Kettering Adventist Healthcare v. Collier et al

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KETTERING ADVENTIST
HEALTHCARE, d/b/a KETTERING
HEALTH NETWORK,
Plaintiff/Counter-
Defendant,
V.
SANDRA COLLIER, ^ a/.,
Defends nts/Counter-
Plaintiffs,
V.
EPSTEIN BECKER & GREEN, PC,
et al.,
Third-Party Defendants.
Case No. 3:25-cv-273
Judge Walter H. Rice
Mag. Judge Caroline H Gentry
DECISION AND ENTRY SUSTAINING MOTION TO DISMISS OF THIRD-PARTY
DEFENDANTS EPSTEIN BECKER & GREEN, PC, JAMES PETRIE, JILL BIGLER, AND
CHRISTOPHER PAGE MCGINNIS ("EBG DEFENDANTS") (DOC. #91);
COUNTERCLAIM AND THIRD-PARTY COMPLAINT OF DEFENDANTS/COUNTER-
PLAINTIFFS SANDRA COLLIER AND MARY T. SCOTT (DOC. #28) IS DISMISSED
WITH PREJUDICE AS TO CLAIMS AGAINST THE EBG DEFENDANTS; JUDGMENT
SHALL ULTIMATELY ENTER IN FAVOR OF THE EBG DEFENDANTS AND AGAINST
COLLIER AND SCOTT ON THE ABOVE; SCOTT AND H. LEON HEWITT, COUNSEL
FOR COLLIER, ARE ORDERED TO SHOW CAUSE WITHIN FOURTEEN (14) DAYS
OF ENTRY WHY THEY SHOULD NOT BE FOUND TO HAVE VIOLATED FEDERAL
RULE OF CIVIL PROCEDURE 11(b) AND HELD IN CONTEMPT OF COURT, AND
WHY THE COURT SHOULD NOT IMPOSE SANCTIONS, INCLUDING BUT NOT
LIMITED TO OVERRULING COLLIER AND SCOTT'S MOTION TO DISMISS (DOC.
#13) WITH PREJUDICE; UPON RESOLUTION OF THE SHOW CAUSE ORDER, THE
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UNDERSIGNED INTENDS TO RECUSE HIMSELF FROM FURTHER PROCEEDINGS
IN THIS LITIGATION; THE DISTRICT JUDGE TO WHOM THE MATTER IS
REASSIGNED WILL ADJUDICATE THE MOTIONS TO DISMISS OF KETTERING
(DOC. #73) AND THAT OF THE INDIVIDUAL KETTERING EMPLOYEE
DEFENDANTS (DOC. #93); LIKEWISE, SHOULD COLLIER AND SCOTT'S MOTION
TO DISMISS (DOC. #13) REMAIN VIABLE, SAME WILL BE DECIDED BY THE
UNDERSIGNED'S SUCCESSOR AS JUDGE; ALSO, UPON RESOLUTION OF SHOW
CAUSE ORDER, THE UNDERSIGNED SHALL REPORT SCOTT AND HEWITT'S
CONDUCT TO THE CINCINNATI BAR ASSOCIATION GRIEVANCE COMMITTEE OR
THE SUPREME COURT OF OHIO OFFICE OF DISCIPLINARY COUNSEL
On August 13, 2025, Plaintiff Kettering Adventist Healthcare, d/b/a Kettering
Health Network ("Kettering"), filed suit in this Court against Defendants/Counter-
Plaintiffs Sandra Lee Collier and Mary T. Scott (hereinafter "Collier and Scott").
On August 25, 2025, Collier and Scott filed their Motion to Dismiss. (Collier and
Scott Motion, Doc. #13). On September 10, 2025, Collier and Scott filed their First
Amended Counterclaim and Third-Party Complaint (Amended Third-Party
Complaint, Doc. #28), naming as Third-Party Defendants, among others, Epstein
Becker & Green, PC ("EBG"), James Petrie, Jill Bigler, and Christopher Page
McGinnis, the latter three of whom are attorneys for EBG (collectively, "EBG
Defendants"). {Id. at PAGEID 1052). On October 27, 2025, the EBG Defendants
filed their Motion to Dismiss, arguing that all claims against them arise wholly
from the EBG Defendants' "statements made in these judicial proceedings, and
those are absolutely privileged under Ohio law. " ("EBG Defendants' Motion,"
Doc. #91, PAGEID 1709, citing M. J. DiCorpo, Inc. v. Sweeney, 69 Ohio St. 3d 497,
505-07 (1994); Surace v. Wuliger, 25 Ohio St. 3d 229, 233-34 (1986)). For the
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reasons set forth below, the EBG Defendants' Motion to Dismiss (Doc. #91) is
SUSTAINED. Additionally, the Court's review of Collier and Scott's Motion to
Dismiss and subsequent filings have revealed significant bad faith1 conduct by
Scott and H. Lean Hewitt, counsel for Collier. Accordingly, Scott and Hewitt are
ORDERED TO SHOW CAUSE why they should not be found to have violated
Federal Rule of Civil Procedure 11 (b) and held in contempt of this Court, and why
this Court should not impose sanctions, including but not limited to overruling
Collier and Scott's Motion to Dismiss (Doc. #13) with prejudice. Further, upon
resolution of the show cause order, the undersigned intends to recuse himself
from further proceedings and refer Scott and Hewitt to the Cincinnati Bar
Association Grievance Committee or to the Supreme Court of Ohio Office of
Disciplinary Counsel.
I. Factual Background and Procedural History
A. Collier and Scott's Motion to Dismiss (Doc. #13)
While the Court ultimately does not reach the merits of Collier and Scott's
Motion to Dismiss, the facts giving rise to the suit and the filings associated with
this Motion are essential to understanding the Court's conclusion that Collier's
1 One might reasonably infer that Scott and Hewitt's conduct constituted fraud upon the Court.
However, as discussed below, the leading cases on this issue have used bad faith as the standard
for whetherto impose sanctionsfor false citations. Thus, the Court conforms its analysisto that
standard. "Bad faith" in such cases has been defined as "where an attorney knowingly or
recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing
an opponent. " Johnson v. Dunn, 792 F. Supp. 3d 1241, 1259 (S. D. Ala. 2025) (internal quotation
marks and citation omitted).
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counsel and Scott acted in sanctionable bad faith. Thus, the Court undertakes the
following discussion:
As Collier and Scott's Motion arises under Federal Rule of Civil Procedure
12(b)(6) (Doc. #13, PAGEID 505), the Court accepts all well-pleaded factual
allegations in the Kettering Complaint as true. Ashcroft v. Iqbal, 556 U. S. 662, 678
(2009). On April 10, 2025, Collier began as the System Director of Kettering's
Research Institute and IRG Department, and signed an Information Security,
Privacy, and Confidentiality Agreement ("Confidentiality Agreement"). (Doc. #1,
PAGEID 4-5, 8, 9, ^ 13, 20, 25). Kettering required Collier to sign the
Confidentiality Agreement in furtherance of Kettering's "strict confidentiality and
non-disclosure agreements with its [clinical trial] Sponsors. " [Id. at PAGEID 5, 11
17). As System Director, "Collier had access to confidential, proprietary, and trade
secret information, not only from Kettering, but also from its Sponsors and
consultants. " [Id. at PAGEID 9, IT 26). As part of the Confidentiality Agreement,
Collier agreed to maintain confidentiality both during and after her employment
with Kettering. {Id. at PAGEID 8-9, II 24).
