Armatas v. Aultman Hosp.

2022 Ohio 4577

Opinion

[Cite as Armatas v. Aultman Hosp., 2022-Ohio-4577.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STEVEN A. ARMATAS, ET AL : Hon. Earle E. Wise, P.J. : Hon. W. Scott Gwin, J. Plaintiffs-Appellants : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2021 CA 00133 AULTMAN HOSPITAL, ET AL : : Defendants-Appellees : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2020 CV 00741

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 15, 2022

APPEARANCES:

For Plaintiffs-Appellants For Defendants-Appellees

STEVEN A. ARMATAS, ET AL PAUL J. PUSATERI 7690 Bucknell Circle N.W. 4684 Douglas Circle North Canton, OH 44720 P.O. Box 35459 Canton, OH 44735 For ICU Defendants-Appellees

BRIAN GANNON 101 West Prospect Avenue Cleveland, OH 44115 Stark County, Case No. 2021 CA 00133 2

Gwin, J.

{¶1} Appellants appeal the judgment entries by the Stark County Court of

Common Pleas granting appellees’ motion for judgment on the pleadings and motion for

summary judgment.

Facts & Procedural History

{¶2} Appellant Steven Armatas is the adult son and executor of the estate of his

father, Alexander Armatas. In 2014, Alexander was taken by ambulance to Aultman

Hospital after suffering a cardiac event. Alexander was 97 years old when he was

admitted to Aultman; Steven avers that Alexander was in good health prior to this episode.

He was intubated and placed on a respirator.

{¶3} Steven alleges that he was exposed to “relentless, overbearing pressure”

to remove his father from life support. Steven was concerned about many aspects of

Alexander’s care, including discoloration on his father’s toes and leg. Alexander was

diagnosed with dry gangrene. Steven sought second opinions about his father’s

diagnosis and prognosis. He alleges the ICU Defendants interfered with his attempts to

obtain a second opinion. Steven avers that Dr. Miller, Dr. Nashawati, and Dr. Boutros

“screamed” at him about his father’s care and condition. Alexander passed away on

December 31, 2014.

{¶4} On December 28, 2016, Steven, individually, as executor of the estate of

Alexander, and as the personal Medicare representative for Alexander (“appellants”), filed

a complaint in the Stark County Court of Common Pleas against Aultman Health

Foundation, Aultman Hospital, Aultcare Insurance, Ohio Physicians Professional

Corporation, Dr. Stjernholm, Pulmonary Physicians of Canton, Dr. Nashawati, Dr. Stark County, Case No. 2021 CA 00133 3

Boutros, Dr. Miller, Dr. Bou Serhal, and Dr. Knoch, alleging claims of medical negligence,

wrongful death, respondeat superior, agency by estoppel, and punitive damages.

Appellants amended their complaint to add claims for breach of contract, violations of

R.I.C.O., violations of the Medicare Act and Federal Medicare Advantage regulations,

negligent supervision and hiring, fraud, intentional infliction of emotional distress,

interference with business relations, denial of court, violation of federal civil rights, and

civil conspiracy. On February 20, 2018, appellants voluntary dismissed, without

prejudice, all causes of action pursuant to Civil Rule 41(A)(1)(a).

{¶5} On February 15, 2018, Armatas, individually, as executor of the estate of

Alexander, and as the personal Medicare representative for Alexander, filed a lawsuit in

federal court against Aultman Health Foundation, Aultman Hospital, Aultcare Insurance

Company, Ohio Physicians Professional Corporation, Pulmonary Physicians, Inc., Dr.

Stjernholm, Dr. Nashawati, Dr. Boutros, Dr. Miller, Dr. Bou Serhal, Matthew Knoch, Mark

Rose, Dr. Haban, and Timothy Regula, with the following causes of action: medical

malpractice; wrongful death; breach of contract; violations of the federal Medicare Act

and Federal Medicare Advantage regulations; negligent hiring and supervision; fraud;

intentional infliction of emotional distress; interference with business relations; denial of

court; violation of federal civil rights; civil conspiracy; and violations of the Racketeer

Influenced and Corrupt Practices Act (“R.I.C.O.”).

{¶6} The “ICU Defendants” (Boutros, Nashawati, Knoch, Miller, Bou Serhal,

Pulmonary Physicians), filed a motion for judgment on the pleadings as to the claims

alleged against them. The federal magistrate issued a detailed report and

recommendation on December 19, 2019, recommending that all counts asserted against Stark County, Case No. 2021 CA 00133 4

the ICU Defendants, with the exception of Count II (wrongful death), be dismissed. The

magistrate reasoned: the medical malpractice claim was not timely filed under R.C.

2305.113 and equitable tolling/estoppel does not apply; the fraud, intentional infliction of

emotional distress, and interference with business relations claims are “medical claims”

under R.C. 2305.113 and are barred by the one-year statute of limitations; and the

plaintiffs failed to state a claim for fraud because there is no allegation in the complaint

as to how the plaintiffs relied on the allegedly false statements by the ICU Defendants.

{¶7} Similarly, the “Aultman Defendants” (Aultman Hospital, Aultman Health

Foundation, and Aultcare Insurance Company) filed a motion for judgment on the

pleadings as to the claims against them. The federal magistrate issued a detailed report

and recommendation on December 19, 2019, recommending that all counts asserted

against the Aultman Defendants be dismissed, except the wrongful death claim.

{¶8} The magistrate reasoned: the claims against the Aultman Defendants,

except for the denial of court and abuse of process claims, should be dismissed on the

basis of res judicata because they could have been brought in the declaratory judgment

action filed in state court by Armatas in 2015 against Aultman Health; the medical

malpractice claim was not timely filed under R.C. 2305.113 and equitable tolling/estoppel

does not apply; the negligent hiring supervision, fraud, intentional infliction of emotional

distress, and interference with business relations claims are “medical claims” under R.C.

2305.113 and are barred by the statute of limitations; the breach of contract, violations of

the Federal Medicare Advantage Act and Medicare Advantage Act, fraud, denial of court,

abuse of process, civil conspiracy, and R.I.C.O claims should be dismissed for failure to

state a claim because a private cause of action does not exist to review the handling of Stark County, Case No. 2021 CA 00133 5

Medicare Advantage Plan grievances, the allegations of fraud are conclusory, Armatas

did not sufficiently plead an abuse of process claim, Armatas did not demonstrate the

alleged civil conspiracy was based on an actionable underlying tort, and there was not a

predicate act for a R.I.C.O claim.

