COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70712 MARYCATHERINE L. KRAUSE, M.D. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CASE WESTERN RESERVE UNIVERSITY, : ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 19, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 299570 JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee Case Western Reserve MARYCATHERINE L. KRAUSE, M.D., University: PRO SE 5124 Mayfield Road JOEL A. MAKEE, ESQ. Cleveland, Ohio 44124 THOMAS J. LEE, ESQ. HALLE FINE TERRION, ESQ. Kelley, McCann & Livingstone BP America Bldg., 35th Floor 200 Public Square Cleveland, Ohio 44114-2302 [continued on next page] For Defendant-Appellees KENNETH B. STARK, ESQ. MetroHealth Medical Center, SUELLEN OSWALD, ESQ. MetroHealth System, James Duvin, Cahn & Hutton Carter, Randall D. Cebul Erieview Tower, 20th Floor and Neal Dawson: 1301 East Ninth Street Cleveland, Ohio 44114 - 3 - JAMES M. PORTER, P.J., Plaintiff-appellant Marycatherine L. Krause, M.D., appearing pro se, appeals from the trial court's Civ.R. 12(B)(6) dismissals of her claims against defendants-appellees Case Western Reserve University (CWRU), MetroHealth Medical Center, MetroHealth System (jointly MetroHealth) and its staff physicians, Drs. James Carter, Randall D. Cebul and Neal Dawson. The essential thrust of plaintiff's appeal is that the trial court erred, as a matter of law, in dismissing her claims and abused its discretion by doing so before plaintiff had perfected service of process on seven other named doctor-defendants who also practiced at MetroHealth. We find no error and affirm. Plaintiff Dr. Krause is a May 1989 graduate of Case Western Reserve School of Medicine. Upon graduation, plaintiff interned in internal medicine at Mt. Sinai Medical Center from July 1, 1989 to June 30, 1990. Her service at Mt. Sinai is the subject of a companion appeal in Marycatherine L. Krause, M.D. v. Case Western Reserve University, Mt. Sinai Medical Center, et al., Cuyahoga App. No. 70526. Upon completing her Mt. Sinai tenure, Dr. Krause was employed by MetroHealth from July 1, 1990 to June 30, 1993 as a resident in psychiatry and then internal medicine. Dr. Krause's pro se complaint herein alleges a lengthy narrative of events at MetroHealth which she claims bore unfairly on her performance as a resident, thereby leading to injury to her professional career. - 4 - She takes issue with various evaluations of her work made by the individual defendant doctors, all of whom were employees of MetroHealth supervising her residency. Insofar as relevant to CWRU, Dr. Krause alleged that MetroHealth was "a teaching center of Case Western Reserve University"; that, in addition to being employees of MetroHealth, the individual defendant-physicians whom she trained under had appointments as faculty members at CWRU's School of Medicine; that CWRU had a duty to prevent harm to persons "who operate within [its] institutional domains"; and that CWRU had a "special responsibility" to protect its medical school graduates as doctors- in-training at "University-affiliated institutions," i.e., at MetroHealth. As to MetroHealth, plaintiff alleged that MetroHealth was responsible for the misconduct of its employee-doctors in the course of her residency which adversely affected her professional advancement and career opportunities. For example, she claimed that Dr. Carter, in 1991, in his capacity as the Director of MetroHealth's Department of Medicine, failed to approve her request to transfer to University Hospitals for the 1992-1993 academic year; that Dr. Carter deliberately misrepresented her training and career goals and interests as a "primary care physician" and failed to emphasize her "research experience" in his letter of recommendation which "contributed significantly to the paucity of - 5 - job offers commensurate with the Plaintiff's background and credentials." Plaintiff also claimed that Dr. Carter violated "plaintiff's intellectual property rights," and "misused his authority as the Director of the Department of Medicine to restrain Plaintiff's academic career opportunities." This allegedly occurred when Dr. Carter misappropriated plaintiff's "independent[]" and "rare" diagnosis of a patient during a MetroHealth educational forum for medical students and professionals. Plaintiff also alleged that Dr. Cebul, on March 10, 1993, impugned her personal and professional reputation when he referred to her as an "ignorant slut" during a teaching session with three medical students. When plaintiff took offense, a written apology was promptly given by Dr. Cebul in which he attributed his remark to a parody of a popular Saturday Night Live skit. Plaintiff's claims against Dr. Dawson asserted that he failed to intervene in problems caused by Drs. Talal Adhami and Victoria Lagunzad (two MetroHealth interns) to prevent further harm to the plaintiff's personal and professional reputation; that Dr. Dawson also "aggravated the harm done" when he suggested that, before taking legal action against Adhami or Lagunzad, plaintiff should seek psychological counseling and read a publication on stress management in residency training programs. Claims against the seven doctor-defendants who were not served with process ranged from unfair and deceitful evaluations and - 6 - defamatory attacks on her medical competence and inter-personal skills, to physical intimidation, threats, unwelcome gestures and physical contact. Plaintiff filed suit against the thirteen defendants on December 