Motion to Stay Proceedings in BURRI LAW PA, ET AL vs. MILAN LACH, ET AL| Trellis.Law

On July 14, 2021 a Motion-Secondary was filed involving a dispute between Burri Insurance Llc, Burri Law Pa, Dean A. Burri, and Abc Entities 1-10, Archdiocese Of Miami, Inc., Bert N. Reimann, Byzantine Catholic Eparchy Of Parma, Employee Benefit Services, Inc. Dba Ebs South, Inc., Eparchy Of Passaic, Janet Dicks, John And Jane Does 1-10, Kurt R. Burnette, Metropolitan Archdiocese Of Pittsburgh, Byzantine Rite, Milan Lach, Robert Shalhoub, Thomas G. Wenski, Thomas Olmsted, Willaim Skurla, for COMMERCIAL DOCKET in the District Court of Cuyahoga County.

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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Common Pleas

REPLY BRIEF
August 30,2022 11:55

By: MICHAEL!. O'SHEA0039330

Confirmation Nbr. 2639656

BURRI LAW PA, ET AL CV 21 949903

vs.
Judge: MICHAEL J. RUSSO
MILAN LACH, ET AL

Pages Filed: 32

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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

BURRI LAW PA, et al. )
) Case No. CV 21 949903
Plaintiff )
)
)
vs. ) JUDGE MICHAEL RUSSO
)
)
MILAN LACH, et al. ) REPLY BRIEF IN SUPPORT OF:
) motion to stay proceedings
Defendants. )
)
)

Now come all Plaintiffs in this matter ("Plaintiffs"), and

hereby respectfully submit this reply brief in support of

Plaintiffs' Motion to Stay Proceedings (the "Motion to Stay").

I. Introduction.

Whether it be by the jurisdictional priority rule, comity or

the doctrine of forum non conveniens, this Court should stay the

proceedings in this case subject to the soon-outcome of the

current discovery sanction/jurisdictional litigation in the

Florida Litigation (as defined in the Motion to Stay). Here is

why.

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As indicated in the Motion to Stay, it is clear that the

Court in the Florida Litigation is well on its way to rendering

significant rulings on jurisdictional issues and discovery

sanction issues. No matter how much legal fluff is placed in

the brief in opposition to the Motion to Stay, there is no

dispute on this issue. None.

II. Ohio law on comity.

Ohio law has a long history on the doctrine and principles

of comity. The brief in opposition to the Motion to Stay

directs this Court to give attention to the principles of comity

rather than the jurisdictional priority rule. While it is in

fact procedurally true that the principles behind comity and the

jurisdictional priority are almost the same, there is some

guideposts Ohio law gives this Court in evaluating comity in the

context of a motion to stay.

First, it seems that the much of the cases involving the

application of comity involve an Ohio court analyzing a final

judgment of another state or country - and by far most often in

divorce cases. See Sergey Sargsyan v. Gayane Martirosyan,

2021-Ohio-4576; Baze-Sif v. Sif, 2016-Ohio-29; Mouded v. Khoury,

2018-Ohio-284 (cited in the brief in opposition); Patel v.

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Krushna SS L.L.C., 2018-Ohio-263 (Cuyahoga); Tatsing v.

Njume-Tatsing, 2017-Ohio-8460; Falah v. Falah, 2017-Ohio-1087;

Mustafa v.___ Elfadli, 2013-Ohio-1644; Gupta v.___ Gupta,

2013-Ohio-2203 (Cuyahoga); Rahawangi v. Alsamman, 2004-Ohio-4083

(Cuayhoga); Kalia v. Kalia, 151 Ohio App. 3d 145 (2002); and

Walsh v. Walsh, 146 Ohio App. 3d 48 (2001).

