Motion for Release of Funds in SHLER IRANI Vs JOHN DOES ONE THROUGH TEN VS.JOHN DOES ONE THROUGH TEN ET AL| Trellis.Law

On August 31, 2020 a Motion,Ex Parte was filed involving a dispute between and for PERSONAL INJURY in the District Court of Franklin County.

Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T64

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

SHLER IRANI,

Plaintiff, Case No. 20-CV-5763

-vs-
JUDGE KIMBERLY COCROFT
AMF BOWLING CO. D/B/A AMF
SAWMILL LANES, et a/.,

Defendants.

ORDER AND ENTRY DISMISSING PLAINTIFF’S COMPLAINT WITH PREJUDICE
PURSUANT TO CIV. R. 41(B)(1)

This matter is before the Court upon the Court's own motion to dismiss the

complaint of Plaintiff Shler Irani (“Irani”) for failing to comply with its orders. The Court

readily acknowledges the extraordinary nature of this decision and has not reached this

point without serious contemplation and thoughtful deliberation. However, the procedural

history of this case and substantive decisions made by Irani through counsel to advance

this matter violate both the substance and spirit of not only this Court’s orders, but the

Rules of Civil Procedure that govern this litigation.

PROCEDURAL HISTORY

To understand how the Court reached this point, it will provide a detailed recitation

of the history of this case. On or about March 26, 2018, Irani filed her complaint. Under

the original case schedule, a trial of this matter was set for March 25, 2019. Defendant

Saha Saadati (“Saadati’) filed her answer on April 23, 2018. On August 2, 2018, Saadati

filed a notice to take the deposition of the plaintiff on August 6, 2018. Defendant AMF

Bowling Co. (“AMF”) filed its motion for summary judgment on November 29, 2018. Then

on December 13, 2018, Irani filed a motion for extension of time to respond to the motion

1
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T6

for summary judgment. The basis for Irani’s motion was that it had not received the

deposition transcript for AMF’s corporate representative, though Irani had not filed a

notice to take deposition of AMF’s representative nor served a subpoena for that person

to appear at a deposition. Despite this, the Court granted Irani’s motion on January 8,

2019 and ordered her to file a memorandum contra by no later than thirty days from the

date of the entry.

On February 7, 2019, Irani filed her memorandum contra AMF’s motion for

summary judgment, along with a motion for leave to file amended complaint instanter. On

February 28, 2019, AMF filed its motion to strike Irani’s surreply on its motion for summary

judgment, arguing that neither the Ohio Rules of Civil Procedure nor this Court’s Local

Rules contemplate the filing of a surreply. Then, on March 8, 2019, seventeen days before

the assigned trial date, Irani filed a motion to continue case scheduling deadlines and trial

date by 180 days or, alternatively, to stay the case pending the completion of upcoming

treatment. Prior to filing this motion, Irani had never notified the Court or opposing counsel

that she was still in treatment for injuries she alleged to have sustained and arising out of

this litigation. During the final pre-trial conference on March 11, 2019, the Court vacated

the trial date and moved the deadline for supplemental disclosure of witnesses to June 1,

2019. On March 14, 2019 and well beyond the deadline under the Civil Rules for filing,

Irani filed a memorandum in opposition to AMF’s motion to strike and AMF subsequently

filed its reply brief.

On March 25, 2019, Saadati filed notice of Independent Medical Examination

(“IME”) for Irani. The IME was scheduled for April 16, 2019 with Saadati’s expert, Dr.

Gerald Steiman. At the conclusion of a status conference held on April 11, 2019 and
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T6

based on information provided by counsel, the Court moved the trial date to October 7,

2019 with another status conference on August 14, 2019 and a final pre-trial conference

on September 23, 2019. On August 29, 2019, the Court filed its decision and entry,

denying Irani’s motion for leave to file amended complaint, denying AMF’s motion to strike

lrani’s surreply and granting AMF’s motion for summary judgment. The Court concluded

that, because Irani chose to file a combined pleading that included conflicting arguments,

it was impossible to distinguish what arguments were in support of the motion for leave

to file and what arguments were in support of the surreply, even though the surreply was

filed beyond the time contemplated by the Civil Rules. Moreover, the Court noted that

granting Irani’s motion for leave to file an amended complaint would necessitate

reopening discovery just two months prior to the trial date.

