THE STATE ex rel. SEAN CASZATT, et al., Relators, - vs - JOSEPH GIBSON, IN HIS OFFICIAL CAPACITY AS JUDGE OF THE LAKE COUNTY COURT OF COMMON PLEAS, et al., Respondents.
CASE NO. 2012-L-107
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
[Cite as State ex rel. Caszatt v. Gibson, 2013-Ohio-213.]
PER CURIAM
Original Action for Writs of Mandamus, Procedendo, and Prohibition.
Judgment: Writs of Mandamus and Procedendo Granted; Writ of Prohibition Denied.
Anand N. Misra, The Misra Law Firm, L.L.C., 3659 Green Road, Suite 100, Beachwood, OH 441422, and Robert S. Belovich, 9100 South Hills Boulevard, Suite 300, Broadview Heights, OH 44147 (For Relators).
Charles E. Coulson, Lake County Prosecutor, and Joshua S. Horacek, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondents).
PER CURIAM.
{1} This action is before the court for consideration of the motion to dismiss of respondents, Judge Joseph Gibson and Lake County Court of Common Pleas, and motion for summary judgment of relators, Sean Caszatt and the class of consumers
The Underlying Case
{2} Asset Acceptance LLC (hereafter “Asset“), is engaged in the business of purchasing charged-off consumer debts and enforcing the debts in courts of various states. In 2008, it filed a lawsuit against Sean C. Caszatt in Painesville Municipal Court to collect a credit card debt. The date of delinquency for Mr. Caszatt‘s account was October 2001. The pertinent credit card agreement provision stated: “No matter where you live, this Agreement and your Credit Card Account are governed by federal law and by New Hampshire law.” New Hampshire has a three-year statute of limitations for collections of credit card debts. Mr. Caszatt filed a counterclaim alleging Asset‘s internal guidelines applied Ohio‘s 15-year statute of limitations for written contracts, even for accounts with a choice-of-law provision where the choice-of-law state law, such as New Hampshire, imposes a much shorter statute of limitations for collections of credit card debts. Mr. Caszatt alleged this standard practice by Asset violates
{3} The trial court denied certification and Mr. Caszatt appealed in Asset Acceptance LLC v. Caszatt, 11th Dist. No. 2009-L-090, 2010-Ohio-1449 (“Asset I“). We
{4} After remand, the court granted summary judgment in favor of Mr. Caszatt on Asset‘s claim of nonpayment on the ground that it was time-barred. Regarding Mr. Caszatt‘s counterclaim, the trial court granted summary judgment in favor of Asset, except for the FDCPA claim. The trial court‘s judgment left the FDCPA claim for trial and Asset did not appeal this judgment. Subsequently, the court issued a judgment entry, certifying the class as follows: “all persons against whom Asset LLC has filed a lawsuit in Ohio, to collect a credit card debt, where the credit card agreement contained a choice of law provision, applying the law of a state other than Ohio. Further the lawsuit was filed on or after June 6th, 2006, and was filed after the statute of limitations had expired under the law of Ohio or under the law of the choice-of-law state.” The court also stated that Mr. Caszatt shall serve as the class representative.
{5} Asset appealed in Asset Acceptance LLC v. Caszatt, 11th Dist. No. 2011-L-080, 2012-Ohio-1886. On appeal, Asset appeared to dispute the makeup of the members of the class. We explained
{6} After receiving another adverse decision from this court, Asset sought removal to federal court. Because removal to the federal court is only available to a defendant, Asset - the plaintiff in the underlying complaint and defendant in the counterclaim - filed a “Motion to Realign the Parties” with the trial court for the express
{7} Mr. Caszatt opposed the motion, alleging Asset was engaging in forum-shopping. He argued there is no provision in the Rules of Civil Procedure authorizing inversion of the parties as requested by Asset.