Although, Ohio Courts have also clearly held that it applies

in non-divorce cases as well. See e.g. NEP Can. ULC v. MEC Op

Transaction 1 ULC, 2022 Ohio Misc. LEXIS 10 (Franklin County)

(business litigation); Kaur v. Bharmota, 182 Ohio App. 3d 696

(2009) (probate case); Nationwide Mut. Fire Ins. Co. v. Modroo,

2004-Ohio-4697 (insurance litigation); M. E. Jones, Inc. v. Arel

Communs. & Software, Ltd., 2003-Ohio-2084 (business litigation);

Lexford Props. Mgt. Llc v. Lexford Prop. Mgt, 147 Ohio App. 3d

312 (Cuyahoga 2001) (business litigation); Laborers' Int'l Union

Nat'l (Indus.) Pension Fund v. D.O.D. Contracts, 1996 Ohio App.

LEXIS 4280 (business litigation); and Gulf Ins. Group v.

Travelers Ins. Co., 1980 Ohio App. LEXIS 13450 (insurance

litigation).

Further, when comity applies in scenarios where both the

Ohio suit and the foreign suit were both pending (i.e. pending

final judgment in one of the cases), the Ohio court had to

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determine whether to "stay" the Ohio case pending the outcome in

the non-Ohio forum. See M. E. Jones, Inc. v. Arel Communs. &

Software, Ltd., supra; Nationwide Mut. Fire Ins. Co. v. Modroo,

supra; Lexford Props. Mgt. Llc v. Lexford Prop. Mgt, supra ("A

court may grant a motion to stay proceedings in the interests of

comity, orderly procedure, or judicial economy."); Gulf Ins.

Group v. Travelers Ins. Co., supra; and Priconics, LLC v.

Amperor, Inc., 2018-Ohio-551.

Further still, when it comes to comity, a trial court has

full discretion on whether to defer to another court's current

jurisdiction and judgment. See Sergey Sargsyan v. Gayane

Martirosyan, supra, Baze-Sif v. Sif, supra; Mustafa v. Elfadli,

supra; and M. E. Jones, Inc. v. Arel Communs. & Software, Ltd.,

supra.

Further still, as set forth in Patel v. Krushna SS L.L.C.,

supra (Cuyahoga), Ohio courts are not bound by the decree or

order of another court outside of Ohio, but should give

"deference" to that other decree or case unless that decree "is

repugnant to the laws of the United States and Ohio or violates

Ohio public policy."

Lastly, many courts dealing with the issue of comity have

utilized what are called the "Caspian" factors. As set forth in

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M. E. Jones, Inc. v. Arel Communs. & Software, Ltd., supra:

The Caspian court established five factors to be balanced
when determining whether to grant a motion for stay or
dismissal in favor of litigation in an overseas forum. Id.,
at 884. Those factors are as follows: "the similarity of
parties and issues involved, promotion of judicial
efficiency, adequacy of relief available in the alternative
forum, considerations of fairness to all parties and
possible prejudice to any of them, and the temporal sequence
of filing for each action." Id., citations omitted.

III. Why comity applies to have this Court stay this case.

As clearly set forth in the Motion to Stay, the Florida

Litigation is far more along than this case when it comes to

Plaintiffs' claims - and is in fact on the verge of making major

pronouncements on jurisdiction and discovery sanctions concerning

the Lach Defendants (including discovery rulings and discoveries

that may be relevant in this case). There is no fair dispute on

this issue. In that regard, when it comes to the claims of the

Plaintiffs as set forth in the complaint filed in this case, this

Court should stay this case pending the outcome of the Florida

Litigation.

The Caspain factors apply here. There is no question that

the Florida Litigation (from a temporal sequence of filing) was

filed first and that service was perfected in the Florida

Litigation on the Lach Defendants. There is no question that

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Plaintiffs' claims and issues in this case mirror in large

measure Plaintiffs' claims and issues in the Florida Litigation.

There is no question that the parties are the same. There is no

question (from a judicial efficiency standpoint) that the Court

in the Florida Case is actively involved with the Plaintiffs and

the Lach Defendants. There is no question (from a adequacy of

relief standpoint) that both the Plaintiffs and the Lach

Defendants have the same opportunities, protection and potential

relief in the Florida Litigation. There is no question (from a

fairness/prejudice standpoint) that the Florida Court has given

both the Plaintiffs and the Lach Defendants ample opportunity and

time to press their respective causes.

