Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301
OG659 - U2
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Dottie Cocola, Case No. 23CV008301
Plaintiff, JUDGE ANDRIA C. NOBLE
VS. PLAINTIFF’S OPPOSITION TO
MOTION TO STAY DISCOVERY AND
The Foundation of the Catholic Diocese of CASE SCHEDULE
Columbus (a.k.a. The Catholic
Foundation), ef al,
Defendants.
I INTRODUCTION
Defendants The Catholic Diocese of Columbus, St. Timothy Catholic Church, and St.
Timothy Catholic School have moved to stay discovery and this Court’s case management
schedule pending a ruling on their (now moot) Motion to Dismiss. Defendants request this stay
without citing any legal authority and while blatantly disregarding the plain language of the Ohio
Rules of Civil Procedure. Moreover, the only stated grounds for the requested stay — the pendency
of Defendants’ Motion to Dismiss — no longer applies because the Motion to Dismiss was rendered
moot by Plaintiff’ s First Amended Complaint that was filed earlier this week. Even if Defendants’
Motion to Dismiss had not been mooted by the Amended Complaint, the pendency of a motion to
dismiss does not provide grounds to stay discovery, particularly where, as here, the motion to
dismiss does not have the potential to end this litigation. Further, the Civil Rules expressly permit
Plaintiff to undertake discovery on the schedule she has chosen to do so. Accordingly, for these
reasons and as more fully explained below, the motion to stay discovery is meritless and should
be denied.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301
OG659 - U2
IL. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed this action on November 21, 2023. In that Complaint, Plaintiff sought only
injunctive relief. Indeed, Plaintiff requested that this Court bar Defendants from perpetuating an
unlawful and retaliatory termination of Plaintiff's employment and issue an order requiring
Defendants to reinstate Plaintiff to the job she performed without issue for two decades.
(Complaint at {{] 57-76).
For the sake of completeness, Plaintiff also alerted the Court and Defendants of her pending
charge of discrimination with the Ohio Civil Rights Commission, the facts upon which it was
based, and advised the Court (and Defendants) of additional allegations/requests for
damages/prayers for relief that would be asserted via an Amended Complaint once she had
exhausted her administrative remedies
On December 11, 2023, the Catholic Diocese of Columbus, St. Timothy Catholic Church,
and St. Timothy Catholic School (hereinafter the “Moving Defendants”) filed a Motion to Dismiss
and Motion to Stay Discovery and Case Schedule. (The remaining two defendants have not
requested a stay.) As grounds for the motion to stay, the Moving Defendants argue only that
discovery should not be undertaken on account of their pending Motion to Dismiss. Notably, the
Moving Defendants do not cite a single case, statute, rule, or other authority to support the
requested stay of discovery
On December 14, 2023, the Ohio Civil Rights Commission issued Plaintiff a Right to Sue
letter. On December 18, 2023, Plaintiff filed an Amended Complaint, which mooted Defendants’
Motion to Dismiss and vitiating the grounds for the requested stay. See also Plaintiff’ s Opposition
to Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Ohio Civ. R. 12(B)(1).
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301
OG659 - U2
Til. LAW AND ARGUMENT
A party requesting a stay of discovery “must show particularized need ... as opposed to
making stereotyped and conclusory statements.” Rothstein v. Steinberg, 2008 WL 5716138 at *3
(N.D. Ohio) (emphasis added). Courts in Ohio have recognized that the pendency of a motion,
even one that is potentially case dispositive, does not represent good grounds for a stay. Id.
(“one argument that is usually deemed insufficient to support a stay of discovery is that a party
intends to file, or has already filed, a case-dispositive motion.”) When the pending motion has
no potential to resolve the entire case, the argument in favor of a stay is “even less persuasive.”
Id. (denying motion to stay discovery where the defendant filed a Civ. R. 12(C) motion for
judgment on the pleadings) (emphasis added).
Here, the Moving Defendants argue that their pending Motion to Dismiss supports their
request for a stay. This argument fails to several reasons. First, their Motion to Dismiss has been
rendered moot by Plaintiff's First Amended Complaint. Williams v. MJS Enterprises, Ltd., 2022-
Ohio-3695 at J 16 (4th Dist.); Everhome Mgte. Co. v. Baker, 2011-Ohio-3303 at J 25 (10th Dist.)
