Marie Joseph v. Ronald Joseph ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0335n.06
No. 19-4258
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Aug 18, 2022
DEBORAH S. HUNT, Clerk
)
MARIE JOSEPH,
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
RONALD JOSEPH, GREGORY JOSEPH, ) DISTRICT OF OHIO
GEORGE JOSEPH, RICHARD JOSEPH, and )
RONALD JOSEPH, JR., )
Defendants-Appellees. )
Before: BOGGS, WHITE, and READLER, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Marie Joseph (“Marie”)
appeals the grant of summary judgment to her brother Ronald Joseph (“Ron”) in this action
concerning access to corporate books and records.
In 2016, Marie filed suit against Ron over disputes concerning Columbia Oldsmobile
Company (“Columbia”), a closely held Ohio corporation founded in 1938 by their father, George
Joseph. Marie alleged that Ron manipulated the affairs of Columbia, oppressed her as a minority
shareholder, and violated his fiduciary duties by participating in related-party transactions. The
additional claim involved here—that Ron denied her access to Columbia’s corporate books and
records—was bifurcated from her other claims.
Ron and Marie filed cross-motions for summary judgment on the corporate-records claim.
The district court granted Ron’s motion and denied Marie’s cross-motion. For the reasons that
follow, we AFFIRM.
No. 19-4258, Joseph v. Joseph
I.
A.
On October 12, 2015, Marie’s prior counsel emailed a request for corporate records
pursuant to Ohio Rev. Code §1701.37 to counsel for Ron and Columbia (“2015 Records Request”).
Marie’s counsel stated in the email that Marie was concerned that Columbia had failed to account
for income it had received from its subsidiaries and holdings, and that Ron was breaching his
fiduciary duties by failing to pay dividends and usurping corporate opportunities, and was derelict
in his duties to minority shareholders. The email continued:
[P]ursuant to Ohio Revised Code §§ 1701.37 and 1701.38, I hereby request on
Marie’s behalf, copies of the following Columbia books and records:
1. The “complete books and records of account, together with minutes of the proceedings
of Columbia’s shareholders, directors, and committees of the directors.” This request
seeks, among other things:
a. Copy of the ground lease for the 5th and Sycamore (6 parcels of land);
b. The financials of Columbia Motors Acceptance Corporation (2005-2015);
c. The financials of Joseph Chevrolet (2005-2015);
d. Financial records (2005-2015) and appraisals of the following lots owned by
Columbia: (i) 813 Sycamore St, (ii) 7th and Sycamore (11 parcels); and (iii)
415 Court St.;
e. The financials (2005-2015) for 716 Main St.;
f. The appraisal, if any, of 3449 St. John’s Place owned by Columbia;
g. Financial records (2005-2015) of rent received on 9750 and 9678 Montgomery
Rd.;
h. The financial records (2005-2015) for Columbia Hyundai;
i. The financial records (2005-2015) for Columbia Acura; and
j. Financial records (2005-2015) regarding finance and insurance (“F&I”) monies
of all dealerships owned by Columbia.
2. The records of Columbia’s shareholders and the number and class of shares issued or
transferred of record to or by them since 1992;
3. Any Appraisals of Columbia stock used to reach the valuation of Najla’s[1] shares at
$17,885.39 and $16,991.12 per voting share and non-voting share respectively;
1
Najla is Marie and Ron’s mother.
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4. A copy of the Stock Ledger for Columbia;
5. Financial statements, including balance sheets containing a summary of the assets,
liabilities, stated capital, if any, and surplus (showing separately any capital surplus
arising from unrealized appreciation of assets, other capital surplus, and earned surplus)
for each year from 1992 to the present; and
6. All statements of profit and loss and surplus, including a summary of profits, dividends
or distributions paid, and other changes in the surplus accounts, for the period 1992-
present.
R.244-2, PID 17873 –74.
In response to the records request, counsel for Ron and Columbia replied:
A substantial amount of the information you requested is either not available or is
within the public domain. In particular, I refer to the real estate appraisals and
related materials you requested. As to the other information set forth in your
emails, I have no authorization to respond or otherwise provide these items.
