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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
October 9,2023 13:50
By: DEREK SMITH 0098090
Confirmation Nbr. 2985157
ANA BURGOS RIVERA CV 23 981810
vs.
Judge: DEENAR. CALABRESE
MOUSAE. KHIRLSEID
Pages Filed: 6
Electronically Filed 10/09/2023 13:50 / BRIEF / CV 23 981810 / Confirmation Nbr. 2985157 / CLAMW
IN Till: COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANA BURGOS RIVERA ) CASE NO. CV 23 981810
)
Plaintiffs, ) JUDGE: DEENA R. CALABRESE
)
v. ) PLAINTIFFS’ BRIEF IN OPPOSITION
) TO DEFENDANT’S MOTION TO
MOUSA E. KHIRELSEID ) DISMISS
)
Defendants.
Now comes Plaintiffs, by and through undersigned counsel, and hereby oppose
Defendant's Motion to Dismiss
I. Statement of the case
Counsel for Plaintiff admits that he did not attend the Case Management Conference on
September 15, 2023 and on September 29, 2023. Counsel has been having an ongoing an issue
with his email where electronic notices from the court (along with other important email
notifications) have been going into the spam folder. As a result, counsel has missed several
important events, including the ones in this case. Counsel apologizes to this Court, the Defendant
and counsel for Defendant for not attending the Case Management Conference. Counsel in no
way meant any disrespect to the Court or the parties involved.
Counsel for Defendant has noted in his brief and submitted exhibits showing attempts to
reach me via email. Counsel for Plaintiff did receive Defendant's answer and discovery requests
and is currently working to get those responses. Unfortunately, counsel for Defendant has been
sending other emails to the wrong email. The email used on Plaintiff s Complaint, which is the
correct email for Plaintiffs counsel, is derck@dwsmithlegal.com. As you can see from the
exhibits in Defendant's motion, the email address being used to contact Plaintiff s counsel is
dsmith@zmlaws.com.
Electronically Filed 10/09/2023 13:50 I BRIEF I CV 23 981810 I Confirmation Nbr. 2985157 ICLAMW
II. I .aw and Analysis
Before a trial court can properly dismiss a party's claim lor failure to prosecute under Civ.R.
41 (B)( 1), the record must show that the party had notice of the possibility of dismissal. The purpose
of the notice requirement is to provide a party who is in default of a court order an opportunity to
correct or explain the circumstances of the party's default and to provide reasons why the case
should not be dismissed with prejudice. Whipple v. Estate of Prentiss, 2020-Ohio-2825, PI, 154
N.E.3d 550. 552, 2020 Ohio App. LEXIS 1784. Civ.R. 41 (B)( 1 )'s notice requirement is satisfied
when counsel has been informed that dismissal is a possibility and has had a reasonable
opportunity to defend against dismissal. Id.
In this case, the journal entry from the Court does not note a possibility of dismissal for not
attending the Case Management Conference. See Exhibit A. The journal entry states, “any party
who fails to participate in the CMC will be deemed to have accepted the scheduling order
established by the court.” The Court clearly states the punishment for not attending the CMC.
There is no mention of possible dismissal of the case.
Civ.R. 60(B) provides that, on motion and upon such terms as arc just, the court may relieve
a party from a final judgment, order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect. To determine whether neglect is excusable or
inexcusable, a court must consider all the surrounding facts and circumstances. State ex rel.
Jackson v. Ohio Adult Parole Auth., 140 Ohio St. 3d 23, 24. 2014-Ohio-2353, Pl, 14 N.E.3d 1003,
1004. 2014 Ohio LEXIS 1361.
In this case, counsel for Plaintiff did not receive the email notices from the Court
scheduling the CMC because the notice went to the spam folder. Admittedly counsel should do
a better job of checking the Court’s electronic docket.