During the August 14, 2019 status conference, Irani through counsel notified the

Court that her treatment was still ongoing. Once again, neither the Court nor opposing

counsel were notified of this information until the conference. Thereafter, on September

10, 2019, Saadati filed notice to take the deposition of Dr. Steiman on September 26,

2019, and on September 20, 2019, Saadati filed a motion in limine regarding medical bills

submitted as of August 14, 2019. Before the Court could rule on that motion and one day

prior to the scheduled deposition of Dr. Steiman, Irani dismissed her complaint without

prejudice on September 25, 2019.

Over eleven months later, Irani refiled this litigation on August 31, 2020 and named

all the parties in the 2018 case as Defendants in the 2020 matter. AMF filed its answer,

as well as its motion for summary judgment, on October 5, 2020. Saadati filed her answer
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T67

on November 12, 2020. On January 12, 2021, the Court denied AMF’s motion for

summary judgment.

Under the case schedule, the deadline for supplemental disclosure of all witnesses

was March 15, 2021. On that date, Irani filed her disclosure of witnesses and identified,

among others, the following lay and/or expert witnesses:

e Dr. Robert Magnussen -— this expert is a treating physician rather than
etained expert, who will be asked to testify consistent with the opinions
and facts set forth in the treatment records of this treating physician.

Ryan Monti, PT — to testify as to the detailed of the care and treatment
provided to [Irani], conversation, observation, symptoms, injuries,
prognosis.

Melissa Kidder, PT - to testify as to the detailed of the care and treatment
provided to [Irani], conversation, observation, symptoms, injuries,
prognosis.

Scott Olenik - this expert is_a treating physician rather than a retained
xpert, who will be asked to testify consistent with the opinions and facts
set forth in the treatment records of this treating physician. (Emphasis
added.)

On May 17, 2021, the parties filed a joint motion to continue scheduling dates to

allow for private mediation set for September 16, 2021 and recommended a trial date of

January 28, 2022 with a final pre-trial conference on January 14, 2022. The Court granted

the motion on May 24, 2021 and accepted the recommendation of counsel for a trial date.

Regrettably, the mediation regarding claims between Irani and Saadati was unsuccessful.

On September 22, 2021, the Court set this matter for a status conference on October 11,

2021. At the conclusion of that conference, the Court filed an Entry, highlighting the

obligation of Irani’s counsel to provide dates on which his client would be available for
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T68

deposition, along with Irani’s updated medical records, as well as the obligation of

Saadati’s counsel to send written discovery responses. Further, the Entry stated:

Both parties stated they are preparing for trial as currently scheduled on
January 31, 2021, and are committed to that date, Consistent with these
intentions, the Court will not consider any requests for a continuance,
outside of exigent circumstances. If any issues arise that may impact the
current case schedule, counsel shall promptly notify the Court's staff
attorney (***).

On October 27, 2021, Saadati filed a notice for Irani’s deposition to occur on

November 4, 2021. Then on October 28, 2021, Irani filed a notice of partial dismissal for

AMF Bowling Co. and AMF Bowling Center, Inc. with prejudice.

Even though the deadline for supplemental joint disclosure of all witnesses was

March 15, 2021, Irani through counsel disclosed on December 17, 2021 that she intended

to call Dr. Timothy Lubenow as an expert witness. The disclosure was not made to the

Court through a filing, though it would have been more than 9 months beyond the

deadline. Rather, Irani’s counsel sent an electronic communication to Saadati’s counsel

referencing Dr. Lubenow for the first time and providing a copy of his curriculum vitae,

without requesting leave of this Court or even notifying this Court. Consequently, Saadati

filed a motion to exclude late-disclosed expert on December 17, 2021 — the same day

she received notice. Then, on December 24, 2021, Irani filed a combined memorandum

contra to Saadati’s motion to exclude expert and a motion for second extension of the

case scheduled deadlines and trial date, even though counsel for Irani represented to this

