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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
November 30,2023 16:25
By: CHRISTOPHER R. ELKO 0101860
Confirmation Nbr. 3030473
LISA GARRETT, INDIV AND AS ADM EST NATHAN CV 23 986997
GARRETT
vs.
Judge: DEENA R. CALABRESE
CRUZ D. ALLEN, ET AL.
Pages Filed: 12
Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / Confirmation Nbr. 3030473 / CLSLP
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
LISA GARRETT, Individually and as ) CASE NO. CV-23-986997
Administrator of the Estate of Nathan )
Alexander Garrett, deceased. )
) JUDGE DEENA R. CALABRESE
Plaintiff, )
)
v. ) PLAINTIFF’S BRIEF IN OPPOSITION
) TO DEFENDANT JAMES R.
CRUZ D. ALLEN, et al. ) MEADE’S PARTIAL MOTION TO
) DISMISS
Defendants. )
)
)
Now comes Plaintiff Lisa Garrett, Individually and as Administrator of the Estate of Nathan
Garrett, deceased (“Plaintiff”), by and through undersigned counsel, who respectfully submits this
Brief in Opposition to Defendant James R. Meade’s (“Defendant Meade”) Motion to Dismiss. Under
Ohio’s standards for pleading and Civ.R. 12(b)(6) Motions, as well as pertinent case law, and the
Ohio Constitution, the subject legal action has been timely commenced within the correct statute of
limitations. A Brief in Opposition is attached hereto and incorporated herein by reference.
Respectfully submitted,
/s/ John R. Liber, II
JOHN R. LIBER, II (0058424)
CHRISTOPHER R. ELKO (0101860)
Thrasher Dinsmore & Dolan, LPA
1282 West 58th Street
Cleveland, Ohio 44102
216.255.5431 | Fax 216.255.5450
jliber@tddlaw.com
celko@tddlaw.com
Counsel for Plaintiff
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BRIEF IN OPPOSITION
I. INTRODUCTION - STATEMENT OF FACTS
On October 20, 2021, Nathan Alexander Garrett (“Mr. Garrett”) was killed by a
gunshot wound to his head while in a cabin on the property located at 3220 Goshun Run Road,
Chesterhill, Ohio 43728 (the “Cabin”). Compl. at ¶ 25. Mr. Garrett, and Defendants Cruz Allen,
Trance Van Liere, Thomas Develin, James Meade, Christoper Leach, and Jordan Haas
(collectively the “Guardsman Defendants”) were present in McConnelsville, Ohio on the date of
Mr. Garrett’s death for required training with the Ohio National Guard (the “ONG”). Id. at ¶ 16.
At some time after 5:30 p.m. on October 20, 2021, the Guardsman Defendants, except for
Defendant Trance Van Liere, congregated at the Property and began consuming alcohol and
shooting firearms off the porch of the Cabin. Id. at ¶ 18. Later that night, Defendant Van Liere
arrived at the Cabin with his girlfriend Defendant Nye. Id. at ¶ 19. At some point shortly thereafter,
Mr. Garrett died from a gun shot wound to his head. Id. at ¶ 25.
The precise facts surrounding Mr. Garrett’s death are clouded by conflicting and falsified
eyewitness reports, the destruction of physical evidence, interference into the Morgan County
Sheriff’s Office on scene investigation by the ONG and multiple changed statements from the
Guardsman Defendants, including Defendant Meade. Id. at ¶¶ 25-37.
With the Partial Motion to Dismiss, Defendant Meade seeks to have some of the claims
asserted against him invalidated based upon statute of limitations grounds. As set forth herein,
Defendant’s Motion is entirely without merit and should be denied.
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II. LAW AND ARGUMENT
a. Ohio’s Notice Pleading Standard
Ohio is a notice-pleading state. Wells Fargo Bank N.A. v. Horn, 142 Ohio St.3d 416, 2015-
Ohio-1484, 31 N.E.3d 637, ¶ 13. Civ.R. 8(A) requires only that a litigant set forth (1) a short and
plain statement of the claim; and (2) a demand for judgment for the relief to which the party claims
to be entitled. “This means that outside of a few specific circumstances, such as claims involving
fraud or mistake, a party will not be expected to plead a claim with particularity.” Maternal
Grandmother ADMR v. Hamilton Cty. Dep’t of Job & Family Servs., 167 Ohio St.3d 390, 2021-
Ohio-4096, 193 N.E.3d 536, ¶ 10.
b. Ohio’s 12(b)(6) Motion to Dismiss for Failure to State a Claim Standard
A motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the Complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of
Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio73, 605 N.E.2d 378. The Supreme Court of Ohio has
stated that “[a] motion to dismiss for failure to state a claim is viewed with disfavor and is rarely
granted.” Wilson v. Riverside Hospital, 18 Ohio St.3d 8, 9, 479 N.E.2d 275 (1985). A claimant is
not required to prove his or her case at the pleading stage. York v. Ohio State Highway Patrol, 60
Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). In order for a court to dismiss a complaint or
counterclaim for failure to state a claim, is must appear “beyond doubt that the plaintiff can prove
no set of facts in support of his claim that would entitle him to relief.” Id. at 144. It must be
presumed that all factual allegations of a complaint or counterclaim are true, and all reasonable
inferences must be made in favor of the nonmoving party. Id. So long as there is a set of facts,
consistent with a complaint or counterclaim, which would allow the claimant to recover, the court
may not grant the opposing party’s motion to dismiss. Id. at 145.