{¶9} The “Stjernholm Defendants” (Stjernholm and Ohio Physicians Professional

Corporation) also filed a motion for judgment on the pleadings. The federal magistrate

issued a report and recommendation on December 19, 2019, recommending the motion

be granted as to the medical malpractice claim. The magistrate reasoned that the medical

malpractice claim was not timely filed under R.C. 2305.113 and equitable tolling/estoppel

does not apply.

{¶10} The “Rose Defendants” (Rose, Haban, and Regula) filed a motion for

judgment on the pleadings as to the count against them for violation of civil rights. The

federal magistrate issued a report and recommendation on January 2, 2020,

recommending that the motion be granted because Armatas failed to allege facts showing

the Rose Defendants were state actors.

{¶11} Armatas filed objections to the magistrate’s reports and recommendations.

The federal court issued a “memorandum of opinion and order” on March 27, 2020. The

court specifically analyzed and ruled upon each of the objections, and adopted the reports

and recommendations of the magistrate. The court explained its rationale as follows:

there is no legal support for Armatas’ contention that the claims against Rose, Haban,

and Regula are state actors simply because Aultcare’s Medical Advantage Plan is

Medicare; pursuant to Ohio appellate law, the claims the plaintiffs assert against the

Aultman Defendants and the ICU Defendants are “medical claims” and thus are subject Stark County, Case No. 2021 CA 00133 6

to the one-year statute of limitations; Armatas did not allege any legal injury flowing from

the alleged misrepresentation in his fraud claim; and Armatas’ RICO claims do not allege

any predicate acts.

{¶12} In the March 27, 2020 judgment entry, the federal court: granted in part and

denied in part the ICU Defendants’ motion to dismiss; granted Armatas’ motion to dismiss

the Aultman Defendants’ counterclaims; granted in part and denied in part the Aultman

Defendants’ motion for judgment on the pleadings; granted the motion for judgment on

the pleadings by the Stjernholm Defendants’; and granted the motion for judgment on the

pleadings by the Rose Defendants.

{¶13} The federal court issued an “order and judgment entry” on March 31, 2020.

First, the court denied Armatas’ motion to amend his complaint to modify his RICO claim.

The balance of the judgment entry states:

On March 27, 2020, the undersigned adopted numerous Reports and

Recommendations from the magistrate judge and resolved various motions

to dismiss and/or motions for judgment on the pleadings. As a result, no

federal cause of action remains in this proceeding.

28 U.S.C. § 1867(c)(3) provides: “The district courts may decline to exercise

supplemental jurisdiction over a claim under subsection (a) if …the district

court has dismissed all claims over which is has original jurisdiction[.]” As

this Court has dismissed all claims over which it had original jurisdiction, the

Court hereby declines to exercise supplemental jurisdiction over the

remaining state law claims. The remaining claims are dismissed without

prejudice, and this matter is hereby CLOSED. Stark County, Case No. 2021 CA 00133 7

{¶14} On April 30, 2020, Armatas, individually, as personal Medicare

Representative for Alexander, and executor of the state of Alexander, filed a complaint in

the Stark County Court of Common Pleas against Aultman Hospital, Aultcare Insurance

Company, Ohio Physicians Professional Corporation, Dr. Stjernholm, Pulmonary

Physicians, Dr. Nashawati, Dr. Boutros, Dr. Miller, Dr. Bou Serhal, Dr. Knoch, and Rose

with the following causes of action: medical malpractice, wrongful death, survivorship

action, breach of contract, fraud, intentional infliction of emotional distress, denial of court,

abuse of process, violation of 42 U.S.C. §1983, civil conspiracy, and violations of the

R.I.C.O. Act. Appellants filed an amended complaint on November 30, 2020, alleging the

same claims.

{¶15} On December 23, 2020, the ICU Defendants filed a motion for judgment on

the pleadings based upon res judicata, statute of limitations, and the statute of repose.

Appellants filed a memorandum in opposition.

{¶16} Subsequently, the Rose Defendants, the Stjernholm Defendants, and the

Aultman Defendants each filed motions for judgment on the pleadings. Appellants filed

a memorandum in opposition. Each of the appellees filed a reply brief.

{¶17} The trial court issued a judgment entry on May 6, 2021, granting in part and

denying in part the motions for judgment on the pleadings.

{¶18} The court entered judgment for appellees on the following claims: medical

malpractice, wrongful death, survivorship action, fraud, intentional infliction of emotional

distress, denial of access to court, abuse of process, malicious prosecution, interference

with business relations, civil conspiracy, and defamation. The court denied the motion as

to the following claims: breach of contract, violation of 42 U.S.C. § Section 1983, and Stark County, Case No. 2021 CA 00133 8

violations of the federal and Ohio R.I.C.O. Act. The trial court found that the accrual date

for Counts I and III (medical negligence and survivorship) was December 31, 2014, and

appellants did not file their initial complaint by the statute of limitations deadline of

December 31, 2015. The court found the intentional infliction of emotional distress claims

and the fraud claims against the ICU Defendants were “medical claims,” and thus subject

to the one-year statute of limitations. Further, the trial court determined the medical

claims and wrongful death claims failed to comply with the statute of repose, and the

abuse of process/denial of court claims were barred by the statute of limitations, and had

other defects entitling appellees to judgment on the pleadings. Finally, the trial court

found appellants failed to allege all the required elements for a malicious prosecution

claim, an interference with business claim, a defamation claim, and a civil conspiracy

claim. The trial court declined to grant the motions based upon res judicata because it

would require the trial court to look at documents (i.e, the federal court documents)

beyond the face of the complaint.

{¶19} On June 30, 2021, the Aultman Defendants, Stjernholm Defendants, and

Rose Defendants filed a motion for summary judgment as to the remaining claims.

{¶20} The trial court issued a final judgment entry on October 29, 2021, granting

the motions for summary judgment on the following claims: breach of contract, violation

of 42 U.S.C. § 1983, violations of the R.I.C.O. Act, violations of the Ohio R.I.C.O. Act, and

fraud with regards to the Aultman Defendants. The trial court found the federal judgment

entries were judgments as a matter of law and constituted a prior final decision on the

merits for purposes of res judicata. Further, that the second action (this case) involves Stark County, Case No. 2021 CA 00133 9

the same parties, or their privies, as the first action. Finally, that the second action raises

claims that were or could have been litigated in the first action, and that the second action

arises out of the transaction or occurrence that was the subject matter of the previous

action. Alternatively, the trial court found the claims were barred by the applicable

statutes of limitations.