Collier's tenure with Kettering was short-lived, however, and "[ajfter
Kettering received multiple complaints from IRG staff about Collier's
unprofessional behavior and leadership style, Kettering suspended Collier on
June 20, 2025. " (Doc. #1, PAGEID 9, fl 28). Collier was terminated two days later,
and formed her own company, The Collier Consortium. There, "Collier provides,
among other things, clinical data review, clinical project management,
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development and implementation of clinical specialty project plans, feasibility
research, and development of clinical stud-related trackers and monitoring tools."
(/(y. atPAGEID10, 1I29).
On July 28, 2025, Kettering received a letter from Scott, then serving as
Collier's counsel, regarding Collier's termination. ("Demand Letter, " Doc. #1,
PAGEID 10, II 30). The Demand Letter "alleged claims and violations, including
wire fraud, conspiracy, RICO violations, HIPAA breach, and employment
discrimination. " {Id. }. Scott and Collier threatened to inform regulatory agencies
and "immediately issue a Press Release to national and local media outlets"
detailing Kettering's malfeasance, unless Kettering agreed to Collier's demand of
payment "begin[ning] in the high eight-figure range[. ]" (Id. }. Scott attached a
draft press release to the letter. (Id. at PAGEID 10-11, fl 31).
The Demand Letter prompted Kettering to investigate Collier's former
Kettering email account, finding out that, prior to termination, she had "forwarded
approximately 122 emails and attachments to her personal Gmail account. Many
of these emails and attachments contained Kettering's and/or its Sponsors'
confidential and trade secret information. " (Doc. #1, PAGEID 11, 1134). Further,
Kettering discovered that Collier continued to access her Kettering email account
for three weeks post-termination, forwarding 189 emails to her personal Gmail
account and 63 to a Vanessa LeFebvre, who had served as a reference when
Collier applied to work at Kettering. [Id. at PAGEID 17-18, flfl 36-37). Post-
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termination. Collier also attempted to access confidential Kettering computer
systems or databases, but was unsuccessful. (Id. at PAGEID42,^39-41).
On August 13, 2025, Kettering filed suit, claiming that Collier violated the
Defend Trade Secrets Act of 2016 ("DTSA") (Claim One, Doc. #1, PAGEID 44-46, fllT
44-55), Ohio Uniform Trade Secrets Act ("OUTSA") (Claim Two, id. at PAGEID 46-
48, nil 56-67), and the Computer Fraud and Abuse Act of 1986 ("CFAA"). (Claim
Three, Id. at PAGEID 48-50, flfl 68-79). Kettering further alleged that Collier's
conduct breached the Confidentiality Agreement (Claim Four, id. at PAGEID 50-51,
1I1T80-85), and constituted Tortious Interference with the contracts between
Kettering and its Sponsors. (Claim Five, Id. at PAGEID 51, 1T1I86-90). Finally,
Plaintiff claimed that the demand letter constituted civil extortion by Scott. (Claim
Six. [Id. at PAGEID 52-54, IIfl 91-103).
Also on August 13, 2025, Kettering filed a Motion for Temporary Restraining
Order against Collier and Scott. (TRO Motion, Doc. #3). 2 Collier and Scott filed a
memorandum contra-^e next day (Doc. #4), with Scott providing a Declaration
(Doc. #4-1) which in part addressed the factual allegations in the Complaint and
TRO Motion. On August 15, 2025, Kettering filed a Motion to Disqualify Scott as
Collier's Counsel (Doc. #5), arguing that Scott "has made herself a necessary
witness by submitting sworn testimony to the Court in the form of declarations
that goes [sic] to the heart of each of Kettering's claims against Collier. " (/d at
2 The Court never ruled on the TRO Motion, as the parties entered into a Standstill Agreement on
August 15, 2025, which was memorialized by the Court on August 18, 2025. (Doc. #6).
6
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PAGEID 151). On September 19, 2025, the Court disqualified Scott (Tr., Doc. #63),
and on October 16, 2025, Hewitt entered a Notice of Appearance on behalf of
Collier. (Doc. #80). Scott continues to represent herself.
On August 25, 2025, Collier and Scott, with Scott representing both herself
and Collier, filed a Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment. (Doc. #13). Therein, Collier and Scott argue that civil extortion is not a
recognized cause of action under Ohio law. {Id. at PAGEID 507, citing Simpson v.
Voiture Nationale La Societe des Quarante Hommes, 2d Dist. Montgomery No.
29016, 2021-0hio-2131, llfl 13-15 (Jun. 25, 2021); First Fed. Bank of Ohio v.
Angelini, 3d Dist. Crawford No. 3-11-16, 2012-Ohio-2136, 1I6 (May 14, 2012);
Heskett v. Van Horn Title Agency, Inc., 10th Dist. Franklin No. 06-AP-549 2006-
Ohio-6900, II 26 (Dec. 26, 2006)). 3 Confusingly, Collier and Scott then set forth
elements of a civil extortion claim "[u]nder Ohio law and federal precedents,"
which Kettering had alleged against Scott-wrongful threat; intent to obtain value
or coerce; no legitimate claim or privilege; causation; and damages. {Id. at
PAGEID 508, citing United States v. Pendergraft, 297 F. 3d 1198, 1205 (11th Cir.
2002); Kenty v. Transamerica Prem. Ins. Co., 72 Ohio St. 3d 415, 419 (1995); State v.
Milam, 2022-0hio-3965 (10th Dist. ); State v. Carter, 72 Ohio App. Sd 553 (2d Dist.
1991)).
3 Collier and Scott cite to the incorrect paragraphs in both Simpson and Angelini. While it appears
that Collier and Scott relied upon the citation to Angelini'm Simpson, the Simpsoncitation of
Ange/i'n/was itself inaccurate. The Court reminds the parties of the importance of independently
verifying internal citations.
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Collier and Scott claim that the demand letter sent by Scott and Collier
could not be a "wrongful threat, " since there was no illegal conduct threatened in
the letter, only the disclosure of Collier's intent to inform regulatory authorities of
Kettering's unlawful practices. (Doc. #13, PAGEID 508-09, quoting United States v.
Jackson. 180 F. 3d 55, 70 (2d Cir. 1999)). They further assert that there was no
illicit attempt to obtain value, because "[sleeking a monetary settlement tied
directly to legal claims does not become extortion merely because regulatory
reporting is also contemplated. " [Id. at PAGEID 509, quoting Flatley v. Mauro, 39
Cal. 4th 299 (Cal. 2006)). Collier and Scott argue that Claim Six also fails because
the demand letter was protected as a settlement communication, and that
because Kettering was not induced by an unlawful threat to act, Kettering had
failed to plead causation adequately. [Id. at PAGEID 510, quoting Pendergraft, 297
F. 3d at 1205; Kenty, 72 Ohio St. 3d at 419). Finally, Collier and Scott assert that
Kettering has not plausibly pleaded damages, because: (a) Collier's intended
reporting to regulators is protected under both federal and Ohio law; and (b) the
draft press release attached to the demand letter was merely "truthful disclosure
of misconduct[, ]" which is not extortion. {Id. at PAGEID 511, citing Jackson, 180
F. 3d at 70; Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d 134, 150 (1997) (plurality
opinion); Flatley, 39 Cal. 4th at 330).4
4 While Kulch is, in fact, a whistleblower retaliation case, Jackson and Flatley6o not stand for the
proposition that "[c]ourts consistently hold that truthful disclosure of misconduct does not
constitute extortion. " (Doc. #13, PAGEID511).