(“motion to dismiss an original complaint is rendered moot by subsequent filing of an amended
complaint.”).
Second, even if the Motion to Dismiss were not moot (simply for the sake of argument), it
poses no prospect of altogether extinguishing Plainuiff’s claims. Indeed, the proper remedy for a
motion to dismiss based upon failure to exhaust administrative remedies is a dismissal without
prefudice, Sweunerland vy. ixelon Generation Company 45S F Supp.3d 646, 661 (ND. Til 2620}
(“the proper remedy for a failure to exhaust adminisirative remedies is to dismiss the suit without
prejudice, thereby leaving the plaintiff free to refile her suit when and if she exhausts ail of her
adniinistrative remedies or drops the unexhausted claims” }.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301
O0G659 - U2
Third, because the pending Motion to Dismiss would not end the litigation, the requested
stay would only delay this litigation, not conserve the resources of this Court or the parties. Ohio
Bell Telephone Co., hee. v. Global NAPs Ohie, Inc., 2008 WL 6412252 (S.D. Ohio) (denying
motion to stay during pendency of a motion to dismiss for lack of subject matter jurisdiction
because “defendants should not receive a free pass on their discovery obligations simply
because they have raised an issue that may lead to dismissal” without prejudice}; Charvai v. NMP,
LLC, 2000 WL 3210379 (S.D. Ohia) (denying motion to stay during pendency of a motion to
dismiss for lack of subject matter jurisdiction because the stay would not “save [the parties} any
resources in the long nm, but would delay the ultimate resolution of the case[.}}
Fourth, the Moving Defendants fail to acknowledge that the Ohio Rules of Civil Procedure
expressly allow the discovery that Plaintiff has undertaken, even at this early stage of the litigation
Indeed, Civ. R. 30 allows for depositions to begin anytime “[alfier commencement of the action.”
Civ. R. 30(A}. Likewise, interrogatories, document requests, and requests for admission can be
served upon a defendant anytime “after service of the summons and complaint.” Civ. R. 33, 34,
and 36. These rules, none of which the Moving Detendants acknowledge, expressly allow Plaintiff
to undertake discovery just as she has. Further, the Moving Defendants provide no reason why
this Court should disregard these rules ~ and delay the progress of this case ~ simply because they
would prefer to delay discovery
On the basis of the foregoing, there are #o grounds that would support a stay of discovery
and the case schedule in this matter. To the contrary, Plaintiff should be permitied to move forward
with her discovery efforts that this case move towards the trial date established by the Court
without further delay.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301
OG659 - U2
IV. CONCLUSION
Accordingly, and for all the foregoing reasons, Plaintiff respectfully requests that this Court
deny the Motion to Stay Discovery and Case Schedule filed by the Moving Defendants and allow
discovery to proceed expeditiously as contemplated by the Ohio Rules of Civil Procedure
Respectfully submitted,
/s/ Shannon J. Polk
Shannon J. Polk (0072891)
Daniel M. Connell (0078418)
Polk Kabat, LLP
1300 W. 78th Street, Suite 305
Cleveland, OH 44102
(216) 241-0700
Fax: (216) 241-0739
dconnell@polkkabat.com
spolk@polkkabat.com
Attorneys for Plaintiff
Dottie Cocola
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301
OG659 - U2
CERTIFICATE OF SERVICE
This is to certify that on this 20" Day of December 2023, the foregoing PLAINTIFF’S
OPPOSITION TO MOTION TO STAY DISCOVERY AND CASE SCHEDULE was served on
the following attorneys of record / properly served parties for which an attorney appearance has
not been made in this Court
Via email only:
Loriann E. Fuhrer, Esq
Rob G. Schuler, Esq.