{8} On September 12, 2012, the trial court granted Asset‘s motion. It held that, for “purposes of clarity,” the parties should be “realigned to reflect their true roles in the remaining claim.” The court stated that the only remaining claim in this case concerned a violation of the federal law and therefore it is better adjudicated in federal court. In an unusual move, the court ordered Mr. Caszatt to file an “amended complaint” showing Mr. Caszatt as Plaintiff and Asset as Defendant, within 14 days. The court subsequently entered a nunc pro tunc entry indicating that the order realigning the parties also included the certified class.1
The Instant Original Action
{9} On September 19, 2012, relators, Mr. Caszatt and the class of consumers defined and certified in Case No. 08-CV-00258, filed a “Verified Petition and Complaint for Writ of Mandamus, Writ of Procedendo, Writ of Prohibition, and Injunctive Relief” against respondents, Judge Gibson, in his official capacity as judge of the Lake County Court of Common Pleas, and Lake County Court of Common Pleas. Relators request: (1) a writ of mandamus to compel respondents to vacate the order facilitating the
{10} This court issued an alternative writ, ordering the respondents to file either an answer or a motion to dismiss pursuant to
Mandamus
{11} For a writ of mandamus to issue, the relator must establish a clear legal right to the relief for which is prayed, the respondent must have a clear legal duty to
{12} “A mandamus is a civil proceeding, extraordinary in nature since it can only be maintained when there is no other adequate remedy to enforce clear legal rights.” State ex rel. Widmer v. Mohney, 11th Dist. No. 2007-G-2776, 2008-Ohio-1028, ¶31, citing State ex rel. Brammer v. Hayes, 164 Ohio St. 373 (1955).
Writ of Procedendo
{13} To be entitled to a writ of procedendo, a relator must establish a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462 (1995). A writ of procedendo is proper when a court has refused to enter judgment, or has unnecessarily delayed proceeding to judgment. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184 (1995). An “inferior court‘s refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy.” State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110 (1994). “The writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment.” Yee v. Erie Cty. Sheriff‘s Dept., 51 Ohio St.3d 43, 45 (1990), quoting State ex rel. Davey v. Owen, 133 Ohio St. 96, 106 (1937). “Procedendo is a proper remedy in any case in which a court has jurisdiction but refuses to exercise it.” Painter & Pollis, Ohio Appellate Practice, Section 10:50 (2011-2012 Ed.).
{14} “‘The portion of the [law-of-the-case] doctrine generally applied in extraordinary-writ cases provides that [a]bsent extraordinary circumstances, such as an intervening decision by the Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case.’ State ex rel. Dannaher v. Crawford (1997), 78 Ohio St.3d 391, 394, 1997 Ohio 72, 678 N.E.2d 549, quoting Nolan v. Nolan (1984), 11 Ohio St.3d 1, 11 OBR 1, 462 N.E.2d 410, syllabus. Writs of mandamus and procedendo are appropriate to require lower courts to comply with and not proceed contrary to the mandate of a superior court. Berthelot v. Dezso (1999), 86 Ohio St.3d 257, 259, 1999 Ohio 100, 714 N.E.2d 888 (mandamus and prohibition); State ex rel. Crandall, Pheils & Wisniewski v. DeCessna (1995), 73 Ohio St.3d 180, 185, 1995 Ohio 98, 652 N.E.2d 742 (procedendo).” State ex rel. Non-Employees of Chateau Estates Residents Association v. Kessler, 107 Ohio St.3d 197, 2005-Ohio-6182, ¶14
Writ of Prohibition
{15} A writ of prohibition can only be issued where the relator establishes that: (1) a judicial officer or court intends to exercise judicial power over a pending matter; (2) the proposed use of that power is unauthorized under the law; and (3) the denial of the writ will result in harm for which there is no other adequate remedy in the ordinary course of the law. State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, ¶14; State ex rel. Sliwinski v. Unruh, 118 Ohio St.3d 76, 2008-Ohio-1734, ¶7. A writ of prohibition is a legal order under which a court of superior jurisdiction enjoins a court of inferior jurisdiction from exceeding the general scope of its inherent authority. State exrel. Feathers v. Hayes, 11th Dist. No. 2006-P-0092, 2007-Ohio-3852, ¶9; State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70 (1998). The writ is an extraordinary remedy which should not be issued in a routine manner. State ex rel. The Leatherworks Partnership v. Stuard, 11th Dist. No. 2002-T-0017, 2002-Ohio-6477, ¶15.
Motion to Dismiss
{16} A motion to dismiss for failure to state a claim upon which relief can be granted is procedural in nature and tests the sufficiency of the complaint. Huffman v. Willoughby, 11th Dist. No. 2007-L-040, 2007-Ohio-7120, ¶16. “[W]hen a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party.” Byrd v. Faber, 57 Ohio St.3d 56, 60 (1991). “In order for a court to grant a motion to dismiss for failure to state a claim, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” O‘Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975).