8
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Collier and Scott argue that Claims One and Two fail as matters of law as
pleaded, because Kettering is not the owner of sponsor-created protocols,
datasets, or monitoring correspondence. The Complaint identifies only broad
categories of information 'clinical data' and 'research processes', which do not
satisfy the particularity requirement. " (Doc. #13, PAGEID 512, citing 18 U. S. C. §
1839(4); Office Depot, Inc. v. Impact Office Prods., LLC, 821 F. Supp. 2d 912, 919-23
(N. D. Ohio 2011)). Collier and Scott further assert that Kettering "fails to plead
reasonable measures to maintain secrecy[, ]" {id. }, and that the OUTSA preempts
Claim Five, which sounds in common law tort. {Id., citing OHIO REV. CODE §
1333. 67(A); Stolle Mach., Inc. v. RAM Precision Indus., 605 F. App'x 473, 484 (6th
Cir. 2015)).
Collier and Scott argue that Claim Three fails as a matter of law because
Supreme Court and Sixth Circuit precedent define "exceeds authorized access"
under the CFAA to exclude alleged "misuse of information obtained with
authorized credentials. " (Doc. #13, PAGEID 512-13, citing Van Buren v. United
States, 593 U. S. 374, 380-86 (2021); Royal Truck & Trailer Sales & Serv., Inc. v.
Kraft, 974 F. 3d 756, 758-61 (6th Cir. 2020)). As Collier was directed to access
confidential "information with valid credentials issued by Kettering[, ]" Collier and
Scott assert that Collier cannot be civilly liable under the CFAA, even if she
exceeded the scope of her authorization once she accessed the information. [Id.
atPAGEID513).
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In its memorandum contra, Kettering points out numerous problems with
the cases upon which Collier and Scott rely when they set forth the purported
elements of a civil extortion cause of action. Specifically, Kettering asserts that
Carterand Milam do not exist, Kentydoes not address extortion, and Pendergraft
addresses only criminal extortion under federal law. (Doc. #44, PAGEID 1213 n. 2).
As discussed in greater detail infra, the Court's review of the cases accords with
Kettering's representation, and, in fact, the Court discovered even more
fabrications by Collier and Scott in its independent review. In their Reply
memorandum. Collier and Scott do not address Kettering's assertions about the
case citations. Indeed, despite being additionally warned by Kettering that three
more cases either did not exist or did not stand for the propositions cited (Doc.
#44, PAGEID 1215, 1218, 1220 nn. 7, 9-10), Collier and Scott renewed their reliance
on those cases and propositions in their Reply. (Doc. #69, PAGEID 1434-35, 36,
citing In re Protech. 51 F. 4th at 714; Jackson, 180 F. 3d at 70; Office Depot, 821 F.
Supp. 2d at 919-23). As of January 2, 2026, they have not amended their Reply
and, thus, continue to rely on those cases.
B. EBG Defendants' Motion to Dismiss (Doc. #91)
As the EBG Defendants' Motion also arises under Rule 12(b)(6) (Doc. #91,
PAGEID 1708), the Court again accepts all well-pleaded factual allegations in the
Amended Third-Party Complaint as true. Iqbal, 556 U. S. at 678. In that pleading,
Collier and Scott allege that Plaintiff/Counter-Defendant Kettering Adventist
Healthcare, d/b/a Kettering Health Network ("Kettering"), retained the EBG
10
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Defendants as counsel after receiving the Demand Letter. (Doc. #28, PAGEID
1058, II 20). On August 13, 2025, the EBG Defendants, on Kettering's behalf, filed
an Emergency Motion for Temporary Restraining Order. (/£/. at fl 21, citing TRO
Motion, Doc. #3). Collier and Scott claim that Kettering employees entered into a
"civil conspiracy" with the EBG Defendants. [Id. at PAGEID 1062, fl 36).
Counter-Plaintiff Collier raises a single claim of Retaliation (Claim Three)
against the EBG Defendants. Counter-Plaintiff Scott raises three individual claims
against the EBG Defendants: Defamation and False Light (Claim Five), Abuse of
Process (Claim Six), and Malicious Prosecution (Claim Seven). (Doc. #28, PAGEID
1065-67, 1068-73, 111150-54, 60-75). Collier and Scott jointly raise claims of
Intentional Infliction of Emotional Distress ("IIED, " Claim Eight), Civil Conspiracy
(Claim Nine), and Civil Racketeer Influenced and Corrupt Organizations ("Civil
RICO, " Claim Ten). (Id. at PAGEID 1073-77, ^ 76-89). For Claim Three, Collier
claims that EBG Defendants' filing of the TRO Motion was in retaliation for her
protected whistleblower conduct. [Id. at PAGEID 1066, fl 52). As to Claim Five,
Scott alleges that the EBG Defendants included material falsehoods in the TRO
Motion, "publish[ing] these false statements to the Court and to opposing
counsel[, ]" [id. at PAGEID 1068-69, IIfl 61-63), "ensuring they became public record
and permanently harming Ms. Scott's personal and professional reputation. " (Id.
at PAGEID 1069, ^ 63). For Claim Six, Scott asserts that the TRO Motion and
concomitant Motion to Disqualify Scott (Doc. #5) was an attempt to chill Collier's
protected activity and intimidate both Scott and Collier. [Id. at PAGEID 1070-71, ^
11
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68-69). With respect to Claim Seven, Scott claims that through filing the TRO [id.
at PAGEID 1072, ^ 71-72), the EBG "Defendants acted with malice by
weaponizing litigation to harass, intimidate, and suppress valid whistleblower
claims rather than advocate the resolution of legitimate clams. " {Id. at II 74).
For Claim Eight, Collier and Scott allege that the EBG Defendants sought to
intimidate and vilify Collier and Scott through their filing of the TRO Motion and
Motion to Disqualify. (Doc. #28, PAGEID 1073-74, ^ 77-78). In Claim Nine, Collier
and Scott claim that the EBG Defendants conspired with Kettering to "[djefame
and discredit Ms. Collier by falsely accusing her of theft and [protected health
information] violations"; and "[d]efame and discredit Ms. Scott by falsely
accusing herofextortion[. ]" {Id. at PAGEID 1075, 1181). Collier and Scott assert
that the EBG Defendants furthered this conspiracy by "draft[ing] filings that
knowingly misstated facts[. ]" (Id. at ^ 82). Finally, in Claim Ten, Collier and Scott
appear to allege that the EBG Defendants furthered their criminal enterprise with
Kettering by retaliating against Collier and Scott through filing the Complaint, TRO
Motion, and Motion to Disqualify. (Id. at PAGEID 1077, fl 86).
On October 29, 2025, the EBG Defendants moved to dismiss all claims
against them, claiming that they "enjoy an absolute privilege under Ohio law for
the statements they made in this lawsuit. " (Doc. #91, PAGEID 1727). The EBG
Defendants argue that the litigation privilege encompasses any statement made
during a litigation proceeding that bears some relation to the proceeding, even if
the statements are defamatory. {Id. at PAGEID 1727-28, quoting Reister v.
12
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Gardner, 164 Ohio St. Sd 546, 2020-0hio-5484, flll 8, 14; ^race, 25 Ohio St. 3d 229
at paragraph one of syllabus; Wasserman v. Weir, No. 2:24-cv-3935, 2025 WL
1347253, *4 (S. D. Ohio May 8, 2025) (Morrison, C. J. )). The EBG Defendants assert
that, while the privilege is most often applied in defamation claims, courts have
consistently applied the privilege as an absolute bar to suit against all the state-
law claims raised against them by Collier and Scott. (Id. at PAGEID 1728-29
(citations omitted)). Based on its wide application, the EBG Defendants claim that
"the litigation privilege provides a complete and unassailable defense to every
one of the claims against the EBG Third-Party Defendants because all of Scott's
and Collier's claims are predicated on protected communications that the EBG
Third-Party Defendants made in connection with this action. " {Id. at PAGEID 1729-
30)
In their memorandum contra, Collier and Scott argue that the litigation
privilege does not apply, because it does not encompass extrajudicial statements
or statements made before unrelated litigation was filed. (Memo. in Opp., Doc.