KEGLER BROWN HILL + RITTER
65 E. State Street | Suite 1800 | Columbus, OH 43215
office 614.462.5474 |
mobile 614.774.6127 |
Ifuhrer@keglerbrown.com
rschuler@keglerbrown.com
(Counsel for Defendants, The Catholic Diocese of Columbus (a.k.a. Diocese of Columbus),
St. Timothy Catholic Church, St. Timothy Catholic School)
Via Federal Express (to the address at which proper service already has been made in this case):
The Foundation of the Catholic Diocese of Columbus (a.k.a. The Catholic Foundation)
c/o Steve Hagerdorn
257 East Broad Street
Columbus, OH 43215
Father David A. Poliafico
1088 Thomas Lane
Columbus, Ohio 43220
/s/ Shannon J. Polk
Attorney for Plaintiff
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301 OG659 - U2 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Dottie Cocola, Case No. 23CV008301 Plaintiff, JUDGE ANDRIA C. NOBLE VS. PLAINTIFF’S OPPOSITION TO MOTION TO STAY DISCOVERY AND The Foundation of the Catholic Diocese of CASE SCHEDULE Columbus (a.k.a. The Catholic Foundation), ef al, Defendants. I INTRODUCTION Defendants The Catholic Diocese of Columbus, St. Timothy Catholic Church, and St. Timothy Catholic School have moved to stay discovery and this Court’s case management schedule pending a ruling on their (now moot) Motion to Dismiss. Defendants request this stay without citing any legal authority and while blatantly disregarding the plain language of the Ohio Rules of Civil Procedure. Moreover, the only stated grounds for the requested stay — the pendency of Defendants’ Motion to Dismiss — no longer applies because the Motion to Dismiss was rendered moot by Plaintiff’ s First Amended Complaint that was filed earlier this week. Even if Defendants’ Motion to Dismiss had not been mooted by the Amended Complaint, the pendency of a motion to dismiss does not provide grounds to stay discovery, particularly where, as here, the motion to dismiss does not have the potential to end this litigation. Further, the Civil Rules expressly permit Plaintiff to undertake discovery on the schedule she has chosen to do so. Accordingly, for these reasons and as more fully explained below, the motion to stay discovery is meritless and should be denied. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301 OG659 - U2 IL. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff filed this action on November 21, 2023. In that Complaint, Plaintiff sought only injunctive relief. Indeed, Plaintiff requested that this Court bar Defendants from perpetuating an unlawful and retaliatory termination of Plaintiff's employment and issue an order requiring Defendants to reinstate Plaintiff to the job she performed without issue for two decades. (Complaint at {{] 57-76). For the sake of completeness, Plaintiff also alerted the Court and Defendants of her pending charge of discrimination with the Ohio Civil Rights Commission, the facts upon which it was based, and advised the Court (and Defendants) of additional allegations/requests for damages/prayers for relief that would be asserted via an Amended Complaint once she had exhausted her administrative remedies On December 11, 2023, the Catholic Diocese of Columbus, St. Timothy Catholic Church, and St. Timothy Catholic School (hereinafter the “Moving Defendants”) filed a Motion to Dismiss and Motion to Stay Discovery and Case Schedule. (The remaining two defendants have not requested a stay.) As grounds for the motion to stay, the Moving Defendants argue only that discovery should not be undertaken on account of their pending Motion to Dismiss. Notably, the Moving Defendants do not cite a single case, statute, rule, or other authority to support the requested stay of discovery On December 14, 2023, the Ohio Civil Rights Commission issued Plaintiff a Right to Sue letter. On December 18, 2023, Plaintiff filed an Amended Complaint, which mooted Defendants’ Motion to Dismiss and vitiating the grounds for the requested stay. See also Plaintiff’ s Opposition to Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Ohio Civ. R. 12(B)(1). Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301 OG659 - U2 Til. LAW AND ARGUMENT A party requesting a stay of discovery “must show particularized need ... as opposed to making stereotyped and conclusory statements.” Rothstein v. Steinberg, 2008 WL 5716138 at *3 (N.D. Ohio) (emphasis added). Courts in Ohio have recognized that the pendency of a motion, even one that is potentially case dispositive, does not represent good grounds for a stay. Id. (“one argument that is usually deemed insufficient to support a stay of discovery is that a party intends to file, or has already filed, a case-dispositive motion.”) When the pending motion has no potential to resolve the entire case, the argument in favor of a stay is “even less persuasive.” Id. (denying motion to stay discovery where the defendant filed a Civ. R. 12(C) motion for judgment on the