Motion for Change of Venue in ANTHONY M. LEE, ET AL. vs. FISHER-TITUS MEDICAL CARE, LLC, ET AL.| Trellis.Law

On January 13, 2022 a Motion-Secondary was filed involving a dispute between Anthony M. Lee, D. Lee, J. Lee, L. Lee, and Donald L. Smith Jr, Executive Urology Of Fisher-Titus, Fisher-Titus Medical Care, Llc, John Doe Health Care Providers 1-3, Medical Mutual Of Ohio, for TORT-MEDICAL MALPRACTICE 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

BRIEF IN OPPOSITION
February 1,2022 14:05

By: R. CRAIG MCLAUGHLIN 0068765

Confirmation Nbr. 2463067

ANTHONY M. LEE, ET AL. CV 22 958242

vs.
Judge: DANIEL GAUL
FISHER-TITUS MEDICAL CARE, LLC, ETAL.

Pages Filed: 23

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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

ANTHONY M. LEE, et al. ) CASE NO. CV 22 958242
)
Plaintiffs, ) JUDGE DANIEL GAUL
)
vs. ) PLAINTIFFS' MEMO CONTRA TO
) DEFENDANTS FISHER-TITUS MEDICAL
FISHER-TITUS MEDICAL CARE, LLC, et al. ) CARE, LLC AND EXECUTIVE UROLOGY
) OF FISHER-TITUS’ MOTION TO
Defendants. ) TRANSFER VENUE

Defendants Fisher-Titus Medical Care, LLC and Executive Urology of Fisher-Titus; motion

to transfer venue should be denied because 1) Defendant Medical Mutual of Ohio's

(hereinafter "Medical Mutual") principal place of business is located in Cuyahoga County; 2)

Plaintiff Anthony M. Lee has brought a declaratory judgment action against Defendant Medical

Mutual concerning a controversy between these two parties involving a health insurance lien

that needs to be decided by this Court; and 3) numerous courts from Cuyahoga County and

around Ohio have held that lienholders (health insurance carriers, medical payments carriers,

Medicaid) in personal injury litigation are not a "nominal party."

I. SUMMARY OF THE FACTS

Plaintiff Anthony M. Lee has brought forth a medical malpractice case against

Defendants Fisher-Titus Medical Care, LLC, Executive Urology of Fisher-Titus, Donald L. Smith,

Jr., M.D. and Medical Mutual of Ohio. Mr. Lee was insured by Defendant Medical Mutual. It is

undisputed Defendant Medical Mutual's principal place of business is located in Cuyahoga

County. It is also undisputed Defendant Medical Mutual has paid out thousands of dollars for

medical bills to Anthony or on his behalf as a result of this medical negligence. There is a

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dispute between Plaintiff Anthony M. Lee and Defendant Medical Mutual regarding whether or

not Defendant Medical Mutual is entitled to receive any of this money back in the event Lee is

successful in his medical malpractice claims against the Defendants. It is Anthony's position

Defendant Medical Mutual is not entitled to enforce some or all of any lien it claims it has

against any settlement or judgment he may obtain from or against the Defendants. Therefore,

Anthony M. Lee filed a declaratory judgment action against Defendant Medical Mutual to

resolve this controversy and the Complaint was properly filed in Cuyahoga County because that

is where its principal place of business is located.

II. DEFENDANTS' MOTION TO TRANSFER VENUE SHOULD BE DENIED BECAUSE
CUYAHOGA COUNTY IS A PROPER VENUE FOR THIS CASE.

Ohio Civil Rule 3 (B) states the following concerning venue:

(B) Venue: where proper

Any action may be venued, commenced, and decided in any court in any
county Proper venue lies in any one or more of the following counties:

(1) The county in which the defendant resides;

(2) The county in which the defendant has his or her principal place of business.

[Emphasis added.]

In Morrison v. Steiner (1972), 32 Ohio St. 86, 89, the Ohio Supreme Court stated that

"the first nine provisions of Civ. R.3 (B) are on equal status, and any court specified therein

may be a proper and initial place of venue." (Emphasis added). The Eighth Appellate District

has also held that each of the first nine options available under the rule are proper and on

equal standing. Specifically, in Varketta v. General Motors Corp., 34 Ohio App. 2d 1; 295 N.E.2d

219 (1973), the court stated "Civil Rule 3(B) establishes a system of priorities. The first nine

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provisions of 3(B) are alternatives, and each may be a proper basis for venue, but they do not

have to be followed in any order. Plaintiff has a choice where the action will be brought if any

of the counties specified in C.R. 3(B)(1) through (9) are a proper forum under the facts of the

case." The court went onto say "in other words, if there are multiple plaintiffs and/or multiple

defendants and venue is proper as to any one or more of the parties in any county under Civil

Rule 3(B) (1) through (9), that becomes the proper forum. A party must first look to Civil Rule

3(B)(1) through (9) and if venue is proper as to any one party it is proper as to all parties."

