.:_^.

IN THE SUPREME COURT OF OHIO

CASE NO. 2012-1877

COREY D. LUCASPlaintiff-Appellant,

-vs-

P&L PARIS CORP., et al.Defendant-Appellees.

ON APPEAL FROM THE OHIO SEVENTH APPELLATE DISTRICT,MAHONING COUNTY, CASE NO. 2011 MA 00104

THACKRAY CRANE RENTAL, INC.-APPELLEES' RESPONSETO MEMORANDUM IN RESPONSE TO JURISDICTION

OF PLAINTIFF/APPELLANT, COREY D. LUCAS

Andrew S. Goldwasser, Esquire (#0068397)CIANO & GOLDWASSER, L.L.P.1610 Midland Building101 Prospect Avenue, WestCleveland, Ohio 441115(216) 658-9900Fax: (216) 658-9920

Paul W. Flowers, Esquire (#0046625)[Counsel of Record]PAUL W. FLOWERS CO., L.P.A.Terminal Tower, 35t" Floor50 Public SquareCleveland, Ohio 44113(216) 344-9393Fax: (216) 344-9395

Plaintiff-Appellant,

ao"V E 0- -1

Eric N. Anderson, Esquire (#0087152)Meyer, Darragh, Buckler, Bebenek& Eck, P.L.L.C.U.S. Steel Tower, Suite 4850600 Grant StreetPittsburgh, PA 15219(412) 261-6600Fax: (412) 471-2754

Attorney for Defendant-Appellees, ThackrayCrane Rental, Inc.

diEAD

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TABLE OF CONTENTS

Page

Statement Of Appellee That This Case Is Not Of Publicand Great General Importance ..............................................1

Counter-Statement Of The Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Counter-Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. Lucas' Injuries Did Not Arise Out of Business OrTransactions in Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. Thackray Crane Does Not Regularly And Continuously TransactBusiness in Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument ..... ...............................................................8

I. The Lower Courts Did Not Err In Determining That Thackray Crane Has

Not Transacted Business In Ohio And That Exercising Jurisdiction OverThackray Crane Would Not Comport With Due Process . . . . . . . . . . . . . . . . . . . 8

a. Thackray Crane Is Not Subject To Personal Jurisdiction In OhioBecause It Was Not "Transacting" Business Within The MeaningOf The Long-Arm Statute Or Civil Rule And Plaintiff's Causes OfAction Against Thackray Crane Do Not Arise From Any OhioBusiness . .................................................. 8

b. Granting Jurisdiction Over Thackray Crane Under The Long-ArmStatute Deprives Defendant Of Due Process As EstablishedBy The Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. The Lower Courts Did Not Misapply The Relevant Standards In Determining

That Lucas Failed To Sustain His Burden To Establish Personal Jurisdiction

Pursuant To Ohio's Long-Arm Statute and Civil Rule . . . . . . . . . . . . . . . . . . . . . 12

a. Lucas Did Not Sustain His Burden To Establish JurisdictionBy A Preponderance Of The Evidence Despite Extensive Discovery

And An Oral Hearing On The Issue Of Personal Jurisdiction. ........ 12

b. Lucas Did Not Sustain His Burden To Establish A Prima FacieCase Of Personal Jurisdiction In His Pleadings Or Otherwise . ........ 14

P1037855.1 ii

Conclusion ..................................................................15

Proof of Service ............................................................. 16

P1037855.1 iii

STATEMENT OF APPELLEE THAT THIS CASE IS NOT OF PUBLICAND GREAT GENERAL INTEREST

The appeal of Plaintiff/Appellant, Corey D. Lucas (Lucas), does not involve an issue of

public or great general interest. Lucas failed to plead or otherwise make a prima facie showing of

personal jurisdiction over Defendant/Appellee, Thackray Crane Rental, Inc. (Thackray Crane),

pursuant to Civ. R. 12(b)(2). As the trial court observed, Lucas' amended complaint states only that

Thackray Crane has a principal place of business located in Philadelphia, Pennsylvania, and does not

allege that Thackray Crane has transacted any business in the State of Ohio. Further, the

documentary evidence submitted in support ofjurisdiction is not sufficient for a reasonable mind to

conclude that the trial court possessed personal jurisdiction over Thackray Crane. Because Lucas

did not plead or otherwise present a prima facie case of personal jurisdiction, the trial court did not

err in granting Thackray Crane's motion to dismiss for lack of personal jurisdiction, which the Court

of Appeals for the Seventh District (Court of Appeals) properly affirmed.