R.240-2, PID 17720.
After Marie initiated this lawsuit, Ron provided Marie with copies of certain of Columbia’s
corporate records through discovery. For example, Ron produced copies of: Columbia
Automotive Inc.’s general ledger, Columbia Development’s general ledger, the financial
statements of Columbia Automotive and Columbia Oldsmobile Company, Columbia Oldsmobile
Company’s tax returns, Columbia Oldsmobile Company’s stock registers and shareholders’ lists,
and Columbia stock certificates.
However, Ron has refused to provide Marie with access to the following: Columbia’s
“source documents,” which Marie defined as “document[s] such as . . . receipt[s] and invoice[s]
or . . . purchase order[s]” that “support[] or back[] up a given transaction,” R.242, PID 17795;
access to Columbia’s “actual” general ledgers, which Marie defined as Columbia’s general ledger
“as it is actually maintained in Columbia Automotive, Inc.’s system,” R.243-1, PID 17834; and
access to Columbia’s “original” stock ledgers, stock certificates, and shareholder records, R.250,
PID 18421. Although Ron has permitted Marie to inspect the original copies of Columbia’s stock
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certificates, he has conditioned that access on Marie agreeing to various confidentiality
restrictions.
During a “meet and confer” conference on November 8, 2018, Marie’s counsel told Ron’s
counsel that Marie sought to review “source documents” for the transactions listed in a spreadsheet
that Marie’s counsel first sent to Ron’s counsel via email on September 5, 2018. R.238, PID
17650–51. In that September 5, 2018, email, Marie’s counsel inquired whether Ron’s counsel
would be willing to agree to various stipulations regarding the transactions listed in the
spreadsheet, which she planned to challenge at trial. Marie’s counsel again sent the spreadsheet
to Ron’s counsel on November 20, 2018.
During the pendency of this lawsuit, Marie made three additional records requests to Ron
and Columbia; the first on April 14, 2017, the second on January 18, 2018, and the third on April
20, 2018. Marie also filed a motion for equitable relief seeking access to Columbia’s books and
records in the Court of Common Pleas of Hamilton County, Ohio on July 30, 2019. None of these
requests are at issue in this appeal.
B.
Marie filed this action asserting claims for breach of fiduciary duties, access to corporate
records, and entitlement to an accounting against Ron. Marie then filed an amended complaint
asserting an additional claim for fraud and concealment against Ron, a claim for fraudulent breach
of fiduciary duties against Ron and his sons Gregory Joseph, George Joseph, Richard Joseph, and
Ronald Joseph, Jr. (“Ron’s Sons”), and a faithless-servant claim against Ron’s Sons. All claims
asserted against Ron’s Sons were dismissed on summary judgment. The district court
subsequently granted Ron’s motion for separate trial, directing that Marie’s breach-of-fiduciary-
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duties claim be tried first, with her corporate-records and accounting claims to be tried at a later
date.
After the jury trial on Marie’s breach-of-fiduciary-duties claim resulted in a verdict in favor
of Ron, the district court issued an order dismissing the accounting claim with prejudice on the
ground that it was “merely a potential remedy for [Marie]’s breach of fiduciary duties claim.”
R.215, PID 16036–37. The district court also ordered Ron and Marie to meet and confer to file a
proposal for resolving the corporate-records claim. Ron and Marie subsequently filed a joint
proposal for resolving the corporate-records claim.
The district court then directed Ron and Marie to file “pleadings” addressing what
documents responsive to Marie’s request for corporate records had already been produced in
discovery. R.230, PID 17444–46. The court held a status conference at which it determined that
Marie’s corporate-records claim “shall proceed to a bench trial.” Minute Entry and Notation Order
dated May 14, 2019. In its order, the court stated that “only those corporate records requests
submitted prior to the filing of” the original complaint on April 12, 2016, would be tried. Id. The
court set a briefing schedule for the filing of trial briefs.