{¶21} Appellants appeal the judgment entries of the Stark County Court of

Common Pleas and assign the following as error:

{¶22} “I. THE STATE TRIAL COURT COMMITTED ERROR BY DISREGARDING

A FEDERAL COURT ORDER WHICH DISMISSED ALL OF PLAINTIFF’S STATE LAW

CAUSES OF ACTION WITHOUT PREJUDICE.

{¶23} “II. THE STATE TRIAL COURT COMMITTED ERROR BY RULING

PLAINTIFF COULD NOT AVAIL HIMSELF OF 28 USC SECTION 1367(D) TO RE-FILE

HIS STATE LAW CLAIMS IN STATE COURT.

{¶24} “III. THE STATE TRIAL COURT COMMITTED ERROR BY DISMISSING

SEVERAL OF PLAINTIFF’S STATE LAW CLAIMS FOR ALLEGED ‘ADDITIONAL

DEFECTS.’”

{¶25} We initially note that appellants make clear in their briefing and arguments

that while the complaint originally contained fourteen causes of action, they have chosen

to appeal only the following counts: (1) wrongful death; (2) survivorship action; (3) breach

of contract; (4) fraud; and (5) intentional infliction of emotional distress. Stark County, Case No. 2021 CA 00133 10

Standards of Review

{¶26} The trial court granted judgment on the pleadings for all appellees on the

wrongful death, survivorship, and intentional infliction of emotional distress claims, and

for the ICU Defendants on the fraud claim.

{¶27} Civil Rule 12(C) provides, “after the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the pleadings.” The

standard of review for the grant of a motion for judgment on the pleadings is the same as

the standard of review for a Civil Rule 12(B)(6) motion, which requires the appellate court

to independently review the complaint to determine if the dismissal was appropriate.

Ferreri v. The Plain Dealer Publishing Co., 142 Ohio App.3d 629, 756 N.E.2d 712 (8th

Dist. Cuyahoga 2001). A motion for judgment on the pleadings pursuant to Civil Rule

12(C) presents only questions of law. Peterson v. Teodosio, 34 Ohio St.2d 161, 297

N.E.2d 113 (1973). The determination of a motion under Civil Rule 12(C) is restricted

solely to allegations in the pleadings and the nonmoving party is entitled to have all

material allegations in the complaint, with all reasonable inferences to be drawn

therefrom, construed in its favor. Id. Evidence in any form cannot be considered. Conant

v. Johnson, 1 Ohio App.2d 133, 204 N.E.2d 100 (4th Dist. 1964). In considering such a

motion, one must look only to the face of the complaint. State ex rel. Osborne v. City of

North Canton, 5th Dist. Stark No. 2018CA00132, 2019-Ohio-1744.

{¶28} The trial court granted summary judgment in favor of the Aultman

Defendants on the claims for breach of contract and fraud.

{¶29} Civil Rule 56 states, in pertinent part: Stark County, Case No. 2021 CA 00133 11

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds

can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being

entitled to have the evidence or stipulation construed most strongly in the

party’s favor. A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a genuine issue as

to the amount of damages.

{¶30} A trial court should not enter summary judgment if it appears a material fact

is genuinely disputed, nor if, construing the allegations most favorably towards the non-

moving party, reasonable minds could draw different conclusions from the undisputed

facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The

court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer

Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A

fact is material if it affects the outcome of the case under the applicable substantive law.

Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.

1999). Stark County, Case No. 2021 CA 00133 12

{¶31} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

I.

{¶32} In their first assignment of error, appellants contend the trial court committed

error in finding the claims in this case were barred by the doctrine of res judicata because

the “federal court clearly intended to dismiss all of the state law claims raised by plaintiff”

without prejudice to refiling in state court.

{¶33} The trial court did not dismiss any of the ICU Defendants’ claims based on

res judicata. The trial court did not dismiss the wrongful death, survivorship, or intentional

infliction of emotional distress (“IIED”) claims against any the defendants based on res

judicata. The only claims the trial court dismissed based on res judicata are the breach

of contract claim and fraud claim against the Aultman Defendants and Stjernholm

Defendants. Accordingly, we address res judicata specifically as to the breach of contract

claim against the Aultman Defendants, and the fraud claim against the Aultman and

Stjernholm Defendants.

{¶34} Res judicata can be divided into two separate subparts: claim preclusion

and issue preclusion. Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995).

Claim preclusion holds that a valid, final judgment on the merits bars all subsequent

actions based upon any claim arising out of the transaction or occurrence that was the

subject matter of the previous action. Id. Issue preclusion precludes relitigation of any

“issue that has been actually and necessarily litigated and determined in a prior action.” Stark County, Case No. 2021 CA 00133 13

Fort Frye Teachers Assn v. State Emp. Rels. Bd., 81 Ohio St.3d 392, 692 N.E.2d 140

(1998). An issue “that was actually and directly at issue in a previous action, that was

passed upon and determined by a court of competent jurisdiction, may not be drawn into

question in a subsequent action between the same parties or their privities, whether the

cause of action in the two actions be identical or different.” Id.

{¶35} Res judicata bars a second action when: (1) a court of competent

jurisdiction rendered a valid, final judgment on the merits in an earlier action; (2) the

second action involves the same parties or their privies; (3) the second action raises

claims that were or could have been litigated in the first action; and (4) the second action

arises out of the same transaction or occurrence that was the subject of the first action.

State ex rel. Armatas v. Plain Twp. Of Bd. of Zoning Appeals, 160 Ohio St.3d 161, 2020-

Ohio-2973, 154 N.E.3d 74.

{¶36} The Ohio Supreme Court has held, “a claim litigated to finality in the United

States District Court cannot be relitigated in a state court when the state claim involves

the identical subject matter previously litigated in federal court, and there is * * * no issue

of party or privity.” Rogers v. City of Whitehall, 25 Ohio St.3d 67, 494 N.E.2d 1387 (1986).

{¶37} Appellants argue that res judicata does not apply to bar their claims in this

case because the federal court did not render a valid, final judgment on the merits.

Appellants cite the language in the federal court’s March 30, 2020 judgment entry that the

court “declines to exercise supplemental jurisdiction over the remaining state law claims.

The remaining claims are dismissed without prejudice, and this matter is hereby

CLOSED.” Appellants’ position is that the federal court dismissed all of their state court

claims without prejudice, not just the wrongful death claims. Stark County, Case No. 2021 CA 00133 14

{¶38} We disagree with appellants’ interpretation of the federal court judgment

entries. The federal court judge rendered a judgment on each of the state law claims,

except for the wrongful death claims against the defendants.