The Court of Appeals also determined that Lucas did not establish personal jurisdiction over

Thackray Crane by a preponderance of the evidence, observing that Lucas was afforded the

opportunity to engage in discovery limited to the issue of personal jurisdiction, the evidence

discovered was presented to the trial court, and the trial court held oral argument on the issue of

personal jurisdiction. Despite the extensive discovery performed by Lucas, there is no evidence

establishing that Thackray Crane provided any services in the state of Ohio or maintained any

meaningful contact with Ohio aside from invoices and communications necessary to procure

payment for services rendered in Pennsylvania. The evidence submitted by Lucas at oral argument

is not disputed and a more formal hearing for the trial court to render credibility determinations

P1037855.1 1

based on the demeanor of the witnesses, therefore, was not necessary. Any allegation that Lucas was

prejudiced because the trial court did not hold an evidentiary hearing is disingenuous. Because Lucas

was afforded the opportunity to engage in unfettered discovery and credibility determinations were

not necessary to resolve conflicts in the evidence, the oral argument held before the trial court was

an evidentiary hearing. Accordingly, the Court of Appeals did not err in determining that Lucas

failed to establish personal jurisdiction by a preponderance of the evidence.

In essence, Lucas is requesting that the Supreme Court review all of the evidence, which the

trial court and Court of Appeals properly reviewed, and substitute its decision for that of the lower

courts. However, the decision of the trial court was based on a comprehensive and uncontested

factual record developed through discovery and submitted by Lucas in opposition to Thackray

Crane's motion to dismiss. Because the lower courts correctly determined that Lucas was unable

to establish a prima facie case of personal jurisdiction, let alone personal jurisdiction by a

preponderance of the evidence, the present appeal does not present an issue of public or great general

interest. Simply stated, the lower courts did not misapply the relevant burdens of proof in

determining that Lucas failed to establish personal jurisdiction pursuant to Civ.R. 12(b)(2).

COUNTER-STATEMENT OF THE CASE

Irwin & Leighton, Inc. (Irwin & Leighton), is a Pennsylvania corporation, and was the

general contractor at the Upland Square Shopping Center construction site located in Pottstown,

Pennsylvania. Irwin & Leighton engaged the services of P&L Paris (P&L), an Ohio corporation, as

a subcontractor to perform construction services at the site. In turn, P&L engaged Thackray Crane,

a Pennsylvania corporation, to provide a crane and crane operator to the construction site. R. 42,

Plaintiff's First Amended Complaint. Thackray conducts all of its business in Pennsylvania, New

P1037855.1 2

Jersey and the Delmarva Peninsula. R. 95, Wagner Dep., pgs. 33, 3 7-38, 51, 65-66. On November

20, 2008, Lucas, an Ohio resident, fell approximately twenty feet at the construction site in the

course of his employment with P&L. R. 42, Plaintiff's First Amended Complaint at ¶8, 9.