#93, PAGEID 1758, citing Hecht v. Levin, 66 Ohio St. 3d 458, 460-62 (1993); Erie
Cnty. Farmers'Ins. Co. v. Crecelius, 122 Ohio St. 210 (1930)). Collier and Scott
claim that, because the EBG Defendants' filing suit against Scott for extortion was
merely retaliatory and not "aimed at resolving a legitimate legal dispute(, ]"no
privilege applies. {Id. at PAGEID 1759). Moreover, Collier and Scott assert, the
EBG Defendants published their statements with actual malice, and the
publication was not connected to any legitimate litigation purpose, defeating any
13
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conditional privilege that may have applied. [Id, citing A & B-Abell Elevator Co. v.
Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St. 3d 1, 11-12
(1995)).
Collier and Scott claim that the Supreme Court of Ohio has held that, even if
a lawsuit is technically properly filed, the litigation privilege will not apply if the
suit was undertaken for an ulterior purpose that perverts the litigation process.
(Doc. #93, PAGEID 1759-60, quoting Yaklevich v. Kemp, Schaeffer & Rowe Co., 68
Ohio St. 3d 294, 298-99 (1994)). Here, Collier and Scott argue that because the
extortion allegation against Scott was illegitimate and designed to harass or
silence Collier and Scott with respect to Collier's whistleblower activity, and that,
consequently, the litigation privilege does not apply. {Id. at PAGEID 1760, citing
Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St. 3d 264, 271)).
In Reply, the EBG Defendants argue that Hecfit actuary reinforces their
position, as the Supreme Court of Ohio held in that case that the filing of a
grievance against an attorney-a judicially-related filing that is not litigation-was
covered by the absolute litigation privilege. (Doc. #97, PAGEID 1817-18, citing
Hecht. 66 Ohio St. 3d 458 at paragraph two of syllabus)). Similarly, the EBG
Defendants assert that in Crecelius, the Supreme Court of Ohio set forth the rule
that has endured for nearly 100 years: that the absolute privilege applies even if
the statements made in the course of litigation were "untrue, malicious, and not in
good faith[. ]" (Id. at PAGEID 1818 (internal quotation marks omitted), quoting
Crecelius, 122 Ohio St at 214). Thus, the EBG Defendants claim, even assuming
14
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arguendo that the statements they made in the Complaint, TRO Motion, and
Motion to Disqualify were defamatory, they are not actionable. {Id. at PAGEID
1819, quoting Crecelius, 122 Ohio St. at 214-5). Finally, the EBG Defendants assert
that Yalkevich and Robb, relied upon by Collier and Scott for the proposition that
the litigation privilege does not extend to abuse of process claims, are inapposite,
as they "say absolutely nothing about thelitigation privilege. " (Id. at PAGEID
1821). Accordingly, they conclude, "[a]pplication of the absolute litigation
privilege defeats all of the claims against the EBG Third-Party Defendants. " {Id. }.
Further, the EBG Defendants point out fabrications by Collier and Scott as
to two of the cases they cite in their memorandum contra-. Dart Indus. Co. v. Hurd,
and State ex rel. Ellis v. Cleveland Mun. Sch. Dist. (Doc. #97, PAGEID 1815, citing
Doc. #93, PAGEID 1758; Ellis, 2015-0hio-760; Hurd, 66 Ohio St. 2d 280 (1981)).
EBG Defendants argue that Hurd\s a fabrication, and Ellis is actually a federal
district court case that "has nothing to do with demand letters, extortionate or
otherwise. " (Doc. #97, PAGEID 1815-16, citing Ellis v. Cleveland Mun. Sch. Dist.,
309 F. Supp. 2d1019 (N. D. Ohio 2004)). As discussed in greater detail below, the
Court's review confirms the EBG Defendants' representation of Hurdand Ellis.
The matters are now ripe for decision
II. Legal Standards
A. Motion to Dismiss
Rule 8(a) provides that a complaint must contain "a short and plain
statement of the claim showing that the pleader is entitled to relief. " The
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complaint must provide the defendant with "fair notice of what the . .. claim is
and the grounds upon which it rests. " Bell Atlantic Corp. v. Twombly, 550 U. S.
544, 555 (2007), quoting Conley v. Gibson, 355 U. S. 41, 47 (1957).
Rule 12(b)(6) allows a party to move for dismissal of a complaint on the
basis that it "fail[s] to state a claim upon which relief can be granted. " The
moving party "has the burden of showing that the opposing party has failed to
adequately state a claim for relief. " DirecTV, Inc. v. Treesh, 487 F. 3d 471, 476 (6th
Cir. 2007), citing Carver v. Bunch, 946 F. 2d 451, 454-55 (6th Cir. 1991). The
purpose of a Rule 12(b)(6) motion to dismiss "is to allow a defendant to test
whether, as a matter of law, the plaintiff is entitled to legal relief even if everything
alleged in the complaint is true. " Mayer v. Mylod, 988 F. 2d 635, 638 (6th Cir.
1993). In ruling on a Rule 12(b)(6) motion, the Court must "construe the complaint
in the light most favorable to the plaintiff, accept its [well-pleaded] allegations as
true, and draw all reasonable inferences in favor of the plaintiff. " Handy-Clay v.
City of Memphis, 695 F. 3d 531, 538 (6th Cir. 2012), quoting Treesh, 487 F. 3d at 476.
Nevertheless, to survive a Rule 12(b)(6) motion, the complaint must contain
"enough facts to state a claim to relief that is plausible on its face. " Twombly, 550
U. S. at 570. Unless the facts alleged show that the plaintiff's claim crosses "the
line from conceivable to plausible, [the] complaint must be dismissed. " Id.
Although this standard does not require "detailed factual allegations, " it does
require more than "labels and conclusions" or "a formulaic recitation of the
elements of a cause of action. " Id. at 555. "Rule 8 .. . does not unlock the doors
16
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of discovery for a plaintiff armed with nothing more than conclusions. " Ashcroft
v. Iqbal, 556 U. S. 662, 678-79 (2009). Legal conclusions "must be supported by
well-pleaded factual allegations .. . [that] plausibly give rise to an entitlement of
relief. " Id. at 679. "Although for the purposes of this motion to dismiss we must
take all the factual allegations in the complaint as true, we are not bound to accept
as true a legal conclusion couched as a factual allegation. " Papasan v. Allain, 478
U. S. 265, 286 (1986).
B. Litigation Privilege
"The litigation privilege provides absolute immunity to parties, witnesses,
lawyers, and judges from future lawsuits for statements made during and relevant
to judicial proceedings. " Reister, 2020-0hio-5484 at fl 8 (emphasis in original).
The privilege is not limited to the four corners of filings, but also applies when
"the allegedly defamatory statement bears some reasonable relation to the
judicial proceeding in which it appears!. ]" Surace. 25 Ohio St. 3d at 233.
The privilege, as initially set forth in Crece/fus and clarified in Surace,
addressed defamation claims. Crecelius, 122 Ohio St at 211-12; Surace. 25 Ohio
St. 3d at 231. However, courts in Ohio have enforced the litigation privilege as an
absolute defense to virtually every intentional tort when a statement is made in
relation to a judicial proceeding. See, e. g., Stewart v. Gentile, 2025-0h1o-5012, ^
39-40, _ N. E. 3d _, (7th Dist. ) (malicious prosecution and abuse of process);
Schmidtv. Grossman Law Office, 10th Dist. Franklin No. 14AP-127, 2014-Ohio-
4227, flll 14-17 (Sept. 25, 2014) (abuse of process); Harsh v. Franklin, 2d Dist.
