Green v. Mason

• Citation: 504 F.Supp.3d 813
• Decision Date: 30 November 2020
• Docket Number: Case No. 1:19–cv–14
• Parties: F. Harrison GREEN, Plaintiff, v. Timothy A. MASON, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

504 F.Supp.3d 813

F. Harrison GREEN, Plaintiff,

v.Timothy A. MASON, et al., Defendants.

Case No. 1:19–cv–14

United States District Court, S.D. Ohio, Western Division.

Signed November 30, 2020

Gregory Allen Keyser, Cincinnati, OH, for Plaintiff.

Donald J. Malarcik, Gorman, Malarick & Pierce, Akron, OH, for Defendant Timothy A Mason.

John Charles Greiner, Graydon Head & Ritchey LLP, Cincinnati, OH, for Defendants Gary J. Bergenske, Jerry G. Gantt.

OPINION AND ORDER

DOUGLAS R. COLE, UNITED STATES DISTRICT JUDGE

This action is before the Court on three motions: (1) Defendants Gary J. Bergenske and Jerry G. Gantt's Motion to Dismiss (Doc. 4); (2) Defendant Timothy A. Mason's Motion to Dismiss (Doc. 5); and (3) Plaintiff F. Harrison Green's Motion for Leave to File an Amended Complaint (Doc. 8). For the reasons explained below, the Court GRANTS Plaintiff's Motion for Leave to Amend his Complaint. The Court also finds, however, that, even as amended, the Complaint fails to state a claim, and thus the Court GRANTS Bergenske and Gantt's Motion to Dismiss, and GRANTS Mason's Motion to Dismiss, both of which the Court construes as directed toward the allegations in the Amended Complaint. Therefore, the Court DISMISSES the Amended Complaint WITH PREJUDICE .

BACKGROUND

F. Harrison Green ("Green"), along with Timothy A. Mason ("Mason"), Gary J. Bergenske ("Bergenske") and Jerry G. Gantt ("Gantt" and collectively with Mason and Bergenske the "Defendants"), are all part of the fraternal organization Shriners International, whose members are commonly referred to as "Shriners".¹ (Compl., ¶¶ 6–9, Doc. 1, #3–4² ). Although known by many for their participation in local parades, Shriners are also involved in a variety of other endeavors, including the important task of operating the many Shriners Hospitals for Children across the country. (See id. at ¶¶ 8–9, 3–4). The Shriners Hospital for Children in Cincinnati (the "Hospital") is one such hospital. Green and Mason jointly served on the volunteer Board of Governors (the "Cincinnati Board") for the Hospital. (See id. at ¶¶ 6–7, #3). Their time together on that Board ultimately led to this suit.

In October 2015, Green was invited to join the Cincinnati Board as an Associate Member. (Id. at ¶ 13, #5). The following July, he was elected as a full board member, and he began his three-year term in that capacity in January 2017. (Id. at ¶ 15).

The Cincinnati Board is not the ultimate decision-maker regarding the Hospital. Rather, there are two national-level organizations, the Board of Directors of Shriners Hospitals for Children and the Board of Trustees of Shriners Hospitals for Children. (See , e.g. , id. at ¶ 8, #3-4). The Complaint refers to these collectively as the Joint Boards. (Id. at ¶ 18, #5). The Joint Boards decided in January 2018, just one year after Green assumed his position on the Cincinnati Board, that they were going to close the Cincinnati Hospital. (Id. at ¶ 20, #5). Days later, on February 5, 2018, the Joint Board allegedly forced the then-current Chairman of the Cincinnati Board to resign. (Id. at ¶ 17, #5). They then promoted Mason from Vice Chairman to Chairman, (id. at ¶ 18, #5), and named Green as Vice Chairman, (id. at ¶ 19, #5).

Later that same month, the Joint Boards changed course again and, instead of closing the Hospital, they decided to operate it with a "smaller footprint" either in its current facility or at another hospital. (Id. at ¶ 21, #6). In other words, the Joint Boards planned to make the Hospital a smaller "hospital within a hospital." (Id. ). While the Complaint is not entirely clear on this point, it appears that Green alleges that actually closing the hospitals may have violated the bylaws of the Shriners Hospital for Children, but that this downsizing would not. (Id. at ¶ 23, #6).

The Joint Boards retained global consulting firm McKinsey & Company to explore the best means for implementing this downsizing, both in Cincinnati and at the three other Shriners Hospitals. (Id. at ¶ 22, #6). To facilitate this process, the Cincinnati Board formed a committee to work with McKinsey and the Hospital's staff. (See id. at ¶¶ 24–27, #6). Both Green and Mason served on this committee. (Id. at ¶ 24, #6). The committee's goal was to form a joint plan for reorganization, approved by both the Cincinnati Board and the Joint Boards, that it could present at "the Imperial Session of Shriners International." (Id. at ¶ 28, #7).

On April 25, 2018, the committee members presented a proposal for such a plan to the Executive Committee of the Cincinnati Board. (See id. at ¶ 29, #7). It was during this presentation that things began to go awry for Green. He alleges that during the presentation, Mason "sought to cut the presentation short," something Green opposed in light of the time and effort he and others had put into preparing the pitch. (Id. ).

