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Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293
OF653 - EQ
IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO
CIVIL DIVISION
RA Slorp Construction, LLC Case No.: 21CV005293
Plaintiff, Judge: McIntosh
Vv.
FLG Properties Kentucky, LLC, et al
Defendants.
MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
I. FACTS
On or about May 1, 2019, Plaintiff R.A. Slorp Construction, LLC
(“Slorp”) entered into a contract with an entity identified as Lexington Hampton Inn.
Without question, Plaintiff Slorp is an Ohio company organized under the laws the state
of Ohio, (See Affidavit of Rick A. Slorp, filed separately herein, paragraph 3). It is
questionable whether an entity even exists called Lexington Hampton Inn; nonetheless,
the contract was entered into with Defendant Peter Coratola (“Coratola”) either in his
individual capacity or as a member or authorized representative of a company called FLG
Properties Kentucky, LLC dba Lexington Hampton Inn (“FLG”). FLG is organized under
the laws of the state of Ohio and conducts business in Ohio. (See attached Exhibit “1”
and Affidavit of Rick A. Slorp, paragraph 13).
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Although the work associated with the contract was to be performed at
2251 Elkhorn Road, Lexington, KY 40505, many workers working on behalf of Slorp are
Ohio residents located in Franklin County, Ohio. (See Affidavit of Rick A. Slorp,
paragraph 10). The general contractor and the general contractor’s point person was
Coratola, who resides in Franklin County, Ohio. (See Affidavit of Rick A. Slorp,
paragraphs 5-6). Obviously in order to prove its case against FLG, Slorp will call all the
witnesses working for it who reside in Ohio and will certainly cross-examine Coratola.
(See Affidavit of Rick A. Slorp, paragraphs 10-11). Consequently, half if not more than
half the witnesses already reside in Ohio.
It is undisputed that the main players in this contract dispute are Peter
Coratola and Rick A. Slorp, both who reside in Franklin County, Ohio. This Court will
also note that Slorp purchased much of the material used on the project in Franklin
County, Ohio and fabricated all of the steel components of the canopy in Franklin
County, Ohio. Because payment for Slorp’s services, purchased materials and fabricated
materials will be at the heart of this breach of contract case, that evidence and the
witnesses who will testify about these issues are all located in Franklin County, Ohio.
(See Affidavit of Rick A. Slorp, paragraphs 11-15).
Il. ARGUMENT OPPOSING MOTION
The Doctrine of Forum Non Conveniens is a long standing doctrine that
allows a Court to decline to hear a case even where the Court’s jurisdiction is invoked.
(For purposes of Defendants’ motion and Plaintiff's opposition, this Court will assume
jurisdiction and venue are proper). However, a Plaintiff's choice of forum is afforded a
degree of deference because an Ohio Court should reasonably assume the forum is
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293
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convenient for the Plaintiff. Only when a Plaintiff chooses a forum other than its home
forum, that assumption becomes less reasonable and the Plaintiff's choice receives less
deference. In this case, not only is Plaintiff domiciled in Franklin County, Ohio; but all
the Defendants are residents and/or doing business in Franklin County, Ohio.
It is in the case of Gulf Oil Corp. v. Gilbert, 330 U.S. Supreme Court 501
(1947) whereby the U.S. Supreme Court separated the forum non conveniens analysis
into two categories which are now known as “Private Interest Factors” and “Public
Interest Factors”. Private Interest Factors relate to potential difficulties faced by the
litigants themselves due to the Plaintiff's chosen forum. On the other hand, Public
Interest Factors relate to the burdens the case imposes on the Court and the public.
Generally speaking, Private Interest include all the practical problems in
bringing a case to trial such as whether relevant witnesses live in the county where the
case is pending, whether documents exist and can be easily obtained or other sources of
evidence that can be brought to trial.
Public Interest Factors generally include whether the Court is already
burdened with a significant case load, whether the case bears a greater relationship to a
different forum or whether it would be fair to make citizens of the forum to serve on a
jury which bears no relationship to the home county.
Ohio courts apply the same standards and factors as outlined above. In a
recent case from the Court of Appeals of Ohio, Ninth Appellate District in All Pro
Freight Sys. v. Walker, 2019-Ohio-321, the Court of Appeals outlined the analysis as
adopted by all courts in Ohio as follows:
In Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35
Ohio St.3d 123, 519 N.E.2d 370 (1988), the Supreme Court
3
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OF653 - E98
of Ohio recognized that in applying the doctrine of forum
non conveniens, an Ohio court "may resist imposition upon
its jurisdiction even when jurisdiction is authorized by the
letter of a general venue statute." Jd. at 126. "The doctrine
of forum non conveniens, unlike Civ.R. 3(D), assumes that
proper jurisdiction and venue lie in the court the plaintiff
has chosen, but that there is also another forum in which
the defendant may be sued." Alexander v. Chandley, 113
Ohio App.3d 435, 437, 680 N.E.2d 1317 (9th Dist.1996),
citing Chambers at 126.