17
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Montgomery No. 24331, 2011-Ohio-2428, ^ 21-25 (May 20, 2011) (IIED,tortious
interference, fraud); Seminatore v. Dukes, 8th Dist. Cuyahoga No. 84032, 2004-
Ohio-6417, 1T1137-40 (Dec. 2, 2004) (civil conspiracy). However, courts have
consistently rejected attempts to extend a blanket privilege to federal law claims.
See, e. g., Steffes v. Stepan Co., 144 F. 3d 1070, 1074 (7th Cir. 1990) (holding that
district court erred in extending Illinois absolute litigation privilege to employment
retaliation claim); Novel v. Zapor, No. 2:14-cv-264, 2015 WL 12734021, *11 (S. D.
Ohio Mar. 11, 2015) (Watson, J. ), citing Dowling v. Select Portfolio Servicing, Inc.,
No. 2:05-CV-49, 2006 WL 571895, *8 (S. D. Ohio Mar. 7, 2006) (Smith, J. ) (declining
to extend as a matter of law the litigation privilege to Civil RICO claims).
C. Rule 11 Violations and Sanctions
Rule 11(b) dictates that:
By presenting to the court a pleading, written motion, or other
paper-whether by signing, filing, submitting, or later advocating it-
an attorney or unrepresented party certifies that to the best of the
person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically
so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
18
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(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on belief or a
lack of information.
FED. R. CIV. P. 11 (b). While the Court has broad authority to impose sanctions when
Rule 11(b) is violated, FED. R. CIV. P. 11(c), the Rule does not abrogate or limit the
Court's inherent authority to impose sanctions. See, e. g., Chambers v. NASCO,
Inc., 501 U. S. 32, 44-45 (1991), citing Roadway Exp. Inc. v. Piper, 447 U. S. 752, 765
(1980); Link v. Wabash R. Co.. 370 U. S. 626, 632 (1962) ("As we recognized in
Headway Express, outright dismissal of a lawsuit, which we had upheld in Link, is
a particularly severe sanction, yet is within the court's discretion. ")).
The imposition of sanctions in this instance transcends a court's
equitable power concerning relations between the parties and
reaches a court's inherent power to police itself[. ] .. .
We discern no basis for holding that the sanctioning scheme of the
statute and the rules displaces the inherent power to impose
sanctions for the bad-faith conduct described above. These other
mechanisms, taken alone or together, are not substitutes for the
inherent power.
Id. at 46.
III. Collier and Scott's Misconduct
At the outset, the Court must address the troubling accusations made by
Kettering and the EBG Defendants: that Collier and Scott fabricated support for
their arguments. (Doc. #97, PAGEID 1815-16 n. 2, citing Memo. in Opp., Doc. #44,
PAGEID 1213 n. 6). The Court has reviewed the six cases aggregated by Kettering
and the EBG Defendants and agrees that, whether due to intentional, bad-faith, or
19
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reckless conduct by Scott and Hewitt, Collier and Scott made false representations
to the Court:
Case Name and
Citation
State v. Carter, 72
Ohio App. 3d 553
(2dDist. 1991)
State v. Milam,
2022-0hio-3965
(10th Dist. ) (no date
provided by Scott
and Collier)
Kenty v.
TransAmerica
Premium Ins. Co.,
72 Ohio St. 3d 415,
419(1995)
United States v.
Pendergraft, 297
F. 3d 1198 (11th Cir.
2002)
Collier and Scott's
Proposition
A "wrongful threat" is
an element of civil
extortion under Ohio
law. (Motion to
Dismiss, Doc. #13,
PAGEID 508)
"Intent to obtain value
or coerce" is an
element of civil
extortion. [Id. ).
Settlement "demands
made without a good-
faith basis" are
actionable in civil
extortion. (Id. }.
Standard for damages
for civil extortion
under Ohio law. (Id. }.
Truth Regarding Case
Case cite links to Stull v.
Combustion Eng'g, Inc. (3d D i st.
1991), a wrongful termination
case. A Westlaw search
revealed no case captioned
State v. Carterirom the Second
District in 1991, and no case with
that caption addressing the
elements of extortion.
Case cite links to State v. Eddy,
3d Dist. Alien No. 1-22-17 (Nov.
7, 2022), a domestic violence
case. A Westlaw search
revealed no case captioned
State v. Mf'/amirom the Tenth
District in any year. Nor did it
reveal a case with that caption
addressing extortion.
Kenfy addresses the
cognizability oftortious
interference with contract under
Ohio law, and a claim of civil
conspiracy to conceal payments
made under an insurance policy.
72 Ohio St. 3d at 418-19. No
demands, threats, or claims of
extortion were at issue.
Pendergra ft addressed criminal
attempted extortion under the
federal Hobbs Act of 1946. 297
F. 3d at 1200, citing 18U. S. C. §
(continued next page)
20
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State ex rel. Ellis v.
Cleveland M un.
Sch. Dist., 2Q^-
Ohio-760 (no
district cited)
Settlement demand
letter was a protected,
non-actionable
communication. (Doc.
#93, PAGEID1758).
Dart Indus. Co. v.
Hurd, 66 Ohio St. 2d
280(1981)
Settlement demand
letter was a protected,
non-actionable
communication. {Id. }.
1951. The alleged extortion took
place in Florida, id., and Ohio
law was never addressed.
Case cite is to two orders from
the Supreme Court of Ohio, one
granting pro hac vwe admission
to attorneys, and one dismissing
an appeal for failure to
prosecute.
There is a case captioned Ellis v.
Cleveland Mun. Sch. Dist. in the
United States District Court for
the Northern District of Ohio.
309 F. Supp. 2d1019 (N. D. Ohio
2004). However, as pointed out
by the EBG Defendants (Doc.
#97, PAGEID 1815), that case
addressed whether certain
records were protected under
the Federal Education Rights
a nd Privacy Act of 1974, 20
U. S. C. S 1232g. £///s, 309 F.
Supp. 2d at 1021. The records
request arose out of alleged
corporal punishment by a
substitute teacher. Id. at 1022-
23. No language akin to the one
described by Collier and Scott
was at issue.
Case cite links to State ex rel.
Voss v. Northwest Local Bd. of
Educ., addressing the right of a
teacher to a continuing contract.
66 Ohio St. 2d 274, 280 (1981)
(Holmes, J., concurring). A
Westlaw search did not reveal
any case with that caption.
21
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As discussed in greater detail below, the volume, extent, and repetitive
nature of fabrications by Scott and Hewitt are without parallel in the
undersigned's tenure as a trial judge. Kettering and the EBG Defendants brought
these cases to the attention of the Court-and to the attention of Scott and
Hewitt-not in passing, but in a footnote that occupied more than one-third of one
page, single-spaced (Doc. #44, PAGEID 1213 n. 6) and two full pages in the EBG
Defendants' Reply. (Doc. #97, PAGEID 1815-16). Yet, neither Scott nor Hewitt has
acknowledged the misrepresentations, much less attempted to explain why they
subsequently inserted them into multiple filings.
