Toledo Fair Housing Center v. Nationwide Mutual Insurance

704 N.E.2d 663, 94 Ohio Misc. 2d 145, 1996 Ohio Misc. LEXIS 116
Lucas County Court of Common Pleas·Decided October 31, 1996·No. No. 93-1685·Published·Cited by 2 cases

Opinion

FREDERICK H. McDonald, Judge.

Thia case is before the court upon a renewed motion to transfer venue filed by defendants Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company (collectively “Nationwide”). Upon consideration of the pleadings, the written arguments of counsel, and the applicable law, I find that the motion should be denied.

I

The facts surrounding this class action lawsuit were fully set out in the Opinion and Judgment Entry of January 17, 1996. 94 Ohio Misc.2d 17, 703 N.E.2d 340. Nationwide now moves to transfer this case to an adjoining county, arguing that an impartial jury cannot be empaneled in Lucas County because (1) the class is so large that a significant percentage of veniremen will either be class members or relatives of class members; (2) if all class members and their relatives were excluded, African Americans would be underrepresented in the venire; (3) strong feelings of bias against Nationwide exist in Lucas County; and (4) considerations of judicial efficiency require transfer. Nationwide also argues that Nationwide insureds and members of other inner city neighborhoods in the city of Toledo, because they may have a financial stake in the outcome of the lawsuit, have a potentially disqualifying interest.1

II

Civ.R. 3(C) governs change of venue. Civ.R. 3(C)(4) states:

“Upon motion of any party or upon its own motion the court may transfer any action to an adjoining county within this state when it appears that a fair and impartial trial cannot be had in the county in which the suit is pending.”

The decision whether to change venue pursuant to Civ. R. 3(C)(4) is within the court’s discretion. State ex rel. Dunbar v. Ham (1976), 45 Ohio St.2d 112, 114, 74 O.O.2d 213, 213-214, 341 N.E.2d 594, 595-596. The moving party has the burden of showing that a change of venue is necessary and proper. Hanning v. New England Mut Life Ins. Co. (S.D.Ohio 1989), 710 F.Supp. 213, 215.

[148] I — 1 h — i ) — 1

The first issue is whether, given the size of the class, an impartial jury can be empaneled in Lucas County. Nationwide contends that, accounting for turnover at a rate of fifty-five percent (according to United States Census Data), but not accounting for joint ownership, a conservative estimate of the class size is roughly 18,000 persons; accounting for joint ownership at a conservative rate of thirteen percent the class size is in excess of 20,000 persons. Nationwide argues that, with a class this size, a significant percentage of veniremen would be either class members or relatives of class members and would thus be ineligible to sit as jurors. The plaintiffs, on the other hand, argue that Nationwide has exaggerated the class size. According to the plaintiffs, the turnover rate, at least in their “test” census tract,2 is actually much lower. Assuming an equally low turnover rate in all of the census tracts, a more reasonable estimate of the class size is slightly more than 11,000 persons.

It is apparent from the briefs that the ultimate size of the class is in question. Therefore, Nationwide can only speculate that a significant portion of the venire would consist of class members and their relatives. Since it is unclear at this point what the class size will be, it is too early to determine that an impartial jury cannot be empaneled in Lucas County. Accordingly, the motion to transfer venue on this basis will be denied at this time.

The second issue is whether an impartial jury can be empaneled in Lucas County if class members and their relative are' removed. Nationwide contends that, since the African-American population in the city of Toledo is largely concentrated in the twenty census tracts at issue in this lawsuit, removal of class members and their relatives would result in a “systematic” exclusion of African-American jurors. Nationwide apparently assumes that all, or most, African-Americans residing in the subject census tracts are class members. In fact, it is possible that many African-Americans residing in the subject census tracts are renters and not homeowners, and thus not members of the class. Again, to say that exclusion of class members from the jury would result in an underrepresen-tation of African-Americans is speculation. Since it is unclear how many African-Americans would actually be eligible to sit on the jury, Nationwide’s motion will be denied on this basis at this time.

The third issue is whether an impartial jury can be empaneled in Lucas County given that, according to Nation-wide, a significant percentage of the venire would consist of others in the community who have a “substantial economic stake” in the [149] outcome of the lawsuit. A related issue is whether current Nationwide insureds have enough of a financial stake in the lawsuit to require disqualification from the jury. Nationwide argues that others in the community who, like the class members, have been unable to obtain certain types of homeowner’s insurance from Nationwide have enough of an interest in the lawsuit to require, potentially, their removal from the jury venire. Nationwide also contends • that, since the plaintiffs allege that Nationwide’s practices have caused deterioration of the inner city, all members of those communities, even though they are not class members, have an interest in the outcome of the lawsuit.

Courts have held that the party challenging jurors’ impartiality must “raise a contention of bias from the realm of speculation to the realm of fact.” Cleveland v. Cleveland Elec. Illum. Co. (N.D.Ohio 1980), 538 F.Supp. 1240, 1251; see, also, N. Indiana Pub. Serv. v. Envirotech Corp. (N.D.Ind.1983), 566 F.Supp. 362, 365 (“While this court is not prepared to transfer a case based upon mere conjecture and conclusory allegations, it will consider such evidentiary support as would demonstrate the propriety of a transfer based upon prospective venireman bias.”). Courts disagree as to the standard to be applied in motions to transfer venue based on alleged juror bias. Some courts ask whether the actual impact of a verdict on any juror is remote or speculative, see In re Wyoming Tight Sands Antitrust Cases (D.Kan.1988), 723 F.Supp. 561, 563, motion for certification for interlocutory appeal denied (1989), 715 F.Supp. 307; Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock (E.D.Va.1975), 389 F.Supp. 568, 571. Other courts ask whether evidence exists that jurors subjectively believe that they will benefit from a favorable verdict, see N. Indiana Pub. Serv. v. Envirotech, 566 F.Supp. at 365. At least one court asked both questions. See Pennsylvania Power & Light v. Gulf Oil Corp. (Pa.Super.1979), 270 Pa.Super. 514, 411 A.2d 1203, 1213-1216, certiorari denied (1980), 446 U.S. 966, 100 S.Ct. 2943, 64 L.Ed.2d 825.

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Toledo Fair Housing Center v. Nationwide Mutual Insurance, 704 N.E.2d 663, 94 Ohio Misc. 2d 145, 1996 Ohio Misc. LEXIS 116 (Ohio Super. Ct. 1996).

704 N.E.2d 663 (Toledo Fair Housing Center v. Nationwide Mutual Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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