(DOWNLOAD) "Assn. for the Defense of the Washington Local School Dist. v. Kiger" by The Supreme Court of the State of Ohio " Book PDF Kindle ePub Free
eBook details
- Title: Assn. for the Defense of the Washington Local School Dist. v. Kiger
- Author : The Supreme Court of the State of Ohio
- Release Date : January 26, 1989
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 72 KB
Description
The respondents motion to dismiss is untimely and also ill-conceived because it argues the merits of relators request for a writ of mandamus instead of attacking the sufficiency of the complaint. For purposes of a Civ. R. 12(B)(6) motion to dismiss, the material allegations of the complaint are taken as admitted. State, ex rel. Alford, v. Willoughby Civil Serv. Comm. (1979), 58 Ohio St.2d 221, 223, 12 O.O. 3d 229, 230, 390 N.E. 2d 782, 785. Then, "[i]n order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted * * *, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. (Conley v. Gibson, 355 U.S. 41, followed.)" (Emphasis added.) OBrien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753, syllabus. Here, it does not appear "beyond doubt from the complaint" that relators can prove no set of facts entitling them to recovery. For that reason and because it is untimely, the motion to dismiss is overruled.