The standard for reviewing a dismissal for lack of subject matter jurisdiction is whether the complaint raises any cause of action cognizable by the forum.
Appellants filed a mandamus action alleging wrongful exclusion from public employment and seeking specific monetary damages. The court of appeals dismissed the complaint for lack of subject matter jurisdiction, failure to state a claim, and failure to join a necessary party. The Supreme Court reviews the dismissal under Civ. R. 12(B)(1) to determine if any cause of action cognizable by the forum was raised. The court holds that the complaint sufficiently alleged a legal duty and lack of adequate remedy to survive dismissal. It further determines that the failure to join the National Civil Service Commission does not warrant dismissal because the defect is curable through joinder or amendment. The court reverses the judgment and remands the case for further proceedings.
42 Ohio St. 3d at 80 Determining sufficiency of complaint for dismissal under civil rules106 citing cases“whether any cause of action cognizable by the forum has been raised in the complaint.”
- Fusco v. Fusco, 2026-Ohio-2775.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Wilkes v. Williams, 2026-Ohio-1727.publishedBush, 42 Ohio St.3d 77, 80 (1989); Nacelle Land & Mgt.
- Vanderveer v. Ohio Assn. of Pub. Sch. Emp., 2026-Ohio-964.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Bleise v. Ohio Dept. of Rehab. & Corr., 2025-Ohio-5814.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Littlejohn v. Am. Fedn. of State Cty. & Mun. Emps., 2025-Ohio-5492.publishedBush v. Spurlock, 42 Ohio St. 3d 77, 80 (1989). {¶12} SERB has exclusive jurisdiction in two general areas: (1) where one of the parties files charges with SERB alleging an unfair labor practice under R.C. 4117.11; or (2) a complaint broug…
- Arnoff v. Ohio Dept. of Rehab. & Corr., 2025-Ohio-5238.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Kacyon v. Moore, 2025-Ohio-5030, 273 N.E.3d 1052.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989). 10 Appellant’s complaint without prejudice did not “dispose of the merits of the cause or some separate and distinct branch thereof [leaving] nothing for the determination of the court.” VIL L…
- Gales v. Ohio Lottery Comm., 2025-Ohio-5189.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Mentor Heisley Racquet & Fitness Club, L.P. v. Osborne, 2025-Ohio-4420.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Lavar v. Accel Schs. Ohio, 2025-Ohio-3150.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), citing Avco Fin.
Show 96 more citing cases
- Jabr v. Ohio Dept. of Job & Fam. Servs., 2025-Ohio-2693.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- AWMS Water Solutions, L.L.C. v. Ohio Dept. of Nat. Resources, 2025-Ohio-1845.publishedBush, 42 Ohio St.3d 77, 80 (1989); Nacelle Land & Mgt.
- Holloway v. Mackey, 2025-Ohio-1118.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Save Ohio Parks v. Oil & Gas Land Mgt. Comm., 2025-Ohio-847.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989); PNC Bank, Natl.
- La Riccia v. Ohio Civ. Rights Comm., 2025-Ohio-754.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989); Evans at ¶ 7 , citing Brown v. Levin, 2012-Ohio-5768 , ¶ 14 (10th Dist.).
- Mason v. Mason, 2024-Ohio-5950.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), citing Avco Fin.
- KeyBank, N.A. v. David, 2024-Ohio-5333, 257 N.E.3d 1052.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Johnson v. Ohio Dept. of Rehab. & Corr., 2024-Ohio-4885.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), citing Avco Fin.
- State ex rel. Robinson v. Page, 2024-Ohio-4468, 253 N.E.3d 696.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), quoting State ex rel.
- Prey v. Franciscan Univ. of Steubenville, 2024-Ohio-3087, 251 N.E.3d 232.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Howard v. Ohio Dept. of Rehab. & Corr., 2024-Ohio-1948, 244 N.E.3d 657.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), and PNC Bank, Natl.