The district court later held an additional status conference at which it determined that
Marie’s corporate-records claim implicated “threshold questions of law.” Minute Entry and
Notation Order dated July 19, 2019. It therefore canceled the trial and granted the parties leave to
file cross-motions for summary judgment on the corporate-records claim. The parties filed cross-
motions, and the district court granted Ron’s motion and denied Marie’s cross-motion. Marie
timely filed a notice of appeal.
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II.
We review a district court’s summary judgment determination de novo, Jordan v. Howard,
987 F.3d 537, 542 (6th Cir. 2021), viewing all evidence in the light most favorable to the non-
moving party and drawing all justifiable inferences in that party’s favor, Carhartt, Inc. v.
Innovative Textiles, Inc., 998 F.3d 739, 742 (6th Cir. 2021). Summary judgment is appropriate
only where “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The mere existence
of some alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material fact.”
Jordan, 987 F.3d at 542 (quoting Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 281 (6th Cir.
2012) (internal quotation marks omitted)). That is, “to defeat a motion for summary judgment, the
evidence must be such that a reasonable jury could return a verdict for the non-moving party.”
Morehouse v. Steak N Shake, 938 F.3d 814, 818 (6th Cir. 2019) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks omitted)).
A.
We begin by reviewing the district court’s determination that Marie’s 2015 request for
“copies” of Columbia’s “complete books and records of account” did not entitle her to copy and
inspect the relevant “source documents.” See R.250, PID 18428. Marie contends that this was
error because Ohio law accords shareholders expansive rights to inspect and copy corporate
records, including the “documents underlying the central accounting books.” Appellant Br. at 13–
16 (emphasis omitted). She also notes that her request was specific and particularized, as she
provided a spreadsheet of specific transactions for which she sought to inspect and copy the
underlying source documents.
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The district court did not err in holding that the 2015 Records Request did not entitle Marie
to copy and inspect the underlying source documents. Section 1701.37(C) of the Ohio Revised
Code provides in relevant part that
[a]ny shareholder of the corporation, upon written demand stating the specific
purpose thereof, shall have the right to examine in person or by agent or attorney at
any reasonable time and for any reasonable and proper purpose, the articles of the
corporation, its regulations, its books and records of account, minutes, and records
of shareholders aforesaid, and voting trust agreements, if any, on file with the
corporation, and to make copies or extracts thereof. . . .
Ohio Rev. Code Ann. § 1701.37(C) (West).
To make out a “prima facie case” for relief under this section, the plaintiff must establish
that “1) there was a demand for access to the documents, 2) the demand was in writing[,] and 3)
there was a specific purpose stated in the writing.” Hotchkiss v. GenBanc, Inc., No. 93-OT-016,
1994 WL 39065, at *2 (Ohio Ct. App. Feb. 11, 1994). In granting Ron’s motion for summary
judgment and denying Marie’s cross-motion, the district court explained that “the issue before the
Court is not whether Plaintiff generally possesses the right to access corporate records, but whether
Plaintiff specifically asserted that right in the 2015 Records Request, such that Defendant’s refusal
to comply constituted a violation of law.” R.250, PID 18423. Thus, this appeal concerns the first
element of a corporate-records claim under § 1701.37(C)—whether Marie made a proper
“demand” for the source documents at issue here.
Marie relies on Cincinnati Volksblatt Co. v. Hoffmeister, 56 N.E. 1033 (Ohio 1900),
William Coale Development Co. v. Kennedy, 170 N.E. 434 (Ohio 1930) and No-Burn, Inc. v.
Murati, C.A. No. 25495, 2011 WL 5188063 (Ohio Ct. App. Nov. 2, 2011), for the proposition
that the statutory phrase “books and records of account” broadly encompasses underlying source
documents. However, as the district court correctly noted, while generally recognizing that
shareholders have the right to inspect a broad range of corporate records under Ohio law, these
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cases do not answer the precise issue presented in this appeal: what constitutes a proper “demand”
for access to documents under § 1701.37(C). And it appears that no decision of the Ohio courts
has clarified the form or content required to make a proper request for books and records under
§ 1701.37(C).