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Ordinarily, a defense that an action is barred by the statute of limitations cannot be raised
by a motion to dismiss. Safe Auto Ins. Co. v. Linehan, 8th Dist. Cuyahoga No. 77335, 2000 Ohio
App. LEXIS 2646, *4. A complaint may not be dismissed under Civ.R. 12(B)(6) for failing to
comply with the applicable statute of limitations unless the complaint on its face conclusively
indicates that the action is time-barred. Gallagher v. Stonegate Mortg. Corp., 8th Dist. Cuyahoga
No. 99684, 2013-Ohio-5747, ¶ 14.
c. This matter was brought as a Wrongful Death action and thus a two (2) year
statute of limitations should apply.
It should be noted that R.C. 2307.60 is silent as to a statute of limitations. This case was
brought as a wrongful death action pursuant to R.C. 2125.01 et seq. Complaint at ¶ 1. R.C.
2125.02(F)(1) sets forth that “[e]xcept as provided in division (D)(2) of this section, a civil action
for wrongful death shall be commenced within two years after the decedent’s death.” R.C.
2125.02(D)(2) pertains to product liability actions which are not applicable. Article I, Section 19a
of the Ohio Constitution guarantees that “[t]he amount of damages recoverable by civil action in
the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited
by law.”
Ohio law recognizes that underlying claims brought under the wrongful death statute are
held to the two (2) year statute of limitations of R.C. 2125.02(F)(1). See Koler v. St. Joseph
Hospital, 69 Ohio St.2d 466, 479-480, 432 N.E.2d 821 (1982) (In discussing a medical malpractice
action normally subject to a one (1) year statute of limitations being brought under the wrongful
death statutes and thus having a two (2) year statute of limitations, the Court stated “[o]ne begins
where the other ends, and a recovery upon both in the same action is not a double recovery for a
single wrong but a single recovery for a double wrong.”). As this matter, including the claims
under R.C. 2307.60, was brought pursuant to Ohio’s wrongful death statutes, all of Plaintiff’s
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claims under R.C. 2307.60 should be held, at minimum, to the two (2) year statute of limitations
set forth in R.C. 2125.02.
Since the lawsuit filed by the Garrett family within two years of the death of Mr. Garrett,
it has been timely commenced under the applicable statute of limitations.
d. R.C. 2307.60 is a remedial statute subject to a six (6) year statute of limitations.
In the unlikely event the Court entertains further review of Defendant’s Motion which has
been rendered invalid by Ohio’s Wrongful Death Statute, Plaintiff submits the following analysis
that confirms the statute of limitations for these claims is six years.
Defendant Meade’s motion to dismiss (“the Motion”) relies almost solely upon the Eight
District Case State ex rel. Cty. Of Cuyahoga v. Jones Lang Lasalle Great Lakes Co., 8th Dist.
Cuyahoga No. 104157, 2017-Ohio-7727. The Court in State ex rel. Cty. of Cuyahoga was ruling
on a motion for reconsideration and stated that:
Finally, the County in its second argument, and the appellees in their responses, urge
us to consider the alternative arguments pertaining to the statute of limitations and
laches. We recognize that our dismissal of the County's first claim for lack of standing
will potentially perpetuate what has been lengthy and at times contentious litigation,
and could result in the same issues being raised in a subsequent appeal. However,
because standing is lacking, the claim is not justiciable. As such, we are constrained
from ruling on the parties' arguments as any conclusion we reach would be purely
advisory.
Id. at ¶ 7. (Emphasis added.)(Internal citations omitted.)
Thus, the Court of Appeal’s admittedly non-binding statements regarding the statute of
limitations on R.C. 2307.60, to which the Defendant relies so heavily upon, are both not pertinent
to this matter and are based upon dicta. Further, the Lasalle Court recognized that “[n]otably, the
trial court also held that a claim under R.C. 2307.60 is not a cognizable cause of action. However,
during the pendency of this appeal, the Ohio Supreme Court has clarified that ‘By its plain and
unambiguous language, R.C. 2307.60 creates a civil cause of action for damages resulting for any
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criminal act, unless prohibited by law.’” Id. at fn. 15; Citing Jacobsen v. Kaforey, 149 Ohio St.3d
298, 2016-Ohio-8434-75 N.E.3d 203, ¶ 13. This further weakens any authoritative value of the
Lasalle decision.
