Thompson v. Kerr

38 Citing cases

  1. Cap City Dental Lab, LLC v. Ladd

    Civil Action 2:15-cv-2407 (S.D. Ohio Nov. 16, 2015)   Cited 2 times

    Bell v. Midwestern Educ. Serv., Inc., 89 Ohio App. 3d 193, 202 (2nd Dist. 1993) (finding service at business address invalid where one individual visited the address twice in an entire year and the other individual never visited the address after 1987). See also Thompson v. Kerr, 555 F. Supp. 1090, 1094 (S.D. Ohio 1982) ("[I]t would be anomalous to hold that service of the original complaint in the within matter was sufficient, when Defendants herein visit the Winters business address only once a month, while the individual sought to be served in Swinehart visited the business address two or three times a month."); Swinehart, 62 Ohio St.2d at 407 (finding service invalid as to individual where, inter alia, he "only sporadically visited the business where service was attempted, usually two or three times per month"). It therefore follows that more than mere ownership of the premises or control and management of the company doing business at the address is required to comport with due process:

  2. Metropolitan Alloys v. State Metals Industries

    416 F. Supp. 2d 561 (E.D. Mich. 2006)   Cited 60 times
    Applying analogous provision under Michigan law

    In deciding a motion to dismiss under Rule 12(b)(5), the court may refer to record evidence in determining the sufficiency of service. Thompson v. Kerr, 555 F.Supp. 1090, 1093 (S.D. Ohio 1982). Facts as attested to in uncontroverted affidavits may be considered in ruling on a motion to dismiss under Rule 12(b)(5).

  3. In re Fidelity Bank Trust Fee Litigation

    839 F. Supp. 318 (E.D. Pa. 1993)   Cited 3 times

    Likewise, other courts "limited private causes of action under § 93 to breaches of specific duties enumerated in the National Bank Act." Id. (citing Brown Leasing, Inc. v. FDIC, 91-C-3729, 1993 WL 115552, at 2, 1993 U.S.Dist. LEXIS 3962, at 6 (N.D.Ill. March 24, 1993)); Golar v. Daniels Bell, Inc., 533 F. Supp. 1021, 1027 (S.D.N.Y. 1982); Thompson v. Kerr, 555 F. Supp. 1090, 1097 (S.D.Ohio 1982). See also Saker v. Community First Bank, 87-3133, 1988 WL 4463, at 1-3, 1988 U.S.App. LEXIS 878, at 5-6 1988 U.S.App. LEXIS 878, at 5-6 (6th Cir. 1988) ("Although courts have implied a private cause of action arising under section 93(a), the section does not create an independent cause of action in itself; rather, a plaintiff must also allege the violation of a specific substantive provision of the Act.").

  4. Whisman v. Robbins

    712 F. Supp. 632 (S.D. Ohio 1988)   Cited 24 times
    Holding that service directed to pension plan Trustees was not effective based in part upon failure of returned acknowledgement, and was not otherwise effective under Ohio law because of due process concerns, suggesting that service on Trustees in official capacities or plan is distinct from service on Trustees in their individual capacities

    However, it does not permit service to be made by leaving copies of the process at a defendant's place of employment. See Thompson v. Kerr, 555 F. Supp. 1090, 1093 (S.D. Ohio 1982). See also 2 J. Moore, J. Lucas, H. Fink C. Thompson, Moore's Federal Practice, ¶ 4.11[2] (2d ed 1987).

  5. Bell v. Midwestern Educational Serv., Inc.

    89 Ohio App. 3d 193 (Ohio Ct. App. 1993)   Cited 67 times   1 Legal Analyses
    Finding service at business address invalid where one individual visited the address twice in an entire year and the other individual never visited the address after 1987

    The Ohio cases which provide the most guidance in applying Swinehart to the facts at hand are not in fact decisions by state courts but, rather, are two decisions by the same judge in the United States District Court of the Southern District of Ohio, Western Division. The first of these was Thompson v. Kerr (S.D.Ohio 1982), 555 F. Supp. 1090. That case was an action by a corporation and two of its officers against a bank and its board of directors as individuals.

  6. In re Corestates Trust Fee Litigation

    39 F.3d 61 (3d Cir. 1994)   Cited 150 times
    Finding that once the court lacks subject matter jurisdiction, all other objections become moot

    Under Cort v. Ash we are required to examine four factors in determining whether to imply a private right of action under a federal statute: (1) whether plaintiffs are part of the class for whose especial benefit the statute was enacted; (2) whether there was any indication of Congressional intent to deny or create a private remedy; (3) whether implication of a private remedy is consistent with the underlying purpose of the statute; and (4) whether the matter is traditionally one relegated to the states. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088. Courts that have already considered the matter have concluded that "it is doubtful that plaintiffs could meet the test of Cort v. Ash" in establishing an implied private right of action under § 92a. B.C. Indus., 639 F.2d at 833 n. 10; Thompson v. Kerr, 555 F. Supp. 1090, 1098 (S.D.Ohio 1982). Supreme Court precedent has established that the second Cort v. Ash factor, legislative intent, is entitled to the greatest weight in the calculus.

  7. El v. Stoll Keenon Ogden PLLC

    Civil Action 3:22-CV-319-CRS (W.D. Ky. Oct. 18, 2022)

    In considering a Rule 12(b)(5) motion, “this Court must accept as true all well pleaded allegations of the complaint, although reference to the record is permissible to determine the alleged insufficiency of service of process.” Thompson v. Kerr, 555 F.Supp. 1090, 1093 (S.D. Ohio 1982) (citations omitted).

  8. Vasconez v. Langston Companies, Inc.

    2:20-cv-02160-JTF-cgc (W.D. Tenn. Jun. 4, 2021)

    In deciding a motion to dismiss under Rule 12(b)(5), the Court may refer to evidence in the record to determine the sufficiency of service. Metropolitan Alloys Corp. v. State Metals Indus., Inc., 416 F.Supp.2d 561, 563 (E.D. Mich. 2006) (citing Thompson v. Kerr, 555 F.Supp. 1090, 1093 (S.D. Ohio 1982)). The party on whose behalf service of process was made has the burden of establishing its validity.

  9. Miller v. City of Springfield Police Div.

    Case No. 3:19-cv-145 (S.D. Ohio Oct. 20, 2020)

    Even assuming, arguendo, that Miller did deliver copies of the complaint and summonses directed to McCarty and Schwarz to SPD, and further assuming, arguendo, that both were employed by SPD at that time, service of process at an employer's address is insufficient under federal law to perfect service on a defendant sued in his or her individual capacity. Abel v. Harp, 122 F. App'x 248, 251 (6th Cir. 2005) (citation omitted); see also Thompson v. Kerr, 555 F. Supp. 1090, 1093 (S.D. Ohio 1982) (holding that "Federal Rule 4(d)(1) requires that service upon individuals be made to the individual personally, at his [or her] dwelling house, or through his [or her] authorized agent"; and that "the requirements of Rule 4(d)(1) are not satisfied by service upon a defendant's place of work or business"). The same is generally true under Ohio law as well.

  10. Wanke v. Invasix Inc.

    Case No. 3:19-cv-0692 (M.D. Tenn. May. 19, 2020)   Cited 8 times

    In deciding a motion to dismiss under Rule 12(b)(5), the court may refer to record evidence in determining the sufficiency of service. Thompson v. Kerr, 555 F. Supp. 1090, 1093 (S.D. Ohio 1982). The court also may consider facts attested to in uncontroverted affidavits in ruling on a Rule 12(b)(5) motion to dismiss.