5, 1995. In the title of her complaint, plaintiff claims the following "harms" were done to her "in the course of post graduate medical education and employment at MetroHealth from 1990- 1993:" Intimidation Slander Libel Defamation Intentional infliction of emotional distress Fraud Breach of duty Breach of affirmative action to prevent harm Breach of control of third person Assault Battery Restraint of trade Wrongful invasion of privacy Practice of Medicine without a license Plaintiff sought $100 million in compensatory damages and eight forms of equitable relief. Service was obtained on CWRU, the two MetroHealths and Drs. Carter, Cebul and Dawson. Plaintiff never effected service of process on seven of the named defendants, to wit: Drs. John D. Hines, Helen Tramposch, Debra A. Rozin, Goshen Issa, Victoria Lagunzad, Talal Adhami and Martin Butzlaff, who were apparently no longer employed at MetroHealth at the time of the suit. Plaintiff's informal attempt by letter to obtain current addresses for these seven defendants from MetroHealth was not successful. - 7 - On March 1, 1996, plaintiff filed and served MetroHealth a pleading captioned "Motion to Discover: Information Required to Locate Defendants for Process of Service [sic]," which sought permanent or forwarding address information for the seven defendants who had never been served. On March 25, 1996, MetroHealth filed and served its "Objections to Plaintiff's Motion to Discover Information from Defendant MetroHealth Medical Center." Plaintiff failed to respond to the objections or move to compel answers under Civ.R. 37. On March 25, 1996, CWRU, MetroHealth and the three doctors filed their motions to dismiss pursuant to Civ.R. 12(B)(6). On May 7, 1996, the trial court granted the motions to dismiss without opinion or explanation. On May 14, 1996, the trial court also dismissed, as moot, plaintiff's discovery motion against MetroHealth. On May 24, 1996, plaintiff filed a "Motion for a New Trial" pursuant to Civ.R. 59. On June 12, 1996, pursuant to Civ.R. 4(E), the trial court, sua sponte, dismissed without prejudice the complaint against the seven defendant-physicians who had not been served, and denied plaintiff's motion for a new trial. Plaintiff filed a timely notice of appeal. Plaintiff asserts five assignments of error. We will first address Assignments of Error III and IV which go to the substantive grounds for dismissal. - 8 - III. THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT- APPELLEE'S PRETRIAL ORCP CIVIL RULE 12(B)(6) MOTION TO DISMISS BY ABUSE OF DISCRETION AS FINDER OF FACT, SUCH THAT THE AGGRIEVED PARTY WAS PREVENTED FROM HAVING A FAIR TRIAL AND THEREFORE WAS DENIED SUBSTANTIAL RIGHT TO LEGAL REMEDY RECOGNIZED IN ORC 2505.02 AND APPELLATE PRACTICE AND PROCEDURE 2.04. IV. THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT- APPELLEE'S MOTION TO DISMISS BY ABUSE OF DISCRETION AS FINDER OF FACT BY PERMITTING MISCONDUCT OF PREVAILING PARTY WHO MISREPRESENTED AND CONCEALED NUMEROUS FACTS PERTINENT TO THIS CASE, INCLUDING BUT NOT LIMITED TO, WRITTEN EVIDENCE ATTACHED TO COMPLAINT AS PLAINTIFF'S EXHIBITS IN ACCORDANCE WITH ORCP 10(C) WHICH SUBSTANTIATES DEFAMATION, LIBEL, AND CONSPIRACY TO LIBEL, FOR WHICH RELIEF IS PROVIDED IN ORC 2305.14, AND WHO MISREPRESENTED AND CONCEALED CLAIMS, FACTS, AND GENERAL KNOWLEDGE SUBSTANTIATING CLAIMS FOR BREACH OF CONTRACT PROVIDED FOR IN ORC 2305.06, 1301.09 AND 1301.11. It is a well-settled rule that a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 245. The deference to be shown the allegations of the complaint were recently set forth as follows in Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 667: A complaint should not be dismissed for failure to state a claim merely because the allegations do not support the legal theory on which the plaintiff relies. Instead, a trial court must examine the complaint to determine if the allegations provide for relief on any possible theory. See Patriarca v. Federal Bur. of Investigation (D.R.I.1986), 639 F.Supp 1193. A court must construe all material allegations in - 9 - the complaint and all inferences that may be reasonably drawn therefrom in favor of the nonmoving party. Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 23 OBR 260, 491 N.E.2d 1114. Thus, a court must presume all factual allegations in the complaint are true for purposes of the motion. Bridges v. Natl. Eng. & Contracting Co. (1990), 49 Ohio St.3d 108, 551 N.E.2d 163. Further, as the Ohio Supreme Court in Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, 526 held: A party is not required to plead the legal theory of recovery or the consequences which naturally flow by operation of law from the legal relationships of the parties. "The rules make clear that a pleader is not bound by any particular theory of a claim but that the facts of the claim as developed by the proof establish the right to relief." McCormac, Ohio Civ. Rules Practice (2 Ed. 1992) 102, Section 5.01. Although this standard requires the trial court to take all factual allegations in the complaint as true and construe them in plaintiff's favor, "'[u]nsupported conclusions of a complaint *** are not sufficient to withstand a motion to dismiss.'" Thompson v. Central Ohio Cellular, Inc. (1994), 93 Ohio App.3d 530, 538. Thus, a complaint must not only assert that a defendant is liable, but must also allege sufficient facts which, if proven, would provide a proper foundation upon which to premise such liability. We have given careful