Court at the November 11, 2021 status conference that it was preparing for trial and

committed to that date. In support of her motion, counsel for Irani wrote:

As Ms. Irani’s counsel has previously disclosed to defense counsel and this
Honorable Court, Ms. Irani has asked the treating physicians time and again
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T6

to provide testimony at trial consistent with the facts and opinions set for in
the treatment records. As is often the case, the treating physicians
expressed unwillingness to voluntarily participate in the litigation or testify
at trial. COVID and Ms. Irani’s inability to travel long distances for an in-
person medical examination also presented continuous obstacles, such that
Ms. Irani has long struggled to find a medical expert willing to review the
voluminous treatment records, issue a report, participate in a discovery
deposition and testify at trial. She finally found one in Timothy Lubenow,
M.D., a prominent pain management physician in Chicago with extensive
knowledge and experience in [Complex Regional Pain Syndrome].
Although the report took significantly longer than anticipated to generate,
Dr. Lubenow was ultimately able to review all of the records and to prepare
an expert report, which was provided on December 15, 2021.

Saadati filed a motion in limine on December 22, 2021 and subsequently filed a

reply memorandum in support of the motion to exclude on December 28, 2021, wherein

she noted that she had no knowledge of Dr. Lubenow’s existence, let alone his

involvement in the litigation, until December 17, 2021. On January 5, 2022, the date by

which Irani was supposed to file a memorandum contra Saadati’s motion in limine, she

chose to file a motion for extension of time to respond to the motion in limine, instead. Not

only was January 5, 2022 the date on which Irani’s responsive pleading was due, but it

was also eleven days after Irani filed her combined memorandum contra motion to

exclude late-disclosed expert and second extension of case schedule, which leads the

Court to wonder why Irani did not think it advisable or necessary to respond to the motion

in limine in the same combined motion. Nevertheless, in her motion for extension of time,

Irani spends the bulk of the pleading challenging the integrity of the sum, substance and

process of Dr. Steiman’s deposition and eventually writes, “Plaintiff's counsel has suffered

flu-like symptoms and been in quarantine based upon believed COVID exposure since

January 1, 2022.” Because the Court never presumes that any representation regarding

the health of counsel, party or witness is less than forthcoming, the Court filed an order
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T70

of reference on January 21, 2022 for mediation with its magistrate on February 4, 2022,

which date was continued to March 16, 2022.

On March 23, 2022, Saadati filed notice to take the deposition of Dr. Whitney Luke

on March 28, 2022. The deposition was rescheduled for April 18, 2022 with a notice filed

on April 13, 2022. On September 16, 2022, the Court granted Saadati’s motion to exclude

late-disclosed expert and wrote:

[I]t is without question that Plaintiff's disclosure of Dr. Lubenow as an expert
witness was untimely and Plaintiff has admitted as much. The Court is not
convinced by any of Plaintiff's justifications for this tardiness and cannot find that
good cause existed for the late disclosure. Thus, the late disclosure constitutes a
violation of the Local Rules. Due to the belated disclosure and the prejudice it
would cause to Defendant, the Motion to Exclude is GRANTED. Timothy Lubenow,
M.D. is excluded as an expert in this matter and is not permitted to provide
testimony at trial.

On September 26, 2022, the Court held another status conference and on

September 27, 2022, it filed an entry that memorialized the September 26 conference,

vacated the October 17, 2022 trial date and requested that counsel propose dates for a

trial certain. Based on the dates provided by counsel for Irani and Saadati, the Court filed

an amended case scheduling order on April 12, 2023, setting the matter for trial on August

7, 2023 with a final pre-trial conference on July 24, 2023.

