Preview
CV-2021-11-3527 OLDFIELD, JOY M 04/10/2022 14:14:19 PM BRIO Page 1 of 3
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
MICHAEL J. GERRASCH, et al., ) CASE NO.: CV-2021-11-3527
)
Plaintiffs, ) JUDGE JOY OLDFIELD
)
v. )
)
NEW RIVER CONSTRUCTION, INC., ) DEFENDANT’S BRIEF IN
et al., ) OPPOSITION TO PLAINTIFFS’
) MOTION TO DEEM CERTAIN
Defendants. ) MATTERS ADMITTED
Now comes Defendant, Ronald Sykes (“Mr. Sykes” or “Defendant”), by and through the
undersigned counsel, and respectfully submits his Brief in Opposition to the Motion to Deem
Certain Matters Admitted filed by Plaintiffs, Michael and Shereen Gerrasch (the “Gerrasches” or
Plaintiffs”).
“Although Civ.R. 36(A) deems requests admitted if no response is made within the allotted
time, … a judge has discretion to allow withdrawal or amendment of the requests under Civ.R.
36(B).” United States Bank v. Downey, 2013-Ohio-494, P16, 2013 Ohio App. LEXIS 426, *7
(citing Knox v. Hetrick, 8th Dist. No. 91102, 2009 Ohio 1359, ¶ 72). Ohio courts also have broad
discretion in controlling the conduct of discovery and “[t]hus, the decision to accept late
admissions is a matter within the sound discretion of the trial court and will not be reversed on
appeal absent an abuse of that discretion.” Id. (citing Hayes v. Walt Ward Constr. Co., 8th Dist.
No. 69557, 1996 Ohio App. LEXIS 5199 (Nov. 21, 1996); Aetna Cas. & Sur. Co. v. Roland, 47
Ohio App.3d 93, 547 N.E.2d 379 (10th Dist.1988)). It is also a “basic tenet of Ohio jurisprudence
that cases should be decided on their merits.” Albrecht, Inc. v. Hambones Corp., 2002-Ohio-5939,
P20, 2002 Ohio App. LEXIS 5745, *7 (citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3, 7 Ohio
B. 256, 454 N.E.2d 951).
1
Sandra Kurt, Summit County Clerk of Courts
CV-2021-11-3527 OLDFIELD, JOY M 04/10/2022 14:14:19 PM BRIO Page 2 of 3
On March 9, 2022, Plaintiffs served their first set of Discovery Requests, including
Requests for Admissions, upon Defendant Sykes. The due date for responses to the Requests for
Admissions was April 6, 2022. Due to several extenuating circumstances, Mr. Sykes served his
responses on Plaintiff one day late – on April 7, 2022. However, without first reaching out to Mr.
Sykes’ attorney to discuss any potential discovery dispute, Plaintiffs immediately filed the pending
Motion to Deem Certain Matters Admitted. As demonstrated herein, good cause exists in this case
for this Court to utilize its discretion and accept Mr. Sykes’ one-day-late Responses.
In February of 2022, Defendant’s attorney’s legal assistant left his employ for a different
job, and a new assistant took her place beginning in the first week of March, 2022. Due to the
hectic process of onboarding his new assistant and getting her up to speed on all of his pending
legal matters, there was a mistake in calendaring the responses in Mr. Mastrantonio’s system, and
the Discovery Responses were inadvertently calendared to be due on April 8, 2022. Moreover, in
late March, when Mr. Sykes and his counsel were to prepare responses to the Discovery Requests,
Mr. Sykes tore a tendon in his arm, requiring surgery and making him unavailable for several days.
As of the time of writing this Brief in Opposition, Mr. Sykes has already responded to the
Discovery Requests, and Plaintiffs have his responses to the Requests for Admissions in their
possession. As demonstrated herein, the responses were served only one day late, due to an
administrative oversight and the circumstances of Mr. Sykes’ injury. This, coupled with the fact
that this case is still very early in the litigation process (the case management conference setting
dates just occurred on April 5), demonstrates that there is absolutely no prejudice to Plaintiffs in
this Court exercising its discretion in accepting the late responses. Plaintiffs do not allege any
prejudice to them in their Motion either. See e.g., Albrecht, 2002 Ohio App. LEXIS at *7-8 (“The
present case was only in the beginning phase when appellee filed its motion to deem admitted.
2
Sandra Kurt, Summit County Clerk of Courts
CV-2021-11-3527 OLDFIELD, JOY M 04/10/2022 14:14:19 PM BRIO Page 3 of 3
Had the case been further along and prejudice demonstrated, denial of appellants’ motion to
withdraw or amend may have been in order. However, in this case appellants should have been
allowed to withdraw or amend their admissions in order to allow the case to be decided on its
merits.”).
For the reasons stated herein, Defendant, Ronald Sykes, respectfully requests that this
Court deny Plaintiffs’ Motion to Deem Certain Matters Admitted.
Respectfully submitted,
WEISENSELL, MASTRANTONIO & NIESE, LLP
/s/ Steven W. Mastrantonio
Steven W. Mastrantonio (0062575)
Daniel J. Orlando (0097425)
The Nantucket Building
23 South Main Street, Suite 301
Akron, Ohio 44308
T: (330) 434-1000
F: (330) 434-1001
Emails: mastrantonio@nwm-law.com
dorlando@nwm-law.com
Counsel for Defendant, Ronald Sykes
Certificate of Service
I hereby certify that a true and accurate copy of the foregoing Defendant’s Brief in
Opposition to Plaintiffs’ Motion to Deem Certain Matters Admitted was filed electronically on
this 11th day of April 2022. Notice of this filing will be sent by operation of the Court’s electronic
filing system to all counsel of record.