Similarly, the Sixth Appellate District in Rusk Indust. v. Alexander, 2002-0hio-2171, held

that the plaintiff has a choice of any of the nine options and all may be proper, "Plaintiff has a

choice where the action will be brought if any of the counties specified in [Civ. R. 3(B)(1)

through (9) are a proper forum under the facts of the case." Id. at 11. See also, Williams v.

Jarvis (Cuyahoga Ct. App. 1999), 1999 Ohio App. Lexis 3964. And in Frangopolous v. Angelo

(Mahoning Ct. App. 1999), 1999 Ohio App. Lexis 1979, the Seventh Appellate District held that

all nine of the first provisions are equal and the Plaintiff can freely choose among them, "Venue

is properly established when the Plaintiff chooses a court in any county enumerated in the first

nine provisions of Civ. R. 3(B). The provisions have equal standing and a plaintiff may choose

among them with unfettered discretion." Id. at 6. Therefore, it was proper for Plaintiff

Anthony M. Lee to file this lawsuit in Cuyahoga County because it is undisputed that Defendant

Medical Mutual's principal place of business is located in Cuyahoga County.

Defendants agree the above stated law is correct, but argues it is not applicable in this

matter because Defendant Medical Mutual is an "involuntary plaintiff." However, numerous

courts in Cuyahoga County and from around Ohio disagree and have ruled lienholders (medical

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payments carriers, health insurance carriers - including Medical Mutual, and Medicaid) are not

a nominal party when determining if venue is proper in personal injury litigation. For example,

Anthony M. Lee's case is very similar to Mike Casarez, et al. vs. Robert Hodge, et al., Cuyahoga

County Court of Common Pleas, Case No. CV-11-756249. In Casarez, the plaintiff was injured in

a motor vehicle crash that took place in Defiance County, Ohio. Id. A complaint was filed in

Cuyahoga County because there was a controversy between the plaintiff and Defendant

Progressive Insurance concerning the enforceability of a $1,000 medical payments lien. Id. The

trial court judge denied the Defendant's motion to transfer venue to Defiance County because

Progressive Insurance's principal place of business is located in Cuyahoga County. Id. A copy of

the trial court's entry is attached as Exhibit "A."

The same result was reached in Sandra L. Moore vs. Diane L. Gentile, et al., Cuyahoga

County Court of Common Pleas, Case No. CV-15-845045. In Moore, the plaintiff was injured in a

motor vehicle crash that took place in Ashtabula County, Ohio. Id. A complaint was filed in

Cuyahoga County because there was a controversy between the plaintiff and Defendant Bristol

West Insurance Company concerning the enforceability of a $5,000 medical payments lien. Id.

The trial court judge denied the Defendant's motion to transfer venue to Ashtabula County

because Bristol West's principal place of business is located in Cuyahoga County. Id. A copy of

that trial court's entry is attached as Exhibit "B."

The same result was reached concerning a private health insurance carrier's lien in

Senters v. Advanced Urology Assoc. Inc.,et al., Cuyahoga County Court of Common Pleas, Case

No. CV-08-653368. The plaintiff filed suit against his health insurance carrier which was located

in Cuyahoga County because there was a controversy between him and his health insurance

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carrier concerning the enforceability of the lien. Id. The trial court held venue was proper in

Cuyahoga County even though the medical malpractice took place in a different county. Id. A

copy of the trial court judge's decision is attached as Exhibit "C."

A different trial court judge reached the same conclusion concerning a Medical Mutual

of Ohio health insurance lien in Cory Dyer, Administrator vs. Michael Malone, M.D., et al.,

Cuyahoga County Court of Common Pleas, Case No. CV-09-689459. The plaintiff brought a

declaratory judgment action against Medical Mutual of Ohio in a complaint that was filed in

Cuyahoga County because that is where its principal place of business was located. Id. The trial

court held venue was proper in Cuyahoga County even though the medical malpractice took

place in Hancock County. Id. A copy of the trial court's decision is attached as Exhibit "D."