The Court expresses its appreciation for Kettering and the EBG Defendants
bringing these misrepresentations to the Court's attention. However, in reading
their memoranda, the Court feared that those parties had only scratched the
surface of counsel's bad faith. The Court's further review of Collier and Scott's
Motion and Reply memorandum proved its fears correct:
Case Name and
Citation
Collier and Scott's
Proposition
United States v. 	" Inform! ng a party that
Jackson, 180 F. 3d you will report their
55, 70 (2d Cir. 1999) misconduct to
appropriate authorities
if corrective action is
not taken does not
constitute an unlawful
threat" (Motion to
Dismiss, Doc. #13,
PAGEID 509, quoting
Jackson).
Truth Regarding Case
Quoted or similar language does
not appear in the opinion. Nor
would such language have
appeared, as the case addressed
the defendant's threat to
publicize her story that she was
fathered out-of-wedlock by a
celebrity unless that celebrity
paid her $40 million. Jackson,
180F. Sd at 59.
22
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Flatley v. Mauro, 39
Cal. 4th 299, 331
(2006)
Kenty, 72 Ohio St.
3d at 419 (1995)
Pendergraft, 297
F. 3dat1205
Off. Depot, Inc. v.
Impact Off. Prods.,
LLC, 821 F. Supp.
2d 912, 919-23 (N. D.
Ohio 2011)
In re Protech Indus.,
51 F. 4th 714, 720-22
(6th Cir. 2022)
"Seeking a monetary
settlement tied directly
to legal claims does
not become extortion
merely because
regulatory reporting is
also contemplated".
(Id., quoting Flatlet.
"Where claims are
based on enforceable
legal rights, settlement
demands are
privileged. " {Id. at
PAGEID 510, quoting
Kenty.
"Advising of possible
consequences from
lawful reporting cannot
form the basis of an
extortion claim. " {Id.,
quoting Pendergraft).
DTSA and OUTSA
claims must be
pleaded with
particularity. [Id. at
PAGEID512;Doc. #69,
PAGEID 1436)
For DTSA and OUTSA
claims, plaintiff must
adequately plead the
(continued next page)
Quoted or similar language does
not appear in the opinion. Nor
would such language have
appeared, as the extortion
attempt in F/a^/ey dealt with
publication of a rape allegation.
Flatley, 39 Ca1. 4th at 305-06.
As discussed supra, Kentyand
Pendergraft6o not concern civil
extortion; nor do they stand for
the propositions asserted by
Collier and Scott. However, the
Court again must note that
nothing resembling the
purported language quoted by
Collier and Scott appears in
either case.
The cited portions of Office
Depotaddress the extent to
which the DTSA and OUTSA
preempt common-law tort
claims. 821 F. Supp. 2d at 919-
23. The case does not address
whether a plaintiff must plead
misappropriation with
particularity. FED. R. CIV. P. 9(b).
Kettering made Collier and Scott
aware of this error (Doc. #44,
PAGEID 1218 n. 9), but Collier
and Scott chose to renew their
argument unaltered'^ the Reply.
Collier and Scott's citation is
encompassed by United States
v. Harris, which deals with
(continued next page)
23
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Wilson v. Collins,
517F. Sd 421, 429
(6th Cir. 2008)
Jackson, 180F. 3dat
70.
Allied Erecting &
Dismantling Co. v.
Genesis Equip. &
Mfg., 5-\^ F. App'x
reasonable security
measures it undertook
to protect its
confidential
information. (Id. ; Doc.
#69, PAGEID1436).
HIPAA does not
provide a private right
of action. {Id.).
Informing proper
regulatory authorities
of misconduct is not an
actionable threat;
rather, it is lawful
whistleblowing
activity. (Doc. #69,
PAGEID 1434-35).
DTSA and OUTSA
claims, along with
breach of contract
(continued next page)
alleged inconsistencies between
the sentence imposed orally at
sentencing and what was
reduced to written judgment. 51
F. 4th 705, 719-22 (7th Cir. 2022).
A Westlaw search did not reveal
any case entitled In re Protech in
the Sixth Circuit under any date.
The only case with a similar
caption is from the United States
Bankruptcy Court for the Middle
District of Florida. In re Protech
Coating Servs., Inc., 479 B. R. 611
(M. D. Fla. 2012).
Kettering made Collier and Scott
aware that Protech did not exist.
(Doc. #44, PAGEID 1220 n. 10).
However, Collier and Scott again
attempted to rely on this
phantom case in their Reply.
Wilson addressed whether
taking DNA specimens from
prisoners violated the Fourth,
Fifth, and Fourteenth
Amendments. 517 F. 3d at 424.
The case did not address HIPAA
or non-civil rights civil litigation
in general.
While Kettering made Collier
and Scott aware that Jackson
did not stand for this
proposition. (Doc. #44, PAGEID
1215 n. 7). Collier and Scott
renewed their reliance on the
case in their Reply.
While Allied Erecting is an
OUTSA misappropriation case,
the portion cited by Collier and
(continued next page)
24
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398, 405 (6th Cir.
2013)).
claim, are not viable
when the plaintiff did
not have ownership or
control of the
confidential
information. (Id. at
PAGEID 1435, 1441).
Scott addresses plaintiff's post-
jury verdict request for
injunctive relief. 511 F. App'xat
405. Ownership and control of
information do not appear to
have been at issue on appeal.
The above are not mere scrivener's errors or the confusing of the holding of
a case with dictum. They are not even engaging in such misreading of the
decision that they fail to recognize that the case stands for a proposition
diametrically opposed to the one they are asserting. Rather, Scott and Hewitt
have cited at least twelve cases that either do not exist or are so far afield from the
subject matter of the captioned case that they should have reasonably realized
that they had no place in a Court filing, in this or in any other case. Incredibly,
even after being put on notice by Kettering that three cases cited in Collier and
Scott's Motion did not state what Collier and Scott represented that they did,
Collier and Scott cited those very same cases for the very same propositions of
law in their later Reply.
Notably, despite being aware since September 15, 2025, that Kettering is
accusing her of fabricating caselaw (Doc. #44), and despite voluminous motion
practice and numerous telephonic conferences since then, Scott has never
addressed the allegation. Nor has Hewitt, despite being on notice for more than a
month that the EBG Defendants were indirectly accusing /7//7? of fabricating cases
by co-signing the memorandum contra. (Doc. #97, PAGEID 1815-16). By failing to
25
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do so, Scott and Hewitt have compounded their errors by neglecting their
ongoing, affirmative duty of candor to the Court. See OHIO R. PROF. COND. 3. 3(a)(1)
(emphasis in original) ("A lawyer shall not knowingly .. fail to correct a false
statement of material fact or law previously made to the tribunal^ the
lawyer[. ]"). Even though there is no colorable argument that the above citations
are in any way accurate, Scott and Hewitt were still obligated to acknowledge
their transgressions to the Court. Scott's conduct is particularly egregious, given
that, after being caught red-handed, she doubled down and afira//?fabricated many
of the same citations. Whether singly or in the aggregate, Scott and Hewitt's
actions and lack of accountability defy explanation.
As the EBG Defendants note (Doc. #97, PAGEID 1816), the increased
prevalence of generative artificial intelligence ("Al") "has affected court filings,"
and "it has become well established that many harms flow from the submission
of fake opinions. " Johnson v. Dunn, 792 F. Supp. 3d 1241, 1256 (S. D. Ala. 2025)
(brackets, internal quotation and citation omitted) (collecting cases). The Court
does not know whether Scott and Hewitt used Al to generate caselaw in support
of their arguments, and whether counsel did so is ultimately unimportant. What is
important is that Scott and Hewitt violated their duty of candor and their duty to
represent to the Court that, in any filing, "the claims, defenses, and other legal
contentions are warranted by existing law[. ]" FED. R. CIV. P. 11(b)(2). Counsel's
filings constitute nothing less than the subjective bad faith necessary for counsel
to be sanctioned. See, e. g., Johnson, 792 F. Supp. 3d at 1265 (lead attorney's
26
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failure to check filing that contained phantom citations was "more than mere
recklessness and [was] tantamount to bad faith. "); United States v. Hayes, 763 F
Supp. 3d 1054, 1071 (E. D. Cal. 2025) (internal quotation marks and citation
omitted), reconsideration denied at No. 2:24-cr-280-DJC, 2025 WL 1067323 (E. D.