Lucas filed an amended complaint, alleging that Thackray Crane is a crane rental company

with its principle place of business located at 2071 Byberry Road, Philadelphia, PA 19116. R. 42,

pg. S. Lucas did not allege that Thackray Crane conducts any business or has ever conducted any

business in the state of Ohio. In response to the amended complaint, Thackray Crane filed a motion

to dismiss and supporting brief, averring that the trial court lacked personal jurisdiction under Rule

of Civil Procedure 12(B)(2). Subsequently, the parties engaged in discovery limited to the factual

basis for Thackray Crane's motion to dismiss. Lucas was granted additional time to prepare a

response to the motion and to take the deposition of Benjamin Wagner, the risk management

representative for Thackray Crane. After the deposition of Mr. Wagner, Lucas subpoenaed volumes

of documents from a number of companies identified by Mr. Wagner as having conducted business

with Thackray. Following the completion of discovery, Lucas submitted a brief along with a

comprehensive evidentiary record in opposition to Thackray Crane's motion to dismiss. On May

9, 2011, and based on the undisputed record submitted by Lucas, the trial court heard oral arguments

on the motion to dismiss and response.

In ajudgment entry dated June 20, 2011, the trial court found that Lucas did not sustain his

burden to establish a prima facie case of personal jurisdiction. Specifically, the trial court found that

Lucas' amended complaint indicates only that Thackray Crane has a principal place of business

located in Philadelphia, Pennsylvania, does not contain an allegation regarding the residence of

Thackray Crane's alleged agent, or any allegations that Thackray Crane has conducted any business

P1037855.1 3

whatsoever in the State of Ohio. R. 42, ¶5. The trial court also reviewed, and cited to, the evidence

submitted by Lucas in support of personal jurisdiction.

The trial court found that the evidence and testimony submitted by Lucas demonstrated that

Thackray Crane did not solicit business in Ohio, the contract between P&L and Thackray was

created in Pennsylvania as opposed to Ohio, the contract was governed by Pennsylvania law, and all

contracts for work by Thackray Crane with P&L and other Ohio companies were for work to be

performed in Pennsylvania, New Jersey, or the Delmarva Peninsula. Based on these findings, the

trial court concluded that the evidence was not sufficient to demonstrate that Thackray Crane

transacted business in the State of Ohio and that Lucas, therefore, did not establish a prima facie case

of personal jurisdiction. Lucas Apx. 00012-00020.

The trial court also concluded, based on the evidence submitted, that even if Lucas had

established a prima facie case of jurisdiction over Thackray Crane, jurisdiction under Ohio's long-

arm statute would deprive Thackray Crane of due process under the Fourteenth Amendment. In so

concluding, the trial court found that Thackray Crane did not purposefully avail itself of acting in

Ohio where Thackray Crane was recruited in Pennsylvania to complete work in Pennsylvania.

Second, the trial court found that Lucas' cause of action did not arise from Defendant's activities in

Ohio where Thackray Crane's contact with Ohio was limited to communications necessary to

procure payment for services rendered in Pennsylvania. Finally, the trial court found that the

exercise of personal jurisdiction over Thackray Crane in Ohio does not comport with due process

where Thackray Crane's contacts with Ohio are attenuated at best and Thackray Crane is in the

business of supplying cranes and construction services in Pennsylvania, New Jersey and the

P1037855.1 4

Delmarva Peninsula. Appropriately, the trial court granted Thackray Crane's motion to dismiss for

lack of personal jurisdiction pursuant to Civ.R. 12(b)(2). Lucas Apx. 00020.

On appeal, the Court of Appeals found that, in essence, the trial court held a hearing on

Thackray Crane's motion to dismiss for lack of personal jurisdiction and that Lucas, therefore, was

required to establish personal j urisdiction by a preponderance of the evidence. In discerning whether

the evidence was sufficient to establish that Thackray Crane transacted business in Ohio, the Court

of Appeals found that Thackray Crane never performed work, entered a contract, or solicited

business in Ohio. The Court of Appeals also observed that Thackray Crane's principal place of

business is located in Pennsylvania and that Thackray Crane enters into its contracts at job sites

located in Pennsylvania, New Jersey, and the Delmarva Peninsula. Finally, the Court of Appeals

noted that the alleged negligence occurred at ajob site in Pennsylvania. Based on these findings, the

Court of Appeals determined that Lucas did not sustain his burden to demonstrate personal

jurisdiction over Thackray Crane by a preponderance of the evidence. Lucas Apx. 0003-00011.