Green further alleges that after the meeting, he and Mason confronted each other, and Mason "accused [Green] of using lawyer-like tactics by raising his voice and over-talking Mason," which Green denies.

(Id. at ¶ 30, #7). Later that day, the "full" Cincinnati Board met; Green and his fellow committee members made "a second presentation which in part included" the plan they had proposed earlier that day. (Id. at ¶ 31, #7). The balance of the plan requested the authority to "assume the position of an affiliated hospita," a status that Green alleges "was available per the bylaws of Shriners Hospitals for Children and the Hospital Rules and Regulations." (Id. ). During that second meeting, Green and Mason engaged in a robust discussion of whether the resolution was permissible under Shriner bylaws, with Green arguing in favor of the proposal's permissibility. (Id. at ¶¶ 32–34, #8).

A few weeks later, Green took it upon himself to email his proposal to one of the McKinsey consultants, Dr. Edward Levine. (Id. at ¶ 35, #8; Id. at Ex. A, Doc. 1-1, #18–19). In that email, Green reiterated his position that his committee's proposal "need[ed] to be explored" and that he hoped to "explore this option with" the consultants. (Compl. at Ex. A, #18). Dr. Levine responded two days later, thanking Green for his email but declining to get involved, as he did not want to be " ‘caught in the middle’ of various conversations." (Id. at Ex. B, Doc. 1-2, #20).

Twelve days later, on May 22, 2018, the other two Defendants, Gantt and Bergenske, emailed Green and informed him that he was being relieved of his position on the Cincinnati Board. (Id. at ¶ 37, #8; Id. at Ex. C, Doc. 1-3, #23–24). The emailed letter indicated that it had "come to the attention of the National Trustees" that Green violated Hospital rules and regulations by misrepresenting the bylaws to other board members, engaging in unauthorized meetings, and impermissibly communicating with Dr. Levine. (Id. at Ex. C, #23). The letter advised Green that "pursuant to Hospital Regulation § 105.1 (a) (6), the Board of Trustees hereby removes you as the Vice Chairman and as a Member of the Board of Governors of the Cincinnati [Hospital]" and further notified Green that he was prohibited from entering Hospital grounds. (Id. at Ex. C, #23–24). Bergenske (the Chairman of the National Directors) and Gantt (the Chairman of the National Trustees) both signed the letter. (See id. at Ex. C, #24). Mason also received a copy in his capacity as Chairman of the Cincinnati Board. (See id. ; see also id. at ¶ 37, #8).

Green alleges that the statements from the letter regarding his removal were "published" "through a community of membership in excess of 2,000 individuals." (Id. at ¶ 70, #14). He provides no further details as to this alleged "publication," although, in his proposed Amended Complaint (further discussed below), he expands on this slightly, claiming that the information was "contained in the records of Shriners International" (Prop. Am. Compl., Doc. 9, at ¶ 64, #104-05), and also that the statements were "found in public records and available via internet searches" (id. at ¶69, #106). He provides no further description, though, of the nature of the alleged "public records" or the specifics of any "internet searches" that would reveal the allegedly defamatory content.

Upset by this course of events, Green elected to sue Mason, Bergenske, and Gantt in their individual and official capacities. (Compl. at ¶¶ 7–9, #3–4). Green sued Bergenske and Green because of their authorship of the letter relieving him of his position on the Board of Governors. As for Mason, Green alleges that the only way Gantt and Bergenske could have learned about his alleged misconduct was from Mason. Indeed, time and again, Green asserts that Bergenske and Gantt did not have personal knowledge of his actions. (See id. at ¶¶ 43–51, #9-11). Other than whatever Mason told them, Green reiterates, he was "in good standing" before his removal and, aside from this one instance, had never been disciplined by any Shriners entity. (Id. at ¶ 40, #8).

On January 4, 2019, Green filed a Complaint alleging five causes of action under Ohio law.³ The first two are for intentional and negligent infliction of emotional distress. (See id. at ¶¶ 57–67, #12–14). The third is for false light. (Id. at ¶¶ 68–72, #14). The fourth cause of action is for slander (id. at ¶¶ 73–78, #15), and the fifth appears to be for general "retaliation" (id. at ¶¶ 79–80, #16). Green seeks compensatory damages, punitive damages totaling $10,000,000, and attendant fees and costs. (Id. at ¶¶ A–D, #16).

PENDING MOTIONS

In response to the Complaint, first Bergenske and Gantt (on March 20, 2019), and then Mason (on April 5, 2019), filed motions to dismiss under Rule 12(b)(6). (See Defs. Bergenske and Gantt's Motion to Dismiss Compl. ("B&G's Mot."), Doc. 4, #28–46; Def. Mason's Mot. to Dismiss Pl.’s Compl. ("Mason's Mot."), Doc. 5, #47–60).

A. Defendants’ Motions To Dismiss.

In their motion, Bergenske and Gantt argue that Green failed to state any viable causes of action. Bergenske...