Legal Question in Civil Litigation in Ohio

Someone I know is being sued for Conversion. In the Complaint, the Plaintiff convienently left out the fact that he was totally reimbursed his money (and it can be proven). The Plaintiff obviously left this very important fact out of his pleading in order to satisfy element #3 of Coversion, which is "damages". My question: Is this pleading susceptible to the Motion to Dismiss for Failure to State a Claim defense? I know that the Courts have ruled that a Plaintiff must prove that (1) he demanded his money back, and (2) he was refused his money. Is the MTD based just on the Plaintiff's pleading (and its falsehood), or is the MTD based on all the facts? Because the pleading does satisfy all the elements of Conversion just on what's in the pleading, but it does not contain all the facts and truth.

Asked on 7/29/12, 9:49 am

2 Answers from Attorneys

Joseph Jacobs Jacobs & Lowder

0 users found helpful

0 attorneys agreed

A motion to dismiss has to assume that the plaintiff's facts are all true. That is why it will not work for you. An Answer must be filed first, then a motion for summary judgment is what is needed. That motion permits exhibits and affidavits to be attached which will prove your case without need for a jury.

Answered on 7/29/12, 10:04 am

Mark as helpful