{¶39} The federal court granted motions for judgment on the pleadings. “A

judgment on the pleadings is an adjudication on the merits, and, when sustained, results

in a final judgment.” Bork v. Downes, 6th Dist. Lucas No. L-88-297, 1989 WL 65118 (June

16, 1989); Estate of Hards v. Walton, 8th Dist. Cuyahoga No. 93185, 2010-Ohio-3596;

Rayess v. Educational Comm. For Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-

Ohio-5676, 983 N.E.2d 1267.

{¶40} The federal court granted the motions under the applicable standard for

granting motions for judgment on the pleadings. The federal court clearly undertook a

substantive review of the state claims, and issued its orders after the parties conducted

discovery and submitted dispositive motions. The magistrate issued multiple and detailed

reports and recommendations. The district court judge specifically analyzed and ruled

upon each of appellants’ objections, and adopted the reports and recommendations of

the magistrate, which included a detailed analysis of each of the state claims. The federal

court issued detailed judgment entries that set forth the legal reason as to why it was

dismissing each count. Appellants chose not to appeal this judgment entry issued by the

federal district court.

{¶41} While a federal court’s dismissal of a state law claim on solely jurisdictional

grounds in not an adjudication on the merits, in this case, the federal court did decide the

claims (other than the wrongful death claims) on the merits, as evidenced by the granting

of the judgment on the pleadings. Musa v. Gillett Communications, Inc., 119 Ohio App.3d Stark County, Case No. 2021 CA 00133 15

673, 696 N.E.2d 227 (8th Dist. Cuyahoga 1997) (res judicata applied in state action when

federal district court issued an order disposing of the pending motions and issued a

judgment entry; despite the plaintiff’s characterization of the complaint filed in federal

court, it is premised on the same set of operative facts that serve as a basis for the

plaintiff’s complaint filed in state court); Marrie v. International Local 717, 11th Dist.

Trumbull No. 2001-T-0046, 2002-Ohio-3148 (cannot attack federal decision; if the plaintiff

was troubled by federal court’s disposition of the lawsuit, the plaintiff should have filed a

direct appeal); Deaton v. Burney, 107 Ohio App.3d 407, 669 N.E.2d 1 (2nd Dist.

Montgomery 1995) (valid, final judgment on the merits of federal and state law claims in

the prior action in federal court when the federal court found the claims barred by the

relevant statute of limitations).

{¶42} Accordingly, we find the federal court judgment was a final judgment on the

merits for purposes of res judicata as to the state claims, except for the wrongful death

claims that were the “remaining” claims the federal court dismissed without prejudice.

{¶43} Appellants also contend that, pursuant to established case law, once a

federal court has decided all of the federal claims, it was required to dismiss all of the

state claims. We disagree.

{¶44} The federal court claims asserted by appellants conferred subject matter

jurisdiction on the federal court. Aschinger v. Columbus Showcase Co., 934 F.2d 1402

(6th Cir. 1991). Appellants cite United Mine Workers of America v. Gibbs, 383 U.S. 715,

86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) for the proposition that if the federal claims are

dismissed prior to trial, the state claims must also be dismissed. However, as explained

by the Sixth Circuit, the Supreme Court later modified United Mine Workers and held that Stark County, Case No. 2021 CA 00133 16

“we are not willing to defeat the commonsense policy of pendent jurisdiction * * * by a

conceptual approach that would require jurisdiction over the primary claim at all stages

as a prerequisite to the resolution of the pendent claim.” Rosado v. Wyman, 397 U.S.

397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). When the Sixth Circuit read the two Supreme

Court cases together, it held, “it is apparent that trial courts do possess some discretion

to decide a pendent state law claim once the federal basis for jurisdiction is dismissed. A

trial court must balance the interests in avoiding needless state law decisions discussed

in United Mine against the ‘commonsense’ policies of judicial economy discussed in

Rosado when deciding whether to resolve a pendent state claim on the merits.”

Providence v. Cleveland Press Publishing Co., 787 F.2d 1047 (6th Cir. 1986).

{¶45} When a district court dismisses all claims independently qualifying for the

exercise of federal jurisdiction, “federal district courts may exercise supplemental

jurisdiction over state claims not otherwise within their adjudicatory authority if those

claims are ‘part of the same case or controversy’ as the federal claims the plaintiff

asserts.” Artis v. District of Columbia, 138 S.Ct. 594, 199 L.Ed.2d 473 (2018). Further,

“nothing in the text of 28 U.S.C. § 1367(c)(3) prevents a Court from exercising

supplemental jurisdiction over some, but not all, of the relevant state law claims.”

Sussman-Automatic Corp. v. Schwartz, 15 F.Supp.3d 258 (E.D.N.Y. April 25, 2014).

{¶46} Simply because the federal court dismissed the federal claims does not

mean the federal court was unable to exercise its discretion to decide the state claims on

the merits and dismiss them pursuant to motions for judgment on the pleadings, because,

in this case, both the state and federal court claims arise from a common nucleus of Stark County, Case No. 2021 CA 00133 17

operative fact and there was substantial similarity between the analysis of the state and

federal court claims.

{¶47} Appellants also argue the doctrine of res judicata is not applicable in this

case because the breach of contract claim is not identical to the breach of contract claim

in the federal case. We disagree. The federal magistrate reviewed the breach of contract

claim contained in the federal complaint and stated the allegations contained in the

breach of contract claim were as follows:

The Contract provides that AultCare will at all times treat the enrollee with

fairness and respect; that the plan will protect the enrollee from

discrimination or unfair treatment based on age or evidence of insurability;

that the enrollee cannot be discriminated against based on whether or not

the enrollee has signed an advance directive; the enrollee has the right to

receive a summary of the information about appeals and complaints filed

against the plan; the enrollee will be given notice regarding an enrollee’s

Medicare rights within two days of admission; the enrollee has the right to

file complaints regarding the quality of medical care and receive a response

to a complaint; and an enrollee has a right to look at and receive copies of

medical records.

{¶48} Each allegation made in the federal complaint is also contained in

appellants’ amended complaint in this case (paragraphs 265-279). Appellants’ breach of

contract claim was raised and decided in the federal case. When a plaintiff does not

demonstrate that a material fact has changed since the issuance of the first judgment at

issue, a plaintiff cannot simply allege a new legal theory in an attempt to avoid res Stark County, Case No. 2021 CA 00133 18

judicata. State ex rel. Armatas v. Plain Twp. Bd. of Zoning Appeals, 160 Ohio St.3d 161,

2020-Ohio-2973, 154 N.E.3d 74.