IV. The false statements made and personal attacks against the
Plaintiffs should cease.

Something needs to be said about the plethora of false

insults and allegations that have been made against the

Plaintiffs when it comes to this case and the filing of this

case. As Plaintiffs have made clear in numerous filings in this

case;

A. This case was only filed as a placeholder case in the

event there were jurisdiction concerns in Florida and

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Arizona (in fact, as it now turns out, there are none);1

B. Plaintiffs offered in good faith on September 28, 2021

to stay any further proceedings in this case subject to

the outcome of the cases in Florida and Arizona (thus

preventing the expenditure of this Court's time and

incurring any attorney fees);1 2 and

C. The only arduous litigation that has occurred in this

case is from the ill-founded and avoidable prosecution

of the RC 2323.51 counterclaims by the Lach Defendants

(and not Plaintiffs' claims); and

D. Plaintiffs' claims have not been "litigated" at all -

so any allegation (as spread out in the brief in

opposition) that Plaintiffs seek to "relitigate" their

claims in the Florida Litigation against the Lach

Defendants is just flat out false.

1 As the Lach Defendants well know, and despite what the Lach
Defendants initially represented to this Court, the United States
Court of Appeals for the Ninth Circuit unanimously held that the
Lach Defendants were subject to personal jurisdiction in the
Arizona federal case. See attached hereto Exhibit 38 proffered
at trial in this matter.

2 It is ironic that the Lach Defendants cite to the case of
Sager v. Gerace, 2010 Ohio Misc. LEXIS 18096 for the proposition
that "every plaintiff has an affirmative obligation to diligently
prosecute a complaint." P. 3 of the brief in opposition. This
position seems to completely rebut the vigorous and avoidable RC
2323.51 counterclaim pursued by the Lach Defendants.

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Much of the brief in opposition seems to brazenly ignore these

undisputed truths. This type of briefing conduct actually

undermines the credibility of all of the Lach Defendants'

arguments.

V. Conclusion.

For all of the foregoing reasons, the Plaintiffs

respectfully move this Court to stay this case pending the

outcome of the Florida Litigation.

Respectfully submitted;

LIPSON O'SHEA LEGAL GROUP

/s/ Michael J. O'Shea_____
Michael J. O'Shea, Esq. (0039330)
michael@lipsonoshea.com
The Hoyt Block Building - Suite 110
700 West St. Clair Avenue
Cleveland, Ohio 44113
(216) 241-0011
(440) 331-5401 - fax
Attorney for all Plaintiffs

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SERVICE

I hereby certify that a copy of the foregoing was served
upon:

Doug Holthus, Esq.
dholthus@mrrlaw.com
Shafiyal A. Ahmed, Esq.
sahmed@mrrlaw.com
MAZANEC, RASKIN & RYDER CO., L.P.A
175 South Third Street, Suite 1000
Columbus, Ohio 43215
Fax: 614-228-5934
Attorneys for Defendant
Thomas Olmsted

James B. Niehaus, Esq.
jniehaus@frantzward.com
Klevis Bakiaj, Esq.
kbakiaj@frantzward.com
Frantz Ward LLP
200 Public Square, Suite 3000
Cleveland, OH 44114-1230
Fax: (216) 515-1650
Attorneys for Defendants
Bishop Milan Lach and
Byzantine Catholic Diocese of Parma

by regular US. Mail, e-filing, fax transmission and/or email
delivery, this 30th day of August, 2022.

/Michael J. O'Shea
Michael J. O'Shea

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I
et al.
Burri v.TrialLach
Exhibit

1
38 FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Burri Law PA, a Florida No. 21-15271
professional association; Dean
Allen Burri, a Florida resident, D.C. No.
Plaintiffs-Appellants, 2:20-cv-01692-
dlr
v.

