Fletcher v. University Hospitals of Cleveland

Summary

The Ohio Supreme Court held that a plaintiff’s failure to attach the affidavit of merit required by Ohio Civ.R. 10(D)(2) is properly addressed by a motion to dismiss under Civ.R. 12(B)(6), rather than a motion for a more definite statement. The court further held that dismissal for this failure is otherwise than on the merits and must therefore be without prejudice. The judgment of the court of appeals was reversed and the case was remanded.

Holdings

1. A defendant must respond to a plaintiff's failure to attach the affidavit of merit required by Civ.R. 10(D)(2) with a motion to dismiss under Civ.R. 12(B)(6), not a motion for a more definite statement under Civ.R. 12(E).
2. Dismissal for failure to comply with Civ.R. 10(D)(2) is an adjudication otherwise than on the merits and must be without prejudice.

Questions Presented

1. Whether a plaintiff's failure to attach the affidavit of merit required by Civ.R. 10(D)(2) subjects the complaint to dismissal under Civ.R. 12(B)(6) or instead requires a Civ.R. 12(E) motion for a more definite statement.
2. Whether dismissal of a complaint for failure to attach a Civ.R. 10(D)(2) affidavit of merit is with prejudice or without prejudice.

Disposition

reversed_and_remanded