In Major Wright, Jr. vs. Darren L. Harvey, et al., Franklin County Court of Common Pleas,

Case No. 15CV-7804, and Mary Doughman, et al. v. Michael Cook II, et al.,Franklin County

Court of Common Pleas, Case No. 16CV003359, the same result was reached in regard to

Medicaid liens held by the Ohio Department of Job and Family Services (ODJFS). In both cases,

the plaintiffs were injured in motor vehicle crashes that took place in counties other than

Franklin County. Id. The plaintiffs' complaints, however, were filed in Franklin County because

there was a controversy between the plaintiffs and (ODJFS) concerning the enforceability of the

Medicaid liens. Id. The trial court judges denied the Defendants' motions to transfer venue to

the counties where the car wrecks took place because the principal place of business for ODJFS

was located in Franklin County. Id. The judges found ODJFS was not "nominal party" because it

is the real party in interest as to any medical payments that were made for the plaintiffs'

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injuries from the crashes. Id. A copy of the trial courts' entries are attached as Exhibits "E" and

Like in these cases, this Court should similarly deny Defendants motion to transfer

venue to Huron County. Defendant Medical Mutual's principal place of business is located in

Cuyahoga County and it is not a nominal party. It has an interest in this litigation because it has

paid out thousands of dollars in medical bills to Plaintiff Lee or on his behalf. It stands in the

shoes of Plaintiff Lee related to these bills. It is areal party in interest and is necessary for just

and proper resolution of the claim being presented in this case. Once Defendant Medical

Mutual answers the Complaint, it will also likely make its own cross-claim against the

Defendants.

Defendants argue that Plaintiffs forum shopped the Complaint and filed in Cuyahoga

County. But in State ex rel. Smith v. Cuyahoga County Court of Common Pleas (2005), 106 Ohio

St. 3d 151, 2005-0hio-4103, 832 N.E.2d 1206, the Ohio Supreme Court re-affirmed its long

standing rule that the doctrine of forum non-conveniens does not apply within Ohio's borders

so long as the original choice of venue was proper under Rule 3(B). The Court stated the

following:

In Chambers, we recognized that forum non conveniens applies to cases in which the
more convenient forum is in another state or another country. Id., 35 Ohio St.3d at 132,
519 N.E.2d 370 ("Civ.R. 3 does not expressly preclude the application of the common
law doctrine of forum non conveniens in interstate or [*154] international situations not
covered by subsection (D), whether or not venue is 'proper' in Ohio"). We rejected its
application, however, to intrastate transfers from one county to another county. See
State ex rel. Lyons v. Zaleski (1996), 75 Ohio St.3d 623, 624,1996 Ohio 267, 665 N.E.2d
212, quoting Chambers, 35 Ohio St.3d at 132, 519 N.E.2d 370 ("forum non conveniens
may not be applied to a transfer of a properly venued action in an Ohio county to
another Ohio county, since Civ.R. 3(C)(4) limits intrastate transfers to transfers to 'an
adjoining county * * * "when it Appears that a fair and impartial trial cannot be had in
the county in which the suit is pending'""). Civ.R. 3, governing venue, recognizes that

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"transfer of a case from one proper venue to another proper venue within the state
for means of convenience is unnecessary in a geographically small state such as Ohio,
and that any inconvenience to witnesses in such a situation could be remedied by the
use of depositions." (Emphasis sic.) Chambers, 35 Ohio St.3d at 131, 519 N.E.2d 370;
see, generally, 1 Klein & Darling, Civil Practice (2004) 223-224, Section 3:68 ("If forum
non conveniens were to be held available intrastate, it would conflict with * * *
fundamental principles of Civ.R. 3(B) * * *"). (Emphasis added.)

Cuyahoga County is proper in this case because Defendant Medical Mutual's principal place of

business is located in this county. Therefore, this case should remain in Cuyahoga County so

that the controversy between Anthony M. Lee and Defendant Medical Mutual, a Cuyahoga

County defendant, can be heard and resolved by this Court.

III. CONCLUSION

In summary, Ohio law states that in cases where there are multiple defendants, the

plaintiff can choose to file suit in any of the counties where they have venue under Ohio Civil

Rule 3(B). The first nine subsections of this rule have equal standing and serve as the basis for

proper venue as to all defendants. Once proper venue is established, the doctrine of forum non

conveniens is not applicable to intrastate transfers from one county to another county.

