Preview
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
July 27,2023 15:18
By: MICHAEL B. PASTERNAK 0059816
Confirmation Nbr. 2921028
JEFF DYBZINSKI CV 23 979695
vs.
Judge: TIMOTHY MCCORMICK
DESMOND BUCHANNON, FT AL
Pages Filed: 5
Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
JEFF DYBZINKSI ) CASE NO: CV 23 979695
)
Plaintiff, )
) JUDGE: TIMOTHY MCCORMICK
)
DESMOND BUCHANNON et al. ) PLAINTIFF’S OPPOSITION TO
) DEFENDANT LAURYN HENDERSON'S
Defendants. ) MOTION TO TRANSFER VENUE
) AND CONSOLIDATE
Now comes Plaintiff Jeff Dybzinski, by and through the undersigned counsel, and
respectfully requests that this Court deny Defendant Lauryn Henderson’s Motion to Transfer
Venue and Consolidate. The reasons for Plaintiff’s opposition are more fully set forth in the
attached Memorandum.
MEMORANDUM
This case emanates from a motor vehicle accident case wherein Plaintiff Evan Dybzinski,
a minor, was injured while a passenger in a vehicle driven by Defendant Desmond Buchannon.
Plaintiff’s Complaint, properly filed in Cuyahoga County, asserts claims against multiple
defendants including Desmond Buchannon (Cuyahoga County resident), Emmanuel Ventures
(Cuyahoga County resident), Contigo Health LLC (registered agent in Cuyahoga County), and
United Healthcare (registered agent in Cuyahoga County). Defendant Henderson’s sole basis for
her motion is that she lives in Lake County and was sued in Lake County in another case. The
complaint attached to Defendant’s motion names Plaintiff Sharlene Harrison as Guardian of
Avery Davis, Eli Davis, and Adrianna Deleva, and names Defendant Henderson as the sole
Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP
defendant in the Lake County case. The parties named in Plaintiff's complaint herein reveals
numerous other defendants, four of which reside in Cuyahoga County.
LAW AND ARGUMENT
Ohio Civil Rule 3(C) provides, “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.” As is clear from Plaintiff's complaint, Ohio Civ. R.
3(C)(1) and (2) ensure that Cuyahoga County is a proper venue for this action, as Defendants
Desmond Buchannon, Emmanuel Ventures, Contigo Health and United Healthcare are either
domiciled or have registered agents within Cuyahoga County.
Ohio law is clear: “Venue is proper where the plaintiff chooses a court located in any
county described in the first eleven provisions of Ohio Civ. R. 3(C). These provisions have equal
status, and a plaintiff may choose among them with unfettered discretion.” Reese v. Reese, no.
73116, 1997 Ohio App. Lexis 2216 (8th Dist. 1997), citing Morrison v. Steiner, 32 Ohio St.2d 86,
89 (1972).
And, “If the plaintiff has chosen a proper forum from among the options provided in the
rule, it may not be disturbed.” Soloman v. Excel Management, 114 Ohio App.3d 20, 25 (2nd Dist.
1996). A defendant is not entitled to change a venue simply because another venue may be more
convenient for him. Id. Moreover, a plaintiff's choice of forum is not to be disturbed except for
weighty reasons. Hess v. Norfolk Southern Railway Company, 153 Ohio App.3d 565, 2003-
Ohio-4172, 795 NE 2d 91 (8th Dist. 2003), judgment affirmed in part, reversed in part on other
grounds, 106 Ohio St.3d 389 (2005).
The Supreme Court instructs that, “If venue is proper, a trial court must accept venue.”
State ex. rel. Yeaples v. Gall, 141 Ohio St.3d 234. A trial court may not transfer a case based
Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP
solely on convenience. Bruce v. Bruce, 3d Dist. Marion 9-10-57, 2012-Ohio-45. And, once a
plaintiff chooses a county within the parameters of Ohio Civ. R. 3, then his choice of venue
“may not be disturbed.” Soloman at 25.
The moving party has the burden of showing that a change of venue is necessary and
proper. Toledo Fair Housing Center v. Nationwide Mutual Insurance Company, Lucas Common
Pleas 1996, 94 Ohio Misc.2d 145, citing Hanning v. New England Mutual Life Insurance
Company (SD Ohio 1989) 710, F. Supp. 213. The Eighth District has adopted this reasoning as
well. Civ. R. 3(C) establishes a system of priorities. The first nine provisions of Civ. R. 3(C) are
alternatives, and each may be a proper basis for venue, but they do not have to be followed in
any order. The plaintiff has a choice where the action will be brought if any of the counties
specified in Civ. R. 3(C)1-9 are a proper forum under the facts of the case. 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 the county under Civ. R. 3(C)1-9, that becomes the proper forum. A party must
first look to Civ. R. 3(C)1-9 and if venue is proper as to any one, it’s proper as to all parties.
