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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION
JAMES DERRICK O’NEAL, et al.,
CASE NO.: 2018-CV-00758
PLAINTIFFS,
vs. 3 JUDGE: MARK A. SERROTT
THE STATE OF OHIO, et al.,
DEFENDANTS.
MOTION FOR RECONSIDERATION ON THE GRANT OF INTERVENOR VAN
HOOK’S MOTION TO BIFURCATE CLAIM ONE AS IT WAS GRANTED WITHOUT
INPUT REGARDING THE PREJUDICE IT WILL CAUSE TO ORIGINAL
PLAINTIFFS O’NEAL AND TIBBETTS
MOTION
Intervenor Plaintiff Van Hook filed, on June 26, 2018, a motion to bifurcate the first
claim in his intervenor complaint from the balance of his complaint and from original Plaintiffs
O’Neal’s and Tibbetts’ first claim (which Van Hook duplicated). This is not an issue that can be
appropriately bifurcated. The Court granted Van Hook’s motion before the time for responses
had passed. Local Rule 21.01.(Entry, June 28, 2018). Plaintiffs O’Neal and Tibbetts respectfully
move that this court reconsider this matter and the harm and prejudice it will cause to O’Neal
and Tibbetts if the bifurcation goes forward.
This court granted Van Hook’s intervention with the caveat that the court cannot
guarantee an expedited final ruling nor will the Court deprive the named Plaintiffs the
opportunity to complete any necessary discovery and the time they need to fully developFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758
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their case. Therefore, should Robert Hook [sic] be unable to contain [sic] a stay of his execution
date, he should consider bifurcating his claims from the other Plaintiffs.” (Entry, May 30, 2018).
The bifurcation granted to Van Hook will in fact deprive O’Neal and Tibbetts of the opportunity
to complete discovery and fully develop their case. It will in effect allow Van Hook to hijack
their entire litigation denying them not only their day in court but also Due Process of Law. Ohio
Const., art. I, Sec. 16; United States Const., amend. XIV.
The reasons for this motion are more fully set out in the memorandum below.
Respectfully submitted,
/s/ S. Adele Shank
S. ADELE SHANK OH 0022148
LAW OFFICE OF S. ADELE SHANK, Trial Attorney
3380 Tremont Road, Suite 270
Columbus, OH 43221-2112
614. 326-1217
shanklaw @att.net
/s/Lawrence J. Greger
Lawrence J. Greger OH 0002592
ATTORNEY AT LAW
120 W. Second Street, Suite 1100
Dayton, OH 45402
937. 223-3153
larry@gregerlawoffice.com
COUNSEL FOR PLAINTIFFS
MEMORANDUM
Intervenor Plaintiff Van Hook filed, on June 26, 2018, a motion to bifurcate the first
claim in his intervenor complaint from the balance of his complaint and from original Plaintiffs
O’Neal’s and Tibbetts’ first claim (which Van Hook duplicated). The Court granted Van Hook’s
motion before the time for responses had passed. Local Rule 21.01.(Entry, June 28, 2018).
Plaintiffs O’Neal and Tibbetts respectfully move that this court reconsider this matter and theFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758
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harm and prejudice it will cause to O’Neal and Tibbetts. This Court has the inherent authority to
reconsider its decision allowing bifurcation. Until the judgment is finalized, courts have
" ‘inherent power to reconsider any matter.'" State v. Nelson, 10th Dist. Franklin No. 14 AP-229,
2014-Ohio-5757, 23, quoting C.C.M. Enterprises, Inc. v. U.S. Fire Ins. Co., 1st Dist. No. C-
870193, 1988 WL 26226 (Mar. 2, 1988), Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 380
(1981) at f.n.1.
Plaintiffs O’Neal and Tibbetts ask now that this Court reconsider its order granting
“bifurcation” and deny Van Hook’s motion
A. Bifurcating claim one will not truly separate it, or the results of Van
Hook’s litigation of it, from O’Neal and Tibbetts’ case and will cause
them prejudice and harm.