Astonishingly, on June 13, 2023, ten months after the Court issued its decision

excluding Irani’s late-disclosed expert and less than two months before the trial, Irani filed

a motion to reconsider the Court’s September 16, 2022 Decision and Entry and an

alternative notice of rebuttal trial witness, Dr. Timothy Lubenow. Saadati filed a

memorandum contra on June 21, 2023, as well as a separate motion for protective order

so that Irani would not be permitted to proceed with taking a video deposition of Dr.

Lubenow, whom the Court had already excluded for purposes of providing expert
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T71

testimony. While Irani attempted to argue that Dr. Lubenow’s testimony was necessary

to counter new opinions offered by Dr. Steiman, the Court found her argument

disingenuous, at best, and dishonest, at worst, since the video deposition of Dr. Steiman

occurred in January 2022, which was eight months before its excluded Dr. Lubenow as

an expert. Consequently, in a July 11, 2023, entry and decision, the Court denied Irani’s

motion to reconsider and alternative notice of rebuttal witness and granted Saadati’s

motion for protective order regarding Dr. Lubenow’s deposition. Specifically, the Court

noted in its decision that “[Irani] has continued to try to circumvent the rules so that her

late disclosed expert can testify at the trial in this matter. The Court has now twice found

that Dr. Lubenow is excluded from testifying in this trial. Any further attempts to use Dr.

Lubenow’s testimony constitutes and ‘annoyance, undue burden _and_ expense’ for

Defendant Saadati.” (Emphasis added.)

Believing that all matters were settled and that the parties were prepared for trial,

the Court held the final pre-trial conference on the record on July 24, 2023. Once the

Court concluded its instructions for trial protocol, ruled on all outstanding motions and

indicated that the Court would rule on objections in depositions of Drs. Steiman and Luke

on August 2, 2023, it asked counsel for the parties if there were any other issues that

needed to be addressed. At that point, counsel for Irani notified the Court that Dr. Robert

Magnussen and Dr. Scott Olenik were served with civil subpoenas to appear as witnesses

for trial on August 7, 2023. Irani’s counsel further stated that he had been in contact with

Dr. Olenik, had not received a response from Dr. Magnussen, but would provide an

update to the Court and counsel. While Irani had listed these doctors in her March 15,

2021 disclosure as “a treating physician not a retained expert’, it was unclear about why
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T72

Irani’s counsel thought it necessary to: 1) advise the Court that previously disclosed

witnesses would be appearing for trial; and 2) update the Court on his communication

with those witnesses. Believing that the underlying motivation may have been something

other than articulated by counsel, the Court reminded counsel that its expert had been

excluded. The Court further indicated that, while it was concerned by the statements and

representations of Irani’s counsel, it would withhold any additional comments. Beyond

this development, the Court also informed counsel for Irani that she never filed a response

to Saadati’s December 2021 motion in limine and had also failed to dismiss several

Defendants who had not been involved in the litigation during either its first or second

iteration. Counsel for Irani indicated that he would file the necessary dismissals prior to

trial and, on July 27, 2023, Irani filed a response to Saadati’s December 2021 motion in

limine, as well as an objection log for the video depositions.

On August 2, 2023, the Court placed its rulings on the record regarding objections

for the video deposition of Drs. Steiman and Luke. At the conclusion of the hearing and

to the Court's surprise, Irani’s counsel informed the Court that he had taken the deposition

of Dr. Olenik on August 1 and had scheduled the deposition of Dr. Magnussen for August

2. The Court inquired of Irani’s counsel regarding when notice of the depositions were

filed and counsel indicated that the subpoenas served on each doctor on July 12, 2023

functioned as the notices for deposition. The Court reminded Irani’s counsel that the

subpoenas were for each doctor to appear as witnesses at trial, not to appear at

deposition, which is an option included on form subpoenas made available through the

Court of Common Pleas. At that point, Saadati’s counsel advised the Court that he had

concerns regarding representations made by Irani’s counsel to Dr. Olenik. Specifically,
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T7

Saadati’s counsel indicated that, during the deposition, Irani’s counsel did not inform Dr.