Cal. Apr. 9, 2025) (attorney's conduct constituted bad faith because "Submitting
fictitious cases and quotations to the Court. . . degrades or impugns the integrity
of the Court and interferes with the administration ofjustice[. ]"). Indeed, despite
having served continuously as a trial judge since 1969, the undersigned cannot
recall a comparable instance of such brazen and repeated dishonesty.
"If, after notice and a reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party that violated the rule or is
responsible for the violation. " FED. R. CIV. P. 11(c)(1). Moreover, as discussed
above, the Court has plenary authority, not dependent upon Rule 11(c), to impose
sanctions. Chambers, 501 U. S. at 45-46. The Supreme Court has repeatedly
stated that a trial court's dismissal of a suit with prejudice for failure to prosecute
is a proper, albeit severe, exercise of its inherent power to police itself. Roadway
Exp., 447 U. S. at 765, quoting Link, 370 U. S. at 630. Since the overruling of a
motion to dismiss is a far less severe sanction than, e. g., sua spo/7te dismissing
Scott and Collier's Counterclaim and Third-Party Complaint with prejudice,
overruling Scott and Collier's Motion is well within the Court's authority. Id. The
Court is mindful that "inherent powers .. . be exercised with restraint and
27
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discretion. " Id. at 764. However, given the repeated fabrications and
misrepresentations by counsel, and Scott and Collier's Motion being largely based
on those fabrications and misrepresentations, the Court, at this point, cannot
conceive of a lesser or narrower sanction that would adequately address
counsel's misconduct.
The Court has been patient and understanding with the parties, but
especially with Collier and Scott's counsel, throughout this litigation. Most
notably, the Court declined to sanction Scott when, on September 8, 2025, in open
court, sheaccusedtheundersigned'sstaff of engaging in ex parte commun\cat\on
with counsel for Kettering. (Tr., Doc. #31, PAGEID 1100-02). However, Collier and
Scott's filings have led to the Court completely losing trust in Scott and Hewitt. To
allow counsel's representation to continue, moving forward, would require
everyone involved in this case to verify not only that the cases cited by Collier and
Scott stand for the propositions cited, but, indeed, whether the cases exist at all
and have any relevance whatsoever to the argument Collier and Scott are making.
The Court will not impose such a burden on both opposing parties and itself.
Perhaps Scott and Hewitt, or new counsel representing Collier and Scott, can
establish and maintain the successor Judge's trust. However, given the Court's
intent to refer Scott and Hewitt for disciplinary proceedings, that trust cannot be
rebuilt with the undersigned.
For these reasons, Scott and Hewitt are ordered to show cause within
FOURTEEN (14) days of entry: (1) why their conduct did not violate Rule 11(b); (2)
28
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why they should not be held in contempt of Court; and (3) why this Court should
not impose sanctions, including but not limited to overruling Scott and Collier's
Motion to Dismiss (Doc. #13) with prejudice. No ruling is made at this time on
that motion. Upon resolution of the show cause order, the Court will refer Scott
and Hewitt for disciplinary proceedings.
IV. EBG Defendants' Motion to Dismiss (Doc. #91)
A. State Law Claims
Collier and Scott concede in their memorandum contra that the gravamen
of their claims is the EBG Defendants "filing retaliatory pleadings to engineer
disqualification and undermine whistleblower protection!. ]" (Doc. #93, PAGEID
1760). Neither in their memorandum-nor, more importantly, in their Amended
Third-Party Complaint-do they plausibly allege that the EBG Defendants
undertook any actions against them outside of: (1) their filings in the captioned
case, and (2) contemporaneous or subsequent statements made in connection
with those filings. Rather, they allege that upon receipt of the letter, "Kettering
retained [EBG], notifying Plaintiffs of representation on July 30, 2025[, ]" (Doc. #28,
PAGEID 1058, fl 20), just fourteen days before the EBG Defendants undertook their
first involvement in the dispute-filing the Complaint and TRO Motion. In other
words, the EBG Defendants' alleged harm to Collier and Scott only began with the
filings on August 13, 2025, and only continued in proceedings relating to the
instant case. Thus, even assuming arguendo as true Scott and Collier's argument
that the privilege "does not extend to .. . bad-faith 'pre-litigation' communications
29
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unconnected to a legitimate claim" (id. at PAGEID 1758), the privilege still covers
all conduct of which the EBG Defendants are accused.
Consequently, the litigation privilege is an absolute bar with respect to
Collier and Scott's state-law claims of false light (Claim Five), abuse of process
(Claim Six), malicious prosecution (Claim Seven), IIED (Claim Eight), and civil
conspiracy (Claim Nine), because those claims may not, under any circumstances,
be successful based on statements made during the course of litigation. Reister,
2020-0hio-5484, fl 8; see also supra Section II. B (collecting cases showing that the
litigation privilege applies to each of Collier and Scott's state-law claims).
Accordingly, the Motion is sustained as to Collier and Scott's state law claims,
Claims Five through Nine, and they are dismissed with prejudice as against the
EBG Defendants.
B. Federal Law Claims
As discussed in Section II. B, the state law absolute litigation privilege does
not extend to employment retaliation claims under Title VII of the Civil Rights Act
of 1964, 42 U. S. C. § 2000e etseq. (Claim Three). 5 Steffes, 144 F. 3d at 1074.
However, while Title VII is not to be read so narrowly as to encompass only a
formal employer-employee relationship, Christopher v. StouderMem. Hosp.. 936
5 In the Amended Third-PartyComplaint, Scott and Collier state that "[t]his claim arises under Title
VII... and Ohio Rev. Code §4112. 02(l)[. ]" (Doc. #28, PAGEID 1066, 1150). However, in their
memorandum contra, they state that Collier's claim arises under Title I of the Americans with
Disabilities Act of 1990. (Doc. #93, PAGEID 1762, citing 42 U. S. C. § 12203(a)(1)). Any such
distinction is immaterial for the purposes of the Motion; "the ADA adopts Title Vll's remedial
framework for employment-related claims, " Post v. Trinity Health-Mich., 44 F. 4th 572, 581 (6th Cir
2022), meaning that the "control of employment" element in Title VII cases applies with equal
force in an ADA employment case.
30
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F. 2d 870, 874-75 (6th Cir. 1991) (collecting cases), for a retaliation claim to be
actionable against a defendant that is not a direct employer, as herein, the
defendant must be able to exercise such control over the plaintiff's employment
that plaintiff could plausibly "have alleged some type of joint-employer theory
against" the defendant. Post v. Trinity Health-Mich., 44 F. 4th 572, 579 (6th Cir.
2022); see also Christopher, 936 F. 2d at 875, citing Sibley Mem. Hosp. v. Wilson,
488 F. 2d 1338, 1341 (D. C. Cir. 1971) ("[l]n certain circumstances, control over
access to employment may reside in organizations outside the regular employer-
employee relationship. ").