Intervenor Plaintiff Van Hook has moved this Court for an order allowing him to
bifurcate the first claim in his intervenor complaint. Though he makes this request for himself
only, this sop to independence paints a false picture. Mr. Van Hook’s first claim is the same
claim that is the first claim in Mr. O’Neal’s and Mr. Tibbetts’ complaint. The only reason for
Van Hook’s request is to “expedite this litigation.” Mr. Van Hook’s plan to expedite (See Van
Hook Motion for expedited briefing filed June 29, 2018) by bifurcating (See Van Hook Motion
to Bifurcate filed June 26, 2018) and receiving adjudication (See Van Hook motion for judgment
on the pleadings re: issue one) on the first issue will undermine Plaintiffs O’ Neal and Tibbetts
litigation. Although Ohio Civ. Pro. Rule 42(B) provides for separate trials when such will
expedite or economize, this is not such a situation. The convenience to his own schedule that
Van Hook demands must be balanced against the prejudice to O’Neal and Tibbetts, exactly as
this court warned when it granted Van Hook the right to intervene. Bifurcation as Van Hook hasFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758
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framed it, is not what is contemplated by the rules and was never intended to put the intervenor’s
interests before those of the original Plaintiffs.
All of the issues presented by O’Neal and Tibbetts are inter-related. Bifurcating one
issue, expediting briefing, and ruling on it will result in the same expedited process in the Tenth
District and then the Ohio Supreme Court in an effort to use this litigation as a basis for a stay.
And the rulings made in those courts will damage O’Neal and Tibbetts’ ability to fully litigate
their case. This Court made clear to Van Hook that his intervention would not be permitted to
impair O’Neal’s and Tibbetts’ litigation. Bifurcating any issue to allow Van Hook to run it
through the state court system in the next few weeks will undermine O’Neal and Tibbetts’ ability
to present their full case and will prejudice their right to due process. Ohio Const., art. I, Sec. 16;
U.S. Const., amend. XIV.
Bifurcation should not be allowed when the claim at issue cannot fairly be separated from
the claims of all Plaintiffs. Van Hook’s scheduling demands do not legitimize his request for
bifurcation. His timing predicament is not of O’Neal’s or Tibbetts’ making. His last minute
intervention should not be allowed to prejudice the original Plaintiffs.
B. Van Hook cannot fairly represent O’Neal’s and Tibbetts’ interests
by litigating the first claim on his own and may create negative
precedent in his haste or otherwise do damage to O’Neal’s and
Tibbetts’ litigation.
Mr. Van Hook moved to intervene claiming that O’Neal and Tibbetts’ could not
adequately represent his interests in this matter. The reverse is certainly true for O’Neal and
Tibbetts’ if Van Hook is allowed to bifurcate the first claim. Calling it “his” will not change the
fact that Van Hook’s admitted goal in joining this litigation is speed so he can attempt to obtain a
stay. He cannot duplicate the months of work that have gone into O’Neal and Tibbetts’ litigation
and because his goal is speed he cannot fairly represent their interests if he is allowed to usurp
4Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758
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their litigation. The issues O’Neal and Tibbetts have raised are interconnected. Although they are
based on distinct legal grounds, the resolution of each impacts the others. It would be a grave
injustice to allow Van Hook to bifurcate one issue and push it through the courts in a few weeks
in an effort to gain a stay for himself at the expense of O’Neal’s and Tibbetts’ litigation.
C. Van Hook has already benefitted from O’Neal and Tibbetts’ pursuit
of this matter by using it as the basis for seeking a stay from the
Ohio Supreme Court. O’Neal and Tibbetts’ should not be denied
their opportunity to litigate their case because Van Hook wants
even more.
Counsel for O’Neal and Tibbetts are not unsympathetic to Van Hook’s concern that the
Ohio Supreme Court may not grant a stay, as Van Hook has requested, pending the outcome of
these proceedings, but that sympathy does not override the fact that O’Neal and Tibbetts brought
this litigation and they should not suffer prejudice due to Van Hook’s untimely intervention. This
Court should not step in to aid Van Hook’s admitted effort to gain a stay when doing so is at the
cost of the full and fair litigation of O’Neal’s and Tibbetts’ case.
