City of Cleveland v. Cities Service Oil Co.

20 Ohio Misc. 179, 47 F.R.D. 543
CourtDistrict Court, N.D. Ohio
DecidedMarch 26, 1969
DocketNos. C 68-850, C 68-896 and C 68-897
StatusPublished
Cited by4 cases

This text of 20 Ohio Misc. 179 (City of Cleveland v. Cities Service Oil Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Cleveland v. Cities Service Oil Co., 20 Ohio Misc. 179, 47 F.R.D. 543 (N.D. Ohio 1969).

Opinion

Lambeos, District Judge.

These are three actions arising out of the plaintiff’s operation of the Cleveland Hopkins International Airport. The principal defendants are users and lessees of airport facilities. The defendant insurance companies have supplied the city of Cleveland with bonds indemnifying the faithful performance by the other defendants of their various commitments to the city under their leases and uses.

In each of these cases, Seymour Cross has moved the court for leave to intervene in the litigation. Since the legal issues involved in these motions are similar, the court will consider them together in this opinion.

No. C 68-850: On June 24,1968, Mr. Gross filed a written request with the Law Director of the city of Cleveland demanding that he bring suit against the Cities Service Oil Company, Hartford Accident & Indemnity Company, and OMM, Inc., for sums allegedly owed to the city in connection with the operation of a service station at the Cleveland Hopkins Airport. The Law Director did not institute such litigation. Indeed, he did not reply to Mr. Gross’ letter.

On August 15, 1968, Mr. Gross filed a taxpayer’s suit on behalf of the city of Cleveland and against the above-named defendants in the Common Pleas Court for Cuya-hoga County, Ohio. The city of Cleveland was also named as a defendant, which is customary under Ohio procedure.

On November 8, 1968, the Law Director filed Case No. C 68-850 with this court, naming the Cities Service Oil [181]*181Company and Hartford Accident & Indemnity Company as defendants. Jurisdiction is based upon diversity of citizenship.

No. C 68-896: On February 26, 1968, Mr. Cross filed a written request with tbe Law Director of tbe city of Cleveland, demanding that be bring suit against tbe Hertz Corporation and Peerless Insurance Company for amounts allegedly owed to tbe city for parking fees at tbe Cleveland Hopkins Airport. The Law Director did not institute sucb litigation. He did not reply to Mr. Cross’ letter.

On April 9, 1968, Mr. Cross filed a taxpayer’s suit in the Common Pleas Court of Cuyahoga County, Ohio. That suit was also brought on behalf of tbe city of Cleveland and named tbe Hertz Corporation and Peerless Insurance Company as defendants. Tbe city of Cleveland was also named as a defendant, as is customary under Ohio procedural rules.

On November 27, 1968, tbe Law Director for tbe city of Cleveland filed Case No. C 68-896 with this court against both tbe Hertz Corporation and Peerless Insurance Company. Jurisdiction of this court is based upon diversity of citizenship.

No. C 68-897: On February 26, 1968, Mr. Seymour Cross made a written demand upon tbe Law Director of tbe city of Cleveland to file suit against tbe Auto Rental Company, Progressive Mutual Insurance Company, and Avis Rent a Car System, Inc., for monies allegedly owing to tbe city for parldng fees at tbe Cleveland Hopkins Airport. Tbe Law Director did not institute sucb litigation. He did not reply to Mr. Cross’ letter.

On April 9, 1968, Mr. Cross filed a taxpayer’s suit in the Common Pleas Court of Cuyahoga County against tbe above-named defendants. Tbe city of Cleveland is also named as a defendant, as is customary under Ohio procedure.

On November 27, 1968, tbe city of Cleveland filed Case No. C 68-897 against Avis Rent a Car System, Inc. Diversity of citizenship is tbe basis of this court’s jurisdiction.

Tbe claims asserted by the city of Cleveland in tbe [182]*182three cases filed in this court against the various defendants are substantially identical to the claims asserted by Mr. Seymour Gross in his taxpayer’s suits in the Common Pleas Court of Cuyahoga County, Ohio. Mr. Gross has now moved to intervene in each of the cases filed in this court “to protect the public interest and in furtherance of justice. * * *”

The court notes that the city of Cleveland, named as a defendant in each of the Common Pleas Court suits, demurred to Mr. Gross’ claims in that litigation. This demurrer was sustained by the Common Pleas Court on the ground that a taxpayer may not maintain an action at law on behalf of a municipal corporation to obtain a money judgment. Mr. Gross has since amended his petition in each case in Common Pleas Court so as to assert a claim in equity. These actions are presently pending before that court.

In his motions to intervene in each of the three cases in this court, Mr. Gross originally moved to intervene as a defendant; he also moved to stay proceedings in this litigation pending the outcome of his suits in the Common Pleas Court. He has since amended his motions and now seeks to intervene as a plaintiff and to assert the claims set forth in his “second amended petition” in each case pending before the Common Pleas Court.

None of the defendants named in the various actions before this court have filed any opposition to the proposed intervention. Only the city of Cleveland has opposed intervention.

Eule 24 of the Federal Eules of Civil Procedure regulates the matter of intervention in cases before the federal courts. It provides:

“(a) Intervention of Eight. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair [183]*183or impede Ms ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
“(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of tbe United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
“ (c) Procedure. A person desiring to intervene shall serve a motion to intervene upon all parties affected thereby. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. * * *”

The city has opposed Mr. Gross’ motions to intervene on a number of grounds. The city points out that Eule 24(a) requires that the applicant for intervention as of right demonstrate “an interest” in the subject matter of the litigation. The city asserts that Mr. Gross has no interest in the subject matter of this litigation, since the claims asserted here and in the Common Pleas Court are claims belonging to the city of Cleveland. Further, the city points out that Eule 24(a) requires the applicant be so situated “that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest.” The city asserts that Mr. Gross has no interest to be protected. Having no interest, Mr. Gross cannot claim that his “interest is [not] adequately represented by existing parties.” To sum up the position of the city on this motion, the city asserts that Mr.

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273 N.E.2d 324 (Ohio Court of Appeals, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
20 Ohio Misc. 179, 47 F.R.D. 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-cleveland-v-cities-service-oil-co-ohnd-1969.