attention to the allegations and exhibits of the plaintiff's pro se complaint, although we are not required by law to give any more deference to a pro se pleading than one filed by counsel. Meyers v. First National Bank (1981), 3 Ohio App.3d 209, 210; Mackey v. Steve Barry Ford, Inc. (May 30, 1991), Cuyahoga App. - 10 - No. 58681, unreported at 7. It is safe to say that the numerous exhibits and minutely detailed narratives of the complaint, give the Court a wealth of information that we seldom receive on summary judgment motions much less motions to dismiss. We therefore have an adequate record by which to measure the merits of plaintiff's claims. A. CLAIMS AGAINST CWRU We find that the complaint fails to state a claim against CWRU upon which relief can be granted. The complaint asserts numerous events which occurred subsequent to Dr. Krause's graduation from CWRU's Medical School, during her employment as a resident at MetroHealth. The claim of CWRU's liability for these events is based on the allegations that MetroHealth is affiliated with CWRU and holds itself out as "a teaching center of Case Western Reserve University"; that the three individual defendants, all of whom were employees of MetroHealth, also had faculty appointments at CWRU's medical school; and that CWRU had some kind of "special responsibility" to protect its graduates during their residency at an affiliated institution. These allegations are not sufficient, as a matter of law, to establish CWRU's liability under the doctrine of respondeat superior for which plaintiff apparently contends. Plaintiff's relevant allegations against CWRU stated as follows: The Plaintiff further alleges that MetroHealth Medical Center and System and Case Western - 11 - Reserve University and its School of Medicine breached both their duties to [sic] affirmative action to prevent harm and duties to prevent harm by third persons who operate within their institutional domains. These allegations referred specifically to the conduct of plaintiff's supervisors (Drs. Hines and Tramposch, Director of Medicine and Director of Residency Training in Medicine, respectively, at MetroHealth) in reviewing Dr. Krause's work and evaluating her progress. These are mere legal conclusions unsupported by essential factual allegations. Although Dr. Krause asserts that an "affiliation" of some sort existed between CWRU and MetroHealth; that the individual defendants operated within CWRU's "institutional domains"; and that CWRU was the "overseer" institution; none of these assertions can serve as a legal basis for holding CWRU liable for any of the purportedly wrongful acts which allegedly occurred at MetroHealth. In Hanson v. Kynast (1986), 24 Ohio St.3d 171, the Supreme Court held at paragraph one of syllabus: The relationship of principal and agent or master and servant exists only when one party exercises the right of control over the actions of another, and those actions are directed toward the attainment of an objective which the former seeks. [Citations omitted.] The Hanson case is particularly instructive because there the Supreme Court held that a student engaged in an extracurricular lacrosse match was not an agent of the college for tort purposes causing the plaintiff's injuries - he was merely "participating in - 12 - one of the educationally related opportunities offered by the university." Id. at 175. The same may be said here. The complaint does not allege that CWRU, or any individual defendant acting in his or her capacity as an employee of CWRU, engaged in or had any control over plaintiff's employment at MetroHealth or the events detailed in the complaint. Consequently, the complaint does not state a claim against CWRU on a theory of respondeat superior. See, also, Cully v. St. Augustine Manor (April 20, 1995), Cuyahoga App. No. 67601, unreported (Catholic Charities and Catholic Diocese not liable for actions at St. Augustine because no evidence they exercise direct control over St. Augustine's day to day activities). Plaintiff's claim that because she graduated from CWRU's Medical School, and because her subsequent employment was at MetroHealth, CWRU owed an unspecified and undefined duty to "protect" her from tortious conduct allegedly committed by MetroHealth's employees, finds no support or parallel in the law. Plaintiff states: The Plaintiff argues that the University has a special relationship and so a special responsibility to educate and protect those doctors-in-training at university-affiliated institutions who have been granted M.D. diplomas by the university and its School of Medicine. Plaintiff points to no legal principle or authority to support her novel claim that the law obliges a university to protect its alumnae after they have graduated, even when, after graduation, - 13 - such alumnae are employed by entities with some affiliation with the university. As a matter of public policy, we are extremely reluctant to create liability for an educational institution simply because its graduates have the opportunity to continue their practical professional training at an affiliated entity over which the educational facility exercises no direct control or supervision. As a matter of law, Dr. Krause's allegations do not support a viable theory of liability against CWRU. In any event, even assuming the doctrine of respondeat superior had some application to the MetroHealth/CWRU nexus, there could be no CWRU liability unless MetroHealth or its physicians are found liable. The master