Van Hook could have brought his own suit much earlier if he wanted to pursue the
matters at issue here instead of using O’Neal’s and Tibbetts’ case for his own benefit while
undermining their litigation. Van Hook has already benefitted from O’Neal’s and Tibbetts’
pursuit of this matter by using it as the basis for seeking a stay from the Ohio Supreme Court
which may yet be granted. He should not be permitted to undermine O’Neal’s and Tibbetts’
litigation.
WHEREFORE, for all of the reasons stated herein, to insure O’Neal’s and Tibbetts’
rights to Due Process of Law, and in the interests of justice, the Court’s entry granting Mr. Van
Hook’s motion to bifurcate should be vacated and Van Hook’s motion to bifurcate denied.0E220 - C24
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758
Respectfully submitted,
Is/S. Adele Shank
S. ADELE SHANK OH 0022148
LAW OFFICE OF S. ADELE SHANK, Trial Attorney
3380 Tremont Road, Suite 270
Columbus, OH 43221-2112
614. 326-1217
shanklaw @att.net
/s/Lawrence J. Greger
Lawrence J. Greger OH 0002592
ATTORNEY AT LAW
120 W. Second Street, Suite 1100
Dayton, OH 45402
937. 223-3153
larry@gregerlawoffice.com
COUNSEL FOR PLAINTIFFS
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Motion for Reconsideration On the Grant of
Van Hook’s Motion to was served upon counsel for Defendants Zoe A. Saadey, and Charles
Wille, at the Office of the Ohio Attorney General, Criminal Justice Section, Capital Crimes Unit,
150 East Gay Street, 16th Floor, Columbus, OH 43215 and counsel for Intervenor Plaintiff Van
Hook, Randall Porter, Ohio Public Defender Office, 250 E. Broad Street, Suite 1400, Columbus,
Ohio 43215-9308 electronically and by regular first class mail, postage pre-paid, this 2nd day of
July, 2018.
/s/ S. Adele Shank
S. ADELE SHANK OH 0022148
Trial Attorney for Plaintiffs O’Neal and Tibbetts
LAW OFFICE OF S. ADELE SHANK
3380 Tremont Road, Suite 270
Columbus, OH 43221-2112
614. 326-1217
shanklaw @att.net
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758 0E220 - C19 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO CIVIL DIVISION JAMES DERRICK O’NEAL, et al., CASE NO.: 2018-CV-00758 PLAINTIFFS, vs. 3 JUDGE: MARK A. SERROTT THE STATE OF OHIO, et al., DEFENDANTS. MOTION FOR RECONSIDERATION ON THE GRANT OF INTERVENOR VAN HOOK’S MOTION TO BIFURCATE CLAIM ONE AS IT WAS GRANTED WITHOUT INPUT REGARDING THE PREJUDICE IT WILL CAUSE TO ORIGINAL PLAINTIFFS O’NEAL AND TIBBETTS MOTION Intervenor Plaintiff Van Hook filed, on June 26, 2018, a motion to bifurcate the first claim in his intervenor complaint from the balance of his complaint and from original Plaintiffs O’Neal’s and Tibbetts’ first claim (which Van Hook duplicated). This is not an issue that can be appropriately bifurcated. The Court granted Van Hook’s motion before the time for responses had passed. Local Rule 21.01.(Entry, June 28, 2018). Plaintiffs O’Neal and Tibbetts respectfully move that this court reconsider this matter and the harm and prejudice it will cause to O’Neal and Tibbetts if the bifurcation goes forward. This court granted Van Hook’s intervention with the caveat that the court cannot guarantee an expedited final ruling nor will the Court deprive the named Plaintiffs the opportunity to complete any necessary discovery and the time they need to fully developFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758 0E220 - C20 their case. Therefore, should Robert Hook [sic] be unable to contain [sic] a stay of his execution date, he should consider bifurcating his claims from the other Plaintiffs.” (Entry, May 30, 2018). The bifurcation granted to Van Hook will in fact deprive O’Neal and Tibbetts of the opportunity to complete discovery and fully develop their case. It will in effect allow Van Hook to hijack their entire litigation denying them not only their day in court but also Due Process of Law. Ohio Const., art. I, Sec. 16; United States Const., amend. XIV. The reasons for this motion are more fully set out in the memorandum below. Respectfully submitted, /s/ S. Adele Shank S. ADELE SHANK OH 0022148 LAW OFFICE OF S. ADELE SHANK, Trial Attorney 3380 Tremont Road, Suite 270 Columbus, OH 43221-2112 614. 