William C. Skurla, an individual; OPINION
Kurt Richard Burnett, an
individual; Milan Lach, an
individual; Metropolitan
Archdiocese of Pittsburgh,
Byzantine Rite, a Pennsylvania
non-profit corporation; Byzantine
Catholic Diocese of Parma, an
ohio non-profit corporation;
Eparchy of Passaic, a New Jersey
non-profit corporation; Unknown
Parties, named as: ABC Entities 1
10 and John and Jane Does 1-10,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding

Argued and Submitted December 7, 2021
Pasadena, california

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2 Burri Law PA v. Skurla

Filed June 3, 2022

Before: Marsha S. Berzon, Carlos T. Bea, and
Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Berzon

SUMMARY*

Personal Jurisdiction

The panel vacated the district court's dismissal for lack
of personal jurisdiction of Dean Burri's action against three
bishops of the Byzantine Catholic Church and their
respective dioceses.

Burri alleged that defendants directed defamatory
statements about him toward individuals and entities in
Arizona and tortiously interfered with his contractual
relationship with the Byzantine Catholic Eparchy of
Phoenix.

The panel held that the district court erred in dismissing
for lack of personal jurisdiction over the defendants. Where
a defendant directs communications that are defamatory
toward a forum state and seeks to interfere with a forum state
contract, the defendant has purposefully directed conduct at
the forum state, and the defendant knows or should know
that such conduct is likely to cause harm in the forum state.

* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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Burri Law PA v. Skurla 3

The panel rejected defendants’ contention that the
ecclesiastical abstention doctrine deprived the court of
subject matter jurisdiction over the appeal. The panel held
that the doctrine was not relevant here where Burri was not
asking the court to adjudicate the sort of issues covered by
the ecclesiastical abstention doctrine.

The panel applied the Calder effects test to determine
whether a defendant purposefully directed activities toward
a forum state. Calder v. Jones, 465 U.S. 783, 788-89 (1984).
The panel held that Burri’s claims against defendant William
Skurla, the Archbishop of Pittsburgh, were on all fours with
Calder. The panel held that the district court erred in holding
that Skurla did not purposefully direct conduct at Arizona.
Taking Burri’s factual allegations as true, the panel held that
Skurla directed communications toward Arizona that were
defamatory and were designed to interfere with an Arizona
lawsuit and an Arizona contract. Such acts targeted the
forum state itself and such acts were likely to cause harm in
Arizona. The panel held that the district court erred in
concluding that Burri, as a Florida resident, could not suffer
harm in Arizona where Skurla’s statements circulating in
Arizona would cause Burri reputational harm in Arizona,
and the communications were designed to undermine Burri’s
employment contract with the Phoenix Eparchy. Burri
carried his burden to establish a prima facie case that Skurla
“purposefully directed” conduct at Arizona. The district
court did not address the other two components of the due
process “minimum contacts” inquiry. The panel vacated the
dismissal of Burri’s claims against Skurla - and by extension
the Eparchy of Pittsburgh - and remanded for the district
court to complete the remainder of the jurisdictional inquiry.

The panel’s analysis regarding Burri’s claims against
Richard Burnett, the Bishop of Passaic, Milan Lach, the

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4 Burri Law PA v. Skurla

Bishop of Parma, and their respective dioceses was similar,
with one caveat. The First Amended Complaint contained
substantially less detail regarding the actions of Burnett and
Lach. The district court did not address that important
difference. In addition, the district court's denial of Burri's
motion for jurisdictional discovery rested on the same
misunderstanding that undermined its analysis regarding
personal jurisdiction over Skurda - that Burri, as a Florida
resident, could not suffer harm in Arizona. The panel
vacated the dismissal of Burri's claims against Burnett, Lach
and the Eparchies of Passaic and Parma; vacated the denial
of Burri's motion for jurisdictional discovery; and remanded
so that the district court could assess the questions afresh.

COUNSEL

Jamie L. Mayrose (argued) and Deanna R. Rader, Rader
Mayrose LLP, Phoenix, Arizona, for Plaintiffs-Appellants.