In light of Jacobsen, more recently the 10th District Court of Appeals performed a detailed
and thorough analysis of the statute of limitations standard when determining the proper statute of
limitations for claims brought under R.C. 2307.60. See Harris v. Cunix, 187 N.E.3d 582, 2022-
Ohio839. In Harris, the Tenth District stated that “a blank slate may carry the day. On its face
Section 2307.60(A)(1) creates a cause of action for the victim or a crime to ‘recover full damages’
suggesting the statute is not penal.” Id. at ¶ 26. (Emphasis added.) Ultimately, the Court held:
Upon careful consideration of the parties' arguments and supporting case law, we
conclude that R.C. 2307.60(A)(1) is a remedial statute subject to the six-year statute
of limitations in R.C. 2305.07(B) rather than a penalty statute governed by the one-
year statute of limitations in R.C. 2305.11(A). We recognize that Ohio and federal
jurisprudence regarding the statute of limitations applicable to claims brought pursuant
to R.C. 2307.60(A)(1) is consistent, i.e., that such claims are subject to the one-year
statute of limitations in R.C. 2305.11(A). We further acknowledge that the cases
appellant cites in support of her position construe statutes other than R.C.
2307.60(A)(1). However, the analysis (or lack of analysis) employed by the courts in
construing R.C. 2307.60(A)(1) and similar statutes convinces us that R.C.
2307.60(A)(1) is remedial, not penal.
Id. at ¶ 27 (Emphasis added.)
Accordingly, this Court should recognize that the landscape for claims brought under R.C.
2307.60 has changed dramatically since the decisions cited by the Defendant were released and
renders those cases invalid. The Ohio Supreme Court has enlarged the scope of R.C. 2307.60 in
order to protect the victims of a crime and therefore, the six (6) year statute of limitations is proper
under a claim pursuant to R.C. 2307.60.
e. The Statute of Limitations on Plaintiff’s claims were tolled by Ohio’s discovery
rule.
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Regardless of the statute of limitations found to apply to Plaintiff’s claims under R.C.
2307.60, any limitation period was tolled under Ohio’s discovery rule. Generally, a cause of action
accrues, and the statute of limitations begins to run at the time the wrongful act was committed.
Nogard v. Brush Wellman, 95 Ohio St.3d 165, 2002-Ohio-2007, 766 N.E.2d 977, ¶ 8. The
discovery rule is an exception to this general rule and provides that a cause of action does not arise
until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, that
he or she was injured by the wrongful conduct of the defendant. Id. The discovery rule therefore
involves a two-pronged test – discovery not only that one has been injured, but also that the injury
was caused by the conduct of the defendant. Id. at ¶ 9. A statute of limitations does not begin to
run until both prongs have been satisfied. Id. Discovery of an injury alone is insufficient to start
the statute of limitations running if at that time there is no indication of wrongful conduct of the
defendant. Id. at ¶ 10. The discovery rule must be specifically tailored to the particular context to
which it is to be applied. Id.
Despite all facts pointing to the contrary, including statements from first responders on the
scene of Mr. Garrett’s death and subsequent statements by State officials, the Morgan County
Sheriff’s Office represented to Plaintiff that Mr. Garrett’s cause of death was a self-inflicted
gunshot wound. Compl. at ¶ 37. This representation gives rise to the precise scenario that would
require an equitable tolling of the statute of limitations on Plaintiff’s claims under the discovery
rule. Initially, Plaintiff would have had no reason to question those who are tasked with the
enforcement of laws and investigation of crimes. It was only through months and years of
independent investigations conducted by Plaintiff that the true facts of this matter started to come
to light.
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To allow Defendant Meade to invoke a statute of limitations when he and his comrades
actively participated in ensuring that any facts surrounding the death of Mr. Garrett would be
seriously delayed, if discovered at all, flies in the face of equity. Plaintiff’s Complaint alleges
specific facts as to actions taken by Defendant Meade, the other Guardsman Defendants, and
Defendant Nye that delayed Plaintiff from discovering the underlying facts of this matter. The
Guardsman Defendants and Defendant Nye gave law enforcement “false and conflicting accounts”
of the facts and circumstances revolving around the death of Mr. Garrett. Compl. at ¶ 25. The
Guardsman Defendants and Defendant Nye “coordinated their stories’” and “falsely indetif[ied]
the shooter.” Id. at ¶ 26. According to witnesses on scene, Defendant Nye coordinated the
Guardsman Defendants’ stories. Id. at ¶ 31. The gun allegedly involved in the shooting death of
Mr. Garrett had been wiped clean of any physical evidence. Id. at ¶ 32. The Guardsman Defendants
changed their stories upon subsequent interviews with the Morgan County Sheriff’s Office. Id. at
¶¶ 34-35. Individually and collectively these actions give rise to the necessity of tolling the statutes
of limitations on Plaintiff’s claims.