- Gipson v. Ohio Dept. of Rehab. & Corr., 2024-Ohio-226.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989); PNC Bank, Natl.
- Douglas v. Lakemore, 2023-Ohio-4399.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- State ex rel. McCarley v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-3375.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), quoting State ex rel.
- Crane v. Ohio Adult Parole Auth., 2023-Ohio-3031, 223 N.E.3d 1002.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), citing Avco Fin.
- State ex rel. Jones v. Ohio Adult Parole Auth., 2023-Ohio-1340.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), quoting State ex rel.
- State ex rel. Nyamusevya v. Hawkins, 2023-Ohio-840.publishedBush, 42 Ohio St.3d 77, 80 (1989), quoting State ex rel.
- State ex rel. Blachere v. Tyack, 2023-Ohio-781, 210 N.E.3d 960.publishedBush, 42 Ohio St.3d 77, 80 (1989), quoting State ex rel.
- State ex rel. Mobarak v. Brown, 2023-Ohio-436.publishedBush, 42 Ohio St.3d 77, 80 (1989), quoting State ex rel.
- Dorsey v. Henry, 2022-Ohio-2023.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Dunn v. Ohio Dept. of Rehab. & Corr., 2021-Ohio-3717.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Infinite Vision USA, L.L.C. v. Duke Energy Ohio, Inc., 2021-Ohio-1986.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Lovejoy v. Diel, 2021-Ohio-1124.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Pugh v. Capital One Bank USA N.A., 2021-Ohio-994.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Geyer v. Clinton Cty. Dept. of Job & Fam. Servs., 2021-Ohio-411.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Gales v. Ohio Dept. of Pub. Saf., 2021-Ohio-216.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989); PNC Bank, Natl.
- Jabr v. Ohio Dept. of Job & Fam. Servs., 2020-Ohio-6941.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Missionaries of the Sacred Heart, Inc. v. Ohio Dept. of Youth Servs., 2020-Ohio-5596.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989), citing Avco Fin.
- Mullaji v. Mollagee, 2020-Ohio-4618.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989). {¶10} Legal separation and divorce are causes of action that are within the subject matter jurisdiction of the Lorain County Court of Common Pleas, Domestic Relations Division.
- Miller v. Ohio State Hwy. Patrol, 2020-Ohio-3231.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Henry Cty. Bd. of Commrs. v. Rettig, 2020-Ohio-2787, 154 N.E.3d 449.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Habibi v. Univ. of Toledo, 2020-Ohio-766.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989). {¶ 7} The trial court observed that R.C. 2743.16(A) provides in relevant part that, "civil actions against the state * * * shall be commenced no later than two years after the date of the accr…
- T & M Machines, L.L.C. v. Atty. Gen., 2020-Ohio-551.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989); PNC Bank, N.A. v. Botts, 10th Dist. No. 1 Based upon the allegations in paragraphs 3 and 10 of the amended complaint, that appellant T & M Machines is the entity that leases the ERMs to qualif…
- Evans v. Dept. of Rehab. & Corr., 2019-Ohio-3788.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Sudberry v. Dept. of Rehab. & Corr., 2018-Ohio-5104.publishedBush v. Spurlock, 42 Ohio St.3d 77, 80 (1989).