Electronically Filed 10/09/2023 13:50 / BRIEF / CV 23 981810 / Confirmation Nbr. 2985157 / CLAMW
Dismissal with prejudice is an extremely harsh sanction. The power of the trial court to
prevent undue delays and control its docket must be balanced against the policy that favors
disposition of litigation on the merits. Whipple v. Estale of Premiss, 2020-Ohio-2825, Pl, 154
N.E.3d 550, 552. 2020 Ohio App. LEXIS 1784. Consistent with the basic tenet of Ohio
jurisprudence that cases should be decided on their merits, a dismissal with prejudice is reserved
for extreme circumstances in which a party's conduct falls substantially below what is reasonable
under the circumstances evidencing a complete disregard for the judicial system or the rights of
the opposing party. Id. A party's conduct must be so negligent, irresponsible, contumacious or
dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to prosecute
or obey a court order. Id.
Here, counsel for Plaintiff admits that he missed the initial Case Management conference
and the rescheduled case management conference. Counsel did not receive the email notices and
therefore did not attend. Counsel admits he should be checking the Court's docket and that his
conduct was irresponsible. However, that conduct was not substantially below what is reasonable
under the circumstances.
Wherefore, Plaintiff respectfully requests this Court to issue an order denying Defendant's
Motion to Dismiss.
DEREK W. SMIT11 (0098090)
D.W. Smith Legal Services
18615 Detroit Avenue Ste. #202
Lakewood, OH 44107
Tel: (216) 849-3672/Eax: (216) 712-7400
Email: derek@dwsmithlegal.com
Electronically Filed 10/09/2023 13:50 / BRIEF / CV 23 981810 I Confirmation Nbr. 2985157 I CLAMW
CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of October 2023, the foregoing was transmitted
through the Court’s electronic filing system. Parlies may access this filing through the Court's
system.
Electronically Filed 10/09/2023 13:50 I BRIEF I CV 23 981810 / Confirmation Nbr. 2985157 / CLAMW
154942044
154942044
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANA BURGOS RIVERA Case No: CV-23-981810
Plaintiff
Judge: DEENA R CALABRESE
MOUSA E. KHIRLSEID
Defendant
JOURNAL ENTRY
CASE MGMNT CONFERENCE SET FOR 09/15/2023 AT J0:00 AM.
PLEASE NOTE THAT THIS ORDER SPECIFICALLY REFERENCES Cl VII. RULE 26 AS AMENDED EFFECTIVE JULY 2020.
IN PARTICULAR THE REQUIREMENT THAT THE PARTIES FILE A WRITTEN DISCOVERY PLAN.
THE CMC WILL BE CONDUCTED AS A VIDEO CONFERENCE. PLEASE LOG IN TO THE CONFERENCE AT THE
SPECIFIED TIME BY VISITING HTTPS://ZOOM.US/JOIN AND ENTERING THE FOLLOWING MEETING CREDENTIALS:
MEETING ID: 843 0242 0326
PASSCODE: 647647
THE URL BELOW SHOULD PROVIDE ONE-CLICK ACCESS TO THE CONFERENCE.. BUT PLEASE RELY ON THE
MEETING ID AND PASSCODE ABOVE IF THE URL PROMPTS YOU FOR AN ID OR PASSCODE. OR RETURNS AN
ERROR:
HTTPS://US02WEB.ZOOM.US/J/8430242()326?PWD-CTNJSEQ2AIPREGHKA.3NYZ0XYLI2VYZZ()9
TO DISCOURAGE ABUSE. ALL COUNSEL AND OTHER INDIVIDUALS PARTICIPATING MUST HAVE AN ACCOUNT
WITH THE ZOOM VIDEO CONFERENCING SERVICE (HTTPS.7/ZOOM.US/). A PAID ZOOM ACCOUNT IS NOT
REQUIRED: THE FREE TIER IS SUFFICIENT. PRIOR TO THE EVENT. PLEASE DOWNLOAD ZOOM TO A COMPUTER OR
MOBILE DEVICE WITH A CAMERA. MICROPHONE. AND SPEAKERS. NEXT. ENSURE INTERNET BROWSER POP-UP
BLOCKERS ARE DISABLED FOR ZOOM. FINALLY. CHECK THE CAMERA. MICROPHONE. AND SPEAKERS ON YOUR
DEVICE TO MAKE SURE THEY ARE WORKING.