Although the cases Marie cites do not settle whether a reference to “books and records of
account” in a written demand pursuant to § 1701.37(C) would entitle a shareholder to the
underlying source documents, what is clear is that the plain terms of the 2015 Records Request did
not include the words “source documents” or “receipts, invoices or purchase orders,” as she later
defined the term. R.240, PID 17709. Nor does her records request reference any specific
transactions.
Marie argues that regardless whether the 2015 Records Request was specific enough to
include the underlying source documents in the first instance, she provided the requisite specificity
when her counsel sent Ron’s counsel the spreadsheet of transactions in 2018. This argument is
unavailing. The plain terms of § 1701.37(C) require a “written demand.” Ohio Rev. Code
§ 1701.37(C). Marie made that written demand in 2015, and that demand did not mention specific
transactions or request any “source documents” underlying those transactions.
Marie emphasizes the importance of the timing and context of her subsequent identification
of transactions in the 2018 spreadsheet, noting that the 2015 Records Request was made by her
prior counsel at a time when she did not have a well-developed understanding of Columbia’s
finances or what documents were kept where and how. Yet she does not explain why, once she
learned this information through discovery, she could not have made another written demand
properly identifying the particular transactions and underlying source documents she seeks.
In fact, Marie has made three separate, adequately framed written requests for specific types of
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records during the pendency of this litigation, as well as a motion for equitable relief in state court
seeking access to Columbia’s books and records.
Marie argues that Dukich v. Erico Products, Inc., No. 53264, 1987 WL 13033 (Ohio Ct.
App. June 18, 1987) (per curiam), which the district court cited in its summary-judgment order,
actually supports her position. In Dukich, the Ohio Court of Appeals held that the trial court did
not err in limiting the shareholder’s right of inspection pursuant to § 1701.37 to documents he
specifically identified at an initial court hearing. 1987 WL 13033, at *1. The trial court declined
to permit the inspection of documents regarding which the shareholder said he “was not sure about
exactly what he wanted to see.” Id. Similarly, it declined to grant the shareholder’s request for
“random access” to the accounting records for all of the corporation’s financial statements. Id.According to Marie, Dukich suggests that a shareholder can first make a broad request for a certain
category of documents and subsequently “narrow and focus the inquiry as the process goes
forward.” Appellant Br. at 22. An alternative approach, she contends, would encourage a
“fragmented approach based on multiple requests that renders the shareholder access granted by
R.C. § 1701.37 illusory.” Id. at 23.
Dukich does not help Marie here. Although, like here, Dukich involved a corporate-records
request pursuant to § 1701.37, the issue in that case was the specificity of the shareholder’s
representations to the court regarding the documents to which he sought access. See Dukich, 1987
WL 13033, at *1. Dukich did not discuss—much less decide—whether a written demand for
access to corporate records may consist of two (or multiple) separate writings, or whether a
shareholder may submit an initial, broadly worded request followed by a written communication
narrowing or more specifically identifying the corporate records sought. The court simply noted
that “[t]he shareholder may have submitted a written, more specific demand to the court, but this
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list is not in the record.” Id. Here, Marie did not make such a specific demand in the 2015 Records
Request for the source documents underlying the challenged transactions.
To the extent Marie argues that her “subsequent identification of specific transactions for
which she sought to inspect and copy Source Documents,” Appellant Br. at 18, itself constituted a
demand for corporate records under § 1701.37(C), we disagree. The spreadsheet of transactions
Marie references was first sent by Marie’s counsel to Ron’s counsel in an email asking whether
Ron would agree to various stipulations regarding those transactions in anticipation of trial. There
was no “demand for access” to the source documents underlying those transactions, and there was
no “specific purpose stated in the writing.” Hotchkiss, 1994 WL 39065, at *2. Therefore, Marie
did not make a proper request for the underlying source documents through that communication.
Although Marie also notes that her counsel again sent the spreadsheet in response to Ron’s request
at the parties’ meet-and-confer conference, she merely references the same spreadsheet of
transactions without indicating whether there was any corresponding request pursuant to
§ 1701.37(C) in the email.
