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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Wednesday, September 04, 2013 6:32:53 PM
CASE NUMBER: 2013 CV 03471 Docket ID: 18439963
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
Rachel Shaw, Adm’r, et al., : Case No. 2013-CV-03471
Plaintiffs, : Judge Frances E. McGee
-vs- :
ANSWER OF PLAINTIFFS TO
James H. Davis, M.D., : CITY OF DAYTON’S INTERVENING
COMPLAINT TO PRESERVE THE
Defendant. : DEATH CERTIFICATE OF KYLEN
ENGLISH
:
______________________________________________________________________________
COMES NOW, Plaintiffs Rachel Shaw and Bobby English, Sr., by and through legal
counsel, James R. Greene, III & Associates, and files their ANSWER as follows to Intervenor-
Plaintiff City of Dayton’s Intervening Complaint to Preserve the Death Certificate of Kylen
English:
1. Plaintiffs admit the allegations of paragraph 1 of the Intervening Complaint.
2. Plaintiffs admit the allegations of paragraph 2 of the Intervening Complaint.
3. Plaintiffs admit the allegations of paragraph 3 of the Intervening Complaint.
4. Plaintiffs admit the allegations of paragraph 4 of the Intervening Complaint.
5. Plaintiffs are without sufficient information to admit or deny the allegations set forth in
paragraph 5 of the Intervening Complaint and, therefore, Plaintiffs deny the same.
6. Plaintiffs are without sufficient information to admit or deny the allegations set forth in
paragraph 6 of the Intervening Complaint and, therefore, Plaintiffs deny the same.
7. Plaintiffs admit they allege the death certificate of Mr. English is incorrect. Plaintiffs
deny the remaining allegations of paragraph 7 of the Intervening Complaint.
8. Plaintiffs admit the allegations of paragraph 8 of the Intervening Complaint.
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9. Plaintiffs deny the allegations of paragraph 9 of the Intervening Complaint as they are
stated by Intervenor-Plaintiff. Plaintiffs admit they sued the City on June 27, 2013 in the
United States District Court for the Southern District of Ohio, in Rachel Shaw, etc. v. City
of Dayton, et al., Case No. 3:13-cv-00210-TMR, alleging, among several other claims,
that the City, Officer Alex Magill, and John and/or Jane Doe Supervisors of Alex Magill
deviated from accepted standards of conduct in the apprehension and custody of Mr.
English resulting in the death of Mr. English.
10. Plaintiffs deny the allegations of paragraph 10 of the Intervening Complaint as they are
stated by Intervenor-Plaintiff. Plaintiffs admit that the Montgomery County Coroner’s
investigation into the death of Mr. English, the determination of the cause, manner and
mode of death of Mr. English, and the death certificate for Mr. English, are important
evidence in the case of Rachel Shaw, etc. v. City of Dayton, Ohio, et al., Case No. 3:13-
cv-00210-TMR.
11. Plaintiffs deny the allegations of paragraph 11 of the Intervening Complaint as they are
stated by Intervenor-Plaintiff. Plaintiffs admit that the Montgomery County Coroner’s
inclusion of suicide as Mr. English’s manner of death may directly affect the City and its
potential legal liability in the case of Rachel Shaw, etc. v. City of Dayton, Ohio, et al.,
Case No. 3:13-cv-00210-TMR as the findings of the Montgomery County Coroner’s
Office are accorded rebuttable presumptive value.
12. Plaintiffs deny the allegations set forth in paragraph 12 of the Intervening Complaint.
13. Plaintiffs deny the allegations set forth in paragraph 13 of the Intervening Complaint.
PLAINTIFFS’ AFFIRMATIVE DEFENSES
14. Intervenor-Plaintiff’s Intervening Complaint fails to state a claim upon which relief can
be granted.
15. This Court lacks jurisdiction over Intervenor-Plaintiff pursuant to Civil Rule 24(A) and
(B).