pleadings) (emphasis added). Here, the Moving Defendants argue that their pending Motion to Dismiss supports their request for a stay. This argument fails to several reasons. First, their Motion to Dismiss has been rendered moot by Plaintiff's First Amended Complaint. Williams v. MJS Enterprises, Ltd., 2022- Ohio-3695 at J 16 (4th Dist.); Everhome Mgte. Co. v. Baker, 2011-Ohio-3303 at J 25 (10th Dist.) (“motion to dismiss an original complaint is rendered moot by subsequent filing of an amended complaint.”). Second, even if the Motion to Dismiss were not moot (simply for the sake of argument), it poses no prospect of altogether extinguishing Plainuiff’s claims. Indeed, the proper remedy for a motion to dismiss based upon failure to exhaust administrative remedies is a dismissal without prefudice, Sweunerland vy. ixelon Generation Company 45S F Supp.3d 646, 661 (ND. Til 2620} (“the proper remedy for a failure to exhaust adminisirative remedies is to dismiss the suit without prejudice, thereby leaving the plaintiff free to refile her suit when and if she exhausts ail of her adniinistrative remedies or drops the unexhausted claims” }. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301 O0G659 - U2 Third, because the pending Motion to Dismiss would not end the litigation, the requested stay would only delay this litigation, not conserve the resources of this Court or the parties. Ohio Bell Telephone Co., hee. v. Global NAPs Ohie, Inc., 2008 WL 6412252 (S.D. Ohio) (denying motion to stay during pendency of a motion to dismiss for lack of subject matter jurisdiction because “defendants should not receive a free pass on their discovery obligations simply because they have raised an issue that may lead to dismissal” without prejudice}; Charvai v. NMP, LLC, 2000 WL 3210379 (S.D. Ohia) (denying motion to stay during pendency of a motion to dismiss for lack of subject matter jurisdiction because the stay would not “save [the parties} any resources in the long nm, but would delay the ultimate resolution of the case[.}} Fourth, the Moving Defendants fail to acknowledge that the Ohio Rules of Civil Procedure expressly allow the discovery that Plaintiff has undertaken, even at this early stage of the litigation Indeed, Civ. R. 30 allows for depositions to begin anytime “[alfier commencement of the action.” Civ. R. 30(A}. Likewise, interrogatories, document requests, and requests for admission can be served upon a defendant anytime “after service of the summons and complaint.” Civ. R. 33, 34, and 36. These rules, none of which the Moving Detendants acknowledge, expressly allow Plaintiff to undertake discovery just as she has. Further, the Moving Defendants provide no reason why this Court should disregard these rules ~ and delay the progress of this case ~ simply because they would prefer to delay discovery On the basis of the foregoing, there are #o grounds that would support a stay of discovery and the case schedule in this matter. To the contrary, Plaintiff should be permitied to move forward with her discovery efforts that this case move towards the trial date established by the Court without further delay. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301 OG659 - U2 IV. CONCLUSION Accordingly, and for all the foregoing reasons, Plaintiff respectfully requests that this Court deny the Motion to Stay Discovery and Case Schedule filed by the Moving Defendants and allow discovery to proceed expeditiously as contemplated by the Ohio Rules of Civil Procedure Respectfully submitted, /s/ Shannon J. Polk Shannon J. Polk (0072891) Daniel M. Connell (0078418) Polk Kabat, LLP 1300 W. 78th Street, Suite 305 Cleveland, OH 44102 (216) 241-0700 Fax: (216) 241-0739 dconnell@polkkabat.com spolk@polkkabat.com Attorneys for Plaintiff Dottie Cocola Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Dec 20 2:44 PM-23CV008301 OG659 - U2 CERTIFICATE OF SERVICE This is to certify that on this 20" Day of December 2023, the foregoing PLAINTIFF’S OPPOSITION TO MOTION TO STAY DISCOVERY AND CASE SCHEDULE was served on the following attorneys of record / properly served parties for which an attorney appearance has not been made in this Court Via email only: Loriann E. Fuhrer, Esq Rob G. Schuler, Esq. KEGLER BROWN HILL + RITTER 65 E. State Street | Suite 1800 | Columbus, OH 43215 office 614.462.5474 | mobile 614.774.6127 | Ifuhrer@keglerbrown.com rschuler@keglerbrown.com (Counsel for Defendants, The Catholic Diocese of Columbus (a.k.a. Diocese of Columbus), St. Timothy Catholic Church, St. Timothy Catholic School) Via Federal Express (to the address at which proper service already has been made in this case): The Foundation of the Catholic Diocese of Columbus (a.k.a. The Catholic Foundation) c/o Steve Hagerdorn 257 East Broad Street Columbus, OH 43215 Father David A. Poliafico 1088 Thomas Lane Columbus, Ohio 43220 /s/ Shannon J. Polk Attorney for Plaintiff