Moreover, we are not convinced by Marie’s argument that the district court’s approach
would render a shareholder right to corporate records illusory. As an initial matter, she does not
explain why submitting multiple records requests would render the right illusory. Marie herself
apparently did not consider this to be the case, having made three separate records requests and a
motion for equitable relief during the course of this litigation. And, finally, the district court
properly recognized that shareholders have broad rights to inspect and copy corporate records
under Ohio law; they merely have to make a proper demand pursuant to § 1701.37(C), which
Marie failed to do here with respect to the records at issue.
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Marie also challenges the district court’s determination that because she only requested
“copies of” the source documents, she was not entitled to inspect them as well.2 She argues that
the law does not favor the use of “magic words” and that “[t]he right to take copies from the records
follows as an incident to the right to inspect.” Appellant Br. at 23–24 (quoting Volksblatt, 56 N.E.
at 1035). That is indeed the law, but the fact remains that Marie did not request to inspect the
documents; she simply asked for copies.3 Regardless whether the right to copy flows from the
right to inspect—and the district court acknowledged that Volksblatt and other cases recognize
broad shareholder rights to corporate records—the issue in this case, as Marie acknowledges, is
the proper form and content of a records request made pursuant to § 1701.37(C), a question that
Volksblatt does not answer.4
2
The district court observed that many of the cases on which Marie relied referred to “requests for in-person inspection
and subsequent copying” and that Marie merely requested “copies of” Columbia’s documents rather than in-person
inspection of them. R.250, PID 18427. It found that the “generalized” nature of Marie’s request further supported its
determination that Ron could not be held liable under § 1701.37(C).
3
We further note that in each of the three extrajudicial requests for records that Marie made during the pendency of
this litigation, she explicitly sought “the right to inspect and copy” various documents. See R.233-2, PID 17488;
R.233-3, PID 17489; R.233-4, PID 17490. If a request for mere “copies” is sufficient to afford a shareholder the right
to inspect the documents as well, we are left to wonder why Marie nevertheless felt it necessary to explicitly request
the right to inspect Columbia’s books and records in her subsequent requests.
4
That is not to say that Ohio shareholders are wholly without guidance regarding how to formulate a proper records
request. The following template, available on Westlaw, is an example of a records request that adequately seeks
permission to both inspect and copy corporate books and records:
[Letterhead]
[Date]
[Address and salutation]
I am the owner of ___ shares of the common stock of the corporation.
Pursuant to Ohio Revised Code § 1701.37(C), I request that the corporation make the following
records available for inspection by me or my attorney, [name], within ___ days following receipt of
this letter:
[List of records to be examined.]
The inspection will be undertaken during the regular business hours of the corporation or made
available on a reasonably accessible electronic network. Copies or extracts of the records may be
made.
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Because Marie has not demonstrated that, on a favorable view of the disputed facts, Ron
was required to permit Marie to inspect and copy the source documents pursuant to the 2015
Records Request, we affirm the district court’s resolution of this issue.
B.
As noted, in her 2015 records request, Marie requested, among other documents, “copies
of the following Columbia books and records”:
1. The “complete books and records of account, together with minutes of the
proceedings of Columbia’s shareholders, directors, and committees of the
directors.”
R.244-2, PID 17873.
Marie did not demand access to the “original” books and records, nor did she request access
to or ask to “inspect” the original books and records in person. Although Marie again relies on
Volksblatt for the proposition that the right to copy flows from the right to inspect, as with the
underlying source documents, the question here is not whether, as a general proposition, there is a
right to copy corporate records or whether that right flows from the right to inspect documents.
Rather, the question is whether a written request for copies of corporate records entitles the
shareholder to inspect the original documents based on that request. As discussed above,
Volksblatt did not consider the form or specificity required of a demand under § 1701.37, and it is
undisputed that Marie did not ask to “inspect” the general ledgers. Marie’s position here is
The purpose of the inspection is to enable me to ascertain the value of my interest in the corporation,
to obtain information on the details of the corporation’s business and status of its affairs, and to
determine if there are any improprieties in the management or operation of the corporation.