The Supreme Court of Ohio contemplated a similar scenario in Collins v. Sotka, 81 Ohio
St.3d 506, 1998-Ohio-331, 692 N.E.2d 581. In Collins, the Court addressed the tolling of the
statute of limitations in a wrongful death situation, and further hypothesized about how a possible
wrongdoer could be absolved of civil liability by the strict application of a statute of limitations:
The discovery rule was adopted to prevent inequities that occur when a statute of
limitations is rigidly followed. Such inequities exist in a wrongful death action where
the victim’s survivors are not immediately aware that a wrongful death has occurred.
Under these circumstances, if accrual occurs from the date of death, the survivors may
not be given the benefit of the [full statute of limitations] in which to bring a suit or
may be left without any remedy at law.
It is illogical to penalize the victim’s survivors, who have already suffered a great loss,
by shortening or extinguishing the time in which they may bring a wrongful death
lawsuit. . . Although the defendant may be held accountable in a criminal court . . . he
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can nonetheless escape civil liability, all at the expense of the victim’s family, and
simply because of the harsh application of a statute of limitations.
Id. at 510. (Emphasis added.)
Likewise, this Court should not reward Defendant Meade, or any of the Guardsman
Defendants or Defendant Nye, by strict adherence to any statute of limitations for their criminal
violations. Indeed, one of Plaintiff’s R.C. 2307.60 claims against the Guardsman Defendants and
Defendant Nye is R.C. 2921.32; Obstructing Justice. By its very nature, Obstructing Justice is a
criminal act that requires proof of hinderance and concealment. Such misconduct runs in direct
conflict with the fairness and equality of our system of justice and should not be condoned by any
court of law.
The nature of Mr. Garrett’s death was misrepresented to Plaintiff, and the Guardsman
Defendants and Defendant Nye acted in concert to conceal the true circumstances of Mr. Garrett’s
death. Therefore, the statute of limitations for those claims brought under R.C. 2307.60 should be
tolled under the discovery rule.
III. CONCLUSION
Based on the foregoing, under Ohio’s notice pleading and Civ.R. 12(b)(6) standards, in
addition to the pertinent Ohio case law, and the Ohio Constitution, Plaintiff’s claims under R.C.
2307.60 should be two (2) years pursuant to Ohio’s wrongful death statutes or six (6) years as R.C.
2307.60 is a remedial statute. Should this Court find that a lesser statute of limitations applies, the
statutes of limitations on Plaintiff’s claims were tolled by Ohio’s discovery rule, and Plaintiff
respectfully requests that this Court issue an order denying Defendant Meade’s Motion to Dismiss.
Respectfully submitted,
/s/ John R. Liber, II
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JOHN R. LIBER, II (0058424)
CHRISTOPHER R. ELKO (0101860)
Thrasher Dinsmore & Dolan, LPA
1282 West 58th Street
Cleveland, Ohio 44102
216.255.5431 | Fax 216.255.5450
jliber@tddlaw.com
celko@tddlaw.com
Counsel for Plaintiff
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CERTIFICATE OF SERVICE
A copy of the foregoing filed via the Courts electronic filing system on November 30, 2023.
Additionally, the following represented parties were served by electronic mail:
Cari Fusco Evans, Esq.
Fisher, Evans & Robbins, Ltd.
3521 Whipple Ave., N.W.
Canton, Ohio 44718
T: 330-244-0997
F: 330-244-8966
E: cfevans@fer-law.net
Attorney for Defendant Brenna M. Nye
David Henderson, Esq.
Henderson, Schmidlin, & McGarry Co., LPA
840 Brainard Rd
Highland Heights, Ohio 44143
T: 440-720-0379
F: 440-270-0385
E: dhenderson@hendersonschmidlin.com
Attorney for Defendant Cruz D. Allen
James J. Imbrigiotta, Esq.
William H. Kotar, Esq.
Glowacki, Imbrigiotta, & Doucette, LPA
7550 Lucerne Drive, Suite 408
Middleburg Heights, Ohio 44130
T: 440-243-2727
F: 440-243-2636
E: mail@gidlaw.com
Attorneys for Defendant James R. Meade
Kurt D. Anderson, Esq.
Richard M. Garner, Esq.
Collins, Roche, Utley & Garner, LLC
875 Westpoint Parkway, Suite 500
Westlake, Ohio 44145
T: 216-916-7730
F: 216-916-7725
E: kanderson@cruglaw.com
Attorneys for Defendant Betty Green
Tina O’Leary, Esq.
