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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
REPLY BRIEF
October 29,2023 22:45
By: ZIAD TAYEH 0088027
Confirmation Nbr. 3002939
ANUP GARGET AL. CV 22 969524
vs.
Judge: JOAN SYNENBERG
MARK JENKINS ET AL.
Pages Filed: 6
Electronically Filed 10/29/2023 22:45 / BRIEF / CV 22 969524 / Confirmation Nbr. 3002939 / BATCH
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANUP GARG, et al., CASE NO.: CV 22 969524
Plaintiffs, JUDGE: JOAN SYNENBERG
MAGISTRATE: AMY R. JACKSON
vs.
DEFENDANT MARK JENKINS’ REPLY
MARK JENKINS, et al., TO PLAINTIFFS’ BRIEF IN
OPPOSITION TO DEFENDANT’S
Defendants. MOTION TO CONSOLIDATE
Now comes Defendant Mark Jenkins, by and through undersigned counsel, and hereby
files his Reply to Plaintiffs’ Brief in Opposition to Defendant Mark Jenkins’ Motion to Consolidate
Cases. A Memorandum in Support is attached hereto and incorporated herein.
Respectfully Submitted,
/s/Ziad Tayeh______________
Ziad Tayeh (0088027)
Tayeh Law Offices, LLC
22255 Center Ridge Road, Suite 311
Rocky River, OH 44116
Phone: (440) 580-0365
Fax: (440) 359-8755
Email: info@Tayehlaw.com
Attorney for Defendant Mark Jenkins
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MEMORANDUM IN SUPPORT
As this Court is aware, Defendant Mark Jenkins (“Jenkins”) seeks to consolidate the
within case with Mark Jenkins v. Anup Garg, et al., Cuyahoga County Court of Common Pleas,
Case No. CV-23-983388 (the “Second Action”). Plaintiffs filed a Brief in Opposition to Jenkins’
Motion to Consolidate on October 17, 2023. Jenkins now responds to Plaintiffs’ Brief in
Opposition. Because Mark Jenkins is the defendant in this action and the plaintiff in the second
action, he will be referred to as “Jenkins,” and Plaintiff Anup Garg will be referred to as “Garg” for
purposes of clarity.
Garg’s entire Brief in Opposition rests on the false assertion that the Court in the Second
Action dismissed Jenkins’ claims. This is false. The Court in the Second Action (quite obviously)
intended to grant Jenkins’ Motion to Stay Garg’s Motion to Dismiss, but mixed up the parties,
resulting in a scrivener’s error in its October 11, 2023 Order. Garg is attempting to exploit that
error in this case. However, Jenkins filed a Motion for Nunc Pro Tunc Order Correcting the Order
on October 17, 2023, which the Court in the Second Action quickly granted.
The Order states:
“PLAINTIFF MARK JENKINS' MOTION FOR NUNC PRO TUNC ORDER
CORRECTING OCTOBER 11. 2023 ORDER. FILED 10/17/2023. IS GRANTED.
DEFENDANT'S MOTION TO DISMISS WAS NOT GRANTED. PLAINTIFF'S
MOTION TO STAY RULING ON DEFENDANT'S MOTION TO DISMISS WAS
GRANTED ON 10/11/2023.”
(See Order, attached hereto as Ex. A.)
Because Garg’s Brief in Opposition is grounded on the false claim that the Court in the
Second Action dismissed Jenkins’ claims, Garg’s Brief is meritless.
Garg further argues that this Court should refuse to consolidate the two actions because
Jenkins should have filed a compulsory counterclaim against Garg in this action. However, Garg
glosses over two points: 1) the parties to this action are different from the parties in the Second
Action, and 2) Jenkins filed the Second Action because this action was stayed, and any delay could
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have prejudiced Jenkins. Moreover, Jenkins is required to amend his Counterclaim to add further
defendants and claims in addition to those set forth in the Second Action. Therefore, Jenkins may
include the new parties named in the Second Action in the Amended Counterclaim should the
Court grant the Motion for Leave to Amend Counterclaim filed contemporaneously with this
Motion.1
Civ.R. 13(A) states, in pertinent part:
“A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it arises
out of the transaction or occurrence that is the subject matter of the opposing
party's claim and does not require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction.” (Emphasis added.)
The Eighth District has held that a non-party may not be the subject of a compulsory
counterclaim. In overturning the granting of a motion for summary judgment in a second action
against a party that was not named in prior litigation, the Court held:
“The first sentence of Civ. R. 13(A) requires a pleader to state a counterclaim that
he has against an ‘opposing party’ at the time he serves his pleading. A review of
the record demonstrates that City Machine was not at any time named as a party
in the Lyndhurst Municipal Court case. As such, it was not an "opposing party"
within the meaning of the rule.”