Further, numerous courts around Ohio have ruled that lienholders like Defendant Medical

Mutual are not nominal parties in personal injury litigation. Therefore, Defendants motion to

transfer venue should be denied and this case should remain in Cuyahoga County.

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Respectfully submitted,

/s/ R. Craig McLaughlin

R. Craig McLaughlin (0068765)
Elk & Elk Co., Ltd.
6105 Parkland Boulevard
Mayfield Heights, OH 44124
Office: (440) 442-6677
Fax: (440) 442-7944
Email: rmclaughlin@elkandelk.com
Attorney for Plaintiffs

CERTIFICATE OF SERVICE

The foregoing was filed electronically via the Court's ECF system and will be served upon
all counsel of record pursuant to the Court's electronic notification system. In addition, the
following parties were served with this pleading via email and/or mail:

Donald L. Smith, Jr., MD
Executive Urology at Fisher-Titus
Medical Center
290 Progress Drive, Suite C
Bellevue, Ohio 4481
Defendant

Medical Mutual of Ohio
c/o CT Corporation System
Statutory Agent
4400 Easton Commons Way, Suite 125
Columbus, OH 43215
Defendant

/s/ R. Craig McLaughlin

R. Craig McLaughlin (0068765)

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70073149

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
MIKE U. CASAREZ, ET AL Case No: CV-11-756249
Plaintiff
Judge: PETER J CORRIGAN

ROBERT E. HODGE, ET AL
Defendant

JOURNAL ENTRY

DEFENDANT JOSHUA L. MEYER’S MOTION TO TRANSFER VENUE IS DENIED.

Judge Signature 08/29/2011

08/29/2011
RECEIVED FOR FILING
08/30/2011 11:52:18
By: CLBEC
GERALD E FOERST, CLERK

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89850999
89850999

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
SANDRA L. MOORE Case No: CV-15-845045
Plaintiff
Judge: NANCY A FUERST

DIANE L GENTILE, ET AL
Defendant

JOURNAL ENTRY

DEFENDANT 06/16/2015 DIANE L. GENTILE'S MOTION TO CHANGE VENUE IS DENIED. CASE PROCEEDS AS
SCHEDULED.

Judge Signature 06/23/2015

06/23/2015
RECEIVED FOR HL1NV

t
Page 1 of 1
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51616627
51616627

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
DAVID SENTERS ETAL Case No: CV-08-653368
Plaintiff
Judge: JOHN P O'DONNELL

ADVANCED UROLOGY ASSOC. INC. ETAL
Defendant

JOURNAL ENTRY

DEFENDANTS ADVANCED UROLOGY ASSOCIATES INC, JOSEPH DANKOFF AND JOHN ZHAO'S MOTION TO DISMISS
BREACH OF CONTRACT AND BREACH OF FIDUCIARY DUTY CLAIMS (ANNA MOORE CARULAS 0037161, FILED
04/15/2008) IS DENIED.
DEFENDANTS JOSEPH DANKOFF AND JOHN ZHAO'S MOTION TO DISMISS BREACH OF CONTRACT AND BREACH
OF FIDUCIARY DUTY CLAIMS (ANNA MOORE CARULAS 0037161, FILED 04/17/2008), IS DENIED.
WHILE THESE CLAIMS MAY BE SUBJECT TO A MOTION FOR SUMMARY JUDGMENT AFTER APPROPRIATE
DISCOVERY, THEY ARE NOT SUBJECT TO A MOTION TO DISMISS SINCE THE CONDUCT CLAIMED TO HAVE
BREACHED THE CONTRACT OR FIDUCIARY DUTY MAY PROVE TO BE SEPARATE FROM THE CONDUCT CLAIMED
TO CONSTITUTE MEDICAL NEGLIGENCE.
DEFENDANTS ADVANCED UROLOGY ASSOCIATES INC, JOSEPH DANKOFF AND JOHN ZHAO'S MOTION TO
TRANSFER VENUE (ANNA MOORE CARULAS 0037161, FILED 04/15/2008) IS DENIED.
DEFENDANT JOSEPH DANKOFFS MOTION TO TRANSFER VENUE (ANNA MOORE CARULAS 0037161, FILED
04/17/2008) IS DENIED.
THE COURT CANNOT INFER BY THE FAILURE TO INCLUDE QUALCHOICE AS A DEFENDANT IN THE FIRST FILING
OF THE MALPRACTICE LAWSUIT AGAINST THE OTHER DEFENDANTS THAT THE PLAINTIFF'S ASSERTION OF A
DECLARATORY JUDGMENT AGAINST DEFENDANT QUALCHOICE IN THIS CASE IS "CLEARLY A SUBTERFUGE" FOR
THE "SOLE PURPOSE OF ESTABLISHING VENUE IN CUYAHOGA COUNTY." EVEN IF THAT IS THE PLAINTIFFS
MOTIVATION, IT APPEARS THAT QUALCHOICE IS LEGITIMATELY A DECLARATORY JUDGMENT DEFENDANT ON
A CONTRACT IT HAS WITH THE PLAINTIFF(S) AND THE CIVIL RULES DO NOT PRECLUDE ASSERTING ALL OF THE
PLAINTIFFS' CLAIMS AGAINST ALL DEFENDANTS IN ONE LAWSUIT.