Please reply to this request immediately.
Yours very truly,
[Signature of shareholder]
§ 3:16. Request for roster of shareholders; demand to inspect records, Oh Forms & Transactions § 3:16.
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essentially that Ron should have granted her access to the general ledgers that she did not request
in her § 1701.37 demand. The district court did not err in concluding that Ron was not obligated
to do so.
Moreover, regardless whether the right to copy corporate records flows from the right to
inspect, the record here establishes that Marie was provided with copies of Columbia’s complete
general ledger from 2008 to 2017. James C. Frooman, co-counsel for Ron, stated in a declaration
that Columbia Automotive and Columbia Development’s general ledgers for the years 2008 to
2017 were produced to Marie in the form of text-searchable PDFs. Mr. Frooman declared,
moreover, that the PDFs “accurately reflect” the two companies’ ledgers for the years 2008 to
2017. R.244-3, PID 17877. Marie does not dispute that she received copies of all of the general
ledgers from 2008 to 2017. Instead, she disputes Ron’s argument that the copies of the general
ledger reflect “all of the general-ledger information she seeks to examine on Columbia’s live
accounting systems” and that they reflect the general ledger information as it is maintained in
Columbia’s accounting software. Reply Br. at 14 (quoting Ron Br. at 34), 15.
In this regard, Marie contends that Columbia’s general ledgers are “living, breathing
documents,” id. at 15, and that they have an inherent functionality that would allow Marie to obtain
a more complete understanding of the related-party transactions and a “path of entries” to access
information about the underlying source documents, Appellant Br. at 26. Ron disputes this,
arguing that any source documents are stored on-site at the Columbia Automotive dealerships
rather than in the accounting software. In response, Marie asserts that an issue of material fact
exists as to whether the general ledgers provide such access to the underlying source documents.
But to the extent such a dispute exists, it is not “material” because Marie did not request access to
the general ledgers in the first instance. See Hotchkiss, 1994 WL 39065, at *2 (prima facie case
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for access to corporate records requires written demand); McKay v. Federspiel, 823 F.3d 862, 866
(6th Cir. 2016) (“A fact is material if it ‘might affect the outcome of the suit under the governing
law[.]’”) (quoting Anderson, 477 U.S. at 248).
For these reasons, we affirm the district court’s ruling that Marie’s 2015 records request
did not require Ron to provide her access to Columbia’s general ledgers.
C.
Finally, we review the district court’s determination that Marie was not entitled to access
Columbia’s stock ledgers and stock records pursuant to the 2015 Records Request. Marie
reiterates that the right to copy is incident to the right to inspect, and states that she has only
received computer-generated printouts of the stock ledger. In response, Ron contends that Marie
received exactly what she requested—copies—and that her claim is moot in light of his offer of
the opportunity to inspect the stock ledger and certificates in person.
As a preliminary matter, we note that this claim is not moot. We have stated that “[t]o
moot a case or controversy between opposing parties, an offer of judgment must give the plaintiff
everything [s]he has asked for as an individual. That means [her] ‘entire demand[.]’” Hrivnak v.
NCO Portfolio Mgmt., Inc., 719 F.3d 564, 567 (6th Cir. 2013) (quoting O’Brien v. Ed Donnelly
Enters., Inc., 575 F.3d 567, 574 (6th Cir. 2009)) (emphasis in original). By the same token, “[a]n
offer limited to the relief the defendant believes is appropriate does not suffice.” Id. (emphasis in
original). “The question is whether the defendant is willing to meet the plaintiff on h[er] terms.”
Id. (citing Gates v. Towery, 430 F.3d 429, 432 (7th Cir. 2005)).
Ron argues that Marie’s stock-ledger-and-certificates claim is moot because he “already
willingly offered Marie the equitable relief she seeks, i.e., the opportunity to inspect the stock
ledger and certificates in-person.” Ron Br. at 31. Marie, on the other hand, contends that Ron has
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improperly conditioned her access to the stock ledger and certificates on “overly broad and unduly
burdensome confidentiality restrictions.” Reply Br. at 17 n.7. Regardless of the merits of her
underlying claim, because Marie objects to these restrictions, the claim is not moot. See Hrivnak,
719 F.3d at 567 (asking what the plaintiff demands, rather than the relief to which she is legally
entitled).