White, Getgey & Meyer Co., LPA
6125 East Kemper Road
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Cincinnati, Ohio 45241
T: 513-583-8888
F: 515-583-8892
E: toleary@wgmlpa.com
Attorney for Defendant Trance Van Liere
The following unrepresented parties were served by Regular US Mail:
Thomas Develin
Inmate No. 08421-510
FCI Elkton
8730 Scroggs Road
Lisbon, Ohio 44432
Christopher Leach
106 Quail Creek Dr.
Gallipolis, Ohio 45631
Jordan C. Haas
7324 Thatcher Avenue NW
North Canton, Ohio 44720
/s/ John R. Liber, II
John R. Liber, II (0058424)
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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 November 30,2023 16:25 By: CHRISTOPHER R. ELKO 0101860 Confirmation Nbr. 3030473 LISA GARRETT, INDIV AND AS ADM EST NATHAN CV 23 986997 GARRETT vs. Judge: DEENA R. CALABRESE CRUZ D. ALLEN, ET AL. Pages Filed: 12 Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / Confirmation Nbr. 3030473 / CLSLP IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO LISA GARRETT, Individually and as ) CASE NO. CV-23-986997 Administrator of the Estate of Nathan ) Alexander Garrett, deceased. ) ) JUDGE DEENA R. CALABRESE Plaintiff, ) ) v. ) PLAINTIFF’S BRIEF IN OPPOSITION ) TO DEFENDANT JAMES R. CRUZ D. ALLEN, et al. ) MEADE’S PARTIAL MOTION TO ) DISMISS Defendants. ) ) ) Now comes Plaintiff Lisa Garrett, Individually and as Administrator of the Estate of Nathan Garrett, deceased (“Plaintiff”), by and through undersigned counsel, who respectfully submits this Brief in Opposition to Defendant James R. Meade’s (“Defendant Meade”) Motion to Dismiss. Under Ohio’s standards for pleading and Civ.R. 12(b)(6) Motions, as well as pertinent case law, and the Ohio Constitution, the subject legal action has been timely commenced within the correct statute of limitations. A Brief in Opposition is attached hereto and incorporated herein by reference. Respectfully submitted, /s/ John R. Liber, II JOHN R. LIBER, II (0058424) CHRISTOPHER R. ELKO (0101860) Thrasher Dinsmore & Dolan, LPA 1282 West 58th Street Cleveland, Ohio 44102 216.255.5431 | Fax 216.255.5450 jliber@tddlaw.com celko@tddlaw.com Counsel for Plaintiff Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / Confirmation Nbr. 3030473 / CLSLP BRIEF IN OPPOSITION I. INTRODUCTION - STATEMENT OF FACTS On October 20, 2021, Nathan Alexander Garrett (“Mr. Garrett”) was killed by a gunshot wound to his head while in a cabin on the property located at 3220 Goshun Run Road, Chesterhill, Ohio 43728 (the “Cabin”). Compl. at ¶ 25. Mr. Garrett, and Defendants Cruz Allen, Trance Van Liere, Thomas Develin, James Meade, Christoper Leach, and Jordan Haas (collectively the “Guardsman Defendants”) were present in McConnelsville, Ohio on the date of Mr. Garrett’s death for required training with the Ohio National Guard (the “ONG”). Id. at ¶ 16. At some time after 5:30 p.m. on October 20, 2021, the Guardsman Defendants, except for Defendant Trance Van Liere, congregated at the Property and began consuming alcohol and shooting firearms off the porch of the Cabin. Id. at ¶ 18. Later that night, Defendant Van Liere arrived at the Cabin with his girlfriend Defendant Nye. Id. at ¶ 19. At some point shortly thereafter, Mr. Garrett died from a gun shot wound to his head. Id. at ¶ 25. The precise facts surrounding Mr. Garrett’s death are clouded by conflicting and falsified eyewitness reports, the destruction of physical evidence, interference into the Morgan County Sheriff’s Office on scene investigation by the ONG and multiple changed statements from the Guardsman Defendants, including Defendant Meade. Id. at ¶¶ 25-37. With the Partial Motion to Dismiss, Defendant Meade seeks to have some of the claims asserted against him invalidated based upon statute of limitations grounds. As set forth herein, Defendant’s Motion is entirely without merit and should be denied. Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / 2Confirmation Nbr. 3030473 / CLSLP II. LAW AND ARGUMENT a. Ohio’s Notice Pleading Standard Ohio is a notice-pleading state. Wells Fargo Bank N.A. v. Horn, 142 Ohio St.3d 416, 2015- Ohio-1484, 31 N.E.3d 637, ¶ 13. Civ.R. 8(A) requires only that a litigant set forth (1) a short and plain statement of the claim; and (2) a demand for judgment for the relief to which the party claims to be entitled. “This means that outside of a few specific circumstances, such as claims involving fraud or mistake, a party will not be expected to plead a claim with particularity.” Maternal Grandmother ADMR v. Hamilton Cty. Dep’t of Job & Family Servs., 167 Ohio St.3d 390, 2021- Ohio-4096, 193 N.E.3d 536, ¶ 10. b. Ohio’s 12(b)(6) Motion to Dismiss for Failure to State a Claim Standard A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the Complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio73, 605 N.E.2d 378. The Supreme Court of Ohio has stated that “[a] motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.” Wilson v. Riverside Hospital, 18 Ohio St.3d 8, 9, 479 N.E.2d 275 (1985). A claimant is not required to prove his or her case at the pleading stage. York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). In order for a court to dismiss a complaint or counterclaim for failure to state a claim, is must appear “beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Id. at 144. It must be presumed that all factual allegations of a complaint or counterclaim are true, and all reasonable inferences must be made in favor of the nonmoving party. Id. So long as there is a set of facts, consistent with a complaint or counterclaim, which would allow the claimant to recover, the court may not grant the opposing party’s motion to dismiss. Id. at 145. Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / 3Confirmation Nbr. 3030473 / CLSLP Ordinarily, a defense that an action is barred by the statute of limitations cannot be raised by a motion to dismiss. Safe Auto Ins. Co. v. Linehan, 8th Dist. Cuyahoga No. 77335, 2000 Ohio App. LEXIS 2646, *4. A complaint may not be dismissed under Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations unless the complaint on its face conclusively indicates that the action is time-barred. Gallagher v. Stonegate Mortg. Corp., 8th Dist. Cuyahoga No. 99684, 2013-Ohio-5747, ¶ 14. c. This matter was brought as a Wrongful Death action and thus a two (2) year statute of limitations should apply. It should be noted that R.C. 2307.60 is silent as to a statute of limitations. This case was brought as a wrongful death action pursuant to R.C. 2125.01 et seq. Complaint at ¶ 1. R.C. 2125.02(F)(1) sets forth that “[e]xcept as provided in division (D)(2) of this section, a civil action for wrongful death shall be commenced within two years after the decedent’s death.” R.C. 2125.02(D)(2) pertains to product liability actions which are not applicable. Article I, Section 19a of the Ohio Constitution guarantees that “[t]he amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another, shall not be limited by law.” Ohio law recognizes that underlying claims brought under the wrongful death statute are held to the two (2) year statute of limitations of R.C. 2125.02(F)(1). See Koler v. St. Joseph Hospital, 69 Ohio St.2d 466, 479-480, 432 N.E.2d 821 (1982) (In discussing a medical malpractice action normally subject to a one (1) year statute of limitations being brought under the wrongful death statutes and thus having a two (2) year statute of limitations, the Court stated “[o]ne begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong.”). As this matter, including the claims under R.C. 2307.60, was brought pursuant to Ohio’s wrongful death statutes, all of Plaintiff’s Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / 4Confirmation Nbr. 3030473 / CLSLP claims under R.C. 2307.60 should be held, at minimum, to the two (2) year statute of limitations set forth in R.C. 2125.02. Since the lawsuit filed by the Garrett family within two years of the death of Mr. Garrett, it has been timely commenced under the applicable statute of limitations. d. R.C. 2307.60 is a remedial statute subject to a six (6) year statute of limitations. In the unlikely event the Court entertains further review of Defendant’s Motion which has been rendered invalid by Ohio’s Wrongful Death Statute, Plaintiff submits the following analysis that confirms the statute of limitations for these claims is six years. Defendant Meade’s motion to dismiss (“the Motion”) relies almost solely upon the Eight District Case State ex rel. Cty. Of Cuyahoga v. Jones Lang Lasalle Great Lakes Co., 8th Dist. Cuyahoga No. 104157, 2017-Ohio-7727. The Court in State ex rel. Cty. of Cuyahoga was ruling on a motion for reconsideration and stated that: Finally, the County in its second argument, and the appellees in their responses, urge us to consider the alternative arguments pertaining to the statute of limitations and laches. We recognize that our dismissal of the County's first claim for lack of standing will potentially perpetuate what has been lengthy and at times contentious litigation, and could result in the same issues being raised in a subsequent appeal. However, because standing is lacking, the claim is not justiciable. As such, we are constrained from ruling on the parties' arguments as any conclusion we reach would be purely advisory. Id. at ¶ 7. (Emphasis added.)(Internal citations omitted.) Thus, the Court of Appeal’s admittedly non-binding statements regarding the statute of limitations on R.C. 2307.60, to which the Defendant relies so heavily upon, are both not pertinent to this matter and are based upon dicta. Further, the Lasalle Court recognized that “[n]otably, the trial court also held that a claim under R.C. 2307.60 is not a cognizable cause of action. However, during the pendency of this appeal, the Ohio Supreme Court has clarified that ‘By its plain and unambiguous language, R.C. 2307.60 creates a civil cause of action for damages resulting for any Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / 5Confirmation Nbr. 3030473 / CLSLP criminal act, unless prohibited by law.’” Id. at fn. 15; Citing Jacobsen v. Kaforey, 149 Ohio St.3d 298, 2016-Ohio-8434-75 N.E.3d 203, ¶ 13. This further weakens any authoritative value of the Lasalle decision. In light of Jacobsen, more recently the 10th District Court of Appeals performed a detailed and thorough analysis