Delisio v. Rindfleisch, 8th Dist. Cuyahoga NO.43548, 1981 Ohio App. LEXIS 14061, at *6 (Dec.
21, 1981).
Here, the Second Action names eleven defendants, Garg, and ten new defendants who are
not parties to the instant action. Thus, Garg cannot now claim that Jenkins failed to assert
“compulsory counterclaims” in this case against the ten defendants who are non-parties to this
action.
1 Jenkins requests that this Court grant the Motion to Consolidate in the event he is permitted to amend his
Counterclaim, as the defendants in the Second Case have been served, and therefore, a consolidation would
save the parties and the Court time and resources relative to the service of the Amended Counterclaim.
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Further, as explained in Jenkins’ Motion to Consolidate, Jenkins initiated the Second
Action with the intention of consolidating this action, as this Court stayed this instant action for
five and a half months, and, therefore, Jenkins could not file a Motion to Join Additional Parties
or file an Amended Counterclaim in this case due to the stay. Any significant delays in the filing
of the Second Action could have prejudiced Jenkins’ rights, including statute of limitations
considerations.
Finally, Garg argues that granting the requested consolidation would delay this case and
cause a “procedural quagmire.” This assertion is false. As an initial matter, Jenkins is seeking to
amend his Counterclaim, as set forth in his Motion for Leave to File Amended Answer and
Counterclaim filed contemporaneously with this Motion. Jenkins may simply add the parties
named in the Second Action as Counterclaim-Defendants in the instant action to resolve his
Motion to Consolidate.
Moreover, although Garg filed this case in October 2022, this case is still in its infancy for
several reasons. As an initial matter, Garg amended his Complaint multiple times, and, as a result,
the pleadings in the instant case were not closed until February 2, 2023, four months after Garg
filed this action. The parties then agreed to mediate the case, and therefore, the case was stayed
for more than five and a half months, from April 10, 2023 - September 28, 2023. Thus, this case
was in its pleading stage and stayed for at least nine and a half months since October 2022.
Moreover, while Garg complains that adding new parties would delay discovery, Garg has
not even bothered to propound discovery in this case. In fact, Jenkins propounded discovery to
Garg on May 9, 2023, hoping to have discovery responses in preparation for mediation. More than
five and a half months later, Garg has yet to respond to same.2 Thus, Garg’s claim that the addition
of new parties would hinder discovery is peculiar given that Garg has refused to participate in
discovery. As such, this Honorable Court should grant Jenkins’ Motion to Consolidate.
2 The undersigned has conferred with Garg’s counsel regarding discovery and will file a Motion to Compel
if Garg continues to be uncooperative.
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Respectfully Submitted,
/s/Ziad Touch______________
Ziad Tayeh (0088027)
Tayeh Law Offices, LLC
22255 Center Ridge Road, Suite 311
Rocky River, OH 44116
Phone: (440) 580-0365
Fax: (440) 359-8755
Email: info@Tayehlaw.com
Attorney for Defendant Mark Jenkins
CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2023, the foregoing Reply Brief was filed electronically.
Notice of this filing will be delivered to all parties indicated on the receipt of filing. All other
parties will be served by regular mail, postage pre-paid.
/s/Ziad Tayeh______________
Ziad Tayeh (0088027)
Tayeh Law Offices, LLC
Attorney for Defendant Mark Jenkins
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162611872
1626 1872
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
MARK JENKINS Case No: CV-23-983388
Plaintiff
Judge: SHERRIE MID AY
ANUP GARG, ET AL.
Defendant
JOURNAL ENTRY
PLAINTIFF MARK JENKINS' MOTION FOR NUNC PRO TUNC ORDER CORRECTING OCTOBER 11, 2023 ORDER, FILED
10/17/2023, IS GRANTED.
DEFENDANT'S MOTION TO DISMISS WAS NOT GRANTED. PLAINTIFF'S MOTION TO STAY RULING ON
DEFENDANT'S MOTION TO DISMISS WAS GRANTED ON 10/11/2023.
