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Franklin C Ohi = : -
opi84 - ven iin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
DEMARCO ROOFING, INC.,
Plaintiff, : Case No: 13-CV-05-4984
vs. : Judge P. Sheeran
ROBERTSON CONSTRUCTION
SERVICES, INC., et al.,
Defendants.
MOTION OF ROBERTSON CONSTRUCTION SERVICES, INC.
AND FIDELITY DEPOSIT COMPANY OF MARYLAND FOR AN ORDER:
(1) RECONSIDERING THE COURT’S MAY 31, 2013 “ORDER GRANTING
PLAINTIFF’S MOTION FOR INTERPLEADER OF FUNDS,” AND
(2) DENYING THE PLAINTIFF’S MOTION FOR INTERPLEADER OF FUNDS
Defendants Robertson Construction Services, Inc. and Fidelity and Deposit Company of
Maryland (collectively, “Robertson”) respectfully move this Court for an Order (1) reconsidering
the Court’s May 31, 2013 “Order Granting Plaintiffs Motion for Interpleader of Funds,” and (2)
denying the Plaintiff's Motion for Interpleader of Funds. A Memorandum in Support is attached.
Respectfully submitted,
/s/ Gabe J. Roehrenbeck
Michael D. Tarullo (0042296)
Gabe J. Roehrenbeck (0078231)
Welin, O’Shaughnessy + Scheaf LLC
240 N. Fifth Street, Suite 300
Columbus, Ohio 43215
Mike.Tarullo@wos-law.com
614.484.0700; Fax: 888.671.1828
Counsel for Robertson Construction Services,
Inc. and Fidelity and Deposit Company of
Marylandopi84 - weypnetin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984
MEMORANDUM IN SUPPORT
On May 31, 2013, this Court issued an Order “Granting Plaintiff's Motion for
Interpleader of Funds” (the “Interpleader Order”). Robertson respectfully submits that—on the
face of the docket—the Interpleader Order was issued prematurely, and that the Plaintiff's
Motion for Interpleader of Funds should be denied out-of-hand. The Plaintiff sought (and was
granted) an interpleader of funds, based on the fact that the Defendants had not answered the
Complaint and Interpleader Motion, even though (1) venue is not even proper here—venue is
proper only in Licking County; (2) the Interpleader Order was issued before the Defendants’
answer dates; and (3) the Motion is otherwise substantively without merit.!
The Interpleader Order states as follows:
The Complaint and [Interpleader] Motion were served upon Defendants
Whitehall City Schools, Robertson Construction Services, Inc., and Fidelity
and Deposit Company of Maryland on May 7, 2013. None of the Defendants
have filed an opposition memorandum to Plaintiff's Motion as of the date of
this Order.
(Interpleader Order) (emphasis added). The Order goes on to state that, “in the absence of
opposition to the Plaintiff's [Interpleader Motion],” the Interpleader Motion was well-taken. Jd.
The Complaint and Interpleader Motion were not served on Whitehall, Robertson, or
Fidelity on May 7, 2013. Rather, as the docket reveals, and as is the case in fact, Whitehall and
Robertson were not served until May 9, 2013, and Fidelity was not served until May 13, 2013.
Thus, Whitehall’s, Robertson’s, and Fidelity’s responses are not even due yet—they are not due
until June 6, 2013 as to Whitehall and Robertson (28 days after service of the Complaint), and
‘In filing this Opposition, Robertson and Fidelity are not waiving their right to object to venue
and jurisdiction, which objection they lodged in their Motion to Dismiss, filed June 6, 2013, and
instead are expressly preserving and raising that objection.
-2-opi84 - weipnetin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984
June 10, 2013 as to Fidelity. The Interpleader Order was therefore issued before any Defendant
was required to answer the Complaint.
Moreover, for numerous reasons, the Interpleader Motion is substantively baseless. As
Robertson explains in its Motion to Dismiss (filed on June 5, 2013), venue is not even proper in
this Court, pursuant to the clear and unambiguous forum-selection clause in the Subcontract
pursuant to which the Plaintiff filed this lawsuit. Under that venue-selection clause, if
interpleader was proper (and it was not, and is not), the Licking County Court of Common Pleas
was the only court that could issue such an order. Knowing that venue is proper only in Licking
County, the Plaintiff nonetheless filed its lawsuit in this Court, and invited this Court to order
interpleader. That is troubling.