- Hurst v. Atty. Gen., 2014-Ohio-3210.published
- State v. Martinez, 2012-Ohio-3750.published
- Romano Constr., L.L.C. v. B.G.C., L.L.C., 2013-Ohio-681.published
- Bollenbacher v. Wayne Cty. Bd. of Commrs., 2012-Ohio-4198.published
- Jones v. Ohio Edison Co., 2014-Ohio-5466, 26 N.E.3d 834.published
- McKettrick v. McKettrick, 2015-Ohio-366.published
- State ex rel. Ullmann v. Husted, 2015-Ohio-3120.published
- Hussain v. Hussain, 2016-Ohio-3214.published
- Jones v. Summit Cty. Job & Fam. Servs., 2016-Ohio-4940.published
- A&H Grocery, L.L.C. v. Ohio Dept. of Health, 2016-Ohio-7063.published
- Triton Servs., Inc. v. Reed, 2016-Ohio-7838.published
- Doe v. Pontifical Coll. Josephinum, 2017-Ohio-1172.published
- State v. Miles, 2018-Ohio-3317.published
- Wood v. Div. of Oil & Gas Resources Mgt., 2018-Ohio-4968.published
- Riverside v. State, 2014-Ohio-1974.published
- Reid v. Dept. of Rehab. & Corr., 2011-Ohio-1859.published
- Freeman v. Mohr, 2013-Ohio-2238.published
- Cameron v. Univ. of Toledo, 2014-Ohio-5587.published
- U.S. Bank Natl. Assn. v. Perdeau, 2014-Ohio-5818.published
- Mt. Pilgrim Baptist Church, Inc. v. Bishop, 2015-Ohio-5161, 56 N.E.3d 245.published
- Harrison v. Bishop, 2015-Ohio-5308, 44 N.E.3d 350.published
- In re Blue Wesson 357 Magnus Serial No. B003628 Stainless Smith & Wesson Model 65-1 Serial No. 17688 Box of ammunition with 50 rounds, 2016-Ohio-3279.published
- Shell v. Crain's Run Water & Sewer Dist., No. 17961 (Ohio Ct. App. 2d Dist. Jan. 21, 2000).unpublished
- Ippolito v. First Energy Corp., 2004 Ohio 5876 (Ohio Ct. App. 8th Dist. 2004).unpublished
- Dittmer v. City of Lorain (Ohio Ct. App. 9th Dist. 2003).unpublished
- Thomas v. Thomas, 2004 Ohio 2136 (Ohio Ct. App. 10th Dist. 2004).unpublished
- Jones v. Jones, 903 N.E.2d 329 (Ohio Ct. App. 3d Dist. 2008).published
- Karnofel v. State, 08 Ma 120 (3-5-2009), 2009 Ohio 1016 (Ohio Ct. App. 7th Dist. 2009).published
- Gross Builders v. City of Tallmadge, 2005 Ohio 4268 (Ohio Ct. App. 9th Dist. 2005).unpublished
- Broerman v. Blanke, No. 2-98-30 (Ohio Ct. App. 3d Dist. Apr. 23, 1999).unpublished
- Kopp v. Begley, 2005 Ohio 1210 (Ohio Ct. App. 2d Dist. 2005).unpublished
- Vedder v. City of Warrensville Hts., No. 81005 (Ohio Ct. App. 8th Dist. Oct. 17, 2002).unpublished
- Hamilton v. Cuyahoga Cmty. Coll., 854 N.E.2d 218 (Ohio Ct. App. 8th Dist. 2006).published
- Delost v. First Energy Corp., 07 Ma 194, 2008 Ohio 3086 (Ohio Ct. App. 7th Dist. 2008).published
- State Farm v. Cleveland Elec. Illuminating, 2004 Ohio 3506 (Ohio Ct. App. 11th Dist. 2004).unpublished
- Radcliffe v. Radcliffe, No. 6-01-05 (Ohio Ct. App. 3d Dist. Dec. 5, 2001).unpublished
- Interim Healthcare of Columbus v. Dept. of Adm. Servs., 07ap-747 (5-6-2008), 2008 Ohio 2286 (Ohio Ct. App. 10th Dist. 2008).published
- Est. of Jenkins v. Bureau, Wks' Comp., No. 80445 (Ohio Ct. App. June 27, 2002).unpublished
- Mellion v. Akron City Sch. Dist., 2007 Ohio 242 (Ohio Ct. App. 9th Dist. 2007).unpublished
- Wellman v. Salt Creek Valley Bank, 2006 Ohio 4718 (Ohio Ct. App. 10th Dist. 2006).unpublished
- Roll v. Edwards, 805 N.E.2d 162 (Ohio Ct. App. 4th Dist. 2004).published
- Langford v. Ohio Dept. of Rehab., Corr., No. 01AP-580 (REGULAR CALENDAR) (Ohio Ct. App. Dec. 27, 2001).unpublished
- Nat'l Check Bureau v. Buerger, 2006 Ohio 6673 (Ohio Ct. App. 9th Dist. 2006).unpublished
- Farm Supply Ctr. v. Smith, 2008-Ca-13, 2008 Ohio 5368 (Ohio Ct. App. 5th Dist. 2008).published
- P.N.P. v. Dep't of Job Fam. Svs., 2006 Ohio 1159 (Ohio Ct. App. 10th Dist. 2006).unpublished
- Taylor Winfield Corp. v. Winner Steel, Inc, 2006 Ohio 4608 (Ohio Ct. App. 7th Dist. 2006).unpublished
- Spitulski v. Bd. of Educ. of the Toledo City Sch. Dist., 2018-Ohio-3984, 121 N.E.3d 41.published
- Benick v. Dept. of Agric., 2019-Ohio-5469.published
- Women of the Old W. End, Inc. v. Toledo City Council, 2021-Ohio-3267, 178 N.E.3d 133.published
- Cook v. Pitter Patter Learning Ctr., L.L.C., 2022-Ohio-961.published
- JRB Holdings, L.L.C. v. Stark Cty. Bd. of Revision, 2022-Ohio-1646.published
- In re Est. of Baughman, 691 N.E.2d 257 (Ohio 1998).published
- State v. DeVore, 2022-Ohio-3314.published
- Gilcrest v. Gilcrest, 2022-Ohio-3640.published
- Kaydo v. Kaydo, 2022-Ohio-4055.published
- Siebenaler v. Ottawa Hills Local Sch. Dist., 930 N.E.2d 390 (Oh. Ct. Com. Pl., Franklin Civil Division 2010).published
- Everhart v. Merrick Mfg. II, L.L.C., 2022-Ohio-4626, 204 N.E.3d 620.published
- Van De Hey v. Ashtabula Cty. Aud., 2023-Ohio-346, 208 N.E.3d 233.published
- Tipp City Edn. Assn. v. Tipp City Exempted Vill. Sch. Dist. Bd. of Edn., 2023-Ohio-4000, 228 N.E.3d 13.published
- Allied Health & Chiropractic, L.L.C. v. State, 2024-Ohio-1976, 244 N.E.3d 694.published
- In re Est. of Baughman, 81 Ohio St. 3d 302 (1998).published
42 Ohio St. 3d at 81 Avoiding dismissal for failure to join indispensable party10 citing cases“dismissal due to a party's failure to join a necessary party is warranted only where the defect cannot be cured.”
- Fenner v. Durrani, 2025-Ohio-4477.publishedBush v. Spurlock, 42 Ohio St.3d 77, 81 (1989).
- Deckman v. Joseph, 2025-Ohio-2360.publishedBush, 42 Ohio St.3d 77, 81 (1989).
- Courtney v. Durrani, 2025-Ohio-2335.published Bush, 42 Ohio St.3d 77, 81 (1989).
- A.W. v. Twinsburg Bd. of Edn., 2024-Ohio-2486.publishedBush v. Spurlock, 42 Ohio St.3d 77, 81 (1989).
- Hendy v. Ohio Civ. Rights. Comm., 2020-Ohio-5415, 162 N.E.3d 1287.published(Ohio courts have eschewed the harsh result of dismissing an action because an indispensable party was not joined, electing instead to order that the party be joined pursuant to Civ.R. 19(A) (joinder if feasible), or th…)
- Pyles v. Mullen, 2012-Ohio-2238.published
- Cong. Lake Club v. Witte, 2006 Ohio 59 (Ohio Ct. App. 5th Dist. 2006).unpublished
- McGinnis v. Lawrence Econ. Dev. Corp., 2003 Ohio 6552 (Ohio Ct. App. 4th Dist. 2003).unpublished
- Eschtruth v. Amherst Twp., No. 02CA008141 (Ohio Ct. App. 9th Dist. Apr. 9, 2003).unpublished
- In re Est. of Zoltanski v. Zoltanski, 2020-Ohio-3908.published
v.
Spurlock
The court of appeals dismissed this complaint on appellees’ motion filed pursuant to Civ. R. 12(B)(1) (lack of subject matter jurisdiction), (B)(6) (failure to state a claim), and (B)(7) (failure to join a necessary party). The court’s entry, however, does not provide any rationale for this decision beyond the conclusion that the motion was “well taken.” Thus, before this court, appellants basically maintain that their complaint stated a cognizable claim in mandamus and that nothing in appellees’ motion warranted summary dismissal of their claim.
In response, appellees argue, as they did below, that appellants cannot prevail as a matter of law. Specifically, appellees claim that they have no duty to pay the wages and benefits sought because: (1) mandamus lies only when a salary is set by statute or ordinance, and appellants’ salaries were not so set; (2) mandamus lies only when damages have been liquidated or stipulated, and appellants’ damages were not liquidated or stipulated; (3) mandamus lies only when an employee’s reinstatement has already been ordered, or when both reinstatement and back pay are requested in the mandamus action, neither of which is the case here; (4) mandamus will not lie to decide the degree to which each of two responsible public entities (here, the board and, supposedly, the NCSC) is to be held liable for a particular job action; and (5) mandamus will not lie where an adequate remedy in the ordinary course of law exists.
As appellees correctly state, however, the court of appeals did not grant summary judgment in their favor; it granted their Civ. R. 12 motion to dismiss. Thus, their arguments[*80] miss the mark. None of them relates to the lower court’s jurisdiction to hear this case, the sufficiency of appellants’ complaint, or the reason why the NCSC was so indispensable that dismissal was required. Accordingly, the dispositive questions in this case involve whether the complaint was sufficient to withstand challenges under Civ. R. 12(B)(1), (6) and (7).
The standard of review for a dismissal pursuant to Civ. R. 12(B)(1) is whether any cause of action cognizable by the forum has been raised in the complaint. Avco Financial Services Loan, Inc. v. Hale (1987), 36 Ohio App. 3d 65, 67, 520 N.E. 2d 1378, 1380, citing Steffen v. General Tel. Co. (1978), 60 Ohio App. 2d 144, 14 O.O. 3d 111, 395 N.E. 2d 1346. Under Section 3, Article IV of the Ohio Constitution, a court of appeals has original jurisdiction in mandamus. Moreover, “[a]n action in mandamus is maintainable by a reinstated public employee to recover compensation due him for the period of time during which he was wrongfully excluded from his employment, provided the amount is established with certainty.” Monaghan v. Richley (1972), 32 Ohio St. 2d 190, 61 O.O. 2d 425, 291 N.E. 2d 462, syllabus.
In this mandamus action, appellants have alleged that they were wrongfully excluded from public employment and have further alleged the specific monetary losses that resulted therefrom. Monaghan recognizes the actionability of such a claim in mandamus, and the Ohio Constitution affords original jurisdiction for such action. Thus, the court of appeals erred if it dismissed this complaint for lack of subject matter jurisdiction under Civ. R. 12(B)(1).
A Civ. R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted will only be granted where the party opposing the motion is unable to prove any set of facts that would entitle him to relief. Korodi v. Minot (1987), 40 Ohio App. 3d 1, 3, 531 N.E. 2d 318, 321. Indeed, before a court may dismiss an action under this rule, “* * * it must appear 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, 71 O.O. 2d 223, 327 N.E. 2d 753, syllabus. To make this determination, the court is required to interpret all material allegations in the complaint as true and admitted. Phung v. Waste Management, Inc. (1986), 23 Ohio St. 3d 100, 102, 23 OBR 260, 262, 491 N.E. 2d 1114, 1116.
A complaint in mandamus states a claim if it alleges “the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted.” State, ex rel. Alford, v. Willoughby (1979), 58 Ohio St. 2d 221, 224, 12 O.O. 3d 229, 230, 390 N.E. 2d 782, 785, mandamus denied in part on further appeal (1981), 67 Ohio St. 2d 260, 21 O.O. 3d 163, 423 N.E. 2d 457. In Alford, supra, this court reversed and remanded a case that had been dismissed by the court of appeals under Civ. R. 12(B)(6). There, unskilled laborers who had formerly been employed by a school board brought an action in mandamus against the board, its clerk-treasurer, and several civil service commissions in an effort to secure reinstatement with full back pay and seniority. We found that their complaint had stated a claim by alleging that the laborers were classified civil servants, that they were entitled to the protections of R.C. Chapter 124 (mainly, R.C. 124.34, which required the board of education to discharge employees in a specific manner), that[*81] the laborers were unlawfully discharged due to the board’s failure to comply with that chapter, and that they had no adequate remedy at law. Id.
Here, appellants made similar allegations in their complaint. They alleged that they were classified civil servants, that they were entitled to the protections of R.C. 124.321 et seq. regarding layoff procedures, that they had been unlawfully laid off or demoted by appellees because appellees had not observed those protections, and that their request for the damages specified in the complaint had been refused by appellees. The only significant difference between these allegations and those pled in Alford is that appellants did not specifically allege the absence of an adequate remedy at law. The reference to the appeal of the NCSC order, coupled with appellants’ request for damages, however, is enough to give appellees notice of this aspect of their claim. This court has said that the failure to set forth each element of a cause of action with crystalline specificity does not subject a complaint to dismissal. Border City S. & L. Assn. v. Moan (1984), 15 Ohio St. 3d 65, 66, 15 OBR 159, 160, 472 N.E. 2d 350, 352. Thus, based on Alford, the court of appeals also erred to the extent it relied on Civ. R. 12(B)(6) to dismiss the action below.
Nor should appellants’ complaint have been dismissed for failing to join the NCSC as a necessary party. Ohio courts have eschewed the harsh result of dismissing an action because an indispensable party was not joined, electing instead to order that the party be joined pursuant to Civ. R. 19(A) (joinder if feasible), Kesselring Ford, Inc. v. Cann (1980), 68 Ohio App. 2d 131, 133-134, 22 O.O. 3d 162, 164, 427 N.E. 2d 785, 787, or that leave to amend the complaint be granted, Harrier v. Crow (Dec. 6, 1985), Montgomery App. No. CA 8900, unreported, at 6. Moreover, Civ. R. 21 can be applied in mandamus actions and it allows parties to be added or dropped at any stage of the proceeding, as justice requires. See Barton v. Shupe (1988), 37 Ohio St. 3d 308, 309, 525 N.E. 2d 812, 813. Indeed, dismissal due to a party’s failure to join a necessary party is warranted only where the defect cannot be cured. 5 Wright & Miller, Federal Practice & Procedure (1969) 628, Section 1359.
Under this authority, even if the NCSC would be a necessary party to the action below, its absence alone would not justify a summary dismissal. Accordingly, we find that the court of appeals also erred if it dismissed this complaint under Civ. R. 12(B)(7).
Based on the foregoing, we conclude that the court of appeals could not have properly dismissed appellants’ complaint under Civ. R. 12(B)(1), (6) or (7). Therefore, we reverse the judgment of the court of appeals and remand the cause to that court for further proceedings.
Judgment reversed and cause remanded.
Moyer, C.J., Sweeney, Holmes, Douglas, H. Brown and Resnick, JJ., concur. Wright, J., concurs in judgment only.