Stacy K. Luell (argued) and Jeffrey T. Nichols, Crivello
Carlson S.C., Milwaukee, Wisconsin, for Defendants-
Appellees William C. Skurla, Kurt Richard Burnett,
Metropolitan Archdiocese of Pittsburgh Byzantine Rite; and
Eparchy of Passaic.

James B. Niehaus (argued) and Klevis Bakiaj, Frantz Ward
LLP, Cleveland, Ohio, for Defendants-Appellees Milan
Lach and Byzantine Catholic Diocese of Parma.

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Burri Law PA v. Skurla 5

OPINION

BERZON, Circuit Judge:

Dean Burri brought suit in Arizona against three bishops
of the Byzantine Catholic Church—William Skurla, the
Archbishop of Pittsburgh; Richard Burnett, the Bishop of
Passaic; and Milan Lach, the Bishop of Parma—and their
respective dioceses. He alleges that the Defendants directed
defamatory statements about him toward individuals and
entities in Arizona and tortiously interfered with his
contractual relationship with the Byzantine Catholic
Eparchy of Phoenix (the “Phoenix Eparchy”).

The district court granted the Defendants’ motions to
dismiss for lack of personal jurisdiction and denied Burri’s
motion for jurisdictional discovery. The court concluded
that Defendants did not purposefully direct conduct at
Arizona and that no set of facts could establish that Burri was
likely to suffer harm in Arizona. We disagree. Where a
defendant directs communications that are defamatory
toward a forum state and seeks to interfere with a forum state
contract, the defendant has purposefully directed conduct at
the forum state, and the defendant knows or should know
that such conduct is likely to cause harm in the forum state.
The dismissal for lack of personal jurisdiction therefore
rested on a legal error.

A. Factual Background

Burri, a Florida resident, owns Burri Law, P.A., a Florida
law firm that specializes in assisting clients associated with
the Catholic Church with employee benefits issues,
including Employee Retirement Income Security Act

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6 Burri Law PA v. Skurla

(“ERISA”) issues.1 In late 2015, the Phoenix Eparchy, an
Arizona resident, hired Burri to investigate the Eparchy's
health care benefits plan, draft health plan documents, and,
if necessary, pursue litigation on its behalf. Those tasks
required Burri regularly to direct communications toward
Arizona, meet with his clients in Arizona, and perform work
in Arizona.

Pursuant to his contract with the Phoenix Eparchy, Burri
began investigating the Eastern Catholics Benefits Plan (the
“Plan”), an ERISA health care plan that provided benefits to
the Phoenix Eparchy. Burri requested original Plan
formation documents and accounting information from Plan
administrators, including Skurla, but was refused. Burri
nevertheless uncovered irregularities in the Plan that
demonstrated it was not in compliance with applicable law.
For example, Burri discovered that Plan administrators had
illegally commingled Plan funds, converted Plan assets, and
placed Plan funds in offshore accounts. After learning about
Burri's investigation, Plan administrators unlawfully sought
to restructure the Plan by attempting to “merge” it “with
other health plans from other employers, namely the
Eparchies of Pittsburg, Passaic, and Parma,” which are led
by Skurla, Burnett, and Lach, respectively.

After concluding that further negotiation with the Plan
administrators would not be fruitful, the Phoenix Eparchy,
represented by Burri, filed an ERISA action against the Plan
in the District of Arizona. See Complaint, Byzantine Cath.
Eparchy of Phx. v. Emp. Benefit Servs., Inc., No. 2:18-cv-

1 Because we are reviewing the district court's decision to grant the
Defendants' motions to dismiss, “we recite the facts as alleged in
[Burri's] complaint, and assume them to be true.” Brooks v. Clark
County, 828 F.3d 910, 914 n.1 (9th Cir. 2016).