Varketta v. General Motors Corporation, Cuyahoga Court of Appeals 1973, 34 Ohio App.2d 1,
9-11. See also, Rusk Industries v. Alexander, Lucas County App. 2002, 2002 Ohio 2171, held
that 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 3B1-3B9 (3C1-3C9) are a
proper forum under the facts of the case.” Id., at 11. See also, Williams v. Jarvis, Cuyahoga
County Court of Appeals 1999, 1999 Ohio App. Lexis 3964, Frangopolous v. Angelo, Mahoning
County Court of Appeals 1999, 1999 Ohio App. Lexis 1979.
Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP
This case is properly venued in Cuyahoga County. The Ohio Civil Rule and the case law
that has interpreted same is clear and unassailable. Tellingly, that is why defendant failed to cite
to any case or actually quote from Ohio Civ. R. 3.
Based on the foregoing, Plaintiff respectfully requests that this Court deny Defendant’s
Motion to Transfer Venue and Consolidate.
Respectfully submitted,
Michael B. Pasternak (0059816)
3681 S. Green Rd., Suite 411
Beachwood, Ohio 44122
Phone: (216) 360-8500
Fax: (216) 360-8501
Mpasternak1@msn.com
Attorney for PlaintiffJeffDybzinski
Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP
CERTIFICATE OF SERVICE
A copy of the foregoing has been served through the court’s electronic filing notification
system, email, and/or U.S. mail this 27th day of July, 2023 on the following parties:
Deanna K. Coleman
Law Office of Phillip C. Kosla
decoleman@geico.com
Attorney for Defendant Lauryn Henderson
David C. Ahlstrom
John C. Scott
Faulkner & Tepe LLP
j scott@faulkner-tepe.com
Attorneys for Defendants Desmond Buchannon, Emmanuel Ventures Ltd.,
& Amalgamated Specialty Group
Matthew M. Duffy
maduffy@hanover.com
Attorney for Defendant Hanover Insurance Company
CONTIGO HEALTH, LLC
c/o Registered Agent ACFB, Inc.
200 Public Square, Suite 2300
Cleveland, OH 44114
Defendant
UNITED HEALTHCARE BENEFIT PLAN
c/o Registered Agent ACFB, Inc.
200 Public Square, Suite 2300
Cleveland, OH 44114
Defendant
EXL
111 Ryan Court, Suite 300
Pittsburgh, PA 15205
Defendant
MICHAEL B. PASTERNAK (0059816)
Attorney for PlaintiffJeffDybzinski
Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP
Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION July 27,2023 15:18 By: MICHAEL B. PASTERNAK 0059816 Confirmation Nbr. 2921028 JEFF DYBZINSKI CV 23 979695 vs. Judge: TIMOTHY MCCORMICK DESMOND BUCHANNON, FT AL Pages Filed: 5 Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO JEFF DYBZINKSI ) CASE NO: CV 23 979695 ) Plaintiff, ) ) JUDGE: TIMOTHY MCCORMICK ) DESMOND BUCHANNON et al. ) PLAINTIFF’S OPPOSITION TO ) DEFENDANT LAURYN HENDERSON'S Defendants. ) MOTION TO TRANSFER VENUE ) AND CONSOLIDATE Now comes Plaintiff Jeff Dybzinski, by and through the undersigned counsel, and respectfully requests that this Court deny Defendant Lauryn Henderson’s Motion to Transfer Venue and Consolidate. The reasons for Plaintiff’s opposition are more fully set forth in the attached Memorandum. MEMORANDUM This case emanates from a motor vehicle accident case wherein Plaintiff Evan Dybzinski, a minor, was injured while a passenger in a vehicle driven by Defendant Desmond Buchannon. Plaintiff’s Complaint, properly filed in Cuyahoga County, asserts claims against multiple defendants including Desmond Buchannon (Cuyahoga County resident), Emmanuel Ventures (Cuyahoga County resident), Contigo Health LLC (registered agent in Cuyahoga County), and United Healthcare (registered agent in Cuyahoga County). Defendant Henderson’s sole basis for her motion is that she lives in Lake County and was sued in Lake County in another case. The complaint attached to Defendant’s motion names Plaintiff Sharlene Harrison as Guardian of Avery Davis, Eli Davis, and Adrianna Deleva, and names Defendant Henderson as the sole Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP defendant in the Lake County case. The parties named in Plaintiff's complaint herein reveals numerous other defendants, four of which reside in Cuyahoga County. LAW AND ARGUMENT Ohio Civil Rule 3(C) provides, “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.” As is clear from Plaintiff's complaint, Ohio Civ. R. 3(C)(1) and (2) ensure that Cuyahoga County is a proper venue for this action, as Defendants Desmond Buchannon, Emmanuel Ventures, Contigo Health and United Healthcare are either domiciled or have registered agents within Cuyahoga County. Ohio law is clear: “Venue is proper where the plaintiff chooses a court located in any county