or principal is not liable unless the servant or agent is liable in the first instance. Infra at p. 14. As we hereinafter find plaintiff's claims against MetroHealth and its physicians were properly dismissed; any vicarious liability of CWRU was likewise extinguished. In short, plaintiff's allegations fail to support any actionable theory of liability against CWRU; they are mere unsupported conclusions that the trial court correctly found could not withstand a motion to dismiss. Thompson v. Central Ohio Cellular, Inc., supra, 93 Ohio App.3d at 538. Furthermore, any vicarious liability is eliminated by the failure of plaintiff's claims against the other defendants. Consequently, the trial court properly granted CWRU's motion to dismiss. - 14 - B. CLAIMS AGAINST METROHEALTH AND THE OTHER DEFENDANTS The claims against MetroHealth and its employee doctors were also properly dismissed. MetroHealth's liability is strictly based on the doctrine of respondeat superior, i.e., if the defendant doctors are not liable, MetroHealth cannot be liable. Under the doctrine of respondeat superior, without an underlying tort claim against an employee, a plaintiff has no claim against the employee's employer. Strock v. Pressnell (1988), 38 Ohio St.3d 207, 217 (in order for "the doctrine of respondeat superior to apply, an employee must be liable for a tort committed in the scope of his employment"); accord, Cully v. St. Augustine Manor (April 20, 1995), Cuyahoga App. No. 67601, unreported at 34. In her complaint, plaintiff sued MetroHealth as the individual defendants' employer for failure to control or adequately supervise them. If plaintiff fails to state any claim upon which relief may be granted with regard to any of the individual defendants, as a matter of law, she has no respondeat superior claim against MetroHealth or for that matter, CWRU. We therefore analyze the claims against the ten doctor defendants, including the seven named defendants who were not served. Regardless of the fact that the seven doctors were not formally made parties defendant, plaintiff is entitled to the benefit of her allegations against them for the purposes of testing the merits of the dismissal against MetroHealth. Liability for the employee's negligence is imputed to the employer when the doctrine - 15 - of respondeat superior applies. Liberty Mutual Ins. Co. v. Paris (Dec. 22, 1994), Cuyahoga App. No. 66719, unreported at 14. There is no requirement that an employee be named as a party to a suit in order to prove his negligent acts. Billings v. Falkenburg (Sept. 5, 1986), Lucas App. No. L-86-017, unreported. Plaintiff's principal complaints are lodged against Drs. John Hines and Helen Tramposch. Various episodes are alleged: incorrect conclusions shared by the defendants that plaintiff intubated and resuscitated a patient who had been previously identified as "do not resuscitate"; critical and unfair evaluations of plaintiff's medical competence, leadership, inter-personal skills and unprofessional behavior; requiring her to submit to psychiatric testing and stress analysis by threats and intimidation; all of which plaintiff claims interfered with her professional career and opportunities for advancement. Plaintiff claims their conduct violated her human rights and constituted an invasion of privacy, libel, defamation and intentional infliction of emotional distress, breach of duty and fraud. To the extent these claims alleged defamation (libel/slander), since they all occurred in 1992 or no later than 1993, they are barred by the one-year statute of limitations. R.C. 2305.11. To the extent negligent infliction of emotional distress might be inferred, the claims are barred by the two-year statute of limitations. R.C. 2305.10; Sutton v. Mt. Sinai Medical Ctr. (1995), 102 Ohio App.3d 641, 646. Plaintiff's complaint was not - 16 - filed until December 5, 1995. In any event, "Ohio courts do not recognize a separate tort for negligent infliction of emotional distress in the employment context." Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 714. Also, to the extent these claims allege damage to her professional career and opportunities for advancement, they are barred by the two-year statute of limitations set forth in R.C. 2305.10. Lawyers Cooperative v. Muething (1992), 65 Ohio St.3d 273, 279. We also find that the allegations against Drs. Hines and Tramposch fail to assert the essential elements necessary to sustain a cause of action for intentional infliction of emotional harm which is governed by a four year statute of limitations. R.C. 2305.09(D); Lawyers Coop. v. Muething (1992), 65 Ohio St.3d 273, 280; Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 375; Biro v. Hartman Funeral Home (1995), 107 Ohio App.3d 508, 513. We recently stated the well-established elements for the tort of intentional infliction of emotional distress in Dickerson v. Internat. Un. Auto Wkrs. Un. (1994), 98 Ohio App.3d 171, 178-79, as follows: The essential elements that plaintiffs must prove to establish a claim of intentional infliction of emotional distress are summarized as follows by this court in Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359, 366, 588 N.E.2d 280, 284: "A claim for intentional infliction of serious emotional distress requires proof of four elements: - 17 - "'*** 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor's conduct was so extreme and outrageous as to go "beyond all possible bounds of decency" and was such that it can be considered as "utterly intolerable in a civilized community," Restatement of Torts 2d (1965) 73, Section 46, Comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that "no reasonable man could be expected to endure it," Restatement of Torts 2d 77, Section 46, Comment j.' Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103." In attempting to define what constitutes extreme and outrageous conduct, Ohio has adopted Sections 46(1) and (2) of the Restatement of Law 2d, Torts (1965), and the comments thereto as standards to be used in deciding emotional distress cases. Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374- 375, 6 OBR 421, 426, 453 N.E.2d 666, 671-672, the case in which the Ohio Supreme Court first recognized the tort at issue, quotes Comment d of the Restatement in describing the standard: "'[It] has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" - 18 - "'The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. ***'" Followed in Reamsnyder v. Jaskolski (1984), 10 Ohio St.3d 150, 153, 10 OBR 485, 487, 462 N.E.2d 392, 394; Ashcroft v. Mt. Sinai Med. Ctr., supra, 68 Ohio App.3d at 366, 588 N.E.2d at 284; Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103. The conduct must also be viewed in context to determine what is "beyond all possible bounds of decency *** and utterly intolerable in a civilized community." As this court has previously noted: "Ohio courts have consistently recognized that it is essential to view such conduct in context. There are situations naturally fraught with antagonism and emotion where a person must be expected to endure the resultant antagonism and mental anguish." Stepien v. Franklin (1988), 39 Ohio App.3d 47, 51, 528 N.E.2d 1324, 1330. Measuring plaintiff's detailed allegations against Drs. Hines and Tramposch against the stringent requirements for this tort, we find plaintiff's claims fall short of meeting the legal requirements. Assuming the doctors' conduct in question may have been wrongful, unfair, unkind or even cruel in plaintiff's view, it still does not meet the standard of so extreme and outrageous as to go beyond the bounds of decency considered intolerable in a - 19 - civilized community. Given the context of the comments and the doctors' duties to supervise and train residents under their jurisdiction, the defendants were within their rights to evaluate, criticize, discipline and even draw the conclusion that plaintiff was only marginally qualified to perform her duties. Employer's right to criticize, correct and discipline employees even in a distasteful or reprehensible manner does not amount to extreme and outrageous conduct. See Czubaj v. E.B.P., Inc., dba EpicSteel (Oct. 12, 1995), Cuyahoga App. No. 65517, unreported at 23 and cases cited therein. Further, there are no allegations that the resulting "injury" to plaintiff went beyond hurt feelings, humiliations or disappointment. There is no claim of severe and debilitating injury from working under these supervisors or indication that plaintiff sought medical treatment for psychic injury. No claim for intentional infliction of emotional harm is made out. We also find no invasion of privacy occurred. This Court in Rogers v. Buckel (1992), 83 Ohio App.3d 653, 658, citing to Housh v. Peth (1956), 165 Ohio St. 35 enumerated the elements of an actionable invasion of privacy as follows: "The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned." Id. at paragraph one of syllabus. "An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the - 20 - publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Id. at paragraph two of the syllabus. Therefore, in order to assert a tortious invasion of privacy claim, plaintiff must show that the area intruded upon was private, and that the intrusion of the defendants was unwarranted and offensive or objectionable to the reasonable man. Contadino v. Tilow (1990), 68 Ohio App.3d 463, 470. A review of the complaint indicates that none of the comments made about the plaintiff concern her private affairs, as the comments involved plaintiff's job performance. Bertsch v. Communications Workers of Am. (1995), 101 Ohio App.3d 186, 193. These comments were also of a legitimate concern to medical staff or personnel of MetroHealth and future employers. Id. Furthermore, if plaintiff is trying to assert an invasion of privacy claim under a "false light" theory, Ohio does not recognize such a claim for recovery. M.J. DiCorpo, Inc. v. Sweeney (1994), 69 Ohio St.3d 497, 507. Plaintiff's remaining claims against Hines and Tramposch were also properly dismissed. There is no cognizable tort claim for intimidation in Ohio, therefore the plaintiff's intimidation claim was properly dismissed. Plaintiff's claim for fraud was not specifically pled and was therefore properly dismissed. Universal Coach, Inc. v. New York City Transit Auth., Inc. (1993), 90 Ohio - 21 - App.3d 284, 292. This Court in Garofalo v. Chicago Title Ins. Co. (1995), 104 Ohio App.3d 95, 105 held: A complaint for fraud must include five elements: (1) a false representation; (2) knowledge by the person making the representation that it is false; (3) intent by the person making the representation to induce the other to rely on the representation; (4) rightful reliance by the other to his detriment; and (5) injury as a result of the reliance. Plaintiff's complaint does not allege that defendants' made the representations to induce her to rely on the statements or that she did, in fact, justifiably rely on the representations to her detriment. Therefore, her