Collier and Scott have not alleged facts that would permit the reasonable
inference that the EBG Defendants, acting only as counsel for Kettering, were in
any position to interfere with Collier's current or future employment, much less
were functioning as Collier's "joint employer" with Kettering. Further, Collier and
Scott do not cite any caselaw, and the Court is unaware of any, suggesting that
outside counsel merely filing a lawsuit and TRO Motion on behalf of their client,
without more, can subject counse/to a retaliation claim simply because their filing
was preceded by protected activity by the client's employee. Absent any factual
or legal support. Claim Three is not actionable under federal or Ohio law, see
Ulner v. Dana Corp., 200 F. Supp. 2d 804, 818 (N. D. Ohio 2002) ("Ohio courts apply
the Title VII framework to state law employment discrimination claims"), and the
EBG Defendants' Motion must be sustained as to that claim.
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As to Collier and Scott's sole remaining claim. Civil RICO (Claim Ten), "[t]o
proceed beyond a motion to dismiss on a Civil RICO claim, a plaintiff must
plausibly allege, as to each defendant, that the defendant: (i) conducted, (ii) an
enterprise, (iii) through a pattern (i. e., two or more acts), of (iv) racketeering
activity[. ]" Compound Prop. Mgmt, LLC v. Build Realty, Inc.. 462 F. Supp. 3d 839,
855 (S. D. Ohio 2020) (Cole, J. ) (emphasis added), citing In re ClassicStar Mare
Lease Litig., 727 F. 3d 473, 483 (6th Cir. 2013). Further, "a plaintiff must allege an
injury to his business or property by reason of the RICO violation. " Smith v.
Lerner, Sampson & Rothfuss, L. P. A., 658 F. App'x 268, 278 (6th Cir. 2016) (internal
quotation marks and citation omitted). Moreover, 18 U. S. C. § 1964(c), the
remedies provision for Civil RICO, "does not allow recovery for all harms.
Instead, by explicitly permitting recovery for harms to business and property, it
implicitly excludes recovery for harm to one's person. " Med. Marijuana, Inc. v.
Horn, 604 U. S. 593, 601 (2025).
To know this much is to resolve the claim as a matter of law. Scott's
allegations of harm consist of: "reputational harm, emotional distress, and
litigation-related damages" and jointly incurring with Collier "substantial litigation
expenses defending against baseless claims. " (Doc. #28, PAGEID 1077, II 88).
Emotional distress and litigation costs and damages are textbook personal
injuries, and a vague allegation of "reputational harm" is insufficient for the Court
to infer that Scott's law practice was concretely harmed as a direct and proximate
result of the extortion claim filed against her-again, the only racketeering activity
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of which the EBG Defendants are potentially accused. SeeAnza v. Ideal Steel
Supply Corp., 547 U. S. 451, 461 (2006) ("When a court evaluates a RICO claim for
proximate causation, the central question it must ask is whether the alleged
violation led directly to the plaintiff's injuries. "). Collier's claims of "reputational
harm, physical and emotional distress, and financial losses" (Doc. #28, PAGEID
1077, 1188), are similarly not actionable. While Collier's allegation of "retaliatory
termination" {id. } may not have been explicitly foreclosed by Horn, 604 U. S. at
614, it does fail against the EBG Defendants, because Collier does not allege that
the EBG Defendants played any part in the decision to terminate her. Absent a
concrete, cognizable injury from the EBG Defendants' participation in a criminal
enterprise. Collier and Scott do not have a colorable Civil RICO claim.
Moreover, even if their alleged harms were to come within the scope of the
Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U. S. C. §
1964(c), Collier and Scott still have failed to plead a plausible claim. Collier and
Scott allege that the EBG Defendants were part of a criminal enterprise with
Kettering and its individual employees "because they functioned as a continuing
unit to further unlawful objectives. " (Doc. #28, PAGEID 1076, fl 85, citing 18 U. S. C.
§ 1961(4)). However, without more, the allegation is a mere legal conclusion to
which no presumption of truth attaches. Twombly, 550 U. S. at 555. As to the EBG
Defendants, there is nothing more. The criminal activities complained of by
Collier and Scott are essentially: committing fraud in clinical trials, concealing
HIPAA, retaliating against Collier "in violation of federal statutes, including HIPAA,
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Civil Rights, and False Claims Act frameworks", and concealing "systematic
noncompliance" and the consequent risk to patient safety. (Doc. #28, PAGEID
1077, IT 86). These are all actions that were allegedly undertaken by the Kettering
Defendants, with no allegation of involvement by the EBG Defendants. The only
theoretical allegation of racketeering activity against the EBG Defendants is that
they, on behalf of Kettering, filed suit against Collier and Scott in furtherance of
Kettering's retaliation. {Id. }. By definition, a single act cannot constitute a pattern
of racketeering activity. In re ClassicStar Mare Lease Litig., 727 F. 3d at 483, citing
18 D. S. C. § 1962(c). Consequently, Claim Ten must be dismissed as to the EBG
Defendants.
For the reasons set forth above, EBG Defendants' Motion to Dismiss (Doc.
#91) is SUSTAINED for Collier and Scott's failure to state claims upon which relief
can be granted.
V. Conclusion
For the foregoing reasons. Collier and Scott's Motion to Dismiss (Doc. #13)
is not ruled upon at this time, and the EBG Defendants' Motion to Dismiss (Doc.
#91) is SUSTAINED. Collier and Scott's First Amended Counterclaim (Doc. #28) is
DISMISSED WITH PREJUDICE as against the EBG Defendants. Judgment shall
ultimately so enter in favor of the EBG Defendants and against Collier and Scott.
Scott and Hewitt are ORDERED TO SHOW CAUSE within FOURTEEN (14)days of
entry why: (1) their conduct did not violate Rule 1 1 (b); (2) they should not be held
in contempt of this Court; and (3) this Court should not impose sanctions against
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both counsel and the parties, including but not limited to overruling with prejudice
Collier and Scott's Motion to Dismiss (Doc. #13).
Upon resolution of the Show Cause Order, the undersigned intends to
recuse himself from further proceedings in this litigation and to report Scott and
Hewitt to the Cincinnati Bar Association Grievance Committee or the Supreme
Court of Ohio Office of Disciplinary Counsel. The District Judge to whom the
matter is reassigned will adjudicate the Motions to Dismiss of Kettering (Doc. #73)
and that of the Individual Defendants. (Doc. #93). Likewise, should Collier and
Scott's Motion to Dismiss (Doc. #13) remain viable, same will be decided by the
undersigned's successor as District Judge.
The Court takes no pleasure in directing counsel to show cause why they
should not be held in violation of Fed. R. Civ. P. 11 (b) or in contempt of this Court
and, further, advising counsel that this Court will refer their conduct to the
relevant ethics committee or to the Supreme Court of Ohio Office of Disciplinary
Counsel. This is particularly so, given that the Court has acted sua sponte,
without any motion by opposing counsel. Indeed, in 56 years as a judicial officer,
this is the very first time the Court has ever had occasion to do so. In the very few
situations similar to, but far less egregious than Scott and Hewitt's conduct, once
opposing counsel has pointed out such misconduct, or even without such
impetus, the offending counsel has reached out immediately, either in writing or
in a personal visit to the Court (along with opposing counsel), in order to
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apologize to the Court and, often, to explain. Yet, no apology or attempted
explanation occurred in this matter.
One might understand and excuse a citation containing an incorrect date, or
presenting dicta as the holding of a given case. However, Scott and Hewitt's
actions in this matter, unexplained and unapologized for, in spite of their conduct
twice having been brought to their attention by opposing counsel, in the
aggregate, as opposed to a single situation involving a single case, is nothing less
than a breach of the duty of candor, honesty, and trust that, if it is allowed to
become the norm, threatens the very foundation of our legal system and the rule
of law.
IT IS SO ORDERED.
January 2, 2026
fcu(^T L , \^t^-
WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT
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