05/19/2008
RECEIVED FOR FILING
05/20/2008 09:48:05
By: CLTMP
GERALD E. FUERST, CLERK
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J

720938 I First-Class MailI
CORY DYER ADMINISTRATOR I
I U. S. Postage Paid
VS. I Cleveland, OH I
MICHAEL MALONEM.D.. ET.AL - I Pennit No. 1962 1
I___________ I
JUDGE: SHIRLEY STRICKLAND SAFFOLD
ROOM: 21B JUSTICE CENTER
DOCKET DATE: 07/02/2009 I FROM:
I
DEFENDANTS JOINT MOTION TO REALIGN J CUYAHOGA COUNTY - COURT OF COMMON FLEAS
DEFENDANT. MEDICAL MUTUAL OF OHIO.ASAN | GCRALDE, FUERST-CLERK OF COURTS
INVOLUNTARY PLAINTIFF AND TO TRANSFER VENUE | JUSTICE CENTER • COURT TOWER
TO HANCOCK COUNTY IS HEREBY DENIED IN ITS | 1300 ONTARIO ST
ENTIRETY. | CLEVELAND. OH-*4! 13
I ’____
CLDLJ 07/02/2009
NOTICE ISSUED
TO:
SCOTT ELLIOT SMITH
6235 ENTERPRISE COURT
DUBLIN, OH 43016
CASE: CV-09-689459

EXHIBIT

(

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0C75 9 D16ank,in C°unly Ohio Clerk of Courts of the Common Pleas- 2015 Nov 05 2:14 PM-15CV007804

IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
CIVIL DIVISION

Major Wright, Jr.,
Plaintiff, Case No. 15CV-7804

-v- JUDGE SERROTT

Darren L. Harvey, et al.,

Defendants.

DECISION AND ENTRY DENYING DEFENDANTS MOTIONS TO TRANSFER
VENUE AND DENYING DEFENDANT MONTGOMERY COUNTY’S
MOTION TO DISMISS
AND
ENTRY GRANTING PLAINTIFF LEAVE TO FILE AMENDED COMPLAINT TO ADD
THE MONTGOMERY COUNTY COMMISSIONERS AS PARTIES

Rendered this 6th day of November, 2015

SERROTT, J.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

This personal injury action stems from a motor vehicle accident between Plaintiff and

Defendant Darren Harvey, who was allegedly operating his vehicle within the course and scope

of his employment with the Montgomery County Sheriff’s Department. Plaintiff’s initial lawsuit

named Defendant Harvey, the Montgomery County Sheriff’s Department, and the Ohio

Department of Job and Family Services (“ODJFS”) as parties. The Complaint identifies ODJFS’

address as being in Columbus, Ohio, while setting forth Dayton, Ohio addresses for all other

parties.

ODJFS was included for the reason that it“may have paid some medical billsand/or

compensation on behalf’ of Plaintiff. (Original Complaint, ^23). Plaintiff “disputes the

validity and amount of any subrogation/reimbursement interest, if any” that ODJFS may claim

and demands that ODJFS appear and assert its right to subrogation or be forever barred from

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asserting the same. (Id.at 1J24). ODJFS filed an Answer admitting “it has paid on the behalf of

Plaintiff, Major Wright, Jr., a Medicaid recipient, in an amount to be determined for medical

services and care as a result of the accident” alleged in the Complaint. ODJFS further filed a

Cross-Claim asserting it is entitled to recover from Defendants any amounts expended to

Plaintiff for medical services.