fraud claim was properly dismissed. Id. Plaintiff's claim for "breach of duty" without stating which duty was breached, fails to state a claim as none of the factual allegations in the complaint supports a breach of a specific duty by Hines or Tramposch. Likewise, there is no Ohio case law or statute supporting plaintiff's claim for violation of her human rights. The allegations against the other missing defendants, Drs. Rozin, Issa, Lagunzad, Adhami and Butzlaff, all allege inter- personal squabbles and disrespectful conduct by foreign-born interns or other subordinates which while unpleasant and/or distressing likewise did not attain the level of extreme or outrageous conduct or cause severe or debilitating emotional distress. "The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression or other - 22 - trivialities." Dickerson, supra at 179. The claim of 1992-93 assault and battery (unwelcome touching or invasion of plaintiff's "space") is barred by the one-year statute of limitations R.C. 2305.11. Plaintiff's belated claim of conspiracy to thwart the bar of the short statute of limitations does not advance the plaintiff's cause. See Cully v. St. Augustine Manor, supra at 10: Finally, a claim for conspiracy cannot be made subject of a civil action unless something is done which, in the absence of the conspiracy allegations, would give rise to an independent cause of action. Katz v. Banning (1992), 84 Ohio App.3d 543, 552, 617 N.E.2d 729; Palmer v. Westmeyer (1988), 48 Ohio App.3d 296, 300, 549 N.E.2d 1202; and Stafford v. Greater Cleveland Regional Transit Auth. (Dec. 23, 1993), Cuyahoga App. Nos. 63663 and 65530, unreported. Thus, the applicable statute of limitations for the underlying cause of action applies to the civil conspiracy charge. As already seen, because all of appellant's underlying causes of action are barred by the relevant statute of limitations, so too is appellant's conspiracy claim. Dr. Carter's refusal to authorize plaintiff's transfer to University Hospitals amounts to a claim that Dr. Carter interfered with plaintiff's prospective business relationship or opportunities. Since Dr. Carter was one of plaintiff's supervisors, his refusal was privileged and is not actionable. Generally, a claim for tortious interference with a business or economic relationship requires proof that "one who, without a privilege to do so, induces or otherwise purposely causes a third party not to enter into, or continue, a business relationship with - 23 - another, or perform a contract with another is liable to the other for the harm caused thereby." Brahim v. Ohio College of Podiatric Medicine (1994), 99 Ohio App.3d 479, 489; Ashcroft v. Mt. Sinai Medical Center (1990), 68 Ohio App.3d 359, 365 (quoting Juhasz v. Quik Shops, Inc. [1977], 55 Ohio App.2d 51, 57). Such actions must be intentional, because Ohio does not recognize negligent interference with a business relationship. See Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 186; Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 404. In Anderson v. Minter (1972), 32 Ohio St.2d 207, the Ohio Supreme Court found that no cause of action will lie for an employee's claim that her supervisor interfered with her employment where "the act complained of is within the scope of a defendant's duties." Id. at 213. See, also, Hill v. Gatz (1979), 63 Ohio App.2d 170, 175 ("in the instant matter, appellees *** held supervisory positions ***. Their statements were made within the scope of their duties. Therefore, appellant has failed to state a claim upon which relief can be granted"); Rayel v. The Wackenhut Corp., etal (June 8, 1995), Cuyahoga App. No. 67459, unreported at 14 (quoting Everhart v. Francioli [April 29, 1993], Cuyahoga App. No. 62377, unreported at 15). ("[T]his court has unequivocally stated that, 'a supervisor of an employee cannot be held liable for tortious interference with contract.' *** As such, appellant's claim involved a suit by a subordinate employee against a supervisor. - 24 - Under the law of this district, no such action can lie.") Dr. Carter's decision not to approve a transfer to University Hospitals was made within the scope of his duties, was privileged and non actionable. Plaintiff's contention that Dr. Carter deliberately misstated her professional qualifications in a letter of recommendation dated July 28, 1993 arguably raises a claim for defamation. Defamation, under Ohio law, is the unprivileged publication to a third party of an untrue statement causing injury to another's reputation or adversely affecting her in her profession. Hahn v. Kotten (1975), 43 Ohio St.2d 237; Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co. (1974), 43 Ohio App.2d 105, 107. Although we believe Dr. Carter's recommendation was privileged, any claim thereon is barred by R.C. 2305.11 which states that "An action for libel, slander *** shall be commenced within one year after the cause of action accrued ***." Based on the foregoing, it is undeniable that a claim against Dr. Carter for publishing untrue statements in a letter of recommendation arose on the date of the letter, July 28, 1993. It is equally clear that plaintiff did not commence the instant action until December 5, 1995. Therefore, since plaintiff failed to file her complaint against Dr. Carter within one year after the act complained of, the claim for defamation, libel or slander is barred by the statute of limitations. - 25 - Plaintiff's claim that she had a recognizable intellectual property right in her alleged diagnosis of a MetroHealth patient which was misappropriated by Dr. Carter also does not state a claim upon which relief may be granted. Plaintiff had no intellectual property right in any diagnosis she made of a MetroHealth patient while acting under Dr. Carter's supervision. Plaintiff admits that the diagnosis at issue was made during the course and scope of her employment at MetroHealth. Plaintiff does not allege that she received or reserved any intellectual property rights in a written agreement with MetroHealth. "Ideas are not the property of anyone unless they are expressed in a legally protected manner." Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, syllabus. Public disclosure of an idea makes it available to all and operates to derive the owner of any future rights. Id. at 97. Plaintiff had no viable claims against Dr. Carter. Plaintiff's allegation that Dr. Cebul defamed her by his "ignorant slut" remark is also barred by Ohio's one-year statute of limitations. Plaintiff alleges that Dr. Cebul defamed her during a teaching session on March 10, 1993, nearly three years before her complaint was filed. This claim is time barred. R.C. 2305.11(A). Dr. Neal Dawson's alleged failure to intervene in a work place dispute between plaintiff and two MetroHealth employees does not state a claim upon which relief can be granted. In her complaint, plaintiff alleged that Dr. Dawson caused, or further aggravated harm to plaintiff's reputation when he: - 26 - failed to intervene in the problems caused by Talal Adhami and Victoria Lagunzad [two Metro interns] to prevent further harm to the Plaintiff's personal and professional reputation. Plaintiff also claimed that Dr. Dawson is liable to her because he suggested that plaintiff seek psychological counseling and review stress management materials rather than sue her co- workers. There is no recognized cause of action in Ohio against a supervisor who suggests constructive means for dealing with a dispute between co-workers. Again, her supervisor's recommendations were privileged in the workplace and afford no cognizable claim against Dr. Dawson. Since plaintiff failed to state any claim upon which relief may be granted against any of the individual defendants, she has no claim for relief against them or their employer, MetroHealth, or vicariously against CWRU. The court correctly dismissed the complaint against CWRU, MetroHealth and the three individual doctors. Assignments of Error III and IV are overruled. - 27 - I. THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT- APPELLEE'S MOTION TO DISMISS PRIOR TO COMPLETION OF PROCESS OF SERVICE OR PRIOR TO EXPIRATION OF SIX-MONTH PERIOD STIPULATED FOR COMPLETION OF SERVICE IN VIOLATION OF ORCP CIVIL RULE 4(E). II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF- APPELLANT'S MOTION TO COMPEL DISCOVERY OF PREVIOUS AND FORWARDING ADDRESSES OF DEFENDANTS NOT SERVED DUE TO RETURN OF SERVICE FROM EMPLOYER, THE SECOND DEFENDANT NAMED N THE MULTIPLE DEFENDANT COMPLAINT; IN EFFECT THE TRIAL COURT PREVENTED THE PLAINTIFF FROM MAKING THE DILIGENT EFFORTS TO COMPLETE SERVICE REQUIRED BY ORCP CIVIL RULE 4(E), AFTER CERTIFIED MAIL LETTERS TO THREE PERSONNEL AREAS OF DEFENDANTS' EMPLOYER WERE ACKNOWLEDGED AS RECEIVED BY COUNSEL FOR DEFENDANT EMPLOYER BUT NOT ANSWERED BY DEFENDANT EMPLOYER OR COUNSEL FOR DEFENDANT EMPLOYER. V. THE TRIAL COURT ERRED BY ABUSE OF DISCRETION IN THE APPLICATION OF THE LAW BY DISMISSING THE CASE AGAINST SELECTED DEFENDANTS ON JUNE 12, 1996 FOR PLAINTIFF'S FAILURE TO OBTAIN SERVICE PURSUANT TO CIVIL RULE 4, AFTER THE TRIAL COURT'S DISMISSAL OF THE ENTIRE CASE ON MAY 7, 1996, FIVE MONTHS AFTER FILING OF THE COMPLAINT AND ONLY AFTER PLAINTIFF RAISED THE ISSUE OF THE TRIAL COURT'S FAILURE TO COMPLY WITH THE SIX-MONTH PERIOD FOR OBTAINING PROCESS OF SERVICE AND FOR THE TRIAL COURT'S FAILURE TO PERMIT PLAINTIFF'S DILIGENT EFFORTS TO OBTAIN SERVICE AS SPECIFIED IN CIVIL RULE 4(E) IN PLAINTIFF'S MAY 24, 1996 MOTION FOR A NEW TRIAL. The essence of these assignments of error rest on plaintiff's theory that, had the court permitted "discovery" from MetroHealth of the forwarding or last known addresses of the unserved defendant doctors, the outcome of the case would have been different, i.e., the motions to dismiss would not have been granted. The conclusion does not follow from the premise, as a matter of logic or law. - 28 - Whether or not plaintiff obtained service upon the other seven doctors would have no bearing on whether the parties that were served were entitled to dismissal of the complaint as to them. In any event, we find no fault with the trial court's dismissal without prejudice as to defendants who were not served. The complaint was filed on December 5, 1995 against all thirteen defendants. The address given by plaintiff for all the individual doctor defendants on the face of the complaint was at MetroHealth Medical Center, 2500 MetroHealth Drive, Cleveland, Ohio 44109. The summons and complaint were sent separately by certified mail to each of the named defendants at the MetroHealth address and the seven missing doctors and was returned "addressee unknown." Civ.R. 4 provides for the service of process and effect of non-service, as follows: RULE 4. PROCESS: SUMMONS (A) Summons: Issuance: Upon the filing of the complaint the clerk shall forthwith issue a summons for service upon each defendant listed in the caption. Upon request of the plaintiff separate or additional summons shall issue at any