of the statute of limitations standard when determining the proper statute of limitations for claims brought under R.C. 2307.60. See Harris v. Cunix, 187 N.E.3d 582, 2022- Ohio839. In Harris, the Tenth District stated that “a blank slate may carry the day. On its face Section 2307.60(A)(1) creates a cause of action for the victim or a crime to ‘recover full damages’ suggesting the statute is not penal.” Id. at ¶ 26. (Emphasis added.) Ultimately, the Court held: Upon careful consideration of the parties' arguments and supporting case law, we conclude that R.C. 2307.60(A)(1) is a remedial statute subject to the six-year statute of limitations in R.C. 2305.07(B) rather than a penalty statute governed by the one- year statute of limitations in R.C. 2305.11(A). We recognize that Ohio and federal jurisprudence regarding the statute of limitations applicable to claims brought pursuant to R.C. 2307.60(A)(1) is consistent, i.e., that such claims are subject to the one-year statute of limitations in R.C. 2305.11(A). We further acknowledge that the cases appellant cites in support of her position construe statutes other than R.C. 2307.60(A)(1). However, the analysis (or lack of analysis) employed by the courts in construing R.C. 2307.60(A)(1) and similar statutes convinces us that R.C. 2307.60(A)(1) is remedial, not penal. Id. at ¶ 27 (Emphasis added.) Accordingly, this Court should recognize that the landscape for claims brought under R.C. 2307.60 has changed dramatically since the decisions cited by the Defendant were released and renders those cases invalid. The Ohio Supreme Court has enlarged the scope of R.C. 2307.60 in order to protect the victims of a crime and therefore, the six (6) year statute of limitations is proper under a claim pursuant to R.C. 2307.60. e. The Statute of Limitations on Plaintiff’s claims were tolled by Ohio’s discovery rule. Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / 6Confirmation Nbr. 3030473 / CLSLP Regardless of the statute of limitations found to apply to Plaintiff’s claims under R.C. 2307.60, any limitation period was tolled under Ohio’s discovery rule. Generally, a cause of action accrues, and the statute of limitations begins to run at the time the wrongful act was committed. Nogard v. Brush Wellman, 95 Ohio St.3d 165, 2002-Ohio-2007, 766 N.E.2d 977, ¶ 8. The discovery rule is an exception to this general rule and provides that a cause of action does not arise until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, that he or she was injured by the wrongful conduct of the defendant. Id. The discovery rule therefore involves a two-pronged test – discovery not only that one has been injured, but also that the injury was caused by the conduct of the defendant. Id. at ¶ 9. A statute of limitations does not begin to run until both prongs have been satisfied. Id. Discovery of an injury alone is insufficient to start the statute of limitations running if at that time there is no indication of wrongful conduct of the defendant. Id. at ¶ 10. The discovery rule must be specifically tailored to the particular context to which it is to be applied. Id. Despite all facts pointing to the contrary, including statements from first responders on the scene of Mr. Garrett’s death and subsequent statements by State officials, the Morgan County Sheriff’s Office represented to Plaintiff that Mr. Garrett’s cause of death was a self-inflicted gunshot wound. Compl. at ¶ 37. This representation gives rise to the precise scenario that would require an equitable tolling of the statute of limitations on Plaintiff’s claims under the discovery rule. Initially, Plaintiff would have had no reason to question those who are tasked with the enforcement of laws and investigation of crimes. It was only through months and years of independent investigations conducted by Plaintiff that the true facts of this matter started to come to light. Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / 7Confirmation Nbr. 3030473 / CLSLP To allow Defendant Meade to invoke a statute of limitations when he and his comrades actively participated in ensuring that any facts surrounding the death of Mr. Garrett would be seriously delayed, if discovered at all, flies in the face of equity. Plaintiff’s Complaint alleges specific facts as to actions taken by Defendant Meade, the other Guardsman Defendants, and Defendant Nye that delayed Plaintiff from discovering the underlying facts of this matter. The Guardsman Defendants and Defendant Nye gave law enforcement “false and conflicting accounts” of the facts and circumstances revolving around the death of Mr. Garrett. Compl. at ¶ 25. The Guardsman Defendants and Defendant Nye “coordinated their stories’” and “falsely indetif[ied] the shooter.” Id. at ¶ 26. According to witnesses on scene, Defendant Nye coordinated the Guardsman Defendants’ stories. Id. at ¶ 31. The gun allegedly involved in the shooting death of Mr. Garrett had been wiped clean of any physical evidence. Id. at ¶ 32. The Guardsman Defendants changed their stories upon subsequent interviews with the Morgan County Sheriff’s Office. Id. at ¶¶ 34-35. Individually and collectively these actions give