Olenik that he had the right to be compensated for his time, neither did counsel inform

Dr. Olenik that he had the right to challenge the subpoena. In fact, Saadati’s counsel

shared he was able to elicit during Dr. Olenik’s deposition that Irani’s counsel led him to

believe the deposition, itself, was an order from this Court. Troubled by those statements,

the Court asked Irani’s counsel if such a representation had been made and he stated

that it had not. Because neither transcript had been filed to the record, the Court informed

counsel that the two unexpected deposition transcripts would need to be submitted to the

Court's staff attorney and simultaneously filed to the record by August 4, 2023 — just three

days in advance of the scheduled trial date. In addition to filing the transcripts as ordered

by the Court, Irani also filed a combined motion for reconsideration as to sustained trial

objections withdrawn by Saadati and a request for a memorialized order setting forth

objections sustained and lines stricken. Despite the fact that Irani filed these motions at

a point in time that did not give Saadati the fourteen days contemplated by the Rules of

Civil Procedure for a responsive pleading, the Court addressed this motion on what

should have been the first day of trial - August 7, 2023.

On that date, the Court:

e Made rulings on the objections contained in the unexpected deposition
transcripts of Dr. Olenik and Dr. Magnussen;

Denied Irani’s motion for reconsideration as to sustained trial objections;
and

Denied Irani’s request for a memorialized order setting forth the objections
sustained and lines stricken, as the Court made those rulings in open court
and on the record.

10
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T74

The Court then addressed the concerns raised by Saadati’s counsel regarding

representations made by Irani’s counsel during the deposition of Dr. Olenik. Specifically,

the Court noted the following exchange with Dr. Olenik during cross examination by

Saadati’s counsel:

Q By the way, Doctor, did you ever -did you even know that you would
be testifying in this case up until about two weeks ago, when you
received a subpoena from Mr. Mokhtari?

No.

Have you ever testified regarding lawsuits where one person’s suing
another for money, a civil lawsuit in the past, or is this the first time.

This is the first time.

And so are you aware that, normally, the lawyer for the plaintiff, the
person suing, tells you, I’m representing the patient, I'd like you to
testify, I'd like your rate schedule, I'll need a report from you, I'd like
to set up your deposition? None of that transpired in this case.
Instead, your first notice was a subpoena that you received from Mr.
Mokhtari, correct?

Correct.
(***)

Once you received the subpoena from Mr. Mokhtari, did you contact
him and ask him what this was all about?

I did, yes.

And what did he tell you?

| don’t recall. No, I’m sorry. | left a message, and | — Hannah, | think
the paralegal or assistant, called me back and explained it.

And did you let him know that you expected to be paid for your time
here today?

| did not.
(***)

11
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T7

Are you not seeing patients because of being here today?

Correct.

Are you being paid to be here today?

| am not.

You were not told that you have the right to be paid for your time?

| was not told.

Would you like to be paid for your time today?

I’m sure I'd like to be paid for my time today.

Well | will tell you that you have the right to be paid for your time
today.

(**)

You thought you were here because of a subpoena?

Well yes.
(**)

Did you think that if you did not appear in response to the subpoena,
you could be subject to some further action by the judge to enforce
the subpoena?

A Yes.

Olenick Depo at 75:16-78:23. Similarly, the Court noted the following exchange between

Saadati’s counsel and Dr. Magnussen:

Q Did you know anything about being involved in this lawsuit up until
receiving the subpoena three days ago?

So | had an inkling there was a lawsuit because [Mokhtari] had —
they had reached out to us — | apologize. | do not know the date,
but they had reached out to us earlier asking about this matter. So |
you knew there was something afoot, but this was my first

12
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T7

indication that there was — that it was — that | was going to be
directly involved in this.

Do you understand that your giving of testimony should be
voluntary and that you don’t need to be under the impression that
our judge is ordering you to testify.

And did you see on the subpoena that you have the right to move
to quash the subpoena?

I did not see that, no.

Okay. Are you here basically voluntarily or do you feel you’re here
because of the subpoena?

I’m here because of the subpoena, that | was asked to come testify
and | agreed to, so...

