CCL, must state 

“with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). With regard to 

the first and second elements of fraudulent misrepresentation, here, however, CCL has failed to 

allege which Applications for Payment and what contained in those documents was fraudulently 

prepared by Schrader, or intentionally disseminated by Schrader with the intent of misleading 

another. Rather, the allegations against Schrader are that he was directed to execute the 

Applications for Payment by his employer using information provided by his employer. (See 

Third Party Compl. ¶¶ 32, 53.) 

As to Schrader’s “knowledge of falsity” and “intention of misleading another,” Schrader 

relied at all times on information regarding the Project and the overall status of Wesex provided 

by Koledin and Panutsos. He was directed to execute the Applications for Payment, using the 

forms required by the parties’ contract, which were prepared in reliance on that information 

provided by Koledin and Panutsos. 

CCL’s allegations of “justifiable reliance” are also misplaced, given that the obligation to 

submit the Applications for Payment and affidavits was dictated by the parties’ contract. CCL’s 

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failure to raise any objection to an alleged breach by Wesex for failure to include subcontractor 

lien waivers to at least 17 Applications for Payment constitutes a waiver of such a claim. The 

parties’ written agreement was modified as the result of CCL’s course of conduct in accepting 

those Applications without requiring subcontractor lien waivers. To the extent that CCL claims 

that Wesex breached the parties’ contract as a consequence of submitting improper Applications, 

the cause of action is one for breach of contract against Wesex – which CCL has in fact alleged 

as Count One of their Complaint. CCL cannot convert the breach of contract action into a tort 

claim against an individual employee of Wesex, where CCL’s recourse or cause of action sounds 

solely in assumpsit. CCL’s attempt to characterize an alleged breach of contract by Wesex as a 

fraudulent misrepresentation by Schrader is specious and not in accordance with Ohio law. 

With regard to the “resulting injury proximately caused by the reliance,” CCL has failed 

to allege that payments were made to Wesex for those Applications for Payment submitted by 

Wesex, up to and including Application for Payment No. 17. Rather, CCL merely alleges that it 

would have terminated Wesex had the Applications for Payment indicated that that certain 

subcontractors had not been paid. CCL makes no statement as to what funds, including funds 

related to rejected Applications for Payment, disputed work or retainage, have been withheld 

from Wesex. Indeed, CCL can make no such allegation. The underlying factual dispute between 

CCL and Wesex reveals that CCL did, in fact, withhold hundreds of thousands of dollars from 

Wesex because of CCL’s actual understanding that some of the subcontractors were not paid. 

Accordingly, CCL has not alleged, nor can CCL ever plead, that CCL released money to its 

detriment in reliance on the payment applications signed by Schrader. As CCL has not and 

cannot plead that element of its claim of fraud against Schrader, the cause of action must fail and 

be dismissed. This failure illustrates the over-reaching nature of CCL’s ill-conceived attempt to 

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convert a breach of contract action against Wesex, into a claim for individual liability against a 

former employee of Wesex. 

V. Conclusion 

 For all of the foregoing reasons, Third Party Defendant Mark Schrader respectfully 

requests that this Honorable Court dismiss all claims against him in CCL’s Third Party 

Complaint, and that this Court issue all such other and further relief as may be just and 

necessary. 

Respectfully Submitted, 

/s/ Ryan P. Sherman_______________ 

Ryan P. Sherman (0075081) 

PORTER WRIGHT MORRIS & ARTHUR LLP 

41 South High Street, Suite 2900 

Columbus, Ohio 43215 

Telephone: (614) 227-2000 

Facsimile: (614) 227-2100 

rsherman@porterwright.com 

Attorney for Third Party Defendant Mark Schrader 

Of Counsel: 

David A. Levine (pro hac vice application forthcoming) 

BLUMLING & GUSKY, LLP 

436 Seventh Avenue 

1200 Koppers Building 

Pittsburgh, Pennsylvania 15219 

Telephone: (412) 227-2500 

Facsmile: (412) 227-2050 

Of Counsel for Third Party Defendant Mark Schrader 

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CERTIFICATE OF SERVICE 

I hereby certify that on September 28, 2018, I electronically filed the foregoing with the 

Clerk of Court using the CM/ECF system, which will automatically send a notification of such 

electronic filing to all counsel of record in this case who are registered CM/ECF users and I have 

served any non-ECF users by first class mail with postage prepaid. 

/s/ Ryan P. Sherman_______________ 

Ryan P. Sherman (0075081) 

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