described in the first eleven provisions of Ohio Civ. R. 3(C). These provisions have equal status, and a plaintiff may choose among them with unfettered discretion.” Reese v. Reese, no. 73116, 1997 Ohio App. Lexis 2216 (8th Dist. 1997), citing Morrison v. Steiner, 32 Ohio St.2d 86, 89 (1972). And, “If the plaintiff has chosen a proper forum from among the options provided in the rule, it may not be disturbed.” Soloman v. Excel Management, 114 Ohio App.3d 20, 25 (2nd Dist. 1996). A defendant is not entitled to change a venue simply because another venue may be more convenient for him. Id. Moreover, a plaintiff's choice of forum is not to be disturbed except for weighty reasons. Hess v. Norfolk Southern Railway Company, 153 Ohio App.3d 565, 2003- Ohio-4172, 795 NE 2d 91 (8th Dist. 2003), judgment affirmed in part, reversed in part on other grounds, 106 Ohio St.3d 389 (2005). The Supreme Court instructs that, “If venue is proper, a trial court must accept venue.” State ex. rel. Yeaples v. Gall, 141 Ohio St.3d 234. A trial court may not transfer a case based Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP solely on convenience. Bruce v. Bruce, 3d Dist. Marion 9-10-57, 2012-Ohio-45. And, once a plaintiff chooses a county within the parameters of Ohio Civ. R. 3, then his choice of venue “may not be disturbed.” Soloman at 25. The moving party has the burden of showing that a change of venue is necessary and proper. Toledo Fair Housing Center v. Nationwide Mutual Insurance Company, Lucas Common Pleas 1996, 94 Ohio Misc.2d 145, citing Hanning v. New England Mutual Life Insurance Company (SD Ohio 1989) 710, F. Supp. 213. The Eighth District has adopted this reasoning as well. Civ. R. 3(C) establishes a system of priorities. The first nine provisions of Civ. R. 3(C) are alternatives, and each may be a proper basis for venue, but they do not have to be followed in any order. The plaintiff has a choice where the action will be brought if any of the counties specified in Civ. R. 3(C)1-9 are a proper forum under the facts of the case. 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 the county under Civ. R. 3(C)1-9, that becomes the proper forum. A party must first look to Civ. R. 3(C)1-9 and if venue is proper as to any one, it’s proper as to all parties. Varketta v. General Motors Corporation, Cuyahoga Court of Appeals 1973, 34 Ohio App.2d 1, 9-11. See also, Rusk Industries v. Alexander, Lucas County App. 2002, 2002 Ohio 2171, held that 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 3B1-3B9 (3C1-3C9) are a proper forum under the facts of the case.” Id., at 11. See also, Williams v. Jarvis, Cuyahoga County Court of Appeals 1999, 1999 Ohio App. Lexis 3964, Frangopolous v. Angelo, Mahoning County Court of Appeals 1999, 1999 Ohio App. Lexis 1979. Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP This case is properly venued in Cuyahoga County. The Ohio Civil Rule and the case law that has interpreted same is clear and unassailable. Tellingly, that is why defendant failed to cite to any case or actually quote from Ohio Civ. R. 3. Based on the foregoing, Plaintiff respectfully requests that this Court deny Defendant’s Motion to Transfer Venue and Consolidate. Respectfully submitted, Michael B. Pasternak (0059816) 3681 S. Green Rd., Suite 411 Beachwood, Ohio 44122 Phone: (216) 360-8500 Fax: (216) 360-8501 Mpasternak1@msn.com Attorney for PlaintiffJeffDybzinski Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP CERTIFICATE OF SERVICE A copy of the foregoing has been served through the court’s electronic filing notification system, email, and/or U.S. mail this 27th day of July, 2023 on the following parties: Deanna K. Coleman Law Office of Phillip C. Kosla decoleman@geico.com Attorney for Defendant Lauryn Henderson David C. Ahlstrom John C. Scott Faulkner & Tepe LLP j scott@faulkner-tepe.com Attorneys for Defendants Desmond Buchannon, Emmanuel Ventures Ltd., & Amalgamated Specialty Group Matthew M. Duffy maduffy@hanover.com Attorney for Defendant Hanover Insurance Company CONTIGO HEALTH, LLC c/o Registered Agent ACFB, Inc. 200 Public Square, Suite 2300 Cleveland, OH 44114 Defendant UNITED HEALTHCARE BENEFIT PLAN c/o Registered Agent ACFB, Inc. 200 Public Square, Suite 2300 Cleveland, OH 44114 Defendant EXL 111 Ryan Court, Suite 300 Pittsburgh, PA 15205 Defendant MICHAEL B. PASTERNAK (0059816) Attorney for PlaintiffJeffDybzinski Electronically Filed 07/27/2023 15:18 / BRIEF / CV 23 979695 / Confirmation Nbr. 2921028 / CLSLP