/s/ Steven W. Mastrantonio
Steven W. Mastrantonio (0062575)
3
Sandra Kurt, Summit County Clerk of Courts
Preview
CV-2021-11-3527 OLDFIELD, JOY M 04/10/2022 14:14:19 PM BRIO Page 1 of 3 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO MICHAEL J. GERRASCH, et al., ) CASE NO.: CV-2021-11-3527 ) Plaintiffs, ) JUDGE JOY OLDFIELD ) v. ) ) NEW RIVER CONSTRUCTION, INC., ) DEFENDANT’S BRIEF IN et al., ) OPPOSITION TO PLAINTIFFS’ ) MOTION TO DEEM CERTAIN Defendants. ) MATTERS ADMITTED Now comes Defendant, Ronald Sykes (“Mr. Sykes” or “Defendant”), by and through the undersigned counsel, and respectfully submits his Brief in Opposition to the Motion to Deem Certain Matters Admitted filed by Plaintiffs, Michael and Shereen Gerrasch (the “Gerrasches” or Plaintiffs”). “Although Civ.R. 36(A) deems requests admitted if no response is made within the allotted time, … a judge has discretion to allow withdrawal or amendment of the requests under Civ.R. 36(B).” United States Bank v. Downey, 2013-Ohio-494, P16, 2013 Ohio App. LEXIS 426, *7 (citing Knox v. Hetrick, 8th Dist. No. 91102, 2009 Ohio 1359, ¶ 72). Ohio courts also have broad discretion in controlling the conduct of discovery and “[t]hus, the decision to accept late admissions is a matter within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion.” Id. (citing Hayes v. Walt Ward Constr. Co., 8th Dist. No. 69557, 1996 Ohio App. LEXIS 5199 (Nov. 21, 1996); Aetna Cas. & Sur. Co. v. Roland, 47 Ohio App.3d 93, 547 N.E.2d 379 (10th Dist.1988)). It is also a “basic tenet of Ohio jurisprudence that cases should be decided on their merits.” Albrecht, Inc. v. Hambones Corp., 2002-Ohio-5939, P20, 2002 Ohio App. LEXIS 5745, *7 (citing Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3, 7 Ohio B. 256, 454 N.E.2d 951). 1 Sandra Kurt, Summit County Clerk of Courts CV-2021-11-3527 OLDFIELD, JOY M 04/10/2022 14:14:19 PM BRIO Page 2 of 3 On March 9, 2022, Plaintiffs served their first set of Discovery Requests, including Requests for Admissions, upon Defendant Sykes. The due date for responses to the Requests for Admissions was April 6, 2022. Due to several extenuating circumstances, Mr. Sykes served his responses on Plaintiff one day late – on April 7, 2022. However, without first reaching out to Mr. Sykes’ attorney to discuss any potential discovery dispute, Plaintiffs immediately filed the pending Motion to Deem Certain Matters Admitted. As demonstrated herein, good cause exists in this case for this Court to utilize its discretion and accept Mr. Sykes’ one-day-late Responses. In February of 2022, Defendant’s attorney’s legal assistant left his employ for a different job, and a new assistant took her place beginning in the first week of March, 2022. Due to the hectic process of onboarding his new assistant and getting her up to speed on all of his pending legal matters, there was a mistake in calendaring the responses in Mr. Mastrantonio’s system, and the Discovery Responses were inadvertently calendared to be due on April 8, 2022. Moreover, in late March, when Mr. Sykes and his counsel were to prepare responses to the Discovery Requests, Mr. Sykes tore a tendon in his arm, requiring surgery and making him unavailable for several days. As of the time of writing this Brief in Opposition, Mr. Sykes has already responded to the Discovery Requests, and Plaintiffs have his responses to the Requests for Admissions in their possession. As demonstrated herein, the responses were served only one day late, due to an administrative oversight and the circumstances of Mr. Sykes’ injury. This, coupled with the fact that this case is still very early in the litigation process (the case management conference setting dates just occurred on April 5), demonstrates that there is absolutely no prejudice to Plaintiffs in this Court exercising its discretion in accepting the late responses. Plaintiffs do not allege any prejudice to them in their Motion either. See e.g., Albrecht, 2002 Ohio App. LEXIS at *7-8 (“The present case was only in the beginning phase when appellee filed its motion to deem admitted. 2 Sandra Kurt, Summit County Clerk of Courts CV-2021-11-3527 OLDFIELD, JOY M 04/10/2022 14:14:19 PM BRIO Page 3 of 3 Had the case been further along and prejudice demonstrated, denial of appellants’ motion to withdraw or amend may have been in order. However, in this case appellants should have been allowed to withdraw or amend their admissions in order to allow the case to be decided on its merits.”). For the reasons stated herein, Defendant, Ronald Sykes, respectfully requests that this Court deny Plaintiffs’ Motion to Deem Certain Matters Admitted. Respectfully submitted, WEISENSELL, MASTRANTONIO & NIESE, LLP /s/ Steven W. Mastrantonio Steven W. Mastrantonio (0062575) Daniel J. Orlando (0097425) The Nantucket Building 23 South Main Street, Suite 301 Akron, Ohio 44308 T: (330) 434-1000 F: (330) 434-1001 Emails: mastrantonio@nwm-law.com dorlando@nwm-law.com Counsel for Defendant, Ronald Sykes Certificate of Service I hereby certify that a true and accurate copy of the foregoing Defendant’s Brief in Opposition to Plaintiffs’ Motion to Deem Certain Matters Admitted was filed electronically on this 11th day of April 2022. Notice of this filing will be sent by operation of the Court’s electronic filing system to all counsel of record. /s/ Steven W. Mastrantonio Steven W. Mastrantonio (0062575) 3 Sandra Kurt, Summit County Clerk of Courts