{¶49} Further, the Ohio Supreme Court “has not limited the application of the

doctrine of res judicata to bar only subsequent actions involving the same legal theory of

recovery as a previous action.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d

226 (1995). A valid final judgment on the merits between the parties is “conclusive as to

all claims which were or might have been litigated in the first lawsuit.” Id. The fact that a

number of different legal theories may cause liability on an action arising out of a given

episode does not create multiple transactions or claims. Id.

{¶50} In the federal proceeding, the issue was whether Aultcare breached

provisions (treat enrollee with fairness, protect from discrimination or unfair treatment,

right to receive summary of information about complaints, notice of Medicare rights, right

to look at medical records) of its Medicare Advantage Plan contract with Alexander. In

this case, appellants allege that, as an enrollee in the Medicare Advantage Plan of

Aultman PrimeTime, Alexander was entitled to all the benefits of the contract from

Aultcare. The amended complaint alleges Aultcare breached the provisions (treat

enrollee with fairness, protect from discrimination or unfair treatment, right to receive

summary of information about complaints, notice of Medicare rights, right to look at

medical records) of the contract by exposing Alexander and Steven to “incessant

pressure and goading” so as to effectuate Alexander’s withdrawal from life support;

permitting Dr. Miller to verbally attack Steven on November 1, 2014; permitting Dr.

Nashawati to “verbally and maliciously” attack Steven on November 21, 2014; and Stark County, Case No. 2021 CA 00133 19

permitting Dr. Boutros to attack Steven on his decision not to terminate Alexander’s life.

These allegations either were or could have been raised in the federal court complaint.

{¶51} Similarly, the fraud claims against the Aultman and Stjernholm Defendants

are claims that were or could have been brought in the federal court case. The fraud

claims asserted by appellants in this case against the Aultman Defendants center around

whether Aultcare made intentionally false and misleading statements to Steven regarding

the requirement that he needed to have an advance directive to be recognized as

Alexander’s representative, and whether the patient advocate properly looked into

Steven’s grievance. The allegations as to fraud in the federal case are the same, and

involve whether Aultman’s representatives made false or misleading statements about

Steven’s grievance or false and misleading statements about an advance directive.

Accordingly, the claims at issue in this case arose out of the same transaction or

occurrence as the claims at issue in the federal court case.

{¶52} Finally, appellants contend the application of res judicata in this case would

be unfair because the Ohio Supreme Court has stated that res judicata “is not to be

applied so rigidly as to defeat the ends of justice or so as to work an injustice.” Goodson

v. McDonough Power Equipment, Inc., 2 Ohio St.3d 193, 443 N.E.2d 978 (1983).

Appellants argue the application of res judicata should be applied with flexibility and

application of res judicata would result in a manifest injustice in this case.

{¶53} We find no manifest injustice results from the application of res judicata in

this case. Rather, the doctrine of res judicata prevents relitigation of the issues and claims

already decided by the federal court. Appellants chose to refile their lawsuit in federal

court, had a full and fair opportunity to present both their state and federal claims to the Stark County, Case No. 2021 CA 00133 20

federal court, and took the opportunity to vigorously and fully litigate both the state and

federal claims. The federal court’s judgment entry of dismissal was entered after

extensive briefing and arguments by all of the parties. Further, appellants chose not to

appeal the March 27th or March 30th judgments entries of the district court.

{¶54} Based on the foregoing, we find the trial court did not commit error in finding

res judicata barred the fraud claim and breach of contract claim against the Aultman and

Stjernholm Defendants. Appellants’ first assignment of error is overruled.

III.

{¶55} For ease of discussion, we will next address appellants’ third assignment

of error. Appellants allege the trial court committed error by dismissing several of their

claims for “additional defects.” Appellants’ argument consists of several sub-parts.

Breach of Contract Claim

{¶56} First, appellants contend the trial court committed error in dismissing their

breach of contract claim against the Aultman Defendants because it was a different cause

of action than alleged in federal court and thus not subject to res judicata. As discussed

above, we find this argument to be not well-taken.

Wrongful Death Claims

{¶57} Appellants contend the trial court committed error in dismissing their

wrongful death claims for several reasons: (1) Ohio’s medical statute of repose does not

apply to wrongful death claims; (2) the wrongful death claims were preserved under

federal law; and (3) the wrongful death claim in this case is not a “medical” claim for

purposes of the statute of repose. Stark County, Case No. 2021 CA 00133 21

{¶58} Appellants first argue that Ohio’s medical statute of repose does not apply

to wrongful death claims. While appellants acknowledge this Court has held that wrongful

death claims are subject to the medical statute of repose in Mercer v. Keane, 5th Dist.

Coshocton No. 20CA0013, 2021-Ohio-1576, they ask us to overturn the Mercer case.

We decline to do so, and reaffirm our holding Mercer that a wrongful death action is

subject to the requirements of the medical statute of repose pursuant to R.C.

2305.113(C).

{¶59} Appellants contend their wrongful death claims were preserved under

federal law because the District Court for the Northern District of Ohio has held the statute

of repose does not apply to a wrongful death action. We disagree. All parties agree, and

it is clear from the recommendation of the magistrate and the judgment entry by the

federal court judge, that the federal court did not consider or analyze the wrongful death

claims on the merits, and returned all of the wrongful death claims to the state court.

Accordingly, the trial court in this case found the wrongful death claims were not subject

to res judicata, and analyzed them under state law. The wrongful death claims are

governed by state law. Thus, our decision in Mercer is the law that governs in this case,

and the Ohio Supreme Court will ultimately determine whether Ohio’s medical statute of

repose applies to wrongful death claims in Ohio.

{¶60} Finally, appellants contend the trial court improperly found a wrongful death

action was not an independent action and erred in finding the wrongful death claims were

“medical” claims.

{¶61} In Mercer, this Court held that while there are distinctions to be drawn

between medical claims and wrongful death claims, the statute of repose applies to Stark County, Case No. 2021 CA 00133 22

wrongful death claims that arise out of the medical care, treatment, and diagnosis

received. Id. A “medical claim” is “any claim that is asserted in any civil action against a

physician * * * hospital * * * against any employee or agent of a physician * * * hospital *

* * that arises out of the medical diagnosis, care, or treatment of any person.” R.C.

2305.113(E)(3). Further, a “medical claim” includes “derivative claims for relief that arise

from the medical diagnosis, care or treatment of a person.” Id. Derivative claims “include,

but are not limited to, claims of a parent, guardian, custodian, or spouse of an individual

who was the subject of any medical diagnosis, care, or treatment * * *that seek recovery

of damages for any of the following: (a) loss of society, consortium, companionship, care,

assistance, attention * * * or any other intangible loss that was sustained by the parent,

guardian, custodian, or spouse * * *.” R.C. 2305.113(E)(7).