"The common-law doctrine of forum non conveniens is
committed to the sound discretion of a court of general
jurisdiction, and may be employed pursuant to the inherent
powers of such court to achieve the ends of justice and
convenience of the parties and witnesses." Chambers at
paragraph one of the syllabus. "[T]he determination must
be based on a balancing of all relevant public and private
factors, including the ease of access to evidence including
witnesses, the local interest in having local controversies
decided at home, and the appropriateness of litigating in a
forum familiar with the applicable law." Alexander at 437,
citing Chambers at 126-127. "A defendant who moves to
dismiss on forum non conveniens grounds has the burden
of producing sufficient evidence to enable the court to
balance these competing interests." Jd. at 437-38, citing
Salabaschew v. TRW, Inc., 100 Ohio App.3d 503, 507, 654
N.E.2d 387 (8th Dist.1995). "{Ujnless the balance is
strongly in favor of the defendant, the plaintiff's choice
of forum should rarely be disturbed." [emphasis added]
United Capital Ins. Co. v. Brunswick Ins. Agency, 144 Ohio
App.3d 595, 601, 761 N.E.2d 66 (9th Dist.2001), quoting
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839,
91 L. Ed. 1055 (1947).
* * *
As we have noted above, for the doctrine of forum non
conveniens to be applied, a defendant has the burden of
producing sufficient evidence to enable the court to balance
all relevant public and private factors. Alexander at 437. In
addition, the balance must weigh strongly in favor of the
defendant for a trial court to disturb the plaintiff's choice of
forum. United Capital at 601. Mr. Walker's motion failed
to provide sufficient evidence that would have allowed the
trial court to engage in the requisite balancing of the
competing interests. As a consequence, the trial court
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293
OF653 - EQ
abused its discretion in applying the doctrine of forum non
conveniens.
In a case out of the Court of Appeals, Eighth Appellate District in
Salabaschew v. TRW, Inc., 100 Ohio App. 3d 503(1995), that court dealt with a
case in which the parties entered into a contract for the purchase of a French
corporation. The buyer was a corporation that conducted business throughout the
world with its headquarters located in Ohio. In that case, the defendant, an Ohio
corporation located in Cuyahoga County, Ohio, objected to being sued in its home
forum. In reviewing the public interest and private interest of factors, the court
found that defendant TRW had its headquarters in Ohio and most of the witnesses
intended to be called were in Ohio. The Salabaschew court also noted that the
defendant’s challenge to a complaint filed against it in its own home forum was
quite unconventional. Therefore, the Court of Appeals found that the trial court
abused its discretion in granting TRW’s motion to dismiss based on the doctrine
of forum non conveniens and allowed the case to move forward in Cuyahoga
County, Ohio.
These two cases alone demonstrate that Defendants’ Motion to
Dismiss based on the doctrine of forum non conveniens should be overruled. As
outlined in this memorandum and supported by the Affidavit of Rick A. Slorp, the
contract between the parties was made and executed in Franklin County, Ohio;
most of the materials for the job were purchased in Franklin County, Ohio; steel
for the canopy was purchased and specifically fabricated by Slorp in Franklin
County, Ohio; most of the witnesses are located in Franklin County, Ohio;
Defendants’ home forum is Franklin County, Ohio; Mr. Coratola is individually
5
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293
OF653 - Fl
identified as a Defendant in the Complaint; and the laws of the State of Ohio will
apply to the breach of the contract. Therefore, Defendants’ motion should be
overruled. |
iil. CONCLUSION
For the foregoing reasons, Plaintiff Slorp respectfully requests this Court
to overrule FLG’s Motion to Dismiss
Respectfully Submitted,
/s/ Scott G. Oxley
Scott G. Oxley (0039285
Attorney for Plaintiff Slorp
Scott G. Oxley Co., LPA
325 N. Main Street, Suite 204
Springboro, Ohio 45066
Office: (937) 550-0150
Fax: (937) 550-0018
soxiey@scottoxic Jaw.com
CERTIFICATE OF SERVICE
The undersigned herby certifies that on the date of this filing, a copy of the foregoing was
submitted electronically to the Court. Notice of this filling will be sent by operation of the
Court’s electronic filing system to all parties indicated on the electronic filing receipt. All
other parties will be served by regular U.S. Mail.