326-1217 shanklaw @att.net /s/Lawrence J. Greger Lawrence J. Greger OH 0002592 ATTORNEY AT LAW 120 W. Second Street, Suite 1100 Dayton, OH 45402 937. 223-3153 larry@gregerlawoffice.com COUNSEL FOR PLAINTIFFS MEMORANDUM Intervenor Plaintiff Van Hook filed, on June 26, 2018, a motion to bifurcate the first claim in his intervenor complaint from the balance of his complaint and from original Plaintiffs O’Neal’s and Tibbetts’ first claim (which Van Hook duplicated). The Court granted Van Hook’s motion before the time for responses had passed. Local Rule 21.01.(Entry, June 28, 2018). Plaintiffs O’Neal and Tibbetts respectfully move that this court reconsider this matter and theFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758 0E220 - C21 harm and prejudice it will cause to O’Neal and Tibbetts. This Court has the inherent authority to reconsider its decision allowing bifurcation. Until the judgment is finalized, courts have " ‘inherent power to reconsider any matter.'" State v. Nelson, 10th Dist. Franklin No. 14 AP-229, 2014-Ohio-5757, 23, quoting C.C.M. Enterprises, Inc. v. U.S. Fire Ins. Co., 1st Dist. No. C- 870193, 1988 WL 26226 (Mar. 2, 1988), Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 380 (1981) at f.n.1. Plaintiffs O’Neal and Tibbetts ask now that this Court reconsider its order granting “bifurcation” and deny Van Hook’s motion A. Bifurcating claim one will not truly separate it, or the results of Van Hook’s litigation of it, from O’Neal and Tibbetts’ case and will cause them prejudice and harm. Intervenor Plaintiff Van Hook has moved this Court for an order allowing him to bifurcate the first claim in his intervenor complaint. Though he makes this request for himself only, this sop to independence paints a false picture. Mr. Van Hook’s first claim is the same claim that is the first claim in Mr. O’Neal’s and Mr. Tibbetts’ complaint. The only reason for Van Hook’s request is to “expedite this litigation.” Mr. Van Hook’s plan to expedite (See Van Hook Motion for expedited briefing filed June 29, 2018) by bifurcating (See Van Hook Motion to Bifurcate filed June 26, 2018) and receiving adjudication (See Van Hook motion for judgment on the pleadings re: issue one) on the first issue will undermine Plaintiffs O’ Neal and Tibbetts litigation. Although Ohio Civ. Pro. Rule 42(B) provides for separate trials when such will expedite or economize, this is not such a situation. The convenience to his own schedule that Van Hook demands must be balanced against the prejudice to O’Neal and Tibbetts, exactly as this court warned when it granted Van Hook the right to intervene. Bifurcation as Van Hook hasFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758 0E220 - C22 framed it, is not what is contemplated by the rules and was never intended to put the intervenor’s interests before those of the original Plaintiffs. All of the issues presented by O’Neal and Tibbetts are inter-related. Bifurcating one issue, expediting briefing, and ruling on it will result in the same expedited process in the Tenth District and then the Ohio Supreme Court in an effort to use this litigation as a basis for a stay. And the rulings made in those courts will damage O’Neal and Tibbetts’ ability to fully litigate their case. This Court made clear to Van Hook that his intervention would not be permitted to impair O’Neal’s and Tibbetts’ litigation. Bifurcating any issue to allow Van Hook to run it through the state court system in the next few weeks will undermine O’Neal and Tibbetts’ ability to present their full case and will prejudice their right to due process. Ohio Const., art. I, Sec. 16; U.S. Const., amend. XIV. Bifurcation should not be allowed when the claim at issue cannot fairly be separated from the claims of all Plaintiffs. Van Hook’s scheduling demands do not legitimize his request for bifurcation. His timing predicament is not of O’Neal’s or Tibbetts’ making. His last minute intervention should not be allowed