{¶62} Appellants make four main allegations in their wrongful death claims against

both the ICU Defendants and Aultman Defendants: (1) the Defendants assumed

Alexander would die very shortly anyway from his cerebral injury; (2) the Defendants

supported the work and practices of Dr. Jack Kevorkian; (3) the Defendants espoused

the controversial and illegitimate theory of “medical futility”; and the Defendants believed

Alexander would never experience a “meaningful recovery” as the term was subjectively

interpreted by them. These claims against both the ICU Defendants and the Aultman

Defendants go squarely to the diagnosis, care, and treatment of Alexander, or the acts or

omissions of either the ICU Defendants or the Aultman Defendants as to Alexander. The

“assumption” that Alexander would die and belief that Alexander would not fully recover

are “medical diagnoses.” Further, the medical theories, medical practices of other

doctors, and medical literature that the defendants may have relied upon arise out of the Stark County, Case No. 2021 CA 00133 23

medical care, diagnosis, or treatment rendered by the ICU and Aultman Defendants. The

analysis of Alexander’s condition pursuant to these alleged medical theories, and the

proper medical diagnosis of Alexander, required medical expertise and professional skill.

McFarren v. Canton, 5th Dist. Stark No. 2015 CA 00052, 2016-Ohio-484. Accordingly,

we find the trial court properly determined the wrongful death claims were medical claims

subject to the medical statute of repose.

Fraud

{¶63} Appellants contend the trial court committed error in dismissing the fraud

claims of the ICU Defendants because they are not medical claims.

{¶64} This Court previously analyzed whether a fraud claim is a “medical claim”

as defined in R.C. 2305.113(E) in Rodgers v. Genesis Healthcare System, Inc., 5th Dist.

Muskingum No. CT2015-0030, 2016-Ohio-721. While we acknowledged that, in some

cases, a fraud claim may exist independent of a medical claim, we found that such fraud

claims are only independent “when the decision to misstate facts cannot be characterized

as medical in nature,” despite the label of the cause of action. Id., citing Hensley v.

Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711.

{¶65} Appellants make two primary fraud allegations against the ICU Defendants:

(1) Dr. Nashawati made false threats to Steven that he had to remove Alexander from life

support or have him transferred to another hospital, otherwise Aultman would file a lawsuit

and (2) the ICU Defendants allegedly falsified progress notes in Alexander’s medical chart

by omitting statements they made to Steven that Alexander would be removed from life

support. Stark County, Case No. 2021 CA 00133 24

{¶66} Appellants argue that since the alleged threats were against Steven, not

Alexander, they cannot be medical claims. However, despite appellants’ characterization

of the claims, the basic determination surrounding these allegations was whether

Alexander should be removed from life support, and what steps the defendants would

allegedly take in Alexander’s treatment if his family chose to leave him on life support.

The claims arose from discussions between Steven and the ICU Defendants about

Alexander’s care and treatment, the ICU Defendants’ professional opinion as to whether

Alexander would recover, and how to properly treat Alexander, which may have included

transfer to another facility or putting someone else in place to assume Alexander’s

medical care. Further, what is contained, or allegedly not contained, in the doctor’s

progress notes is determined by a doctor’s medical expertise and skill. As this Court has

previously stated, a claim that medical records were not accurate fall within the definition

of a “medical claim.” Rodgers v. Genesis Healthcare System, Inc., 5th Dist. Muskingum

No. CT2015-0030, 2016-Ohio-721.

{¶67} We find the trial court did not commit error in finding the fraud claims against

the ICU Defendants were medical claims. R.C. 2305.113(A) requires that all medical

claims be brought within one year of their accrual. Here, appellants’ claims accrued, at

the latest, on December 31, 2014, when Alexander died. Appellants did not file their initial

lawsuit in state court until December 28, 2016. Accordingly, appellants’ fraud claims

against the ICU Defendants are barred by the one-year statute of limitations. Stark County, Case No. 2021 CA 00133 25

Intentional Infliction of Emotional Distress

{¶68} Appellants contend the trial court committed error in dismissing the IIED

claims against the ICU and Aultman Defendants because the trial court improperly found

they were medical claims subject to a one-year statute of limitations.

{¶69} The allegations that compose appellants’ IIED claims are as follows: (1) Dr.

Nashawati threatened Steven that Alexander had to be removed from life support or

transferred to another hospital, and did so with intent to cause emotional distress by

threatening a lawsuit; (2) Dr. Miller accused Steven of torturing his own father by keeping

his father on life support, and this accusation was made immediately after that doctor

conducted an examination of Alexander; (3) and another ICU doctor told Steven he

“should be ashamed” to say that he was his father’s son by keeping him on life support,

and said “look at this man’s eyes, he is dead.”

{¶70} As detailed above, the basic discussion and determination surrounding

these allegations was whether Alexander should be removed from life support, and what

further steps the defendants would allegedly take in Alexander’s treatment. The claims

arose from discussions between Steven and the ICU Defendants about Alexander’s care

and treatment, and the defendants’ professional opinion, utilizing their skill and expertise,

as to whether Alexander would recover. Dr. Miller’s statement came immediately after

examining Alexander.

{¶71} Appellants contend the IIED claims are not medical claims because they

harmed Steven, a non-patient, who was not under medical care or treatment. However,

the fact that a claim is asserted by a non-patient does not mean the claim is not a medical

claim. First, R.C. 2305.113(C) defines “medical claim” as a claim arising out of the Stark County, Case No. 2021 CA 00133 26

medical diagnosis, care, or treatment of any person. Further, the definition of “medical

claim” contained in R.C. 2305.113(E)(3) includes “derivative claims.” Steven was

Alexander’s representative regarding medical decisions, and his personal Medicare

representative. As discussed above, it is clear that the doctors’ alleged communication

to Steven arose from the doctors’ treatment, diagnosis, or care of Alexander. The claim

for emotional distress arising from this communication is a derivative claim for relief under

R.C. 2305.113(E)(7) because “the essential claim * * * is one of medical malpractice,

regardless of how the claim is characterized.” Singh v. Cleveland Clinic Foundation, 8th

Dist. Cuyahoga No. 99066, 2013-Ohio-2465 (IIED claim arising from doctor’s

communication with family member is derivative claim for relief, and is thus a medical

claim); Butler v. Jewish Hosps., Inc., 1st Dist. Hamilton No. C-940119, 1995 WL 256297

(May 3, 1995) (emotional distress claim was medical claim even though the wife of the

patient filed the claim, as it arose out of the treatment of her husband, the patient); Roberts

v. Luneau-Gordon, 2nd Dist. Montgomery No. 15212, 1995 WL 703898 (Nov. 29, 1995)

(parents’ claim for IIED for alleged negligent treatment of minor child was derivative claim

of medical malpractice claim).