Magnussen Depo. 5:11-7:22. (Emphasis added.) These statements were wholly

inconsistent with representations made by Irani through counsel in her December 2021

responsive pleading to exclude late-disclosed expert wherein she stated that “the treating

physicians expressed unwillingness to voluntarily participate in the litigation or testify at

trial’ when, in fact, they had never been contacted to participate or to testify until two

weeks prior to the July 24, 2023 final pre-trial conference.

Moreover, the Court placed the following concerns regarding the actions of Irani

and her counsel on the record during what should have been the first day of trial on August

7, 2023:

13
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T77

During the deposition of Dr. Olenik who was Irani’s treating
psychologist, Irani’s counsel attempted to elicit testimony regarding her
medical diagnoses;

During the deposition of Dr. Magnussen, counsel for Irani attempted to
elicit testimony from notes created by Irani’s physical therapists;

During the August 2, 2023 hearing, Irani’s counsel wrote in a pleading
that the Court’s Reporter obstructed his ability to obtain a transcript of
proceedings by failing to respond to his email when, in fact, he never
sent any communication to the Court’s Reporter.

Based on the Court's review of the statements of Irani’s counsel and
the additional information from Saadati’s counsel, it appeared that
Irani’s counsel abused the authority of the Court through its subpoena
power by stating to both Dr. Olenik and Dr. Magnussen that it was the
Court, not Irani who were requiring them to participate in depositions.

Filing motions in violation of Civ. R. 6; and

Failing to comply with Loc. R. 16.

Based on lIrani’s consistent noncompliance with the rules governing the litigation,

perceived attempts to abuse the subpoena power of the Court, and disregard for the

Court’s orders during the 5 years and two iterations of this matter, the Court filed an entry

for Irani to show cause why the litigation should not be dismissed pursuant to Civ. R.

41(B)(1). To that end, the Court set the matter for a show cause hearing on August 8,

2023. The Court held a hearing on that date and heard arguments from counsel for Irani

and Saadati. The Court then gave both Irani and Saadati until August 14 to file any

responsive pleading in support of their respective positions. While Saadati filed a brief in

support of her position, Irani declined to do so.

LAW AND ANALYSIS

Civ. R. 41(B)(1) states:

Involuntary dismissal: effect thereof

14
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T78

(1) Failure to prosecute

Where the plaintiff fails to prosecute, or comply with these rules or any court
order, the court upon motion of a defendant or on its own motion may, after
notice to the plaintiff's counsel, dismiss an action or claim.

In Sazima v. Chalko, 86 Ohio St.3d 151, 158, 1999 Ohio 92, 712 N.E.2d 729, the Ohio
Supreme Court noted:

In considering dismissal under Civ.R. 41(B)(1), a trial court may properly take into
account the entire history of the litigation, including plaintiff's dilatory conduct in a
previously filed, and voluntarily dismissed, action. * * * However, "the extremely
harsh sanction of dismissal should be reserved for cases when an attorney's
conduct falls substantially below what is reasonable under the circumstances
evidencing a complete disregard for the judicial system or the rights of the
opposing party." * * * In other words, dismissal is reserved for those cases in which
"the conduct of a party is so negligent, irresponsible, contumacious or dilatory as
to provide substantial grounds for a dismissal with prejudice for a failure to
prosecute or obey a court order." * ** Absent such extreme circumstances, a court
should first consider lesser sanctions before dismissing a case with prejudice. * *
* It is "a basic tenet of Ohio jurisprudence that cases should be decided on their
merits." * * * "Thus, although reviewing courts espouse an ordinary ‘abuse of
discretion’ standard of review for dismissals with prejudice, that standard is actually
heightened when reviewing decisions that forever deny a plaintiff a review of a
claim's merits."

(Internal citations omitted.)