rise to the necessity of tolling the statutes of limitations on Plaintiff’s claims. The Supreme Court of Ohio contemplated a similar scenario in Collins v. Sotka, 81 Ohio St.3d 506, 1998-Ohio-331, 692 N.E.2d 581. In Collins, the Court addressed the tolling of the statute of limitations in a wrongful death situation, and further hypothesized about how a possible wrongdoer could be absolved of civil liability by the strict application of a statute of limitations: The discovery rule was adopted to prevent inequities that occur when a statute of limitations is rigidly followed. Such inequities exist in a wrongful death action where the victim’s survivors are not immediately aware that a wrongful death has occurred. Under these circumstances, if accrual occurs from the date of death, the survivors may not be given the benefit of the [full statute of limitations] in which to bring a suit or may be left without any remedy at law. It is illogical to penalize the victim’s survivors, who have already suffered a great loss, by shortening or extinguishing the time in which they may bring a wrongful death lawsuit. . . Although the defendant may be held accountable in a criminal court . . . he Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / 8Confirmation Nbr. 3030473 / CLSLP can nonetheless escape civil liability, all at the expense of the victim’s family, and simply because of the harsh application of a statute of limitations. Id. at 510. (Emphasis added.) Likewise, this Court should not reward Defendant Meade, or any of the Guardsman Defendants or Defendant Nye, by strict adherence to any statute of limitations for their criminal violations. Indeed, one of Plaintiff’s R.C. 2307.60 claims against the Guardsman Defendants and Defendant Nye is R.C. 2921.32; Obstructing Justice. By its very nature, Obstructing Justice is a criminal act that requires proof of hinderance and concealment. Such misconduct runs in direct conflict with the fairness and equality of our system of justice and should not be condoned by any court of law. The nature of Mr. Garrett’s death was misrepresented to Plaintiff, and the Guardsman Defendants and Defendant Nye acted in concert to conceal the true circumstances of Mr. Garrett’s death. Therefore, the statute of limitations for those claims brought under R.C. 2307.60 should be tolled under the discovery rule. III. CONCLUSION Based on the foregoing, under Ohio’s notice pleading and Civ.R. 12(b)(6) standards, in addition to the pertinent Ohio case law, and the Ohio Constitution, Plaintiff’s claims under R.C. 2307.60 should be two (2) years pursuant to Ohio’s wrongful death statutes or six (6) years as R.C. 2307.60 is a remedial statute. Should this Court find that a lesser statute of limitations applies, the statutes of limitations on Plaintiff’s claims were tolled by Ohio’s discovery rule, and Plaintiff respectfully requests that this Court issue an order denying Defendant Meade’s Motion to Dismiss. Respectfully submitted, /s/ John R. Liber, II Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 / 9Confirmation Nbr. 3030473 / CLSLP JOHN R. LIBER, II (0058424) CHRISTOPHER R. ELKO (0101860) Thrasher Dinsmore & Dolan, LPA 1282 West 58th Street Cleveland, Ohio 44102 216.255.5431 | Fax 216.255.5450 jliber@tddlaw.com celko@tddlaw.com Counsel for Plaintiff ElectronicallyFiled 11/30/2023 16:25 / BRIEF / CV 23 986997 /1C0onfirmation Nbr. 3030473 / CLSLP CERTIFICATE OF SERVICE A copy of the foregoing filed via the Courts electronic filing system on November 30, 2023. Additionally, the following represented parties were served by electronic mail: Cari Fusco Evans, Esq. Fisher, Evans & Robbins, Ltd. 3521 Whipple Ave., N.W. Canton, Ohio 44718 T: 330-244-0997 F: 330-244-8966 E: cfevans@fer-law.net Attorney for Defendant Brenna M. Nye David Henderson, Esq. Henderson, Schmidlin, & McGarry Co., LPA 840 Brainard Rd Highland Heights, Ohio 44143 T: 440-720-0379 F: 440-270-0385 E: dhenderson@hendersonschmidlin.com Attorney for Defendant Cruz D. Allen James J. Imbrigiotta, Esq. William H. Kotar, Esq. Glowacki, Imbrigiotta, & Doucette, LPA 7550 Lucerne Drive, Suite 408 Middleburg Heights, Ohio 44130 T: 440-243-2727 F: 440-243-2636 E: mail@gidlaw.com Attorneys for Defendant James R. Meade Kurt D. Anderson, Esq. Richard M. Garner, Esq. Collins, Roche, Utley & Garner, LLC 875 Westpoint Parkway, Suite 500 Westlake, Ohio 44145 T: 216-916-7730 F: 216-916-7725 E: kanderson@cruglaw.com Attorneys for Defendant Betty Green Tina O’Leary, Esq. White, Getgey & Meyer Co., LPA 6125 East Kemper Road Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 /1C1onfirmation Nbr. 3030473 / CLSLP Cincinnati, Ohio 45241 T: 513-583-8888 F: 515-583-8892 E: toleary@wgmlpa.com Attorney for Defendant Trance Van Liere The following unrepresented parties were served by Regular US Mail: Thomas Develin Inmate No. 08421-510 FCI Elkton 8730 Scroggs Road Lisbon, Ohio 44432 Christopher Leach 106 Quail Creek Dr. Gallipolis, Ohio 45631 Jordan C. Haas 7324 Thatcher Avenue NW North Canton, Ohio 44720 /s/ John R. Liber, II John R. Liber, II (0058424) Electronically Filed 11/30/2023 16:25 / BRIEF / CV 23 986997 /1C2onfirmation Nbr. 3030473 / CLSLP