IN ADVANCE OF THE CONFERENCE. COUNSEL AND UNREPRESENTED PARTIES SHALL CONFER IN ACCORDANCE
WITH OHIO R. CIV. P. 26(F)( 1 )-(2). AND SHALL THEREAFTER FILE A DISCOVERY PLAN IN ACCORDANCE WITH OHIO
R. CIV. P. 26(F)(3).
T HE WRITTEN RULE 26(F) DISCOVERY PLAN SHALL BE FILED NO LATER THAN THREE BUSINESS DAYS PRIOR TO
THE CASE MANAGEMENT CONFERENCE.
DURING THE CASE MANAGEMENT CONFERENCE. SERVICE ISSUES. DISCOVERY PROGRESS AND SCHEDULE.
AMOUNT IN CONTROVERSY. EXCHANGE OF EXPERT REPORTS. DATE FOR FINAL PRETRIAL CONFERENCE.
REFERRAL TO ARBITRATION. ETC.. SHALL BE RESOLVED AND INCLUDED IN A BINDING DECREE AND ORDER
FORMALIZED. ALL COUNSEL PARTICIPATING SHALL HAVE FULL AUTHORITY TO ENTER INTO A BINDING CASE
MANAGEMENT ORDER.
THE PARTIES SHOULD NOT WAIT FOR THE CMC BEFORE BEGINNING TO CONDUCT DISCOVERY. EXCEPT IN
COMPLEX CASES. TRIAL WILL BE SCHEDULED 7 TO 9 MONTHS OU T. WI TH FINAL PRETRIALS AND/OR
08/10/2023
Electronically Filed 10/09/2023 13:50 I BRIEF I CV 23 <9818'10 I Confirmation Nbr. 2985157 I CLAMW
OX 10 2023 14:5O:2S
NAII.AH K. BYRD. CLERK
Page 1 of 2
154942044
15494204
SETTLEMENT CONFERENCES SCHEDULED FROM 2 TO 6 WEEKS PRIOR TO TRIAL.
ANY PARTY WHO FAILS TO PARTICIPATE IN THE CMC WILL BE DEEMED TO HAVE ACCEPTED THE SCHEDULING
ORDER ESTABLISHED BY THE COURT.
1
Judge Signature 08/10/2023
08/10/2023
Electronically Filed 10/09/2023 13:50 / BRIEF / CV 23'981810 '/' CbWrtifofction Nbr. 2985157 / CLAMW
OX l<) 2023 l4:5t):2K
NAIL.Al I K. BYRD. CLIIRK
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Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION October 9,2023 13:50 By: DEREK SMITH 0098090 Confirmation Nbr. 2985157 ANA BURGOS RIVERA CV 23 981810 vs. Judge: DEENAR. CALABRESE MOUSAE. KHIRLSEID Pages Filed: 6 Electronically Filed 10/09/2023 13:50 / BRIEF / CV 23 981810 / Confirmation Nbr. 2985157 / CLAMW IN Till: COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANA BURGOS RIVERA ) CASE NO. CV 23 981810 ) Plaintiffs, ) JUDGE: DEENA R. CALABRESE ) v. ) PLAINTIFFS’ BRIEF IN OPPOSITION ) TO DEFENDANT’S MOTION TO MOUSA E. KHIRELSEID ) DISMISS ) Defendants. Now comes Plaintiffs, by and through undersigned counsel, and hereby oppose Defendant's Motion to Dismiss I. Statement of the case Counsel for Plaintiff admits that he did not attend the Case Management Conference on September 15, 2023 and on September 29, 2023. Counsel has been having an ongoing an issue with his email where electronic notices from the court (along with other important email notifications) have been going into the spam folder. As a result, counsel has missed several important events, including the ones in this case. Counsel apologizes to this Court, the Defendant and counsel for Defendant for not attending the Case Management Conference. Counsel in no way meant any disrespect to the Court or the parties involved. Counsel for Defendant has noted in his brief and submitted exhibits showing attempts to reach me via email. Counsel for Plaintiff did receive Defendant's answer and discovery requests and is currently working to get those responses. Unfortunately, counsel for Defendant has been sending other emails to the wrong email. The email used on Plaintiff s Complaint, which is the correct email for Plaintiffs counsel, is derck@dwsmithlegal.com. As you can see from the exhibits in Defendant's motion, the email address being used to contact Plaintiff s counsel is