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Polzin v. Barna and Co.

September 14, 2007

SUSAN L. OSTRANDER POLZIN, PLAINTIFF
v.
BARNA AND COMPANY, ET AL., DEFENDANTS



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

(Phillips/Shirley)

MEMORANDUM OPINION

This action arises out of the 2004 purchase of a log home package and related services for the home's construction by plaintiff Susan L. Ostrander Polzin, an Ohio attorney. Plaintiff has filed a forty-four page complaint against five Tennessee defendants and three Ohio defendants, alleging a total of thirty-eight causes of action, many of which are pursuant to various Ohio statutes [see Doc. 1]. As is apparent from the complaint, complete diversity between plaintiff and the defendants does not exist; rather, the sole basis for federal jurisdiction is set forth in Count XXXIV, which alleges violations of the Racketeer Influenced and Corrupt Organizations Act (civil RICO), 18 U.S.C. § 1962(c) [see id., pp.38-40].

This matter is presently before the court on the following motions:

1. Motion to dismiss by defendants Barna and Company, Barna and Company, d/b/a Jim Barna Log Systems, and Log Home Builders, Inc. (the Barna defendants) [Doc. 19];

2. Motion to dismiss by defendants Bryan Mason and Bryan Mason, d/b/a Mason Construction [Doc. 21]; and

3. Motion to dismiss by defendants Eric Thompson, Karen Thompson, and Valley View Cabins, Inc. [Doc. 22].

The gist of defendants' motions is that the court should dismiss the civil RICO count and, after doing so, should decline to exercise supplemental jurisdiction over the other thirty-seven state law causes of action. The issues raised have been well briefed by the parties [see Docs. 20 and 23]*fn1 so that this matter is now ripe for adjudication.*fn2 For the reasons that follow, defendants' motions will be granted, and this case will be dismissed.

I.

Factual Allegations In order to analyze the allegations against all defendants in the context of a motion to dismiss filed pursuant to both Fed. R. Civ. P. 9(b) and 12(b)(6), the court will turn first to the factual allegations common to all counts and then to the specific allegations of the civil RICO count. Those verbatim factual allegations common to all counts are as follows:

13. In July of 2004, the Plaintiff purchased unimproved property at 7770 Sadie Thomas Road, Johnstown, Ohio to build a new residential home.

14. On July 10, 2004, the Plaintiff purchased a log home package, including the provision of a builder, from Barna and Company, Barna and Company dba Jim Barna Log Systems and/or its distributors Eric and Karen Thompson and Valley View Cabins, Inc.*fn3

16. As part of the consideration of the log home package, the Plaintiff also entered into a Technical Assistance Agreement with Log Home Builders, Inc.*fn4

18. The materials for the construction of the log home were delivered to the Property on October 12, 2004.

19. Pursuant to the Agreements between the Plaintiff and Log Home Builders, Inc., Log Home Builders, Inc., on its own behalf and on behalf of Barna and Company, chose Bryan Mason to build the log home purchased by the Plaintiff.

20. Despite the written encouragement within the agreements for the Plaintiff to research the references of any builder, the Plaintiff was notified of the identity of Bryan Mason, Barna and Company's and Log Home Builders, Inc.'s chosen builder, a mere one business day prior to his arrival at the jobsite and one full week after the materials had been delivered to the jobsite.

21. The Plaintiff and Defendant Bryan Mason entered into a Builder's Agreement on October 18, 2004.*fn5

23. The Plaintiff was newly informed by the Defendants that the "dry-in" of the home would be completed within 90 days from October 18, 2004, pursuant to the terms of the Builder's Agreement.

24. Bryan Mason walked off the jobsite without completing his obligations under the Builder's Agreement or even the services he had already been paid for.

25. As a result of continuous and constant breaches of the Purchase Agreement, the Technical Assistance Agreement, and the Builder's Agreement by the Defendants, the ...


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