16. Intervenor-Plaintiff is not a necessary and/or indispensable party under Civ. R. 19.
17. Intervenor-Plaintiff’s Intervening Complaint is barred by waiver, estoppel, and/or laches.
18. Plaintiffs assert all applicable affirmative defenses recognized and set forth in Ohio Rule
of Civil Procedure 8(C) and reserve the right to supplement with additional affirmative
defenses based upon receipt of discovery and any additional evidence made known by
Intervenor-Plaintiff and/or by any other party to this action.
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WHEREFORE, Plaintiffs demand judgment against Intervenor-Plaintiff, that
Intervenor-Plaintiff takes nothing, that the Intervening Complaint be dismissed with prejudice,
and that Intervenor-Plaintiff bear all costs of this action, including any reasonable and/or
necessary legal fees that Plaintiffs incur in defense of this action.
Respectfully submitted,
/s/ James R. Greene, III
James R. Greene, III (#0034267)
Valerie L. Colbert (#0074075)
James R. Greene, III & Associates
120 West Second St., Ste. 900
Dayton, Ohio 45402
937-225-3991 (Telephone)
937-285-4719 (Facsimile)
Email: JRGATLAW@aol.com
Counsel for Plaintiffs
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that a correct and accurate copy of Answer of
Plaintiffs to City of Dayton’s Intervening Complaint has been served this 4th day of September
2013 via this Court’s electronic filing system upon the following:
Neil F. Freund, Esq. Laura G. Mariani, Esq.
Leonard J. Bazelak, Esq. Assistant Prosecuting Attorney
Freund, Freeze & Arnold 301 W. Third Street
Fifth Third Center P.O. Box 972
1 S. Main St., Suite 1800 Dayton, Ohio 45422
Dayton, Ohio 45402-2017 marianil@mcohio.org
nfreund@ffalaw.com Attorney for Defendant
lbazelak@ffalaw.com James H. Davis, M.D.,
Attorneys for Intervenor-Plaintiff Former Montgomery County
City of Dayton, Ohio Coroner
/s/ James R. Greene, III
James R. Greene, III & Associates
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Wednesday, September 04, 2013 6:32:53 PM CASE NUMBER: 2013 CV 03471 Docket ID: 18439963 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION Rachel Shaw, Adm’r, et al., : Case No. 2013-CV-03471 Plaintiffs, : Judge Frances E. McGee -vs- : ANSWER OF PLAINTIFFS TO James H. Davis, M.D., : CITY OF DAYTON’S INTERVENING COMPLAINT TO PRESERVE THE Defendant. : DEATH CERTIFICATE OF KYLEN ENGLISH : ______________________________________________________________________________ COMES NOW, Plaintiffs Rachel Shaw and Bobby English, Sr., by and through legal counsel, James R. Greene, III & Associates, and files their ANSWER as follows to Intervenor- Plaintiff City of Dayton’s Intervening Complaint to Preserve the Death Certificate of Kylen English: 1. Plaintiffs admit the allegations of paragraph 1 of the Intervening Complaint. 2. Plaintiffs admit the allegations of paragraph 2 of the Intervening Complaint. 3. Plaintiffs admit the allegations of paragraph 3 of the Intervening Complaint. 4. Plaintiffs admit the allegations of paragraph 4 of the Intervening Complaint. 5. Plaintiffs are without sufficient information to admit or deny the allegations set forth in paragraph 5 of the Intervening Complaint and, therefore, Plaintiffs deny the same. 6. Plaintiffs are without sufficient information to admit or deny the allegations set forth in paragraph 6 of the Intervening Complaint and, therefore, Plaintiffs deny the same. 7. Plaintiffs admit they allege the death certificate of Mr. English is incorrect. Plaintiffs deny the remaining allegations of paragraph 7 of the Intervening Complaint. 8. Plaintiffs admit the allegations of paragraph 8 of the Intervening Complaint. 