Factors to consider in a Civ.R. 41(B)(1) dismissal with prejudice "include the drawn-out

history of the litigation and evidence that a plaintiff is deliberately proceeding in dilatory

fashion." 533 Short N. LLC v. Zwerin, 10th Dist. No. 16AP-490, 2017-Ohio-9194, 4[21,

103 N.E.3d 258.

In the present case, the difficult conclusion that this Court feels compelled to reach

is that dismissal is appropriate. To begin, this case was first filed over five years ago in

2018 and the first indication of Irani’s pattern and practice of flouting her obligations to

comply with the rules governing this case came when she filed a motion for extension to

respond to AMF’s motion for summary judgment on the same date that her reply was due

15
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T7

— December 13, 2018.1 Additionally, the basis for the request was Irani’s late receipt of

the “parties’ deposition testimony”, even though the only deposition that was noticed by

the time AMF filed its motion for summary judgment was that of Irani. There were no other

“parties’ depositions” that had been either noticed, taken, or filed. Consequently, it

appears that lrani’s basis for the request was a mistake, at best, or a prevarication, at

worst. This conclusion is compounded by the fact that deposition transcripts of four

involved parties or corporate representatives were not filed until February 8, 2019.

Then, on March 8, 2019, just 17 days before the first scheduled trial date, Irani

filed a motion to continue the trial date by six months based on her upcoming treatment.

This motion was the first indication to the Court and opposing counsel regarding ongoing

treatment. Beyond this, Irani requested leave to file an amended complaint nearly eleven

months after filing her initial complaint, five weeks after the dispositive motion deadline.

three weeks after the discovery cutoff deadline, and in response to AMF’s motion for

summary judgment (for which they filed a motion for extension of time based on late

receipt of deposition transcripts that have never been noticed or filed). Then, on August

14, 2019 and in direct violation of the Court’s scheduling order deadlines, as well as the

civil rules regarding discovery, Irani submitted medical bills to Saadati for consideration

in the trial of this matter. In response, Saadati filed a motion in limine on September 20,

2019 to preclude the inclusion of these belated medical bills from consideration during

the trial. Ultimately, Irani dismissed this matter without prejudice on September 25, 2019,

which was two days after the final pre-trial conference and less than two weeks before

the October 7, 2019 trial date.

1 While the current Rules of Civil Procedure give a party 28 days to respond to a motion for summary judgment, there
were only 14 days for response in 2018.

16
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T80

Almost a year after the dismissal, Irani refiled this matter on August 31, 2020, once

again naming all the defendants identified in the first iteration of this matter. And, once

again, Irani almost immediately began her pattern of failing to comply with the Court's

deadlines, as well as the rules governing civil cases. Specifically, Irani failed to identify

an expert in the required March 15, 2021 disclosure and, instead, waited until over nine

months later to attempt to identify an expert. Beyond the fact that her identification was in

violation of the Court’s deadline, Irani did not even notify the Court of the belated

identification through a formal pleading. Instead, Irani’s counsel contacted counsel for

Saadati and advised of the expert in an email on December 17, 2021. On that same date,

Saadati filed a motion to exclude late-disclosed expert, Dr. Timothy Lubenow, and

highlighted Loc. R. 39 which states, “Unless subsequently amended by the assigned

judicial officer for good cause, the Original Case Schedule controls all deadlines for the

balance of the case.” In the instant case, this Court did not modify its deadline for the

disclosure of expert witnesses. Despite this incontrovertible fact, Irani filed a

memorandum contra motion to exclude late disclosed expert on Christmas Eve 2021.

Included in the memorandum contra was Irani’s motion for second extension of case

scheduling deadlines and trial date, wherein Irani argued that her “treating physicians

expressed unwillingness to voluntarily participate in the litigation or testify at trial’, despite

the fact that she identified those physicians as witnesses in her March 15, 2021 disclosure

while simultaneously failing to identify Dr. Lubenow. Saadati then filed a reply

memorandum on December 28, 2021 and recounted, “Not only was [Irani] late in

producing over one thousand pages of records in response to interrogatories and request

for production served upon [her] in this refiled lawsuit, but most of those one thousand

17
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T81

pages of records were duplicates of the records that had been previously produced in the

first filing of this action. To the extent that records were not identical to those produced in

the prior litigation, almost all of them pertained to psychological treatment in which [Irani]

complained about an abusive mother and very little appeared to have any relation to this

accident.” Reply at 2.