dsmith@zmlaws.com. Electronically Filed 10/09/2023 13:50 I BRIEF I CV 23 981810 I Confirmation Nbr. 2985157 ICLAMW II. I .aw and Analysis Before a trial court can properly dismiss a party's claim lor failure to prosecute under Civ.R. 41 (B)( 1), the record must show that the party had notice of the possibility of dismissal. The purpose of the notice requirement is to provide a party who is in default of a court order an opportunity to correct or explain the circumstances of the party's default and to provide reasons why the case should not be dismissed with prejudice. Whipple v. Estate of Prentiss, 2020-Ohio-2825, PI, 154 N.E.3d 550. 552, 2020 Ohio App. LEXIS 1784. Civ.R. 41 (B)( 1 )'s notice requirement is satisfied when counsel has been informed that dismissal is a possibility and has had a reasonable opportunity to defend against dismissal. Id. In this case, the journal entry from the Court does not note a possibility of dismissal for not attending the Case Management Conference. See Exhibit A. The journal entry states, “any party who fails to participate in the CMC will be deemed to have accepted the scheduling order established by the court.” The Court clearly states the punishment for not attending the CMC. There is no mention of possible dismissal of the case. Civ.R. 60(B) provides that, on motion and upon such terms as arc just, the court may relieve a party from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. To determine whether neglect is excusable or inexcusable, a court must consider all the surrounding facts and circumstances. State ex rel. Jackson v. Ohio Adult Parole Auth., 140 Ohio St. 3d 23, 24. 2014-Ohio-2353, Pl, 14 N.E.3d 1003, 1004. 2014 Ohio LEXIS 1361. In this case, counsel for Plaintiff did not receive the email notices from the Court scheduling the CMC because the notice went to the spam folder. Admittedly counsel should do a better job of checking the Court’s electronic docket. Electronically Filed 10/09/2023 13:50 / BRIEF / CV 23 981810 / Confirmation Nbr. 2985157 / CLAMW Dismissal with prejudice is an extremely harsh sanction. The power of the trial court to prevent undue delays and control its docket must be balanced against the policy that favors disposition of litigation on the merits. Whipple v. Estale of Premiss, 2020-Ohio-2825, Pl, 154 N.E.3d 550, 552. 2020 Ohio App. LEXIS 1784. Consistent with the basic tenet of Ohio jurisprudence that cases should be decided on their merits, a dismissal with prejudice is reserved for extreme circumstances in which a party's conduct falls substantially below what is reasonable under the circumstances evidencing a complete disregard for the judicial system or the rights of the opposing party. Id. A party's conduct must be so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to prosecute or obey a court order. Id. Here, counsel for Plaintiff admits that he missed the initial Case Management conference and the rescheduled case management conference. Counsel did not receive the email notices and therefore did not attend. Counsel admits he should be checking the Court's docket and that his conduct was irresponsible. However, that conduct was not substantially below what is reasonable under the circumstances. Wherefore, Plaintiff respectfully requests this Court to issue an order denying Defendant's Motion to Dismiss. DEREK W. SMIT11 (0098090) D.W. Smith Legal Services 18615 Detroit