Further, as Robertson will demonstrate, and as Whitehall explains in its own
Memorandum in Opposition to the Interpleader Motion, the underlying liens the Plaintiff filed
were and are invalid in the first instance, and they are void now in any event because Robertson
bonded the (invalid) liens off in accordance with R.C. 1311.311. The Plaintiff itself knows that,
pursuant to Ohio law, because Robertson bonded off the (invalid) liens, interpleader cannot be
ordered. Whitehall advised the Plaintiff as follows on May 28, 2013—before the Interpleader
Order was issued:
Enclosed please find bonds from Robertson Construction to discharge
your client’s above-referenced liens. According to R.C. 1311.311, the above
liens are now void and the District must release the encumbered funds to the
principal contractor, to the extent the funds are available.
Accordingly, please dismiss the District from the pending lawsuit
immediately. If you do not dismiss the District by its filing deadline, the
District will file a motion to dismiss, a copy of which is attached hereto.opisa - yhipnedin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984
(A copy of this May 28, 2013 letter is attached as Exhibit C to Whitehall’s Opposition to the
Plaintiffs Interpleader Motion). The funds at issue must be released to Robertson, and not
deposited with the Court.
Indeed, the fact that the liens have been bonded off demonstrate, beyond any doubt, that
interpleader of funds is improper here. Civil Rule 22 states that “[t]he court may make an order
for the safekeeping, payment or disposition of such sum or thing.” The Plaintiff already has
security for the amounts it claims it is owed. The bonds Robertson secured stand in the liens’
place as security for the claims.
Robertson and Fidelity respectfully request that this Court deny the Interpleader Motion.
Respectfully submitted,
/s/ Gabe J. Roehrenbeck
Michael D. Tarullo (0042296)
Gabe J. Roehrenbeck (0078231)
Welin, O’Shaughnessy + Scheaf LLC
240 N. Fifth Street, Suite 300
Columbus, Ohio 43215
Mike.Tarullo@wos-law.com
614.484.0700; Fax: 888.671.1828
Counsel for Robertson Construction Services,
Inc. and Fidelity and Deposit Company of
MarylandFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984
0B184 - V71
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of June, 2013, a true copy of the foregoing was sent
by the Franklin County Clerk of Courts, via electronic delivery, to the following:
Jeffrey B. Sams
10400 Blacklick Eastern Rd., Suite 140
Pickerington, Ohio 43147
Attorney for DeMarco Roofing, Inc.
Christopher L. McCloskey
Desmond J. Cullimore
Laura J. Bowman
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215-4291
Attorneys for Board of Education of the Whitehall
City School District
/s/ Gabe J. Roehrenbeck
Gabe Roehrenbeck (0078231)
-5-
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Franklin C Ohi = : - opi84 - ven iin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO DEMARCO ROOFING, INC., Plaintiff, : Case No: 13-CV-05-4984 vs. : Judge P. Sheeran ROBERTSON CONSTRUCTION SERVICES, INC., et al., Defendants. MOTION OF ROBERTSON CONSTRUCTION SERVICES, INC. AND FIDELITY DEPOSIT COMPANY OF MARYLAND FOR AN ORDER: (1) RECONSIDERING THE COURT’S MAY 31, 2013 “ORDER GRANTING PLAINTIFF’S MOTION FOR INTERPLEADER OF FUNDS,” AND (2) DENYING THE PLAINTIFF’S MOTION FOR INTERPLEADER OF FUNDS Defendants Robertson Construction Services, Inc. and Fidelity and Deposit Company of Maryland (collectively, “Robertson”) respectfully move this Court for an Order (1) reconsidering the Court’s May 31, 2013 “Order Granting Plaintiffs Motion for Interpleader of Funds,” and (2) denying the Plaintiff's Motion for Interpleader of Funds. A Memorandum in Support is attached. Respectfully submitted, /s/ Gabe J. Roehrenbeck Michael D. Tarullo (0042296) Gabe J. Roehrenbeck (0078231) Welin, O’Shaughnessy + Scheaf LLC 240 N. Fifth Street, Suite 300 Columbus, Ohio 43215 Mike.Tarullo@wos-law.com 614.484.0700; Fax: 888.671.1828 Counsel for Robertson Construction Services, Inc. and Fidelity and Deposit Company of Marylandopi84 - weypnetin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984 MEMORANDUM IN SUPPORT On May 31, 2013, this Court issued an Order “Granting Plaintiff's Motion for Interpleader of Funds” (the “Interpleader Order”). Robertson respectfully submits that—on the face of the docket—the Interpleader Order was issued prematurely, and that the Plaintiff's Motion for Interpleader of Funds should be denied out-of-hand. The Plaintiff sought (and was granted) an interpleader of funds, based on the fact that the Defendants had not answered the Complaint and Interpleader Motion, even though (1) venue is not even proper here—venue is proper only in Licking County; (2) the Interpleader Order was issued before the Defendants’ answer dates; and (3) the Motion is otherwise substantively without merit.! The Interpleader Order states as follows: The Complaint and [Interpleader] Motion were served upon Defendants Whitehall City Schools, Robertson Construction Services, Inc., and Fidelity and Deposit Company of Maryland on May 7, 2013. None of the Defendants have filed an opposition memorandum to Plaintiff's Motion as of the date of this Order. (Interpleader Order) (emphasis added). The Order goes on to state that, “in the absence of opposition to the Plaintiff's [Interpleader Motion],” the Interpleader Motion was well-taken. Jd. The Complaint and Interpleader Motion were not served on Whitehall, Robertson, or Fidelity on May 7, 2013. Rather, as the docket reveals, and as is the case in fact, Whitehall and Robertson were not served until May 9, 2013, and Fidelity was not served until May 13, 2013. Thus, Whitehall’s, Robertson’s, and Fidelity’s responses are not even due yet—they are not due until June 6, 2013 as to Whitehall and Robertson (28 days after service of the Complaint), and ‘In filing this Opposition, Robertson and Fidelity are not waiving their right to object to venue and jurisdiction, which objection they lodged in their Motion to Dismiss, filed June 6, 2013, and instead are expressly preserving and raising that objection. -2-opi84 - weipnetin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984 June 10, 2013 as to Fidelity. The Interpleader Order was therefore issued before any Defendant was required to answer the Complaint. Moreover, for numerous reasons, the Interpleader Motion is substantively baseless. As Robertson explains in its Motion to Dismiss (filed on June 5, 2013), venue is not even proper in this Court, pursuant to the clear and unambiguous forum-selection clause in the Subcontract pursuant to which the Plaintiff filed this lawsuit. Under that venue-selection clause, if interpleader was proper (and it was not, and is not), the Licking County Court of Common Pleas was the only court that could issue such an order. Knowing that venue is proper only in Licking County, the Plaintiff nonetheless filed its lawsuit in this Court, and invited this Court to order interpleader. That is troubling. Further, as Robertson will demonstrate, and as Whitehall explains in its own Memorandum in Opposition to the Interpleader Motion, the underlying liens the Plaintiff filed were and are invalid in the first instance, and they are void now in any event because Robertson bonded the (invalid) liens off in accordance with R.C. 1311.311. The Plaintiff itself knows that, pursuant to Ohio law, because Robertson bonded off the (invalid) liens, interpleader cannot be ordered. Whitehall advised the Plaintiff as follows on May 28, 2013—before the Interpleader Order was issued: Enclosed please find bonds from Robertson Construction to discharge your client’s above-referenced liens. According to R.C. 1311.311, the above liens are now void and the District must release the encumbered funds to the principal contractor, to the extent the funds are available. Accordingly, please dismiss the District from the pending lawsuit immediately. If you do not dismiss the District by its filing deadline, the District will file a motion to dismiss, a copy of which is attached hereto.opisa - yhipnedin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984 (A copy of this May 28, 2013 letter is attached as Exhibit C to Whitehall’s Opposition to the Plaintiffs Interpleader Motion). The funds at issue must be released to Robertson, and not deposited with the Court. Indeed, the fact that the liens have been bonded off demonstrate, beyond any doubt, that interpleader of funds is improper here. Civil Rule 22 states that “[t]he court may make an order for the safekeeping, payment or disposition of such sum or thing.” The Plaintiff already has security for the amounts it claims it is owed. The bonds Robertson secured stand in the liens’ place as security for the claims. Robertson and Fidelity respectfully request that this Court deny the Interpleader Motion. Respectfully submitted, /s/ Gabe J. Roehrenbeck Michael D. Tarullo (0042296) Gabe J. Roehrenbeck (0078231) Welin, O’Shaughnessy + Scheaf LLC 240 N. Fifth Street, Suite 300 Columbus, Ohio 43215 Mike.Tarullo@wos-law.com 614.484.0700; Fax: 888.671.1828 Counsel for Robertson Construction Services, Inc. and Fidelity and Deposit Company of MarylandFranklin County Ohio Clerk of Courts of the Common Pleas- 2013 Jun 05 11:15 AM-13CV004984 0B184 - V71 CERTIFICATE OF SERVICE I hereby certify that on this 5th day of June, 2013, a true copy of the foregoing was sent by the Franklin County Clerk of Courts, via electronic delivery, to the following: Jeffrey B. Sams 10400 Blacklick Eastern Rd., Suite 140 Pickerington, Ohio 43147 Attorney for DeMarco Roofing, Inc. Christopher L. McCloskey Desmond J. Cullimore Laura J. Bowman Bricker & Eckler LLP 100 South Third Street Columbus, Ohio 43215-4291 Attorneys for Board of Education of the Whitehall City School District /s/ Gabe J. Roehrenbeck Gabe Roehrenbeck (0078231) -5-