Saadati also filed a motion in limine on December 22, 2021. Then, in a move that

the Court should have anticipated, Irani filed a motion for extension of time to respond to

the motion in limine on January 5, 2022 — the date on which the memorandum contra was

due under the Rules of Civil Procedure and eleven days after Irani through counsel filed

her combined memorandum contra motion to exclude late-disclosed expert and motion

for second extension of case schedule. In that January 5 motion for extension of time,

Iran’s counsel wrote that he had “suffered flu-like symptoms and been in quarantine

based upon believed COVID exposure since January 1, 2022” and indicated that counsel

was in “emergency-only mode with regarding to work obligations due to ongoing flu-like

symptoms.” 2? Concerned by what this Court believed to be the focus and preparedness

of Irani’s counsel for a trial of this matter, the Court made an order of reference to its

magistrate for mediation, first scheduled for February 4, 2022 and then moved to March

16, 2022. After the mediation failed to facilitate a resolution, the deposition of Saadati’s

second expert, Dr. Whitney Luke was filed, and the deposition took place on April 13,

2022.

2? While the Court is sensitive to the unprecedented nature of the COVID-19 pandemic, the Court can think of few
litigation matters that are more emergent than a refiled action for which a litigant was attempting to persuade the
Court to allow the late disclosure of an expert witness.

18
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T82

On September 16, 2022, this Court granted Saadati’s motion to exclude late-

disclosed expert. After analyzing the requirements of Loc. R. 43, which governs

disclosure of witnesses, as well as the scope of disclosure, the Court concluded that there

was no plausible justification for Irani’s tardiness and untimely expert disclosure and,

therefore, excluded Dr. Lubenow from testifying as an expert.

Based on the ruling, the Court set the matter for a status conference on September

26. Thereafter, on September 27, 2022, the Court filed an entry vacating the October 17,

2022 trial date and ordering counsel to submit proposed trial dates. Then, on April 12,

2023, an amended case scheduling order was filed, setting this matter for trial on August

7, 2023 with a final pretrial on July 24, 2023. The Court clearly articulated that “no further

continuances will be granted absent exigent circumstances as determined by this Court.”

As previously recounted, Irani advised the Court that Drs. Magnussen and Olenik

would be appearing at trial as witnesses based on subpoenas issued on July 12, 2023.

Irani through counsel did not advise the Court of this procedural process until the July 24

final pretrial, during which time Irani’s counsel also advised the Court that, while he had

spoken with Dr. Olenik, he had not spoken with Dr. Magnussen. Later, the Court learned

that, instead of having the witnesses appear at trial, as represented to the Court and as

indicated on the subpoenas that were issued and filed, Irani’s counsel had, instead, used

the subpoena power of the Court to secure deposition testimony from Drs. Magnussen

and Olenik. Beyond the seeming abuse of the Court’s subpoena power, based on the

doctors’ testimony, Irani’s counsel also failed to advise the doctors that they were entitled

to be compensated for their time and further intimated to each that, if they did not appear

for deposition, then they may be subject to sanction by the Court, even though this Court

19
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 05 5:10 PM-20CV005763
0G571 - T8

had no knowledge of either deposition.* Further, in an effort to clarify his role in the

litigation Dr. Magnussen began his testimony by highlighting that he was a fact witness

and “would just be essentially reading my notes to him.” Magnussen

For full print and download access, please subscribe at https://www.trellis.law/.

Motion,Ex Parte: SHLER IRANI Vs JOHN DOES ONE THROUGH TEN VS.JOHN DOES ONE THROUGH TEN ET AL

Preview

Case Info

Parties

Motion,Ex Parte: SHLER IRANI Vs JOHN DOES ONE THROUGH TEN VS.JOHN DOES ONE THROUGH TEN ET AL

Preview

Related Topics

Case Info

Parties