The Montgomery County Sheriff”s Department filed a Motion to Dismiss on the grounds

that it is not sui juris. This prompted Plaintiff to seek leave to file an amended complaint

substituting Montgomery County as the proper defendant. Although this Motion has not yet

been ruled upon, Montgomery County recently filed a Motion to Dismiss arguing that it is also

not sui juris, and is instead held accountable through its elected representatives, i.e. the

Montgomery County Commissioners.

Defendant Harvey and Montgomery County have also moved the Court to transfer venue

of the Complaint and Cross-Claim to Montgomery County. They argue that that this is the

county where the accident occurred and where the primary Defendants reside. They contend

ODJFS is a nominal party, and therefore, ODJFS’ principal place of business cannot be used as a

basis for establishing venue in Franklin County.

II. STANDARD OF REVIEW, RELEVANT LAW, AND ANALYSIS

A. Motions to Transfer Venue

“In a motion for change of venue, the moving party bears the burden of proof.”

Buller County Joint Voc. Sch. Dist. Bd. of Educ. v. Andrews, 12th Dist. No. CA2006-10-245,

2007-Ohio-5896, at TJ16. When selecting the proper forum for a lawsuit, Civ. R. 3(B) provides in

relevant part:

Proper venue lies in any one or more of the following counties:

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(1) The county in which the defendant resides;
(2) The county in which the defendant has his or her principal
place of business;
(3) A county in which the defendant conducted activity that gave
rise to the claim for relief;

* * *

(6) The county in which all or part of the claim for relief arose;

Additionally, Civ. R. 3(E) provides:

[i]n any action, brought by one or more plaintiffs against
one or more defendants involving one or more claims for
relief, the forum shall be deemed a proper forum, and
venue in the forum shall be proper, if the venue is proper as
to any one party other than a nominal party, or as to any
one claim for relief.

Thus, Defendants are correct that the address of a nominal party cannot be used to

establish venue. “[FJor purposes of Civ. R. 3(E), itmay be said that a ‘nominal party’ is one

whose presence in the action is either. (1) merely formal; or, (2) unnecessary for a just and

proper resolution of the claim(s) presented.” Smith v.Inland Paperboard & Packaging, Inc.,

11th Dist. No. 2007-P-0088, 2008-Ohio-6984,1J41.

As itis apparent this matter was filed in Franklin County solely due to the presence of

ODJFS, the issue is whether ODJFS is a nominal party. R.C. 5160.37(A) provides that “[a]

medical assistance recipient’s enrollment in a medical assistance program gives an automatic

right of recovery to the department of medicaid and a county department of job and family

services against the liability of a third party for the cost of medical assistance paid on behalf of

the recipient.” Therefore, “[wjhen an action or claim is brought against a third party by a

medical assistance recipient, any payment, settlement or compromise of the action or claim, or

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any court award or judgment, issubject to the recovery right of the department of medicaid or

county department.” R.C. 5160.37(A).

Additionally, pursuant to Civ. R. 19(A)(3), “[a] person who is subject to service of

process shall be joined as a party in the action if * * * he has an interest relating to the subject of

the action as [a] * * * subrogee.” Under this provision, ODJFS was required to be made a party

to this lawsuit as it has a statutory right to recover any medical payments made to Plaintiff that

relate to the subject accident. While acknowledging ODJFS must be included as a party.

Defendants contend its joinder is a mere formality and its presence is unnecessary to resolve the

personal injury claims.

The Court disagrees. ODJFS is the real party in interest as to any medical payments

made that can be related to the accident. The Complaint “disputes” the validity and amount of

ODJFS’ subrogated interest and demands that ODJFS appear in the action to represent its

interests or be forever barred from pursuing a subrogation claim. Moreover, ODJFS has filed a

Cross-Claim against Defendants requesting judgment in its favor for any amounts expended for

medical services and care resulting from the accident. A litigant filing a claim and demand for

judgment is not a nominal party to a lawsuit.

Accordingly, as ODJFS has its principal place of business in Franklin County, pursuant

to Civ. 3(B)(2) and (E), this is a proper forum for the lawsuit. The Motions to Transfer Venue

are therefore DENIED.