Turning to the substance of her claim, Marie sought, in the 2015 Records Request, “copies
of” the following documents: “records of Columbia’s shareholders and the number and class of
shares issued or transferred of record to or by them since 1992,” as well as “[a] copy of the Stock
Ledger for Columbia.” R.244-2, PID 17873–74. With respect to the stock ledger, by its very
terms, the 2015 Records Request sought only a “copy” of that document. Much like her request
for Columbia’s actual general ledgers, Marie did not frame her request as one for the “original”
stock ledger, nor did she request the right to inspect or access the original stock ledger. Indeed,
the word “inspect” does not appear anywhere in Marie’s 2015 records request. Marie’s invocation
once again of Volksblatt in this context is unavailing, as it does not answer whether Marie’s request
for “copies” of the stock ledger was a sufficient written demand entitling her to inspect the original
stock ledger. Finally, Marie does not dispute that she received copies of the stock ledger, which
her counsel moved to have admitted at trial as a joint exhibit.
We reach the same conclusion with respect to Marie’s request regarding the stock
certificates. Ron notes that Marie has received “true and accurate copies of every issued and
cancelled stock certificate of Columbia dating back to 1953.” Ron Br. at 30 (emphasis omitted).
Marie claims that she has not been permitted to inspect and copy the originals, which would allow
her to determine their accuracy. Again, Marie’s right to both inspect corporate records and verify
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their accuracy is not in question. The issue here is whether Marie requested such access in the
2015 Records Request. She did not. That request was for
. . . copies of the following Columbia books and records:
[…]
2. The records of Columbia’s shareholders and the number and class of shares
issued or transferred of record to or by them since 1992;
[…]
R.244-2, PID 17873 (emphasis added).
As with her requests regarding the general ledgers and stock ledger, Marie did not frame
her request as one for the “original” stock certificates, nor did she request the right to inspect or
access the original stock certificates.
For these reasons, we conclude that the district court did not err in determining that Marie’s
2015 records request did not entitle her to inspect Columbia’s original stock ledger and stock
certificates.
D.
Marie argues that Ron’s and Ron’s Sons’ refusal to allow her to inspect and copy
Columbia’s corporate records constitutes an independent breach of fiduciary duties.5 She asks this
5
Ron’s Sons are not proper parties to this appeal. To be a proper party to an appeal, a defendant must be named as a
defendant as to the claims being appealed. See Crawford v. Antonio B. Won Pat Int’l Airport Auth., 917 F.3d 1081,
1089 (9th Cir. 2019) (“The only claims at issue in this appeal are Counts I and II. Because GIAA was not named in
either count, it is not a proper party to this appeal and therefore must be dismissed.”); see also Sluder v. United Mine
Workers of Am., Int’l Union, 892 F.2d 549, 551 n.3 (7th Cir. 1989) (“The only defendants named in Counts I and II
were District 12, John Doe, and Tome Roe. Consequently, although the notice of appeal also indicates an appeal
against the International Union, this union was not a named defendant in Counts I and II and thus is not a party to this
appeal.”).
Ron’s Sons are not named as defendants in the original complaint, which is where Marie’s corporate records
claim appears. Only Ron is, and the allegations specifically pertaining to that claim only reference Ron. The district
court recognized as much in its summary-judgment order disposing of this claim, stating that “[t]he access to corporate
records claim at issue here is asserted in the complaint solely against Ronald Joseph.” R.250, PID 18417 (underlining
in original). Although Marie notes that her amended complaint incorporated all of the allegations in her original
complaint, that does not help her, as Ron’s Sons were not named as defendants or alleged to have prevented her from
accessing Columbia’s corporate records in the original complaint.