The Court ofAppeals also determined that granting personal jurisdiction would not comport

with due process. The Court of Appeals found that Thackray Crane did not purposely avail itself of

the privilege of acting in the State of Ohio nor did it cause a consequence in Ohio. The Court of

Appeals also observed that the cause of action did not arise from Thackray Crane's activities in

Ohio. Finally, the Court of Appeals found that Thackray Crane's acts or consequences were not

sufficient to establish a substantial connection to Ohio. Based on these findings, the Court of

Appeals determined that the exercise of jurisdiction over Thackray Crane would not be

fundamentally fair and reasonable. Accordingly, the Court of Appeals affirmed the decision of the

P1037855.1 5

trial court, concluding that Ohio's long-arm statute and civil rule do not confer personal jurisdiction

in this case. Id.

COUNTER-STATEMENT OF THE FACTS

1. Lucas' injuries did not arise out of business or transactions in Ohio.

Contrary to Lucas' assertions, his injuries did not arise out of any contacts which Thackray

had with Ohio. On November 20, 2008, Mr. Lucas was positioned twenty feet above the ground on

an unsecured steel girder in the course of his employment with P&L in Pottstown, Pennsylvania.

R. 42, Plaintiff's Amended Complaint at ¶8, 9. Lucas was not wearing any type of fall protection.

It is alleged that William Poyner, Sr., an employee of Thackray Crane, released a bundle of steel

causing the area where Lucas was standing to give way. The complaint simply identifies William

Poyner, Sr., as an individual who operated the crane and allegedly caused or contributed to the

plaintiff's injuries.' Thackray Crane is identified as a crane rental and construction support company

with a principle place of business located in Philadelphia, Pennsylvania. Id.

None of the counts in the complaint attempt to distinguish one defendant's conduct from

another nor does the complaint allege that Thackray Crane transacted business in Ohio. Practically

speaking, the only allegations directed to Thackray Crane are that it was negligent in dropping a load

on an unsecured platform and was possibly negligent in hiring, training, retraining and supervising

'The first count is directed to P&L, the employer of Mr. Lucas. The second count sets fortha claim of negligence against all of the defendants collectively. The third count simply states that allof the defendants' conduct was carried out with conscious disregard for the safety of the plaintiff andin an intentional, reckless, willful, wanton and malicious manner, thereby, subjecting the defendantsto punitive damages as well as compensatory damages. The fourth count is directed to WilliamPoyner, Sr. and contains allegations that he was negligent in his capacity as an employee or agentof Thackray Crane while operating the crane. Count five, the final count, alleges that ThackrayCrane is vicariously liable for the negligence of Mr. Poyner.

P1037855.1 6

its employees. All of the conduct described in the amended complaint occurred in Pennsylvania.

Further, Lucas does not state that the contract entered into between Thackray and P&L was formed

in Ohio. In fact, there is no evidence that the agreement whereby P&L rented the subj ect crane from

Thackray Crane had any connection with Ohio or was entered into in Ohio. To the contrary, the

evidence through the testimony of Mr. Wagner, Thackray Crane's Risk Manager, demonstrates that

the agreement was most likely entered into at the job site in Pennsylvania. Wagner Dep., 3/16/2011.

This is where P&L Paris was performing its services and where the alleged incident of negligence

occurred. Accordingly, Lucas' injuries have not relationship to the State of Ohio.

II. THACKRAY DOES NOT REGULARLY AND CONTINUOUSLY

TRANSACT BUSINESS IN OHIO.

All of Thackray Crane's business is conducted in Pennsylvania, New Jersey and the

Delmarva Peninsula. When companies from other states have work in that geographic area, they

may contact Thackray Crane in order to rent a crane, operator and possibly an oiler. Some of those

companies have headquarters located in the State of Ohio. The general practice is that a company

will contact Thackray Crane to inquire about renting a crane and operator when that company

requires Thackray Crane's services in Pennsylvania, New Jersey, or the Delmarva Peninsula. Ajob

ticket is used to evidence the actual agreement between Thackray Crane and its customers, and is

almost always executed at the job sites in Pennsylvania, New Jersey, or the Delmarva Peninsula.