Avenue Ste. #202 Lakewood, OH 44107 Tel: (216) 849-3672/Eax: (216) 712-7400 Email: derek@dwsmithlegal.com Electronically Filed 10/09/2023 13:50 / BRIEF / CV 23 981810 I Confirmation Nbr. 2985157 I CLAMW CERTIFICATE OF SERVICE I hereby certify that on this 9th day of October 2023, the foregoing was transmitted through the Court’s electronic filing system. Parlies may access this filing through the Court's system. Electronically Filed 10/09/2023 13:50 I BRIEF I CV 23 981810 / Confirmation Nbr. 2985157 / CLAMW 154942044 154942044 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANA BURGOS RIVERA Case No: CV-23-981810 Plaintiff Judge: DEENA R CALABRESE MOUSA E. KHIRLSEID Defendant JOURNAL ENTRY CASE MGMNT CONFERENCE SET FOR 09/15/2023 AT J0:00 AM. PLEASE NOTE THAT THIS ORDER SPECIFICALLY REFERENCES Cl VII. RULE 26 AS AMENDED EFFECTIVE JULY 2020. IN PARTICULAR THE REQUIREMENT THAT THE PARTIES FILE A WRITTEN DISCOVERY PLAN. THE CMC WILL BE CONDUCTED AS A VIDEO CONFERENCE. PLEASE LOG IN TO THE CONFERENCE AT THE SPECIFIED TIME BY VISITING HTTPS://ZOOM.US/JOIN AND ENTERING THE FOLLOWING MEETING CREDENTIALS: MEETING ID: 843 0242 0326 PASSCODE: 647647 THE URL BELOW SHOULD PROVIDE ONE-CLICK ACCESS TO THE CONFERENCE.. BUT PLEASE RELY ON THE MEETING ID AND PASSCODE ABOVE IF THE URL PROMPTS YOU FOR AN ID OR PASSCODE. OR RETURNS AN ERROR: HTTPS://US02WEB.ZOOM.US/J/8430242()326?PWD-CTNJSEQ2AIPREGHKA.3NYZ0XYLI2VYZZ()9 TO DISCOURAGE ABUSE. ALL COUNSEL AND OTHER INDIVIDUALS PARTICIPATING MUST HAVE AN ACCOUNT WITH THE ZOOM VIDEO CONFERENCING SERVICE (HTTPS.7/ZOOM.US/). A PAID ZOOM ACCOUNT IS NOT REQUIRED: THE FREE TIER IS SUFFICIENT. PRIOR TO THE EVENT. PLEASE DOWNLOAD ZOOM TO A COMPUTER OR MOBILE DEVICE WITH A CAMERA. MICROPHONE. AND SPEAKERS. NEXT. ENSURE INTERNET BROWSER POP-UP BLOCKERS ARE DISABLED FOR ZOOM. FINALLY. CHECK THE CAMERA. MICROPHONE. AND SPEAKERS ON YOUR DEVICE TO MAKE SURE THEY ARE WORKING. IN ADVANCE OF THE CONFERENCE. COUNSEL AND UNREPRESENTED PARTIES SHALL CONFER IN ACCORDANCE WITH OHIO R. CIV. P. 26(F)( 1 )-(2). AND SHALL THEREAFTER FILE A DISCOVERY PLAN IN ACCORDANCE WITH OHIO R. CIV. P. 26(F)(3). T HE WRITTEN RULE 26(F) DISCOVERY PLAN SHALL BE FILED NO LATER THAN THREE BUSINESS DAYS PRIOR TO THE CASE MANAGEMENT CONFERENCE. DURING THE CASE MANAGEMENT CONFERENCE. SERVICE ISSUES. DISCOVERY PROGRESS AND SCHEDULE. AMOUNT IN CONTROVERSY. EXCHANGE OF EXPERT REPORTS. DATE FOR FINAL PRETRIAL CONFERENCE. REFERRAL TO ARBITRATION. ETC.. SHALL BE RESOLVED AND INCLUDED IN A BINDING DECREE AND ORDER FORMALIZED. ALL COUNSEL PARTICIPATING SHALL HAVE FULL AUTHORITY TO ENTER INTO A BINDING CASE MANAGEMENT ORDER. THE PARTIES SHOULD NOT WAIT FOR THE CMC BEFORE BEGINNING TO CONDUCT DISCOVERY. EXCEPT IN COMPLEX CASES. TRIAL WILL BE SCHEDULED 7 TO 9 MONTHS OU T. WI TH FINAL PRETRIALS AND/OR 08/10/2023 Electronically Filed 10/09/2023 13:50 I BRIEF I CV 23 <9818'10 I Confirmation Nbr. 2985157 I CLAMW OX 10 2023 14:5O:2S NAII.AH K. BYRD. CLERK Page 1 of 2 154942044 15494204 SETTLEMENT CONFERENCES SCHEDULED FROM 2 TO 6 WEEKS PRIOR TO TRIAL. ANY PARTY WHO FAILS TO PARTICIPATE IN THE CMC WILL BE DEEMED TO HAVE ACCEPTED THE SCHEDULING ORDER ESTABLISHED BY THE COURT. 1 Judge Signature 08/10/2023 08/10/2023 Electronically Filed 10/09/2023 13:50 / BRIEF / CV 23'981810 '/' CbWrtifofction Nbr. 2985157 / CLAMW OX l<) 2023 l4:5t):2K NAIL.Al I K. BYRD. CLIIRK Page 2 of 2