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Burri Law PA v. Skurla 7

01288-GMS (D. Ariz. Apr. 26, 2018) (the “ERISA action”).
Two months later, the Phoenix Eparchy filed an amended
complaint adding Skurla and other Plan administrators as
defendants. In response, Skurla, Burnett, and Lach—all
Defendants in this case—commenced a campaign of
defamation against Burri. To conceal the Plan's ERISA
violations, the Defendants sought to have Burri's contract
with the Phoenix Eparchy terminated and the Bishop of
Phoenix replaced before the ERISA action could move into
the discovery phrase.

In particular, Skurla “repeatedly requested that the
Phoenix Eparchy terminate the contract with” Burri. Skurla
also stated, among other things, that Burri was “greedy,
incompetent, and inexperienced” and sought to “make a
name for himself” through a lawsuit that “had absolutely no
legal merit.” These statements were communicated to the
Phoenix Eparchy and third parties through emails, phone
calls, voicemails, letters, and in-person communications.
Some of the recipients were in Arizona when they heard or
read the statements.

Although Burri has the greatest knowledge regarding
Skurla's actions, he maintains on information and belief that
Burnett and Lach repeated Skurla's false and defamatory
statements to the Phoenix Eparchy and third parties, and
“directed” third parties “to urge the Phoenix Eparchy to fire
[Burri] and terminate the Arizona lawsuit.” And Skurla,
Burnett, and Lach attended an in-person meeting in Texas
that included “multiple representatives from the Phoenix
Eparchy.” At this meeting, “the false statements [about
Burri] were repeated, and it was communicated to the

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8 Burri Law PA v. Skurla

Phoenix Eparchy” that the ERISA action should be dropped
and Burri should be fired.2

when these actions failed to produce the desired result,
the Defendants communicated their displeasure with Burri
to the Papal Nuncio. Relying on a precept of canon law
under which church officials cannot sue one another without
papal authorization, the Pope issued an order requiring the
Phoenix Eparchy to withdraw the ERISA action and
terminate its relationship with Burri. Burri also alleges that
church officials caused a canon lawyer who was “of
counsel” at Burri Law, P.A. to end his contractual
relationship with Burri.

Following the termination of the ERISA action, Burri
submitted a bill for his legal services. The Phoenix Eparchy,

Case Info

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MICHAEL J RUSSO Track Judge’s New Case

Case No.

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Document Filed Date

August 30, 2022

Case Filing Date

July 14, 2021

County

Parties

ABC ENTITIES 1-10 Defendant
ARCHDIOCESE OF MIAMI, INC. Defendant
BERT N. REIMANN Defendant
BURRI INSURANCE LLC Plaintiff
BURRI LAW PA Plaintiff
BYZANTINE CATHOLIC EPARCHY OF PARMA Defendant
DEAN A. BURRI Plaintiff
DOUGLAS P HOLTHUS Attorney for the Defendant
EMPLOYEE BENEFIT SERVICES, INC. DBA EBS SOUTH, INC. Defendant
EPARCHY OF PASSAIC Defendant
JAMES B NIEHAUS Attorney for the Defendant
JANET DICKS Defendant
JOHN AND JANE DOES 1-10 Defendant
KLEVIS BAKIAJ Attorney for the Defendant
KURT R. BURNETTE Defendant
METROPOLITAN ARCHDIOCESE OF PITTSBURGH, BYZANTINE RITE Defendant
MICHAEL J O'SHEA Attorney for the Plaintiff
MILAN LACH Defendant
REVERAND MITRED MAREK VISNOVSKY Non Party
ROBERT SHALHOUB Defendant
THOMAS G. WENSKI Defendant
THOMAS OLMSTED Defendant
WILLAIM SKURLA Defendant
Shafiyal Ahmed Attorneys for Defendants
Matthew Grimsley Attorneys for Plaintiffs
Steven Seasly Attorney
Caryn Groedel Attorney
Kenneth Rock Attorneys for Plaintiffs
Brandon Mordue Attorneys for Plaintiffs

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Motion-Secondary: BURRI LAW PA, ET AL vs. MILAN LACH, ET AL

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