Thus, the contracts between Thackray Crane and its customers, including P&L, are created in

Thackray Crane's geographic area for work to be completed in that area. Wagner Dep. 3/16/2011.

Further, the job tickets and resulting contract are governed by Pennsylvania law. When Thackray

Crane's work is completed an invoice is sent to the customer for payment. Numerous invoices are

sent to the various companies for payment and sometimes there is follow-up correspondence,

P1037855.1 7

including telephone calls, in order to acquire payment for services rendered. However, Thackray

Crane does not solicit business from companies located in Ohio.

ARGUMENT

1. THE LOWER COURTS DID NOT ERR IN DETERMINING THATTHACKRAY CRANE HAS NOT TRANSACTED BUSINESS IN OHIO ANDTHAT EXERCISING JURISDICTION OVER THACKRAY CRANE WOULDNOT COMPORT WITH DUE PROCESS.

The determination of whether an Ohio court has personal jurisdiction over a nonresident

defendant involves a two-step process. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53

Ohio St.3d 73, 559 N.E.2d 477 (1990); Sherry v. Geissler U. Pehr. GmbH, 100 Ohio App.3d 67,651

N.E.2d 1383 (8th District 1995). First, the court must determine whether Ohio's long-arm statute

and applicable civil rule confer personal jurisdiction. Goldstein v. Christiansen, 70 Ohio St.3d 232,

638 N.E.2d 541 (1994). If jurisdiction is conferred, the court must determine whether granting

jurisdiction over the defendant comports with due process of law under the Fourteenth Amendment

to the United States Constitution. Id. Here, the lower courts properly determined that the trial court

did not have personal jurisdiction over Thackray Crane under Ohio's long-arm statute or civil rule

and that asserting personal jurisdiction over Thackray Crane would not comport with due process.

a. Thackary Crane is not subject to personal jurisdiction in Ohio because it wasnot "transacting" business within the meaning of the long-arm statute or civilrule and plaintiff's causes of action against Thackary Crane do not arise from

any Ohio business.

Section (A)(1) of Ohio's long-arm statute, provides as follows:

(A) A court may exercise personal jurisdiction over a person who

acts directly or by an agent, as to a cause of action arising from the

person's:

(1) Transacting any business in this state...

P1037855.1 8

R.C. 2307.382.2 As the Supreme Court of Ohio has observed, the provisions of the statute and rule

relating to "transacting any business in Ohio" are broadly worded, encompassing the prosecution of

negotiations as well as business dealings, and permit a court to exercise jurisdiction in cases

involving actual contracts, as well as cases involving business negotiations that were only partly

concluded. KentuckXOaks Mall Co., 53 Ohio St.3d at 75 (1990). However, a nonresident's mere

solicitation of business in Ohio, without more, does not constitute transacting business in Ohio.

Goldstein v. Christiansen; Hammill Mfg . Co. v. Quality Rubber Prod., Inc., 612 N.E.2d 472, 475

(1992); U S Sprint Communications Co. Ltd. v. Mr. K's Food, Inc., 624 N.E.2d 1048, 1051 (Ohio

1994). Rather, the court must view the evidence in its entirety to determine in which jurisdiction the

parties communicated, and on what terms. Ricker v. Franza/Forklift of Detroit, 828 N.E.2d 205

(Ohio App. 2005).

Here, the evidence of record is not sufficient to establish personal jurisdiction under Ohio's

long-arm statute or civil rule. Although Thackray Crane has eight or nine customers from Ohio,

Thackray has never performed any work in Ohio and has not entered into any contracts in Ohio. To

the contrary, all of Thackray Crane's work is performed in Pennsylvania, New Jersey, and the

Delmarva Peninsula. Thackray Crane enters into its contract for work at its job sites with the

2 Similarly, Civ.R. 4.3 (A)(1) describes, in relevant part, the persons subject to long-armjurisdiction and extraterritorial service of process as follows:

(A) When service permitted. Service of process may be made outside of this state ** * upon a person who ***, acting directly or by an agent, has caused an event tooccur out of which the claim that is the subject of the complaint arose, from the

person's:

(1) Transacting any business in this state ...