{¶72} Because these allegations are assertions of medical malpractice, any

emotional distress allegedly incurred as a result is necessarily a derivative claim, making

it subject to the one-year statute of limitations. We find the trial court did not commit error

in finding the IIED claims were medical claims. R.C. 2305.113(A) requires that all medical

claims be brought within one year of their accrual. Here, appellants’ claims accrued, at

the latest, on December 31, 2014, when Alexander died. Appellants did not file their initial Stark County, Case No. 2021 CA 00133 27

lawsuit in state court until December 28, 2016. Accordingly, appellants’ IIED claims are

barred by the statute of limitations.

{¶73} Based on the foregoing, appellants’ third assignment of error is overruled.

II.

{¶74} In their second assignment of error, appellants contend the trial court

committed error by finding appellants could not avail themselves of 28 U.S.C. § 1367(D)

or R.C. 2305.19(A) to refile their state law claims in state court.

{¶75} We first note that, pursuant to our analysis in the second assignment of

error, the IIED claims and fraud claims against the ICU Defendants are “medical claims,”

and thus are subject to the one-year statute of limitations contained in R.C. 2305.113(A).

Appellants’ claims accrued, at the latest, when Alexander died on December 31, 2014.

Appellants did not file their initial lawsuit in state court until December 28, 2016, past the

one-year statute of limitations. Accordingly, neither the Ohio savings statute, nor 28

U.S.C. § 1367(D), operate to save these claims.

Statute of Repose

{¶76} As detailed above, appellants’ wrongful death and survivorship claims are

“medical claims” subject to the medical statute of repose contained in R.C. 2305.113(C).

Alexander died on December 31, 2014. Thus, pursuant to R.C. 2305.113(C), appellants’

wrongful death and survivorship claims could not be “commenced” more than four years

after December 31, 2014. Appellants initially commenced their state court action on

December 28, 2016, within the repose period. Appellants dismissed their claims pursuant

to Civil Rule 41(A) on February 20, 2018. However, they did not refile these claims in

federal court until February 15, 2019, which was after the repose period expired on Stark County, Case No. 2021 CA 00133 28

December 31, 2018. The action on these claims commenced, for purposes of the medical

statute of repose, only when the claims were refiled, which was after the four-year statute

of repose period had expired. Because appellants “commenced” the action after the

repose period expired, these claims are barred. R.C. 2305.113(C).

{¶77} Appellants argue that the savings statute contained in R.C. 2305.19(A)

operates to permit their claims. However, the Ohio Supreme Court has specifically

addressed this issue and held that a plaintiff cannot utilize R.C. 2305.19(A) to refile their

medical claims after the expiration of the statue of repose and, “unless one of the stated

exceptions applies, R.C. 2305.113(C) clearly and unambiguously prohibits the

commencement of any action upon a medical claim more than four years after the act or

omission upon which the claim is based.” Wilson v. Durrani, 164 Ohio St.3d 419, 2020-

Ohio-6827, 173 N.E.3d 448.

{¶78} Appellants contend that 28 U.S.C. § 1367(d) operates to toll the medical

statute of repose. However, the Ohio Supreme Court has held that the statute of repose

is only subject to exceptions that are expressly incorporated into it. Wilson v. Durrani,

164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448. Other than these express

exceptions, the statute of repose, “provides an absolute temporal limit on a defendant’s

potential liability.” Id. The only exceptions listed in R.C. 2305.113(C) are “persons within

the age of minority” or “persons of unsound mind.” Like the savings statute, 28 U.S.C. §

1367(d) is not expressly incorporated into R.C. 2305.113(C). Accordingly, 28 U.S.C. §

1367(d) does not operate to toll Ohio’s medical statute of repose.

{¶79} Appellant argues the trial court improperly decided this issue utilizing state

law rather than federal law. First, the cases appellants cite in support of their argument Stark County, Case No. 2021 CA 00133 29

were decided prior to the Ohio Supreme Court’s decision in Wilson. Second, in the

primary case appellants cite, Daniel v. U.S., the federal court completed its analysis

utilizing the “substantive laws of the state in which the alleged tort occurred.” The federal

court itself looked to Ohio law and cases from the Ohio Supreme Court to come to its

conclusion; Ohio law has now been clarified and this specific issue has been determined

by the Ohio Supreme Court in Wilson. Daniel v. United States, 977 F.Supp.2d 777 (N.D.

Ohio 2013). Finally, federal court decisions post-Wilson have applied the Ohio Supreme

Court’s holding in Wilson. Luse v. Durrani, 6th Cir. No. 21-3560, 2022 WL 94609 (Jan.

10, 2022); Atwood v. UC Health, S.D. Ohio No. 1:16cv593, 2021 WL 2779152 (July 2,

2021) (court previously held Ohio’s savings statute applied to save plaintiff’s claims;

however, subsequently, Supreme Court of Ohio ruled the savings statute does not save

medical claims when the statute of repose applies); Levandofsky v. Durrani, 6th Cir. No.

20-4104, 2021 WL 5710122 (Dec. 2, 2021) (relies on Ohio law; no fraud exception to the

statute of repose).

{¶80} Appellants additionally argue that Wilson v. Durrani should be applied

prospectively only, and not applied retroactively to bar his claims. However, in Wilson v.

Durrani, subsequent to the Ohio Supreme Court’s decision on December 23, 2020, the

appellees in that case filed a motion for reconsideration and memorandum in support, in

which they asked the Ohio Supreme Court to, “exercise its discretion and apply the

decision prospectively only, to cases dismissed pursuant to R.C. 2305.19(A) after

December 23, 2020.” In a “reconsideration entry” dated March 2, 2021, the Ohio

Supreme Court stated, “the memorandum * * * in support of motion for reconsideration

or, alternatively, request that [the] decision be applied prospectively only is denied.” The Stark County, Case No. 2021 CA 00133 30

Ohio Supreme Court has decided the issue. This Court is bound by the doctrine of stare

decisis to apply the Supreme Court’s precedent. Westfield Ins. Co. v. Galatis, 100 Ohio

St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256.

{¶81} We find the trial court did not commit error in finding the wrongful death and

survivorship claims are barred by the statue of repose, and neither the Ohio savings

statute, nor 28 U.S.C. § 1367(D), operate to save these claims.

