Opinion
No. 2004-2106.
Decided December 28, 2004.
MOTION AND PROCEDURAL RULINGS
On Petition to Contest Election. This cause originated in this court on the filing of a petition to contest an election under R.C. 3515.08 et seq. The court has previously acknowledged the applicability of a Civ.R. 12(B)(6) dismissal for failure to state a claim upon which relief can be granted in an election contest case. In re Election Contest of Democratic Primary Election Held May 4, 1999 for Nomination of Clerk, Youngstown Municipal Court (1999), 87 Ohio St.3d 118, 717 N.E.2d 701. Normally, minimal notice pleading is all that is required to withstand dismissal under Civ.R. 12(B)(6). Id. at 120, 717 N.E.2d 701. Here, however, the contestors' claims are based primarily on fraud and mistake. Therefore, the contestors must state the "circumstances constituting fraud or mistake * * * with particularity." Civ.R. 9(B). Accordingly, upon review of contestors' petition,
IT IS ORDERED, pursuant to my authority under R.C. 3515.11 to control and direct this election contest proceeding, that the contestors shall show cause by January 7, 2005 why their petition should not be dismissed for failure to state a claim upon which relief can be granted because it does not allege the circumstances constituting fraud or mistake with particularity. Contestees may file a memorandum in response on or before January 14, 2005.
IT IS FURTHER ORDERED that the filing of an answer by the contestees and any discovery, including depositions, subpoenas, and requests for production of documents, shall be, and hereby are, stayed pending resolution of this preliminary issue.
O'CONNOR, J., in Chambers.