Summary Judgment
{17} Pursuant to
{18} In this case, upon the alternative writ issued by this court directing respondents to file either an answer or a motion to dismiss, respondents filed a motion
{19} “A party may move for summary judgment at any time after the expiration of the time permitted under these rules for a responsive motion for pleading by the adverse party * * * .”
{20} The Staff Notes for the amendment of
{21} Respondents argue that until they file an answer, we should not assume there will be no material facts in dispute, and, therefore a ruling on relators’ motion for summary judgment is premature. Respondents give no indication what these “materials
{22} The only question in this original action is the lawfulness of respondents’ September 12, 2012 order (as corrected by the September 20, 2012 nunc pro tunc order), requiring Mr. Caszatt, the defendant in the underlying complaint, to “file an amended complaint” designating himself and the class members as plaintiffs and Asset as defendant. We have the orders before us and, as such, this case is ready for adjudication on the merits upon relators’ motion for summary judgment.
The Trial Court‘s Order is not Authorized by the Rules of Civil Procedure
{23} Keeping all the foregoing legal principles in mind, we now consider whether any form of relief sought by Mr. Caszatt is warranted in this case. Here, Mr. Caszatt raised the FDCPA claim in his counterclaim. Pursuant to
{24} “(a) Generally. Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”
{26} To circumvent this procedural obstacle, Asset filed a “Motion to Realign Parties,” for the express purpose of facilitating removal of the counterclaim to the federal court. The trial court granted the motion and, in an extraordinary move, ordered Mr. Caszatt to file an “amended complaint” naming him and the class members as Plaintiffs and Asset as Defendant, reasoning that the parties should be “realigned” for “purposes of clarity” and that the federal claim would be better adjudicated in the federal court.
{27} The trial court‘s order is clearly and patently not authorized by the Rules of Civil Procedure. In this case, Mr. Caszatt filed a counterclaim, which is a “pleading that sets forth a claim for relief.” See
{28} Although a counterclaim is a pleading, it is a pleading distinct from a complaint, which, as defined by
{29} Moreover, amendment of pleadings is governed by
{30} For these reasons, respondents exceeded their legal authority in ordering Mr. Caszatt to file an “amended complaint.”
“Realignment” of Parties and Removal
{31} Turning now to the notion of “realignment” of parties, the mechanism Asset attempted to utilize to facilitate removal. Realignment is defined in Black‘s Law Dictionary as “[t]he process by which the court, for determining diversity jurisdiction, realigns the parties as plaintiffs and defendants according to the ultimate interest of
{32} Respondents cited several federal cases purportedly supporting a trial court‘s authority to realign the parties. In McCrone v. Bank One Corp., 105 Ohio St.3d 1444, 2005-Ohio-669, the Supreme Court of Ohio granted appellee, Bank One Corporation‘s, motion to realign the parties for purposes of oral argument. In Smith v. Jones, 175 Ohio App.3d 705, 707, 2007-Ohio-6708 (3rd Dist.), plaintiff Smith was insured by Jones during the course of her employment. Smith named Jones and Ohio Bureau of Workers’ Compensation as defendants; because it shared economic interest with plaintiff, the bureau moved to be realigned as a named party plaintiff, which the trial court granted. In New Artesian v. Stiefel, 5th Dist. No. 1999CA00163, 2000 Ohio App. LEXIS 515 (Feb. 14, 2000), the trial court similarly granted a motion to realign a defendant (who raised a subrogation claim) as a plaintiff to reflect the parties’ shared interests. None of these cases are applicable.
{33} The only case cited by respondents that has some bearing on this case is Hrivnak v. NCO Portfolio Mgmt., 723 F.Supp.2d 1020, 1028 (N.D.Ohio 2010), a similar debt collection case. There, NCO sued Hrivnak to collect debts owed. Hrivnak answered and also filed a counterclaim alleging violation of FSCPA, as Mr. Caszatt did in this case. NCO then moved to dismiss its complaint, and the trial court granted the motion. One of the defendant corporate entities then filed a motion asking the Cuyahoga Court of Common Pleas to “realign” the parties. The trial court granted the motion and instructed Hrivnak to “file a complaint asserting his affirmative claims in relief.” Id. at 1021. Hrivnak filed a complaint as instructed, designating himself as
{34} The issue before the district court was whether “realignment” of parties ordered by a state court can confer subject matter jurisdiction in federal court, where none existed at the inception of the lawsuit. Interpreting the removal statute,
{35} Respondents cited Hrivnak for the proposition that when a state court realigns parties, the realigned defendant can properly remove an action to federal court.