Civ.R. 4.3 (A)(1).

P1037855.1 9

completion of ajob ticket. These contracts are governed by Pennsylvania law. Thackray Crane's

principal place of business is located in Pennsylvania and Thackray Crane does not typically solicit

business from companies in Ohio with marketing materials or otherwise. In fact, Thackray Crane's

communication with the companies in Ohio is limited to sending invoices and communications

necessary to procure payment for work performed in Pennsylvania, New Jersey, and the Delmarva

Peninsula. Further, the alleged incident of negligence occurred in Pennsylvania. Wagner Dep.

3/16/11. Although the court is to construe competing factors in favor of Lucas, the evidence of

record is not controverted, and there is no indicia that Thackray Crane has transacted business in

Ohio. Accordingly, the lower courts did not err in determining that Ohio's long-arm statute and civil

rule do not confer personal jurisdiction over Thackray Crane.

b. Granting jurisdiction over Thackary Crane under the long-arm statute deprivesdefendant of due process as established by the Fourteenth Amendment.

Assuming, arguendo, that Lucas did sustain his burden to establish personal jurisdiction

under Ohio's long-arm statute and civil rule, the lower courts properly determined that conferring

jurisdiction over Thackray Crane would not comport with due process. Within Ohio, "[t]o establish

specific jurisdiction consistent with due process, a plaintiff must demonstrate (1) that the defendant

purposefully availed himself of the privilege of acting in the forum state or caused a consequence

in the forum 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 had a substantial enough

connection with the forum state to make the exercise ofjurisdiction over the defendant reasonable."

Fritz-Rumer-Cooke Co., Inc. v. Todd & Sargent, (Feb. 8, 2001), Franklin App. No. OOAP-817,

(citing Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir. 2000)).

P1037855.1 10

Here, Thackray Crane did not purposefully avail itself of acting in Ohio nor did it cause a

consequence in Ohio. Rather Thackray Crane was recruited in Pennsylvania to complete work in

Pennsylvania, which is insufficient to establish purposeful availment. See Weiskopf Industries Corp.

v. Hidden Valley Towel, Inc., No. 67436, 1994 WL 716342 (Ohio Ct. App. Dec. 22, 1994)

(providing that the alleged contacts are not sufficient to establish personal jurisdiction where the

defendant is recruited in another state to perform work in that state). Assuming Thackray Crane's

negligence was the cause of Lucas' injuries, the alleged negligence occurred in Pennsylvania.

Further, the alleged cause of action did not arise from Thackray Crane's contacts with Ohio.

Thackray Crane's contact with P&L in Ohio was limited to perhaps providing a quote for the work

and an invoice following the completion of the work as well as communications necessary to acquire

payment for services rendered in Pennsylvania. These contacts were attenuated at best and do not

constitute the minimum contacts required by the Fourteenth Amendment. Finally, the alleged acts

by Thackray Crane or the alleged consequences caused by Thackray Crane are not substantial enough

to make the exercise ofjurisdiction over Thackray Crane in Ohio reasonable. Even though there is

evidence of some communication between Thackray Crane and companies in Ohio, Thackray

Crane's business is, supplying cranes and providing construction services in Pennsylvania, New

Jersey and the Delmarva Peninsula. Thackray Crane enters into its contracts in Pennsylvania, these

contracts are governed by Pennsylvania law, and Thackray Crane does not perform work in Ohio.

Based on the above reasoning, jurisdiction over Thackray Crane in Ohio does not comport with due

process under the Fourteenth Amendment.

II. THE LOWER COURTS DID NOT MISAPPLY THE RELEVANTSTANDARDS IN DETERMINING THAT LUCAS FAILED TO SUSTAIN HISBURDEN TO ESTABLISH PERSONAL JURISDICTION PURSUANT TOOHIO'S LONG-ARM STATUTE AND CIVIL RULE.

P1037855.1 1 1

When a defendant avers that the court lacks personal jurisdiction, the plaintiff bears the burden

to establish the court's jurisdiction. Jurko v. Jobs Europe Agency, 43 Ohio App.2d 79, 334 N.E.2d

478 (8`h District 1975). In determining whether the court has personal jurisdiction, the court may

properly review the allegations contained in the pleadings, affidavits, depositions, interrogatories, and

may take oral testimony. Id. If the court decides the issue of personal jurisdiction based solely on

written material without the benefit of an evidentiary hearing, the plaintiff bears the burden to plead

or otherwise present a prima facie showing of jurisdiction. Priess v. Fisherfolk, 535 F.Supp. 1271

(S.D. Ohio 1982); Giachetti v. Holmes, 14 Ohio App.3d 306, 471 N.E.2d 165 (1984); Jurko. A

plaintiff sustains his burden to establish a prima facie case of jurisdiction when reasonable minds

could find personal jurisdiction based on the pleadings and documentary evidence presented.

Giachetti. In determining whether the plaintiff has sustained this burden, the court must view the

allegations in the pleadings and documentary evidence in the light most favorable to the plaintiff and

resolve all reasonable competing inferences in favor of the non-moving party. Id. However, if the

court holds an evidentiary hearing, the plaintiff bears the burden to establish personal jurisdiction by

a preponderance of the evidence. Id. The court may conduct an evidentiary hearing on the motion,

at the trial, or at a separate trial on that defense. Id.

a. Lucas did not sustain his burden to establish jurisdiction by a preponderance of

the evidence despite extensive discovery and an oral hearing on the issue of

personal jurisdiction.

Lucas avers that the trial court did not conduct an evidentiary hearing and that the Court of

Appeals, therefore, erred in reviewing the evidence to discern whether Lucas established personal

jurisdiction by a preponderance of the evidence. However, after Thackray Crane's motion to dismiss

under Civ.R.12(b)(2) was filed, the trial court granted Lucas the opportunity to complete discovery

P1037855.1 12

unlimited in time and scope for the purpose of contesting the motion. Thackray Crane produced

numerous documents at the request of Lucas' counsel. Counsel for Lucas took a lengthy deposition

of Ben Wagner on March 16, 2011. Following the deposition of Mr. Wagner and production of

numerous documents, counsel for Mr. Lucas served subpoenas on a number of Thackray Crane's

customers in Ohio, who produced numerous documents consisting almost exclusively of invoices for

work that Thackray Crane completed in Pennsylvania.

On May 9, 2011, a hearing was held on Thackray Crane's motion to dismiss. At that time, all

of the documentary evidence acquired throughout discovery was submitted to the trial court for its

review. There was no evidence presented to the court that contradicted the deposition testimony of

Mr. Wagner and his testimony has been cited by Lucas and Thackray Crane without dispute concerning

its truthfulness and reliability. The veracity and reliability of the written evidence presented to the trial

court has also never been in dispute. Because there were no conflicts in the evidence and the credibility

of the sole witness was not at issue, a more formal proceeding for the trial court to resolve conflicts

in the evidence and render credibility determinations based on live testimony was not necessary. See

Priess, 535 F. Supp. at 1276 (providing that the purpose of an evidentiary hearing is to resolve disputed

issues of credibility and fact concerning personal jurisdiction.) In other words, simply because the trial

court did not take live testimony and render credibility determinations does not establish the

proceeding before the trial court was not an evidentiary hearing. If the trial had held a more formal

proceeding, Thackray Crane would have simply stipulated to the veracity and reliability of the

evidence acquired through discovery by Lucas.