time against any defendant. * * * (E) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within six months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. *** - 29 - The record reveals that summons and complaint were sent by certified mail, return receipt requested, as required by Civ.R. 4.1. The record also reveals that on March 1, 1996, the plaintiff filed a motion to discover information required to locate the unserved defendants for service of process which asked "the court to discover" information about the missing seven doctors including their permanent or forwarding addresses. Treating this as a set of pro se interrogatories, defendant MetroHealth filed objections to this request for discovery on March 25, 1996. Plaintiff did not reply or move to compel response to its motion to discover under Civ.R. 37. No further attempt was apparently made to perfect service on the missing defendant doctors. On May 7, 1996, the trial court granted the Civ.R. 12(B)(6) motions to dismiss of CWRU, MetroHealth and the three doctors who had been served. On May 24, 1996, plaintiff filed a motion for new trial which was denied and is not assigned as error herein. On June 12, 1996, the court sua sponte dismissed the seven unserved defendants without prejudice pursuant to Civ.R. 4(F) because it was more than six months since the suit was filed and no service had been made. Plaintiff faults the trial court for sustaining the other defendants' motions to dismiss before the six month service period expired, but there is no requirement in the civil rules that a trial court must wait six months to grant a motion to dismiss because all defendants have not been served. - 30 - Typically, a substantive motion to dismiss is filed early in a lawsuit, before an answer is made. Civ.R. 12(B)(6) invites an early disposition: [e]very defense, in law or fact, to a claim for relief in any pleading *** shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion *** (6) failure to state a claim upon which relief can be granted. A sound policy of conserving judicial resources dictates that it is more prudent to file a Civ.R. 12(B)(6) motion before the parties and the court needlessly waste time and money litigating baseless claims. See Fischer v. Morales (1987), 38 Ohio App.3d 110, 111, citing National City Bank v. Fleming (1981), 2 Ohio App.3d 50, syllabus at paragraph four ("'Ordinarily, a motion for judgment on the pleadings should be made promptly after the close of the pleadings. If a party indulges in excessive delay before moving under *** [Civ.R. 12(C)], the court may refuse to hear the motion on the ground that its consideration will delay or interfere with the commencement of the trial.'") The rules therefore countenance and encourage filing a motion to dismiss any time after a complaint is filed, and, in fact, a defendant has the option of filing an answer or a Civ.R. 12(B)(6) motion to dismiss. McGlone v. Grimshaw (1993), 86 Ohio App.3d 279, 284; Girts v. Raaf (May 4, 1995), Cuyahoga App. No. 67774, unreported at 3. Plaintiff cites no authority in support of her contention that a Civ.R. 12(B)(6) - 31 - motion to dismiss may not be granted until six months after a lawsuit is filed and we have found none. Defendant MetroHealth was under no compulsion to furnish addresses of its former employees because it had objected to doing so on the theory that it would not lead to the discovery of admissible evidence. Although the grounds asserted are dubious, plaintiff made no effort to compel answers to its motion to discover, and in the absence of a Civ.R. 37(D) motion or effort to compel same, MetroHealth could stand on its objections. In any event, once the court entered the May 7, 1995 dismissal as to MetroHealth, it was no longer under any legal obligation whatsoever to respond to the discovery. A court's decision to dismiss for a plaintiff's failure to serve defendants is only reversible if the court abused its discretion. Bentz v. Carter (1988), 55 Ohio App.3d 120, 123. The trial court was within its discretion in dismissing the claims as to the seven missing defendants without prejudice under Civ.R. 4(F) and we will not disturb its judgment. A trial court may, as the court did here, on its own initiative, dismiss defendants who are not served within six months after a lawsuit is filed. This is especially true when a plaintiff is well aware that some defendants have not been served. See King v. Hazra (1993), 91 Ohio App.3d 534, 537 ("in this case, appellant had notice that service was ineffective *** [and did nothing] to correct the insufficient service" thereby violating the "'spirit' of the Civil Rules"). - 32 - Civ.R. 4(E) "is directed toward clearing the docket of those non- diligent plaintiffs who neglect to follow-up, in-state process when original in-state service of process fails." Harrell v. Guest (1986), 33 Ohio App.3d 163, 164. Furthermore, since we have given the plaintiff the benefit of her "respondeat superior" allegations against the seven missing defendants, as to CWRU and MetroHealth, any premature dismissal was harmless and without prejudice to the plaintiff's appeal. Assignments of Error I, II and V are overruled. Judgment affirmed. - 33 - It is ordered that appellees recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KARPINSKI, J., and STRAUSBAUGH, J.*, CONCUR. JAMES M. PORTER PRESIDING JUDGE (*Judge Dean Strausbaugh, Retired, of the Tenth Appellate District, Sitting by Assignment.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .