No. 2015-0173
In the Supreme Court of Ohio_________________
ORIGINAL ACTION FOR WRIT OF PROHIBITION AND MANDAMUS
_________________
STATE ex rel. AYMAN DAHMAN, M.D., ET AL.,
Relators,
v.
THE HONORABLE BRIAN J. CORRIGAN, ET AL.
Respondents.
RELATORS’ MOTION FOR LEAVE TO FILE SECONDAMENDED COMPLAINT FOR WRIT OF PROHIBITION AND MANDAMUS
TIMOTHY J. McGINTY, ProsecutingAttorney of Cuyahoga County, OhioCHARLES E. HANNAN * (0037153)Assistant Prosecuting Attorney*Counsel of Record
The Justice Center, Courts Tower, 8th Floor1200 Ontario StreetCleveland, OH 44113Telephone: 216.443.7758Facsimile: [email protected]
Counsel for Respondents Judge Brian J.Corrigan, Administrative Judge John J. Russo,and Visiting Judge Lillian Greene of theCuyahoga County Court of Common Pleas
ANNA MOORE CARULAS (0037161)STEPHEN W. FUNK* (0058506)*Counsel of RecordRoetzel & Andress, LPAOne Cleveland Center, Suite 9001375 East Ninth StreetCleveland, OH 44114Telephone: 216.623.0150Facsimile: [email protected]@ralaw.com
Counsel for Relators Ayman Dahman, M.D., andMary Jo Alverson, CNM
Supreme Court of Ohio Clerk of Court - Filed April 17, 2015 - Case No. 2015-0173
MOTION
Pursuant to Civ. R. 15, Relators Ayman Dahman, M.D. and Mary Jo Alverson, CNM
hereby move for leave to file a Second Amended Complaint for Writ of Prohibition and
Mandamus. A true and correct copy of the proposed Second Amended Complaint is attached
hereto for the Court’s review, along with the Affidavit of Anna Carulas, dated April 17, 2015.
Civil Rule 15(A) provides that leave should be freely granted “when justice so requires.”
Here, as discussed more fully below, Relators’ Motion for Leave should be freely granted
because the attached Second Amended Complaint seeks to amend and update the original
Complaint by alleging additional facts that have occurred since the filing of the original
Complaint on February 2, 2015, and the Amended Complaint on March 9, 2015, as permitted by
Civ. R. 15(E). Moreover, the Second Amended Complaint updates the pleadings by naming an
additional Respondent (Visiting Judge Lillian J. Greene) and requesting additional relief based
upon recent events that have arisen since the filing of the original Complaint. As this Court has
held, “in determining actions involving extraordinary writs, a court is not limited to considering
the facts and circumstances at the time that the writ was requested but can consider the facts and
conditions at the time that entitlement to the writ is considered.” State ex rel. Howard v. Skow,
102 Ohio St.3d 423, 2004-Ohio-3652, 811 N.E.2d 1128, ¶ 9. Accordingly, leave should be
freely granted in this case in order to permit Relators to amend and supplement the operative
complaint under Civ. R. 15(A) and (E).
Indeed, in this case, leave should be freely granted because the circumstances are
substantially different from the circumstances presented in the original Complaint. When the
original Complaint was first filed on February 2, 2015, Administrative Judge John Russo had
issued a Journal Entry on January 30, 2015, that temporarily “transferred” the case to Visiting
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Judge Lillian Greene for trial “due to the unavailability of original Judge Brian J. Corrigan.”
(See 2nd Amd. Compl., Affidavit of Anna Carulas, Exhibit A, Docket of Hastings v. Southwest
General Health Center, Case No. CV-12-785788, Cuyahoga County Court of Common Pleas,
Journal Entry, dated 1/30/2015). After the filing of the original Complaint, however, the Docket
shows that the entire Hastings case has been re-assigned to Judge Greene for all purposes based
upon a manual docket entry that was not signed by any judge, but which states: “VISITING
JUDGE LILLIAN J. GREENE ASSIGNED TO CASE (MANUALLY).” (Id., Docket Entry,
dated 2/9/2015). Since there is no written order relating to the February 9th docket entry, it is far
from clear who actually approved and filed the docket entry, let alone the reasons for the re-
assignment of the entire case to Judge Lillian Greene for all purposes. Indeed, since Judge
Corrigan is no longer “unavailable” to try the case, it is far from clear why the case should be re-
assigned to Visiting Judge Greene at all, particularly given that the Cuyahoga County Court of
Common Pleas has not adopted a local rule that authorizes the re-assignment of cases to visiting
judges in accordance with Rule 36(B) of the Rules of Superintendence for the Courts of Ohio.
Judge Greene therefore is clearly and patently without any authority to exercise
jurisdiction over the Hastings case, including but not limited to scheduling a new trial date and
ruling on the pending motions, which under Rule 36(B) of the Rules of Superintendence and
Local Rule 15 of the Cuyahoga County Court of Common Pleas must be decided by the original
judge, Respondent Brian Corrigan, not Visiting Judge Greene. Yet, notwithstanding this fact,
Judge Greene has continued to exercise jurisdiction over the Hastings case, including, but not
limited to, the recent e-mail announcement on April 16, 2015, by her bailiff that the trial has
been re-scheduled for November 16, 2015, and that “Judge Greene has been sent and will be
ruling on the outstanding motions.” (See Affidavit of Anna Moore Carulas, Esq., Ex. L, E-Mail,
3
dated April 16, 2015). Absent the prompt issuance of a Writ of Prohibition and Mandamus by
this Court, therefore, it is likely that Judge Greene will wrongfully exercise unauthorized
jurisdiction over the Hastings case by ruling upon the pending motions. See, e.g., State ex rel.
Engelhart v. Russo, 131 Ohio St.3d 137, 2012-Ohio-47, 961 N.E.2d 118, ¶ 14 (where “a lower
court patently and unambiguously lacks jurisdiction to proceed in a cause,” a writ of prohibition
and mandamus may be issued “to correct the results of prior jurisdictionally unauthorized
actions” and “to prevent any future unauthorized exercise of jurisdiction”).
Accordingly, in order to update the pleadings and to request the relief necessary to
prevent Visiting Judge Greene from continuing to exercise unauthorized jurisdiction over the
Hastings case, Relators respectfully request that the Court grant leave to file the attached Second
Amended Complaint for Prohibition and Mandamus and proceed to grant a peremptory or
alternative writ prohibiting Judge Greene from exercising any further jurisdiction over the
Hastings matter and compelling Respondents to re-assign the case back to the randomly assigned
judge in accordance with the requirements of Sup. R. 36(B). In this regard, Relators incorporate
by reference the points and authorities set forth in Relators’ Motion for Alternative Writ and
Memorandum in Support of the Writ, which is being contemporaneously filed with the Court.
Respectfully submitted,
/s/ Stephen W. FunkAnna Moore Carulas (0037161)Stephen W. Funk (0058506)ROETZEL & ANDRESS, LPA1375 East 9th Street, 9th FloorCleveland, OH 44114Telephone: 216.623.0150Facsimile: [email protected]; [email protected] for Relators Ayman Dahman, M.D.and Mary Jo Alverson, CNM
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PROOF OF SERVICE
A copy of the foregoing MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT FOR WRIT OF PROHIBITION AND MANDAMUS was served on this 17th day of
April, 2015, via electronic mail pursuant to Civ. R. 5(B)(2)(f) upon the following counsel of
record:
Timothy J. McGintyCharles E. HannanCuyahoga County Prosecutor’s OfficeThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio [email protected] for Respondents
Pamela PantagesThe Becker Law Firm, LPA134 Middle AvenueElyria, OH [email protected] for Hastings Plaintiffs
Paul FlowersPaul W. Flowers Co., LPATerminal Tower, 35th Floor50 Public SquareCleveland, Ohio [email protected] for Hastings Plaintiffs
David KrauseReminger Co., LPA101 W. Prospect Avenue, Suite 1400Cleveland, OH [email protected] for Johanna O'Neill, M.D. and Southwest General Medical Group, Inc.
/s/ Stephen W. FunkStephen W. Funk, Esq. (0058506)
9222584 _3
IN THE SUPREME COURT OF OHIO
STATE OF OHIO, et rel.AYMAN DAHMAN, MD andMARY JO ALVERSON, CNM6900 Pearl Road, Suite 300Middleburg Hts., OH 44130
Relatorsvs.
THE HONORABLE BRIAN J.CORRIGANCourtroom 22-ACuyahoga County Common Pleas Court1200 Ontario StreetCleveland, OH 44113
THE HONORABLE JOHN J. RUSSOCourtroom 16-DCuyahoga County Common Pleas Court1200 Ontario StreetCleveland, OH 44113
THE HONORABLE LILLIAN J. GREENEVisiting Judge1200 Ontario StreetCleveland, OH 44113
Respondents
))))))))))))))))))))))))))))
CASE NO. 2015-0173
ORIGINAL ACTION FOR WRIT OFPROHIBITION AND MANDAMUS
SECOND AMENDED COMPLAINT FOR WRIT OF PROHIBITION AND MANDAMUSAND ALTERNATIVE WRIT WITH AFFIDAVIT IN SUPPORT
TIMOTHY J. McGINTY, ProsecutingAttorney of Cuyahoga County, OhioCHARLES E. HANNAN * (0037153)Assistant Prosecuting Attorney*Counsel of Record
The Justice Center, Courts Tower, 8th Floor1200 Ontario StreetCleveland, OH 44113Telephone: [email protected] for Respondents
ANNA MOORE CARULAS (0037161)STEPHEN W. FUNK* (0058506)*Counsel of RecordRoetzel & Andress, LPAOne Cleveland Center, Suite 9001375 East Ninth StreetCleveland, OH 44114Telephone: 216.623.0150Facsimile: [email protected]; [email protected] for Relators
2
SECOND AMENDED COMPLAINTFOR WRIT OF PROHIBITION AND MANDAMUS
Relators Ayman Dahman, MD and Mary Jo Alverson, CNM (“Relators”) hereby submit
the following Second Amended Complaint for Writ of Prohibition and Mandamus against
Respondents Judge Brian J. Corrigan of the Cuyahoga County Court of Common Pleas, in his
official capacity as the presiding Judge (“Judge Corrigan”) in the civil action, Hastings, et al. v.
Southwest General Health Center, et al., Cuyahoga County Common Pleas Court Case No.
785788, Judge John J. Russo, Administrative Judge of the Cuyahoga County Court of Common
Pleas, and Judge Lillian J. Greene, Visiting Judge of the Cuyahoga County Court of Common
Pleas. In support of the Second Amended Complaint, Relators hereby state as follows.
INTRODUCTION
1. This original action for Writ of Prohibition and Mandamus arises from two
journal entries, dated January 30, 2015, and an unsigned manual docket entry, dated February 9,
2015, which purported to re-assign a civil action, Hastings, et al. v. Southwest General Health
Center, et al., Cuyahoga County Common Pleas Court Case No. 785788, from the original
assigned judge, Brian Corrigan, to a Visiting Judge, Lillian J. Greene, without any lawful
authority, in violation of the individual assignment system mandated by Rule 36(B) of the Rules
of Superintendence for the Ohio Courts and Local Rule 15.0 of the Cuyahoga County Court of
Common Pleas.
2. This Complaint seeks the issuance of a Writ of Prohibition and Mandamus to
prevent Visiting Judge Greene from exercising any judicial authority in the Hastings case, and to
compel Judges Corrigan and Russo to vacate all unauthorized docket entries that purported to
transfer the Hastings case to Judge Greene, without any lawful authority, and to compel
Respondents to re-assign the Hastings case back to the original assigned judge, Brian Corrigan.
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3. As required by S.Ct.Prac.R. 12.02, the Second Amended Complaint for Writ of
Prohibition and Mandamus is supported by the Affidavit of Anna M. Carulas, Esq., which is
attached hereto and incorporated herein by reference.
PARTIES
4. Relators Ayman Dahman, M.D., and Mary Jo Alverson, CNM are Defendants in the
case captioned Hastings, et al. v. Southwest General Health Center, et al., Cuyahoga County
Common Pleas Court Case No. 785788.
5. Respondent The Honorable Brian J. Corrigan is the randomly assigned judge for
Hastings, et al. v. Southwest General Health Center, et al., Cuyahoga County Common Pleas Court
Case No. 785788.
6. Respondent The Honorable John J. Russo is the Administrative Judge for the
Common Pleas Court of Cuyahoga County, Ohio.
7. Respondent The Honorable Lillian J. Greene is a Visiting Judge who, upon
information and belief, was temporarily assigned by the Chief Justice of the Ohio Supreme Court
under Article IV, Section 5 of the Ohio Constitution to serve as a visiting judge for the Court of
Common Pleas for Cuyahoga County for a limited period of time, and not for any particular case.
JURISDICTION
8. This original action has been filed pursuant Article IV, Section 2(B)(1)(d) of the
Ohio Constitution and Section 12 of the Rules of Practice for the Ohio Supreme Court.
9. There is no original action for a writ of prohibition, writ of mandamus, or
alternative writ pending in any other Court regarding the facts and events that are the subject of
this Second Amended Complaint.
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STATEMENT OF FACTS
10. This original action arises from a medical malpractice action filed on June 26,
2012, by Plaintiffs Austin Hastings, a minor, by and through his parents, natural guardians and
next friends, Michelle and Brian Hastings, against Defendants Southwest Medical Group, Inc.,
Johanna O’Neill, M.D., Dr. Ayman Dahman, M.D., and Mary Jo Alverson, CNM. The case is
styled Hastings v. Southwest General Health Center, Cuyahoga County Common Pleas Court Case
No. 785788 (the “Hastings case”). A true and correct copy of the Docket for the Hastings case is
attached to the Affidavit of Anna Carulas as Exhibit A.
11. Upon filing of the complaint, the Hastings medical malpractice action was randomly
assigned to Judge Brian Corrigan under the individual assignment system mandated by Rule
36(B) of the Rules of Superintendence and Local Rule 15.0 of the Cuyahoga County Court of
Common Pleas.
12. Sup. R. 36(B) mandates that each multi-judge general division of the court of
common pleas must adopt an “individual assignment system,” which “means the system in
which, upon filing in or transfer to the court or a division of the court, a case immediately is
assigned by lot to a judge of the division, who becomes primarily responsible for the
determination of every issue and proceeding in the case until termination.” Id.
13. Although Sup. R. 36(B)(2) provides that “modifications to the individual
assignment system may be adopted” by the local courts of common pleas, it expressly provides
that “[a]ny modifications shall satisfy divisions (B)(1)(a) to (c) of this rule and shall be adopted
by local rule of court.” Id. (emphasis added).
14. In accordance with Sup. R. 36(B), the Cuyahoga Court of Common Pleas has
adopted a local rule – Local Rule 15.0 – which provides that “[a]ll civil cases shall be assigned to
a Judge through a process either manual or electronic, which ensures a random selection of the
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Judge and preserves the identity of the Judge until selected.” A true and correct copy of Local
Rule 15.0 is attached to the Affidavit of Anna Carulas as Exhibit B.
15. As required by Sup. R. 36(B), Cuyahoga County Local Rule 15.0(B) provides that
“[i]t shall be the duty of the assigned Judge to handle all Court activity, including motions,
emergency matters, Case Management Conferences, pretrials, trials, and any post trial matters
associated with the cases assigned to the docket.” Id. Moreover, Local Rule 15.0(D) provides
that “[t]he trial date for a case will be set by the Judge to whom the case is assigned.” Id.
16. Local Rule 15.0 does not contain any provisions for the re-assignment of cases to
a visiting judge. Rather, Local Rule 15.0 only provides for the re-assignment of cases in one of
three circumstances: (a) upon a motion for consolidation under Civ. R. 42, (b) upon the re-filing
of a case that was dismissed without prejudice under Civ. R. 41(A), or (c) upon the reversal and
remand by an appellate court. See Local Rule 15.0(H), (I), and (J). In the case of a re-filed case
or a case that has been reversed and remanded by an appellate court, the Local Rule provides that
the case shall be re-assigned to the original assigned Judge. Id.
17. Although there is no local rule that authorizes the administrative judge to transfer
civil cases to visiting judges, it has been the widespread custom and practice in the Cuyahoga
County Court of Common Pleas for elected judges to refer their cases to visiting judges for trial
with the consent of the parties. (Carulas Aff. ¶ 36-37). Under this long-standing custom and
practice, however, cases were never assigned to visiting judges without the consent of all parties,
and then only if the assigned Judge was unavailable to try the case on the scheduled trial date.
Id.; see, e.g., State ex rel. Peffer v. Russo, 110 Ohio St.3d 175, 2006-Ohio-4092, 852 N.E.2d 170,
¶ 3 (observing that assigned judge was unavailable and “offered to have the case assigned to a
visiting judge, but the parties refused”).
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18. In the Hastings case, the medical malpractice action was randomly assigned to
Judge Brian Corrigan who presided over the case for over two-and-a-half years. (Carulas Aff.
¶ 4). As provided by Local Rule 15.0(C), Judge Corrigan issued a Journal Entry on June 25,
2014, that originally scheduled the Hastings case for a jury trial to begin on February 2, 2015.
(Id. at ¶ 5, Ex. A, Docket, Journal Entry, dated 6/25/2014).
19. At the final pre-trial conference held on January 15, 2015, however, Judge
Corrigan orally advised counsel for the parties that the trial would likely be handled by a retired
or visiting judge because he was unavailable for trial on February 2, 2015. (Carulas Aff. ¶ 6).
Thereafter, on January 22, 2015, counsel received an e-mail from Judge Corrigan’s office
advising that two visiting judges were available in February, William Coyne and Patrick Kelly.
(See Carulas Aff. ¶ 7, Ex. C).
20. Shortly before the expected trial date, on Thursday, January 29, 2015, however,
Judge Corrigan's office sent an e-mail to all counsel that “there has been a change in the visiting
judge schedule for February. The judges are Judge Coyne and Judge Lillian Greene.” (Carulas
Aff. ¶ 10, Ex. D). In so doing, Judge Corrigan’s office advised counsel that Judge Greene “will
be hearing your case” on Monday “because Judge Greene has seniority and your case is first on
the list. . . .” (Id.)
21. In response to this notification, counsel for Defendants Ayman Dahman and Mary
Jo Alverson promptly notified Judge Corrigan’s office by e-mail on January 29, 2015, that
Defendants objected to the assignment of the case to a visiting judge without their consent.
(Carulas Aff. ¶ 11).
22. Thereafter, on Friday, January 30, 2015, a conference call took place between all
counsel of record and the Administrative Judge John Russo. During the telephone conference,
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Relators’ counsel advised Judge Russo that her clients did not consent to the transfer of the case
to Judge Greene, and objected to the re-assignment of the case. (Carulas Aff. ¶ 13-14).
23. In response, Respondent Russo inquired whether the parties would agree to try the
case before visiting Judge William Coyne. (Carulas Aff. ¶ 13). Plaintiffs’ counsel, however,
objected to any referral of the case to Judge Coyne, and insisted that the trial proceed before
Visiting Judge Lillian Greene. (Id.)
24. Judge Russo then advised the parties that he would be compelling them to appear
before Judge Lillian Greene for trial on Monday, February 2, 2015, but that the parties could
come down to the Court at 4:30 pm and place their objections on the record. (Carulas Aff. ¶ 14-
15). Shortly thereafter, however, Judge Russo’s office called back and indicated there would not
be a hearing that afternoon, and that the parties should appear before Judge Lillian Greene on
Monday morning, February 2, 2015. (Id. at ¶ 15).
25. Thereafter, on the afternoon of January 30, 2015, the docket reflects that Judge
Corrigan issued the following Journal Entry: “BECAUSE OF A CONFLICT ON THE
DOCKET OF THE ORIGINAL JUDGE, THIS CASE IS HEREBY REFERRED TO THE
PRESIDING/ADMINISTRATIVE JUDGE FOR REASSIGNMENT TO A VISITING JUDGE
FOR TRIAL.” (See Carulas Aff. ¶ 16, Ex. A, Docket in Hastings Case, Journal Entry, dated
January 30, 2015).
26. Moreover, the docket reflects that Judge Russo issued a separate Journal Entry,
dated January 30, 2015, which provides: “DUE TO THE UNAVAILABILITY OF ORIGINAL
JUDGE BRIAN J. CORRIGAN, THIS CASE IS HEREBY TRANSFERRED TO VISITING
JUDGE LILLIAN J. GREENE FOR TRIAL.” (Carulas Aff. ¶ 17, Ex. A, Docket in Hastings
8
Case, Journal Entry, dated January 30, 2015). In so doing, Judge Russo did not reference any
statute or rule that authorized the re-assignment of the case to a visiting judge. (Id.)
27. Relators then filed a Notice of Objection to Re-Assignment of Trial Judge and
Intention to File Writ of Prohibition with the Court of Common Pleas. (Carulas Aff. Ex. A,
Docket in Hastings Case, Notice of Objection, filed January 30, 2015). Thereafter, Relators filed
a Complaint for Writ of Prohibition with the Ohio Supreme Court on February 2, 2015.
28. On the morning of February 2, 2015, Visiting Judge Greene conducted an in-
person conference with all counsel to discuss the status of the trial. Relators’ counsel left that
conference with a good faith belief that Visiting Judge Greene could not be fair and impartial
toward them, and therefore Relators filed an Affidavit of Disqualification with the Ohio Supreme
Court on February 2, 2015. (Carulas Aff. ¶ 18).
29. On February 5, 2015, Chief Justice Maureen O’Connor denied the Affidavit of
Disqualification under R.C. 2701.03 A true and correct copy of the Chief Justice’s Judgment
Entry is attached to the Affidavit of Anna Carulas as Exhibit E.
30. In denying the Affidavit of Disqualification, Chief Justice O’Connor ruled on the
allegations of bias and prejudice against Judge Greene, but did not address whether the re-
assignment of the case to Lillian Greene was authorized by Sup. R. 36 or rule upon any of the
other legal issues that are the subject of this original action. (See Carulas Aff. Ex. E).
31. The trial did not begin on February 2, 2015, as originally scheduled. Defendants
Johanna O’Neill, M.D. and Southwest General Medical Group, Inc. then filed a motion on
February 5, 2015, for a continuance of the trial and for the scheduling of a pretrial conference for
the purpose of setting a new trial date. (Docket, Motion for Continuance, filed 2/5/2015).
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32. Instead of having the case returned to the docket of Judge Corrigan to set a new
trial date, however, the parties were instructed to appear before Visiting Judge Greene on
February 9, 2015, in order to schedule a new trial date. (Carulas Aff. ¶ 22).
33. Over Relators’ objection, the parties appeared before Visiting Judge Greene on
February 9, 2015, for a hearing to schedule a new trial date. A transcript of the February 9th
hearing is attached to the Affidavit of Anna Carulas as Exhibit F.
34. At the hearing on February 9, 2015, Relators repeated their objections to the
initial transfer as well as Visiting Judge Greene’s continuing jurisdiction over this matter. In so
doing, counsel for Relators specifically requested that “this case should go back to Judge
Corrigan to set a trial date.” (Feb. 9th Transcript, pp. 4-5).
35. Notwithstanding such objections, Judge Greene advised the parties that she was
“going to set the trial for April 6, 2015.” (Id. at pg. 8). In so doing, Judge Greene stated that
whatever transpires “between now and April 6th, the Court will deal with or Judge Corrigan will
deal with it.” (Id.) When counsel for Plaintiffs advised that she was “going to file a motion for
costs,” however, Judge Greene advised counsel that she should “submit it to Judge Corrigan, not
me. I’m just here to try the case . . .” (Feb. 9th Transcript, pg. 12).
36. After the conference, however, Relators discovered that there was a manual
docket entry on February 9, 2015, which reads: “VISITING JUDGE LILLIAN J. GREENE
ASSIGNED TO CASE (MANUALLY).” (Carulas Aff. ¶ 25, Ex. A, Docket, Journal Entry,
dated February 9, 2015).
37. This February 9th Docket Entry, however, is not accompanied by written, signed
order or journal entry, so it is not clear whether this docket entry was authorized by Judge
Greene, Judge Corrigan, or Judge Russo. Moreover, the February 9th Docket Entry cites no
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statute or rule and does not explain why the case was re-assigned to Judge Greene, given that
Judge Corrigan is no longer “unavailable” to try the case and rule on all pending motions.
38. The proposed trial date of April 6, 2015, also was never journalized. Indeed, due
to conflicts with the proposed April 6, 2015 trial date, both Relators and Codefendants Southwest
General and O’Neill filed Motions for Continuances on February 10, 2015 and February 12,
2015, respectively. (See Carulas Aff. Ex. A, Docket, Motions for Continuances, filed 2/10/15
and 2/12/15).
39. Moreover, on February 12, 2015, Relators filed a Motion to Return This Case to
the Docket of Respondent Judge Corrigan for Ruling on the Motions to Continue, Motions in
Limine, Trial, and Final Disposition. (Id.)
40. Since February 9th, there have been no rulings on any pending motions, but
counsel for the parties have been orally advised that Visiting Judge Greene would be selecting a
new trial date. (Carulas Aff. ¶ 29-30).
41. Due to Relators’ continuing objections to the case proceeding before Judge
Greene, counsel for Relators has requested that any scheduling of a new trial date by Judge
Greene should take place on the record before a court reporter, so that the parties may properly
place their objections on the record. (Carulas Aff. ¶ 31, Ex. I).
42. Judge Greene’s bailiff has advised, however, that Judge Greene was not available
for such a pretrial conference because “visiting Judges aren’t supposed to come in unless in
trial.” (Carulas Aff. ¶ 32, Ex. I). In so doing, Judge Greene’s bailiff has stated in an e-mail,
dated April 7, 2015, that “[i]t’s become very clear to me that Judge Corrigan has no intention
[of] taking this case back from Judge Greene,” and thus she asked for counsel to identify “[w]hat
motion or motions are before Judge Greene at this time.” (Id.)
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43. Thereafter, over the written objections of Relators’ counsel, Judge Greene’s
bailiff sent an e-mail to all counsel to confirm that the trial in the Hastings matter “is now
rescheduled for Monday, November 16, 2015,” and that “Judge Greene has been sent and will be
ruling on the outstanding motions.” (See Carulas Aff. ¶ 35, Ex. L, E-Mail, dated April 16, 2015).
44. Absent the issuance of a peremptory or alternative writ by this Court, therefore, it
is clear that Visiting Judge Greene will continue to exercise unauthorized jurisdiction over the
Hastings case, including but not limited to the imminent ruling on all pending motions.
COUNT ONE: WRIT OF PROHIBITION
45. Relators incorporate by reference the allegations of Paragraphs 1 through 44 of
this Second Amended Complaint as if fully restated herein.
46. A party is entitled to a writ of prohibition under Ohio law if “(1) the court against
whom the writ is sought is exercising or about to exercise judicial power; (2) that the exercise of
power is unauthorized by law, and (3) that denying the writ will result in injury for which no
other adequate remedy exists in the ordinary course of law.” State ex rel. Cleveland Elec. Illum.
Co. v. Cuyahoga County Court of Common Pleas, 88 Ohio St.3d 447, 727 N.E.2d 900 (2000)
(citing State ex rel. Ohio Edison Co. v. Parrott, 73 Ohio St.3d 705, 707, 654 N.E.2d 106, 108
(1995)). “However, where there is a patent and unambiguous lack of subject matter jurisdiction
in the court exercising judicial authority, it is not necessary to establish that the relator has no
adequate remedy at law in order for a writ to issue.” Id.
47. Here, Respondents have wrongly exercised judicial power by acting, without any
lawful authority, to re-assign the Hastings case from the randomly assigned Judge Brian
Corrigan to Visiting Judge Lillian Greene. This wrongful exercise of judicial power is not
authorized by any constitutional provision, statute, rule or any other legal authority and
constitutes a clear and blatant violation of Sup. R. 36(B), particularly given that the randomly
12
assigned judge, Judge Brian Corrigan, is now available to schedule a new trial date and to rule
upon all pending motions.
48. Given that the purported re-assignment of the case to Visiting Judge Lillian
Greene is not authorized by the Ohio Constitution, the Rules of Superintendence, or any of the
Local Rules of the Cuyahoga County Court of Common Pleas, Respondent Greene is patently
and unambiguously without any jurisdiction to preside over the Hastings case under Ohio law.
Yet, Judge Greene is wrongfully exercising jurisdiction over the Hastings case by, among other
things, scheduling a new trial date and announcing her intent to rule on all outstanding motions.
49. Accordingly, Relators are entitled to a Writ of Prohibition to prohibit Respondent
Judge Lillian Greene from continuing to exercise any jurisdiction over the Hastings case and to
prohibit Respondents, Judge John Russo and Judge Brian Corrigan, from taking any further
actions to re-assign the case to Visiting Judge Greene in violation of the requirements of Rule
36(B) of the Rules of Superintendence.
COUNT TWO: WRIT OF MANDAMUS
50. Relators hereby incorporate by reference the allegations of Paragraphs 1 through
49 of this Second Amended Complaint as if fully restated herein.
51. Under Ohio law, a writ of mandamus should be granted if the Relator establishes
a clear legal right to the requested relief and a clear legal duty on the part of the Respondent to
provide the requested relief.
52. Here, under Sup. R. 36(B) and Local Rule 15.0, Judge Corrigan had a clear and
mandatory duty, as the assigned Judge for the Hastings case, “to handle all Court activity,
including motions, emergency matters, Case Management Conferences, pretrials, trials, and any
post trial matters associated with the cases assigned to the docket.” Id. Moreover, Local Rule
15.0(D) provides that “[t]he trial date for a case will be set by the Judge to whom the case is
13
assigned.” Id. Relators therefore have a clear legal right to have Judge Corrigan preside over the
Hastings case, including the scheduling of a new trial date and the ruling on any pending
motions.
53. This Court has held that where a lower court patently and unambiguously lacks
jurisdiction to proceed in a cause of action, a writ of mandamus may issue “to correct the results
of prior jurisdictionally unauthorized actions.” State ex rel. Engelhart v. Russo, 131 Ohio St.3d
137, 2012-Ohio-47, ¶ 14 (granting prohibition and mandamus relief to prevent the unauthorized
exercise of jurisdiction and to vacate prior orders entered in violation of Civ. R. 41(A)).
54. Here, Respondents Russo and/or Corrigan, without any legal authority, have
wrongfully purported to re-assign the entire Hastings case to Visiting Judge Lillian Greene in
direct violation of the requirements of the Ohio Constitution, the Rules of Superintendence, and
the Local Rules of the Cuyahoga County Court of Common Pleas. Moreover, Judge Greene has
wrongfully exercised jurisdiction over the Hastings case without any legal authority whatsoever.
55. Accordingly, in addition to a writ of prohibition, Relators are entitled to a writ of
mandamus to compel Respondents to vacate all prior orders and docket entries that purported to re-
assign the Hastings case to Visiting Judge Lillian Greene in violation of Sup. R. 36(B) and Local
Rule 15.0, to vacate all journal entries and orders that were wrongfully issued by Judge Greene, and
to compel Respondents to re-assign the Hastings case back to the original assigned Judge.
COUNT THREE: ALTERNATIVE WRIT
56. Relators hereby incorporate by reference the allegations of Paragraphs 1 through
55 of this Second Amended Complaint as if fully restated herein.
57. Judge Greene has wrongfully exercised jurisdiction over the Hastings case by,
among other things, re-scheduling the trial date for November 16, 2015, and announcing her
intent to rule on outstanding motions. Absent the issuance of an alternative writ, therefore, Judge
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Greene likely will be continuing to exercise jurisdiction over the Hastings case by, among other
things, ruling on all pending motions.
58. Absent the issuance of an alternative writ by this Court, Relators do not have an
adequate remedy at law that would prohibit Judge Greene from continuing to exercise jurisdiction
over the Hastings case by ruling on all pending motions and presiding over the trial.
59. Relators therefore request that the Court grant an alternative writ to prohibit Judge
Greene from exercising any further jurisdiction over the Hastings case and to compel
Respondents to re-assign the Hastings case back to the randomly assigned judge in accordance
with the requirements of Sup. R. 36(B).
PRAYER FOR RELIEF
WHEREFORE, Relators respectfully request that the Court grant the following relief:
(A) Grant a Writ of Prohibition and/or a Writ of Mandamus against Respondents John
Russo and Brian Corrigan compelling them to vacate the unsigned Docket Entry of February 9,
2015, and the journal entries of January 30, 2015, that purported to re-assign the Hastings case to
Visiting Judge Lillian J. Greene, and compelling them to re-assign the Hastings case back to the
original assigned judge.
(B) Grant a Writ of Prohibition against Respondent Lillian J. Greene prohibiting
Judge Greene from exercising any judicial authority over the Hastings case and vacating all
orders and journal entries issued by Judge Greene.
(C) Grant an Alternative Writ to prohibit Judge Greene from exercising any further
jurisdiction over the Hastings case and compelling Respondents to re-assign the case back to the
randomly assigned judge under Sup. R. 36(B).
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(D) Grant any further relief that may be just and appropriate under the circumstances.
Respectfully submitted,
s/ Stephen W. FunkAnna Moore Carulas (0037161)Stephen W. Funk* (0058506)* Counsel of RecordRoetzel & Andress, LPA1375 East 9th Street, 9th FloorCleveland, OH 44114Telephone: 216.623.0150Facsimile: [email protected]; [email protected] for Relators
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PROOF OF SERVICE
A copy of the foregoing Second Amended Complaint for Writ of Prohibition andMandamus and Alternative Writ with Affidavit of Anna Carulas, was served on this 17th day ofApril, 2015, via electronic mail pursuant to Civ. R. 5(B)(2)(f) upon the following counsel ofrecord:
Timothy J. McGintyCharles E. HannanCuyahoga County Prosecutor’s OfficeThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio [email protected] for Respondents
Pamela PantagesThe Becker Law Firm, LPA134 Middle AvenueElyria, OH [email protected] for Hastings Plaintiffs
Paul FlowersPaul W. Flowers Co., LPATerminal Tower, 35th Floor50 Public SquareCleveland, Ohio [email protected] for Hastings Plaintiffs
David KrauseReminger Co., LPA101 W. Prospect Avenue, Suite 1400Cleveland, OH [email protected] for Johanna O'Neill, M.D. and Southwest General Medical Group, Inc.
/s/ Stephen W. FunkStephen W. Funk, Esq. (0058506)
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