Accordingly, the Court of Appeals properly found that the trial court did hold a hearing at

which time all of the evidence relevant to the case was presented, including the undisputed testimony

P1037855.1 13

of Mr. Wagner, and therefore, Lucas was required to offer proof by a preponderance of the evidence

to support personal jurisdiction. Jurko; Giachetti. As previously discussed, the evidence submitted

by Lucas was insufficient to establish personal jurisdiction under Ohio's long-arm statute or civil rule,

and conferring jurisdiction over Thackray Crane does not comport with due process. Thus, the lower

courts did not err in determining that Lucas did not sustain his burden to establish personal

jurisdiction.

b. Lucas did not sustain his burden to establish a prima facie case of personal

jurisdiction in his pleadings or otherwise.

Assuming, arguendo, that the proceeding before the trial court was not an evidentiary hearing, the trial

court specifically found that Lucas did not plead or otherwise establish a prima facie case of personal

jurisdiction, which the Court of Appeals properly affirmed. As stated, in order to establish a prima

facie case of jurisdiction, Lucas was required to plead or otherwise establish facts sufficient for a

reasonable mind to conclude that Thackray Crane transacted business in Ohio. Giachetti; Jurko.

However, the amended complaint filed by Lucas alleged only that Thackray Crane maintains a

principal place of business in Pennsylvania. R. 42, Plaintiff's Amended Complaint, ¶5. Nowhere in

the complaint did Lucas allege that Thackray Crane transacts business in Ohio. Thus, Lucas did not

plead facts sufficient to establish a prima facie case of personal jurisdiction. The documentary

evidence submitted by Lucas in support of jurisdiction is not sufficient for a reasonable mind to

conclude that the trial court possessed personal jurisdiction over Thackray Crane. As previously noted,

there is absolutely no evidence of record that Thackray Crane conducted any meaningful business in

Ohio or that Lucas' injuries were in any way related to contact Thackray Crane may have had with

Ohio. Because Lucas did not plead or otherwise present a prima facie case of personal jurisdiction, the

P1037855.1 14

trial court did not err in granting Thackray Crane's motion to dismiss for lack of personal jurisdiction,

which the Court of Appeals properly affirmed.

CONCLUSION

The lower courts did not misapply the relevant standards in determining that Lucas failed to

sustain his burden to establish personal jurisdiction over Thackray Crane. Thus, Lucas' appeal

does not present an issue of public or great general interest and this Court, therefore, should decline

to accept jurisdiction over the propositions of law offered by Lucas.

Respectfully submitted,

MEYER, DARRAGH, BUCKLER,BEBENEK & ECK, P.L.L.C

B :^RIC . ANDERSON, ESQUIRE

OH I.D. #008715eanderson cr,mdbbe.com

U.S. Steel Tower, Suite 4850600 Grant StreetPittsburgh, PA 15219Telephone: (412) 261-6600Facsimile: (412) 471-2754

Counsel for Defendant-Appellee,Thackray Crane Rental, Inc.

P1037855.1 15

PROOF OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading has been forwarded to

all counsel of record by:

U.S. First Class Mail, Postage Paid

Hand Delivery

Certified Mail, Return Receipt Requested

Facsimile Transmittal

UPS Delivery

Electronic Mail

at the following address:

Andrew S. Goldwasser, Esquire (#0068397)CIANO & GOLDWASSER, L.L.P.1610 Midland Building101 Prospect Avenue, WestCleveland, Ohio 441115(216) 658-9900Fax: (216) 658-9920

Attorneys for Plaintiff-Appellant,

Corey D. Lucas

Dated:

Paul W. Flowers, Esquire (#0046625)[Counsel of Record]PAUL W. FLOWERS CO., L.P.A.Terminal Tower, 35t" Floor50 Public SquareCleveland, Ohio 44113(216) 344-9393Fax: (216) 344-9395

MEYER, DARRAGH, BUCKLER,BEBENEK & ECK, P.L.L.C.

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B

E C . ANDERSON, ESQ.Counsel for Defendant-Appellee,Thackray Crane Rental, Inc.

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