Statute of Limitations

{¶82} As an alternative and independent reason for dismissal other than res

judicata (Aultman fraud) and the statute of repose (wrongful death and survivorship), the

trial court held that the wrongful death and survivorship claims against all of the

defendants and the fraud claim against the Aultman Defendants were barred by the

statute of limitations.

{¶83} With regards to the fraud claim against the Aultman Defendants, R.C.

2305.09 provides a four-year limitations period that commences when the plaintiff

discovers the fraud. Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 514 N.E.2d

709 (1987). The statute of limitations expired on December 31, 2018. Appellants timely

filed their fraud claims in 2016. The Ohio savings statute applied when appellants

dismissed their case in 2018 and refiled in 2019 in federal court. However, when the

federal court dismissed the complaint on March 31, 2020, the statute of limitations for

fraud had expired; thus, appellants’ filing in state court in April of 2020 was beyond the

{¶84} Pursuant to R.C. 2125.02(D)(1), a claim for wrongful death must be brought

within two years of the decedent’s death. The statute of limitations expired on December Stark County, Case No. 2021 CA 00133 31

28, 2016. While appellants filed their claim on December 28, 2016, they voluntarily

dismissed their case on February 20, 2018. Appellants refiled their complaint in federal

court within one year. When the federal court dismissed the complaint on March 31,

2020, the statute of limitations for wrongful death had expired; thus, appellants’ filing in

state court in April of 2020 was beyond the statute of limitations.

{¶85} Appellants argue they are entitled to rely upon 28 U.S.C. § 1367(d) as a

basis to file both their wrongful death claims against all of the defendants and the fraud

claim against the Aultman Defendants. 28 U.S.C. § 1367(d) provides that, “the period of

limitations * * * shall be tolled while the claim is pending and for a period of 30 days after

it is dismissed unless State law provides for a longer tolling period.”

{¶86} Both parties cite the United States Supreme Court case of Artis v. District

of Columbia in support of their argument. 138 S.Ct. 594, 199 L.Ed.2d 473 (2018). In that

case, the plaintiff filed a case in federal court with state and federal claims. Id. Two-and-

a-half years later, the federal court ruled against the plaintiff on the federal claims and

dismissed the state claims. The plaintiff refiled in state court 59 days later. The Supreme

Court held that the “tolling provision” of 28 U.S.C. § 1367(d) suspends the statute of

limitations both while the claim is pending in federal court and for thirty days post-

dismissal. Id.

{¶87} However, there is an important distinction between the facts in Artis and the

facts in this case. In Artis, when the plaintiff filed the complaint in federal court, two years

remained on the applicable statute of limitations for the state law claims, and the statute

of limitations expired while the federal court case was pending. Id. In this case, there is

no limitations period to “toll” because the statute of limitations had already run by the time Stark County, Case No. 2021 CA 00133 32

appellants filed the federal court case. Appellants were only permitted to file their claim

in federal court due to Ohio’s savings statute. However, the Ohio Supreme Court has

held that R.C. 2305.19(A), Ohio’s savings statute, “neither operates as a statute of

limitations nor operates to toll the statute of limitations.” Wilson v. Durrani, 164 Ohio St.3d

419, 2020-Ohio-6827, 173 N.E.3d 448; Reese v. Ohio State Univ. Hosps., 6 Ohio St.3d

162, 451 N.E.2d 1198 (1983) (savings statute “is not a statute of limitations. Neither is

R.C. 2305.19 is a tolling statute extending the period of a statute of limitations.”). 28

U.S.C. § 1367(d) operates as a stop-the-clock provision; however, in this case, there was

no clock to stop. Artis v. D.C., 199 L.Ed.2d 473, 138 S.Ct. 594 (2018) (rejecting the district

court’s reading of 28 U.S.C. § 1367(d) because it would yield the “absurdity” of a plaintiff

being permitted to refile in state court even if the limitations period on their claim had

expired before the plaintiff filed in federal court).

{¶88} We find the Ninth District Court of Appeals’ case of Vogel v. Northeast Ohio

Media Group, L.L.C., instructive in this case. 9th Dist. Medina No. 19CA0003-M, 2020-

Ohio-854. The plaintiff filed a state court complaint and voluntarily dismissed the case.

Utilizing Ohio’s savings statute, the plaintiff then filed an action against the same parties

in federal court, adding federal claims to his original claims. After the district court granted

judgment on the pleadings to the defendants on the federal claims, it declined to exercise

jurisdiction over all of the plaintiff’s state claims, and dismissed them. The plaintiff filed

an action in state court thirty-days later, alleging the same state claims. The plaintiff

argued he was allowed under 28 U.S.C. § 1367(d) to refile his state law claims, as it

operates as a stop-the-clock provision. Stark County, Case No. 2021 CA 00133 33

{¶89} However, the Ninth District stated, “the problem with plaintiff’s argument is

that the limitations period of his libel and defamation claims had already expired by the

time he filed his federal action.” Id. The Court further held, “upon review of Section

2305.19 and 28 U.S.C. § 1367(d), we conclude that there is no language in those statutes

that can be construed to allow a plaintiff who files an otherwise untimely action in federal

court pursuant to Ohio’s saving statute to file a new action in state court after the federal

court dismisses the plaintiff’s state-law claims.” Id. The plaintiff in Vogel appealed to the

Ohio Supreme Court, arguing the Ninth District erred in affirming the trial court’s grant of

summary judgment because the Ninth District’s decision was contrary to 28 U.S.C. §

1367(d) and the U.S. Supreme Court’s decision in Artis. The Ohio Supreme Court

declined jurisdiction of the plaintiff’s appeal in Vogel v. Northeast Ohio Media Group,

L.L.C., 159 Ohio St.3d 1417, 2020-Ohio-3365, 147 N.E.3d 664.

{¶90} We find the trial court did not commit error in finding appellants could not

rely on 28 U.S.C. § 1367(d) as a basis to file the claims in this case on April 30, 2020,

because the statutes of limitations for those claims expired prior to appellants’ filing their

complaint in federal court and thus there was no “period of limitations” for 28 U.S.C. §

1367(d) to toll during the pendency of the action. Appellants’ second assignment of error

is overruled.

{¶91} Based on the foregoing, we overrule appellants’ assignments of error. Stark County, Case No. 2021 CA 00133 34

{¶92} The judgment entries of the Stark County Court of Common Pleas are

affirmed.

By Gwin, J.,

Wise, Earle, P.J., and

Delaney, J., concur