Judge Signature 10/26/2023
Ex. A
10/24/2023
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NAILAH K. BYRD, CLERK
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas REPLY BRIEF October 29,2023 22:45 By: ZIAD TAYEH 0088027 Confirmation Nbr. 3002939 ANUP GARGET AL. CV 22 969524 vs. Judge: JOAN SYNENBERG MARK JENKINS ET AL. Pages Filed: 6 Electronically Filed 10/29/2023 22:45 / BRIEF / CV 22 969524 / Confirmation Nbr. 3002939 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANUP GARG, et al., CASE NO.: CV 22 969524 Plaintiffs, JUDGE: JOAN SYNENBERG MAGISTRATE: AMY R. JACKSON vs. DEFENDANT MARK JENKINS’ REPLY MARK JENKINS, et al., TO PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S Defendants. MOTION TO CONSOLIDATE Now comes Defendant Mark Jenkins, by and through undersigned counsel, and hereby files his Reply to Plaintiffs’ Brief in Opposition to Defendant Mark Jenkins’ Motion to Consolidate Cases. A Memorandum in Support is attached hereto and incorporated herein. Respectfully Submitted, /s/Ziad Tayeh______________ Ziad Tayeh (0088027) Tayeh Law Offices, LLC 22255 Center Ridge Road, Suite 311 Rocky River, OH 44116 Phone: (440) 580-0365 Fax: (440) 359-8755 Email: info@Tayehlaw.com Attorney for Defendant Mark Jenkins Electronically Filed 10/29/2023 22:45 / BRIEF / CV 22 969524 / Confirmation Nbr. 3002939 / BATCH MEMORANDUM IN SUPPORT As this Court is aware, Defendant Mark Jenkins (“Jenkins”) seeks to consolidate the within case with Mark Jenkins v. Anup Garg, et al., Cuyahoga County Court of Common Pleas, Case No. CV-23-983388 (the “Second Action”). Plaintiffs filed a Brief in Opposition to Jenkins’ Motion to Consolidate on October 17, 2023. Jenkins now responds to Plaintiffs’ Brief in Opposition. Because Mark Jenkins is the defendant in this action and the plaintiff in the second action, he will be referred to as “Jenkins,” and Plaintiff Anup Garg will be referred to as “Garg” for purposes of clarity. Garg’s entire Brief in Opposition rests on the false assertion that the Court in the Second Action dismissed Jenkins’ claims. This is false. The Court in the Second Action (quite obviously) intended to grant Jenkins’ Motion to Stay Garg’s Motion to Dismiss, but mixed up the parties, resulting in a scrivener’s error in its October 11, 2023 Order. Garg is attempting to exploit that error in this case. However, Jenkins filed a Motion for Nunc Pro Tunc Order Correcting the Order on October 17, 2023, which the Court in the Second Action quickly granted. The Order states: “PLAINTIFF MARK JENKINS' MOTION FOR NUNC PRO TUNC ORDER CORRECTING OCTOBER 11. 2023 ORDER. FILED 10/17/2023. IS GRANTED. DEFENDANT'S MOTION TO DISMISS WAS NOT GRANTED. PLAINTIFF'S MOTION TO STAY RULING ON DEFENDANT'S MOTION TO DISMISS WAS GRANTED ON 10/11/2023.” (See Order, attached hereto as Ex. A.) Because Garg’s Brief in Opposition is grounded on the false claim that the Court in the Second Action dismissed Jenkins’ claims, Garg’s Brief is meritless. Garg further argues that this Court should refuse to consolidate the two actions because Jenkins should have filed a compulsory counterclaim against Garg in this action. However, Garg glosses over two points: 1) the parties to this action are different from the parties in the Second Action, and 2) Jenkins filed the Second Action because this action was stayed, and any delay could Electronically Filed 10/29/2023 22:45 / BRIEF / CV 22 969524 / Confirmation Nbr. 3002939 / BATCH have prejudiced Jenkins. Moreover, Jenkins is required to amend his Counterclaim to add further defendants and claims in addition to those set forth in the Second Action. Therefore, Jenkins may include the new parties named in the Second Action in the Amended Counterclaim should the Court grant the Motion for Leave to Amend Counterclaim filed contemporaneously with this Motion.1 Civ.R. 13(A) states, in pertinent part: “A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” (Emphasis added.) The Eighth District has held that a non-party may not be the subject of a compulsory counterclaim. In overturning the granting of a motion for summary judgment in a second action against a party that was not named in prior litigation, the Court held: “The first sentence of Civ. R. 13(A) requires a pleader to state a counterclaim that he has against an ‘opposing party’ at the time he serves his pleading. A review of the record demonstrates that City Machine was not at any time named as a party in the Lyndhurst Municipal Court case. As such, it was not an "opposing party" within the meaning of the rule.” Delisio v. Rindfleisch, 8th Dist. Cuyahoga NO.43548, 1981 Ohio App. LEXIS 14061, at *6 (Dec. 21, 1981). Here, the Second Action names eleven defendants, Garg, and ten new defendants who are not parties to the instant action. Thus, Garg cannot now claim that Jenkins failed to assert “compulsory counterclaims” in this case against the ten defendants who are non-parties to this action. 