/s/ Scott G. Oxley
Scott G. Oxley (0039285)
* This Court will note that the contract does not include a choice of law clause. Because this Ohio Court should be
the forum, this Court will later perform the conflict of laws analysis to make a determination as to whether an
actual conflict between Ohio law and Kentucky law exists. If the choice of law principles of the different states do
not conflict, then the law of the forum state will control. Again, this analysis by the Court is for a later date.
6
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293 OF653 - EQ IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO CIVIL DIVISION RA Slorp Construction, LLC Case No.: 21CV005293 Plaintiff, Judge: McIntosh Vv. FLG Properties Kentucky, LLC, et al Defendants. MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS I. FACTS On or about May 1, 2019, Plaintiff R.A. Slorp Construction, LLC (“Slorp”) entered into a contract with an entity identified as Lexington Hampton Inn. Without question, Plaintiff Slorp is an Ohio company organized under the laws the state of Ohio, (See Affidavit of Rick A. Slorp, filed separately herein, paragraph 3). It is questionable whether an entity even exists called Lexington Hampton Inn; nonetheless, the contract was entered into with Defendant Peter Coratola (“Coratola”) either in his individual capacity or as a member or authorized representative of a company called FLG Properties Kentucky, LLC dba Lexington Hampton Inn (“FLG”). FLG is organized under the laws of the state of Ohio and conducts business in Ohio. (See attached Exhibit “1” and Affidavit of Rick A. Slorp, paragraph 13). Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293 OF653 - EQ Although the work associated with the contract was to be performed at 2251 Elkhorn Road, Lexington, KY 40505, many workers working on behalf of Slorp are Ohio residents located in Franklin County, Ohio. (See Affidavit of Rick A. Slorp, paragraph 10). The general contractor and the general contractor’s point person was Coratola, who resides in Franklin County, Ohio. (See Affidavit of Rick A. Slorp, paragraphs 5-6). Obviously in order to prove its case against FLG, Slorp will call all the witnesses working for it who reside in Ohio and will certainly cross-examine Coratola. (See Affidavit of Rick A. Slorp, paragraphs 10-11). Consequently, half if not more than half the witnesses already reside in Ohio. It is undisputed that the main players in this contract dispute are Peter Coratola and Rick A. Slorp, both who reside in Franklin County, Ohio. This Court will also note that Slorp purchased much of the material used on the project in Franklin County, Ohio and fabricated all of the steel components of the canopy in Franklin County, Ohio. Because payment for Slorp’s services, purchased materials and fabricated materials will be at the heart of this breach of contract case, that evidence and the witnesses who will testify about these issues are all located in Franklin County, Ohio. (See Affidavit of Rick A. Slorp, paragraphs 11-15). Il. ARGUMENT OPPOSING MOTION The Doctrine of Forum Non Conveniens is a long standing doctrine that allows a Court to decline to hear a case even where the Court’s jurisdiction is invoked. (For purposes of Defendants’ motion and Plaintiff's opposition, this Court will assume jurisdiction and venue are proper). However, a Plaintiff's choice of forum is afforded a degree of deference because an Ohio Court should reasonably assume the forum is Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293 OF653 - E97 convenient for the Plaintiff. Only when a Plaintiff chooses a forum other than its home forum, that assumption becomes less reasonable and the Plaintiff's choice receives less deference. In this case, not only is Plaintiff domiciled in Franklin County, Ohio; but all the Defendants are residents and/or doing business in Franklin County, Ohio. It is in the case of Gulf Oil Corp. v. Gilbert, 330 U.S. Supreme Court 501 (1947) whereby the U.S. Supreme Court separated the forum non conveniens analysis into two categories which are now known as “Private Interest Factors” and “Public Interest Factors”. Private Interest Factors relate to potential difficulties faced by the litigants themselves due to the Plaintiff's chosen forum. On the other hand, Public Interest Factors relate to the burdens the case imposes on the Court and the public. Generally speaking, Private Interest include all the practical problems in bringing a case to trial such as whether relevant witnesses live in the county where the case is pending, whether documents exist and can be easily obtained or other sources of evidence that can be brought to trial. Public Interest Factors generally include whether the Court is already burdened with a significant case load, whether the case bears a greater relationship to a different forum or whether it would be fair to make citizens of the forum to serve on a jury which bears no relationship to the home county. Ohio courts apply the same standards and factors as outlined above. In a recent case from the Court of Appeals of Ohio, Ninth Appellate District in All Pro Freight Sys. v. Walker, 2019-Ohio-321, the Court of Appeals outlined the analysis as adopted by all courts in Ohio as follows: In Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123, 519 N.E.2d 370 (1988), the Supreme Court 3 Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293 