1 9. Plaintiffs deny the allegations of paragraph 9 of the Intervening Complaint as they are stated by Intervenor-Plaintiff. Plaintiffs admit they sued the City on June 27, 2013 in the United States District Court for the Southern District of Ohio, in Rachel Shaw, etc. v. City of Dayton, et al., Case No. 3:13-cv-00210-TMR, alleging, among several other claims, that the City, Officer Alex Magill, and John and/or Jane Doe Supervisors of Alex Magill deviated from accepted standards of conduct in the apprehension and custody of Mr. English resulting in the death of Mr. English. 10. Plaintiffs deny the allegations of paragraph 10 of the Intervening Complaint as they are stated by Intervenor-Plaintiff. Plaintiffs admit that the Montgomery County Coroner’s investigation into the death of Mr. English, the determination of the cause, manner and mode of death of Mr. English, and the death certificate for Mr. English, are important evidence in the case of Rachel Shaw, etc. v. City of Dayton, Ohio, et al., Case No. 3:13- cv-00210-TMR. 11. Plaintiffs deny the allegations of paragraph 11 of the Intervening Complaint as they are stated by Intervenor-Plaintiff. Plaintiffs admit that the Montgomery County Coroner’s inclusion of suicide as Mr. English’s manner of death may directly affect the City and its potential legal liability in the case of Rachel Shaw, etc. v. City of Dayton, Ohio, et al., Case No. 3:13-cv-00210-TMR as the findings of the Montgomery County Coroner’s Office are accorded rebuttable presumptive value. 12. Plaintiffs deny the allegations set forth in paragraph 12 of the Intervening Complaint. 13. Plaintiffs deny the allegations set forth in paragraph 13 of the Intervening Complaint. PLAINTIFFS’ AFFIRMATIVE DEFENSES 14. Intervenor-Plaintiff’s Intervening Complaint fails to state a claim upon which relief can be granted. 15. This Court lacks jurisdiction over Intervenor-Plaintiff pursuant to Civil Rule 24(A) and (B). 16. Intervenor-Plaintiff is not a necessary and/or indispensable party under Civ. R. 19. 17. Intervenor-Plaintiff’s Intervening Complaint is barred by waiver, estoppel, and/or laches. 18. Plaintiffs assert all applicable affirmative defenses recognized and set forth in Ohio Rule of Civil Procedure 8(C) and reserve the right to supplement with additional affirmative defenses based upon receipt of discovery and any additional evidence made known by Intervenor-Plaintiff and/or by any other party to this action. 2 WHEREFORE, Plaintiffs demand judgment against Intervenor-Plaintiff, that Intervenor-Plaintiff takes nothing, that the Intervening Complaint be dismissed with prejudice, and that Intervenor-Plaintiff bear all costs of this action, including any reasonable and/or necessary legal fees that Plaintiffs incur in defense of this action. Respectfully submitted, /s/ James R. Greene, III James R. Greene, III (#0034267) Valerie L. Colbert (#0074075) James R. Greene, III & Associates 120 West Second St., Ste. 900 Dayton, Ohio 45402 937-225-3991 (Telephone) 937-285-4719 (Facsimile) Email: JRGATLAW@aol.com Counsel for Plaintiffs CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that a correct and accurate copy of Answer of Plaintiffs to City of Dayton’s Intervening Complaint has been served this 4th day of September 2013 via this Court’s electronic filing system upon the following: Neil F. Freund, Esq. Laura G. Mariani, Esq. Leonard J. Bazelak, Esq. Assistant Prosecuting Attorney Freund, Freeze & Arnold 301 W. Third Street Fifth Third Center P.O. Box 972 1 S. Main St., Suite 1800 Dayton, Ohio 45422 Dayton, Ohio 45402-2017 marianil@mcohio.org nfreund@ffalaw.com Attorney for Defendant lbazelak@ffalaw.com James H. Davis, M.D., Attorneys for Intervenor-Plaintiff Former Montgomery County City of Dayton, Ohio Coroner /s/ James R. Greene, III James R. Greene, III & Associates 3