to prejudice the original Plaintiffs. B. Van Hook cannot fairly represent O’Neal’s and Tibbetts’ interests by litigating the first claim on his own and may create negative precedent in his haste or otherwise do damage to O’Neal’s and Tibbetts’ litigation. Mr. Van Hook moved to intervene claiming that O’Neal and Tibbetts’ could not adequately represent his interests in this matter. The reverse is certainly true for O’Neal and Tibbetts’ if Van Hook is allowed to bifurcate the first claim. Calling it “his” will not change the fact that Van Hook’s admitted goal in joining this litigation is speed so he can attempt to obtain a stay. He cannot duplicate the months of work that have gone into O’Neal and Tibbetts’ litigation and because his goal is speed he cannot fairly represent their interests if he is allowed to usurp 4Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758 0E220 - C23 their litigation. The issues O’Neal and Tibbetts have raised are interconnected. Although they are based on distinct legal grounds, the resolution of each impacts the others. It would be a grave injustice to allow Van Hook to bifurcate one issue and push it through the courts in a few weeks in an effort to gain a stay for himself at the expense of O’Neal’s and Tibbetts’ litigation. C. Van Hook has already benefitted from O’Neal and Tibbetts’ pursuit of this matter by using it as the basis for seeking a stay from the Ohio Supreme Court. O’Neal and Tibbetts’ should not be denied their opportunity to litigate their case because Van Hook wants even more. Counsel for O’Neal and Tibbetts are not unsympathetic to Van Hook’s concern that the Ohio Supreme Court may not grant a stay, as Van Hook has requested, pending the outcome of these proceedings, but that sympathy does not override the fact that O’Neal and Tibbetts brought this litigation and they should not suffer prejudice due to Van Hook’s untimely intervention. This Court should not step in to aid Van Hook’s admitted effort to gain a stay when doing so is at the cost of the full and fair litigation of O’Neal’s and Tibbetts’ case. Van Hook could have brought his own suit much earlier if he wanted to pursue the matters at issue here instead of using O’Neal’s and Tibbetts’ case for his own benefit while undermining their litigation. Van Hook has already benefitted from O’Neal’s and Tibbetts’ pursuit of this matter by using it as the basis for seeking a stay from the Ohio Supreme Court which may yet be granted. He should not be permitted to undermine O’Neal’s and Tibbetts’ litigation. WHEREFORE, for all of the reasons stated herein, to insure O’Neal’s and Tibbetts’ rights to Due Process of Law, and in the interests of justice, the Court’s entry granting Mr. Van Hook’s motion to bifurcate should be vacated and Van Hook’s motion to bifurcate denied.0E220 - C24 Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 02 2:45 PM-18CV000758 Respectfully submitted, Is/S. Adele Shank S. ADELE SHANK OH 0022148 LAW OFFICE OF S. ADELE SHANK, Trial Attorney 3380 Tremont Road, Suite 270 Columbus, OH 43221-2112 614. 326-1217 shanklaw @att.net /s/Lawrence J. Greger Lawrence J. Greger OH 0002592 ATTORNEY AT LAW 120 W. Second Street, Suite 1100 Dayton, OH 45402 937. 223-3153 larry@gregerlawoffice.com COUNSEL FOR PLAINTIFFS CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Motion for Reconsideration On the Grant of Van Hook’s Motion to was served upon counsel for Defendants Zoe A. Saadey, and Charles Wille, at the Office of the Ohio Attorney General, Criminal Justice Section, Capital Crimes Unit, 150 East Gay Street, 16th Floor, Columbus, OH 43215 and counsel for Intervenor Plaintiff Van Hook, Randall Porter, Ohio Public Defender Office, 250 E. Broad Street, Suite 1400, Columbus, Ohio 43215-9308 electronically and by regular first class mail, postage pre-paid, this 2nd day of July, 2018. /s/ S. Adele Shank S. ADELE SHANK OH 0022148 Trial Attorney for Plaintiffs O’Neal and Tibbetts LAW OFFICE OF S. ADELE SHANK 3380 Tremont Road, Suite 270 Columbus, OH 43221-2112 614. 326-1217 shanklaw @att.net