{36} Hrivnak is distinguishable, because Hrivnak and the case at hand were at different procedural junctures, and Hrivnak decided an issue different from the issue before us. The issue before the Hrivnak court - where the defendant/counterclaim-plaintiff did file a pleading designating himself as plaintiff and counterclaim-defendants as defendants - was whether federal court had removal jurisdiction over a case when a counterclaim-defendant had already been re-designated as defendant and sought removal to the federal court. The district court answered the question in the affirmative, based on its interpretation of the federal removal statute.
{37} The issue before us, however, is different. In this original action, we are asked to consider the lawfulness of the respondents’ order requiring a
{38} In addition to a lack of authority for the trial court‘s order, we also note that, unlike Hrivnak, where the realignment and removal occurred at a very early stage of the proceedings, Asset sought removal of the counterclaim late in the day, after the matter has been extensively litigated in the state court over a four year period, including two appeals before this court. After receiving adverse outcome on both appeals, Asset sought a second bite at the apple in federal court. The district court, in granting relators’ motion to remand, recognized this as well, stating in its decision: “The court should not permit a party to engage in such blatant acts of forum shopping. Forum shopping frustrates the notion of federalism and stifles judicial economy. Judicial economy is especially pertinent here, where the matter is a class action, the parties have litigated the matter for over four years, and the state trial court has certified the class.” (Citations omitted.) Caszatt v. Asset Acceptance, L.L.C., N.D. Ohio Case No. 1:12 CV 2423. The prolonged litigation engaged by Asset reflects this is yet another tactic to delay the adjudication of the FDCPA claim on the merits.
{39} Respondents argue that in removal proceedings the state court‘s involvement is limited to receiving notice of removal, citing
Lack of Plain and Adequate Remedy at Law
{41} Last but not least, under the unique circumstances of this case, relators lack a plain and adequate remedy at law, because the trial court‘s order effectively precludes an appellate review of the trial court‘s September 12 order. This is because removal, if granted by the federal court, deprives the state court of jurisdiction. Therefore, relators’ claim asserted in the instant original action could not be raised by way of appeal, and thus, there is no plain and adequate remedy in the ordinary course of the law.
{42} Although the federal court granted realtor‘s motion to remand, noting the procedural distinction between the Hrivnak case, where there was a realignment order and this case, where there is not yet a realignment order, only an unlawful order to amend a pleading to achieve realignment, the procedural fact remains that the September 12, 2012 order, as corrected, still stands. It has only been suspended by this court‘s order. If this court declines to act, relators cannot ignore the trial court‘s order to amend, and once the amended pleading is filed, a “realignment” order may issue and another notice of removal will be filed.
{44} Based upon the federal court‘s remand order, we cannot speculate whether the federal court will accept jurisdiction when it is presented with an order realigning the parties; but if it does, the relators’ appellate rights in state court will be extinguished.
Writs of Mandamus and Procedendo are Proper
{45} Relators have shown extraordinary circumstances entitling them to relief in mandamus and procedendo. We hold relators are entitled to a writ of mandamus compelling respondents to vacate the September 12 order, as relators have successfully demonstrated that they have a clear legal right to the relief, respondents have a clear legal duty to perform the act, and relators have no plain and adequate remedy in the ordinary course of the law. State ex rel. Ballard v. O‘Donnell, 50 Ohio St.3d 182, 184 (1990) (where a court has made an unlawful order exceeding its authority, mandamus is the proper remedy by which to compel such court to set aside and vacate such order).
{47} A writ of prohibition, however, is not appropriate in this case, as such a writ is intended to enjoin a court from acting beyond the scope of its jurisdiction. State ex rel. Tubbs Jones v. Suster, supra. Respondents’ jurisdiction in this case is undisputed.3
{48} Applying the appropriate motion to dismiss and summary judgment standard, we therefore deny respondents’ motion to dismiss and grant relators’ motion for summary judgment regarding relators’ complaint for a writ of mandamus and procedendo, and we grant respondents’ motion to dismiss and deny relators’ motion for summary judgment regarding relators’ request for a writ of prohibition.
{49} It is the order of this court that final judgment is hereby entered in favor of relators as to their complaint for a writ of mandamus and procedendo.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
THOMAS R. WRIGHT, J., concur.