1 Jenkins requests that this Court grant the Motion to Consolidate in the event he is permitted to amend his Counterclaim, as the defendants in the Second Case have been served, and therefore, a consolidation would save the parties and the Court time and resources relative to the service of the Amended Counterclaim. Electronically Filed 10/29/2023 22:45 / BRIEF / CV 22 969524 / Confirmation Nbr. 3002939 / BATCH Further, as explained in Jenkins’ Motion to Consolidate, Jenkins initiated the Second Action with the intention of consolidating this action, as this Court stayed this instant action for five and a half months, and, therefore, Jenkins could not file a Motion to Join Additional Parties or file an Amended Counterclaim in this case due to the stay. Any significant delays in the filing of the Second Action could have prejudiced Jenkins’ rights, including statute of limitations considerations. Finally, Garg argues that granting the requested consolidation would delay this case and cause a “procedural quagmire.” This assertion is false. As an initial matter, Jenkins is seeking to amend his Counterclaim, as set forth in his Motion for Leave to File Amended Answer and Counterclaim filed contemporaneously with this Motion. Jenkins may simply add the parties named in the Second Action as Counterclaim-Defendants in the instant action to resolve his Motion to Consolidate. Moreover, although Garg filed this case in October 2022, this case is still in its infancy for several reasons. As an initial matter, Garg amended his Complaint multiple times, and, as a result, the pleadings in the instant case were not closed until February 2, 2023, four months after Garg filed this action. The parties then agreed to mediate the case, and therefore, the case was stayed for more than five and a half months, from April 10, 2023 - September 28, 2023. Thus, this case was in its pleading stage and stayed for at least nine and a half months since October 2022. Moreover, while Garg complains that adding new parties would delay discovery, Garg has not even bothered to propound discovery in this case. In fact, Jenkins propounded discovery to Garg on May 9, 2023, hoping to have discovery responses in preparation for mediation. More than five and a half months later, Garg has yet to respond to same.2 Thus, Garg’s claim that the addition of new parties would hinder discovery is peculiar given that Garg has refused to participate in discovery. As such, this Honorable Court should grant Jenkins’ Motion to Consolidate. 2 The undersigned has conferred with Garg’s counsel regarding discovery and will file a Motion to Compel if Garg continues to be uncooperative. Electronically Filed 10/29/2023 22:45 / BRIEF / CV 22 969524 / Confirmation Nbr. 3002939 / BATCH Respectfully Submitted, /s/Ziad Touch______________ Ziad Tayeh (0088027) Tayeh Law Offices, LLC 22255 Center Ridge Road, Suite 311 Rocky River, OH 44116 Phone: (440) 580-0365 Fax: (440) 359-8755 Email: info@Tayehlaw.com Attorney for Defendant Mark Jenkins CERTIFICATE OF SERVICE I hereby certify that on October 29, 2023, the foregoing Reply Brief was filed electronically. Notice of this filing will be delivered to all parties indicated on the receipt of filing. All other parties will be served by regular mail, postage pre-paid. /s/Ziad Tayeh______________ Ziad Tayeh (0088027) Tayeh Law Offices, LLC Attorney for Defendant Mark Jenkins Electronically Filed 10/29/2023 22:45 / BRIEF / CV 22 969524 / Confirmation Nbr. 3002939 / BATCH 162611872 1626 1872 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO MARK JENKINS Case No: CV-23-983388 Plaintiff Judge: SHERRIE MID AY ANUP GARG, ET AL. Defendant JOURNAL ENTRY PLAINTIFF MARK JENKINS' MOTION FOR NUNC PRO TUNC ORDER CORRECTING OCTOBER 11, 2023 ORDER, FILED 10/17/2023, IS GRANTED. DEFENDANT'S MOTION TO DISMISS WAS NOT GRANTED. PLAINTIFF'S MOTION TO STAY RULING ON DEFENDANT'S MOTION TO DISMISS WAS GRANTED ON 10/11/2023. Judge Signature 10/26/2023 Ex. A 10/24/2023 Electronically Filed 10/29/2023 22:45 / BRIEF / CV 22 9695224^0^^01 Nbr. 3002939 / BATCH NAILAH K. BYRD, CLERK Page 1 of 1