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No. 19-4258, Joseph v. Joseph
court, if it concludes that the district court erred in ruling for Ron on her corporate-records claim,
to “reverse the District Court’s ruling disposing of Marie’s claims for breaches of fiduciary duties
based on the Defendants’ refusals to permit access in responses to her 2015 Records Requests.”
Appellant Br. at 34. We decline the invitation to do so.
As an initial matter, we have already concluded that the district court did not err in granting
summary judgment to Ron on the corporate-records claim and denying Marie’s cross-motion.
Marie herself readily acknowledges—and Ron does not dispute—that the district court did
not address in its pre-trial summary-judgment orders whether the refusal to permit Marie to inspect
and copy corporate records constituted a breach of fiduciary duty. Moreover, as Ron correctly
notes, Marie did not raise her combined corporate-records/fiduciary-duty claim in her summary
judgment briefing after the trial on her fiduciary-duty claim, and the district court thus had no
occasion to address this claim in its order granting Ron’s motion for summary judgment on the
corporate-records claim.
Although ordinarily the proper course of action would be for this court to remand this claim
for consideration by the district court, we decline to do so here given the somewhat unique
procedural posture of this claim. The district court’s bifurcation order left the combined fiduciary-
duty/corporate-records claim to be litigated after trial along with Marie’s statutory corporate-
Marie notes that in the amended complaint’s prayer for relief, she sought equitable relief against Ron’s Sons
requiring that they permit her to inspect and access Columbia’s corporate records. But “[t]he factual allegations in
the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must
plead ‘sufficient factual matter’ to render the legal claim plausible, i.e., more than merely possible.” Fritz v. Charter
Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)).
Marie argues, nevertheless, that she named Ron’s Sons in paragraph 141 of the amended complaint, in which
she alleges that they violated their “duty of disclosure” by refusing to allow her to inspect and copy Columbia’s
corporate records. As further discussed in this section, however, Marie’s combined corporate-records/fiduciary-duty
claim, which this factual allegation supports, is not properly before this court because Marie did not adequately present
the claim to the district court. See Snow Pallet, Inc. v. Clinton Cnty. Indus. Dev. Auth., 46 F. App’x 787, 791 n.1
(6th Cir. 2002).
We therefore hold that Ron’s Sons are not proper subjects of this appeal.
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No. 19-4258, Joseph v. Joseph
records claim. In that order, the court noted that the jury “cannot resolve the equitable claims
and/or order equitable relief.” R.175, PID 11732 (underlining in original). It continued:
Marie argues that Ron, Sr.’s refusal to allow Marie access to corporate records is
itself a breach of a fiduciary duty that should be presented along with her legal
claim. This argument is not availing. Marie’s pleading and responses to Ron, Sr.’s
discovery requests confirm that she is only seeking (and has only sought) equitable
relief for Ron, Sr.’s alleged refusal to allow access to corporate records. She has
not sought legal damages on her corporate records claim.
Id., PID 11733–34 (underlining in original).
The district court’s order did not resolve the question whether Ron’s alleged refusal to
permit Marie to inspect the corporate books and records constitutes a breach of fiduciary duty. It
determined only that, because Marie merely sought equitable relief for her corporate-records
claim, it should not be presented at trial alongside her breach-of-fiduciary-duty claim, for which
she sought damages. Marie therefore should have presented her combined claim alongside her
statutory corporate-records claim after the trial against Ron concluded. Although she raised her
combined claim in a footnote in her responsive “pleading” addressing her corporate-records claim
and again in a footnote in her trial brief, she did not again raise this claim—in a footnote or
otherwise—in her summary-judgment briefing on the remaining corporate-records claim. As a
result, the district court unsurprisingly did not address or otherwise resolve the combined
fiduciary-duty/corporate-records claim in granting Ron’s motion for summary judgment and
denying Marie’s cross-motion. Because Marie failed to address or develop her combined claim in
her post-trial summary-judgment briefing, we deny relief as to that claim.
III.
For the foregoing reasons, we AFFIRM the district court’s order granting Ron’s motion
for summary judgment on the corporate records claim and denying Marie’s cross-motion on the
same.
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