B, Motion to Dismiss

Montgomery County moves to be dismissed from this action on the grounds that it is not

sui juris. “[CJounties, as political entities, are not sui juris; they are held accountable through

their elected representatives, to wit, their commissioners.” McGuire v. Ameritech Servs., 253

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F.Supp.2d 988, 1015 (S.D.Ohio 2003). However, “(mjisjoinder of parties is not ground for

dismissal of an action. Parties may be dropped or added by order of the court on motion of any

party or of its own initiative at any stage of the action and on such terms as are just.” Civ. R. 21.

Therefore, the Motion to Dismiss is DENIED, but Plaintiff is GRANTED leave and shall,

within fourteen days, file an amended complaint substituting the Montgomery County

Commissioners, in their official capacity, as the proper defendants in this matter.

IT IS SO ORDERED.

Electronically Signed By:
JUDGE MARK A. SERROTT

Copies to (via e-filing notification):

Benjamin P. Pfouts
J. Francis Mackey
Counsel for Plaintiff

Anne M. Jagielski
Joseph D. Saks
Counsel for Defendants Darren L. Harvey, Montgomery County, and
Montgomery County Sheriff’s Office

Robert J. Byrne
Counsel for Defendant ODJFS

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0C759 D21

Franklin County Court of Common Pleas

Date: 11-05-2015

Case Title: MAJOR WRIGHT JR -VS- DARREN L HARVEY ET AL

Case Number: 15CV007804

Type: DECISION/ENTRY

ItIs So Ordered.

/s/ Judge Mark Serrott

page 6 of 6
Electronically signed on 2015 Nov-05

Electronically Filed 02/01/2022 14:05 / BRIEF / CV 22 958242 I Confirmation Nbr. 2463067 I BATCH
Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Nov 05 2:14 PM-15CV007804
0C759

Court Disposition

Case Number: 15CV007804

Case Style: MAJOR WRIGHT JR -VS- DARREN L HARVEY ET AL

Motion Tie Off Information:
1. Motion CMS Document Id: 15CV0078042015-11 -0499960000
Document Title: 11 -04-2015-MOTION TO DISMISS -
DEFENDANT: MONTGOMERY COUNTY SHERIFFS DEPARTMENT
Disposition: MOTION DENIED

2. Motion CMS Document Id: 15CV0078042015-10-2799970000
Document Title: 10-27-2015-MOTION FOR LEAVE TO FILE -
PLAINTIFF: MAJOR WRIGHT JR
Disposition; MOTION GRANTED IN PART

3. Motion CMS Document Id: 15CV0078042015-10-2699980000
Document Title: 10-26-2015-MOTION FOR CHANGE OF VENUE -
DEFENDANT: DARREN L. HARVEY
Disposition: MOTION DENIED

4. Motion CMS Document Id: 15CV0078042015-10-1399960000
Document Title: 10-13-2015-MOTION FOR CHANGE OF VENUE -
DEFENDANT: DARREN L. HARVEY
Disposition: MOTION DENIED

Electronically Filed 02/01/2022 14:05 / BRIEF / CV 22 958242 I Confirmation Nbr. 2463067 I BATCH
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Jul 12 12:17 PM-16CV003359

IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO

MARY E DOUGHMAN INDI, et al..

Plaintiffs,
CASE NO. 16CV 003359
vs.
JUDGE COLLEEN O’DONNELL
MICHAEL J COOK II, et al.,

Case Info

Judge

DANIEL GAUL Track Judge’s New Case

Case No.

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Document Filed Date

February 01, 2022

Case Filing Date

January 13, 2022

County

Parties

ALEXANDRIA ESPOSITO Attorney for the Defendant
ANTHONY M. LEE Plaintiff
D. LEE Plaintiff
DONALD L. SMITH JR Defendant
EXECUTIVE UROLOGY OF FISHER-TITUS Defendant
FISHER-TITUS MEDICAL CARE, LLC Defendant
J. LEE Plaintiff
JOHN DOE HEALTH CARE PROVIDERS 1-3 Defendant
KELLY BOKOCH Attorney for the Defendant
KLEVIS BAKIAJ Attorney for the Defendant
L. LEE Plaintiff
MEDICAL MUTUAL OF OHIO Defendant
MICHAEL P MURPHY Attorney for the Defendant
R. CRAIG MCLAUGHLIN Attorney for the Plaintiff
RUDOLPH A PECKINPAUGH Attorney for the Defendant
Robert McLaughlin Attorneys for Plaintiffs

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Motion-Secondary: ANTHONY M. LEE, ET AL. vs. FISHER-TITUS MEDICAL CARE, LLC, ET AL.

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