OF653 - E98 of Ohio recognized that in applying the doctrine of forum non conveniens, an Ohio court "may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Jd. at 126. "The doctrine of forum non conveniens, unlike Civ.R. 3(D), assumes that proper jurisdiction and venue lie in the court the plaintiff has chosen, but that there is also another forum in which the defendant may be sued." Alexander v. Chandley, 113 Ohio App.3d 435, 437, 680 N.E.2d 1317 (9th Dist.1996), citing Chambers at 126. "The common-law doctrine of forum non conveniens is committed to the sound discretion of a court of general jurisdiction, and may be employed pursuant to the inherent powers of such court to achieve the ends of justice and convenience of the parties and witnesses." Chambers at paragraph one of the syllabus. "[T]he determination must be based on a balancing of all relevant public and private factors, including the ease of access to evidence including witnesses, the local interest in having local controversies decided at home, and the appropriateness of litigating in a forum familiar with the applicable law." Alexander at 437, citing Chambers at 126-127. "A defendant who moves to dismiss on forum non conveniens grounds has the burden of producing sufficient evidence to enable the court to balance these competing interests." Jd. at 437-38, citing Salabaschew v. TRW, Inc., 100 Ohio App.3d 503, 507, 654 N.E.2d 387 (8th Dist.1995). "{Ujnless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." [emphasis added] United Capital Ins. Co. v. Brunswick Ins. Agency, 144 Ohio App.3d 595, 601, 761 N.E.2d 66 (9th Dist.2001), quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). * * * As we have noted above, for the doctrine of forum non conveniens to be applied, a defendant has the burden of producing sufficient evidence to enable the court to balance all relevant public and private factors. Alexander at 437. In addition, the balance must weigh strongly in favor of the defendant for a trial court to disturb the plaintiff's choice of forum. United Capital at 601. Mr. Walker's motion failed to provide sufficient evidence that would have allowed the trial court to engage in the requisite balancing of the competing interests. As a consequence, the trial court Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293 OF653 - EQ abused its discretion in applying the doctrine of forum non conveniens. In a case out of the Court of Appeals, Eighth Appellate District in Salabaschew v. TRW, Inc., 100 Ohio App. 3d 503(1995), that court dealt with a case in which the parties entered into a contract for the purchase of a French corporation. The buyer was a corporation that conducted business throughout the world with its headquarters located in Ohio. In that case, the defendant, an Ohio corporation located in Cuyahoga County, Ohio, objected to being sued in its home forum. In reviewing the public interest and private interest of factors, the court found that defendant TRW had its headquarters in Ohio and most of the witnesses intended to be called were in Ohio. The Salabaschew court also noted that the defendant’s challenge to a complaint filed against it in its own home forum was quite unconventional. Therefore, the Court of Appeals found that the trial court abused its discretion in granting TRW’s motion to dismiss based on the doctrine of forum non conveniens and allowed the case to move forward in Cuyahoga County, Ohio. These two cases alone demonstrate that Defendants’ Motion to Dismiss based on the doctrine of forum non conveniens should be overruled. As outlined in this memorandum and supported by the Affidavit of Rick A. Slorp, the contract between the parties was made and executed in Franklin County, Ohio; most of the materials for the job were purchased in Franklin County, Ohio; steel for the canopy was purchased and specifically fabricated by Slorp in Franklin County, Ohio; most of the witnesses are located in Franklin County, Ohio; Defendants’ home forum is Franklin County, Ohio; Mr. Coratola is individually 5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2021 Oct 04 4:34 PM-21CV005293 OF653 - Fl identified as a Defendant in the Complaint; and the laws of the State of Ohio will apply to the breach of the contract. Therefore, Defendants’ motion should be overruled. | iil. CONCLUSION For the foregoing reasons, Plaintiff Slorp respectfully requests this Court to overrule FLG’s Motion to Dismiss Respectfully Submitted, /s/ Scott G. Oxley Scott G. Oxley (0039285 Attorney for Plaintiff Slorp Scott G. Oxley Co., LPA 325 N. Main Street, Suite 204 Springboro, Ohio 45066 Office: (937) 550-0150 Fax: (937) 550-0018 soxiey@scottoxic Jaw.com CERTIFICATE OF SERVICE The undersigned herby certifies that on the date of this filing, a copy of the foregoing was submitted electronically to the Court. Notice of this filling will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail. /s/ Scott G. Oxley Scott G. Oxley (0039285) * This Court will note that the contract does not include a choice of law clause. Because this Ohio Court should be the forum, this Court will later perform the conflict of laws analysis to make a determination as to whether an actual conflict between Ohio law and Kentucky law exists. If the choice of law principles of the different states do not conflict, then the law of the forum state will control. Again, this analysis by the Court is for a later date. 6