Preview
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, August 06, 2013 1:25:54 PM
CASE NUMBER: 2013 CV 03471 Docket ID: 18365445
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
V. *
JAMES H. DAVIS, M.D., CITY OF DAYTON’S REPLY
MEMORANDUM IN SUPPORT
Defendant * OF MOTION TO INTERVENE
The City of Dayton (“the City”) is entitled to intervene as a matter of right pursuant to
Civ. R. 24(A). The City has an evidentiary interest in the coroner’s findings contained within the
death certificate of Kylen English. The disposition of this matter impairs the City’s ability to
protect said evidentiary interest. No party in this matter is situated to adequately represent the
City’s evidentiary interest. As such, the City is entitled to intervene as a matter of right.
Alternatively, pursuant to Civ. R. 24(B), the City should be permitted to intervene as the
concurrent § 1983 litigation against the City involves the exact same issues of fact as those
presented in this matter. Plaintiffs’ arguments are an attempt to confuse the simple requirements
set forth in Civ. R. 24 and are without merit.
Plaintiffs first argue the City should not be permitted to intervene because no allegations
have been made against the City in this matter. Plaintiffs have undoubtedly made allegations in
their complaint against the City by alleging Mr. English’s cause of death was accident or
homicide. Although Plaintiffs have not directly alleged the City’s involvement in that accident
or homicide, the implication is crystal clear, made clearer by the concurrent § 1983 litigation –
Plaintiffs feel the City of Dayton is somehow responsible for the death of Mr. English. (See
Exhibit D, Complaint of Rachel Shaw, etc. v. City of Dayton, et. al., Case No. 3:13 cv 00210,
FREUND, FREEZE & ARNOLD
A Legal Professional Association
attached to Defendant City of Dayton’s Motion to Intervene, filed July 29, 2013.) Plaintiffs
cannot now, in good faith and in light of the pending § 1983 litigation, claim they have made no
allegations against the City. The City should be afforded the opportunity to defend against these
allegations in order to preserve its evidentiary interest in the § 1983 litigation.
Plaintiffs next argue the City does not have a protectable interest in the findings
contained within the coroner’s death certificate for Kylen English. This is simply untrue. Civ.
R. 24(A) requires the would-be intervenor to have an “interest relating to the property or
transaction that is the subject of the action” in order to intervene as a matter of right. In Ohio, an
“interest” as it relates to Civ. R. 24 is defined as “[a]n interest recognized by law or an interest
that is legally protectable.” (Internal quotations omitted) Velocity Dev., LLC v. Perrysbury Twp.
Bd. of Trs., 2011 Ohio 6192, P17, citing Black’s Law Dictionary (9 Ed.2009) 886 and In re
Scmidt, 25 Ohio St.3d 331, 336, 496 N.E.2d 952. The City undoubtedly has an interest
recognized by law (an evidentiary determination to be given presumptive effect in a concurrent
proceeding) sufficient to meet the requirements of Civ. R. 24(A). Plaintiffs’ argument that the
City does not have a protectable interest at stake is without merit.
Plaintiffs additionally argue the City’s motion to intervene is premature in that there is no
record from which to conclude that the coroner is not positioned to adequately represent
whatever interest the City may have. In Ohio, the burden to show that its interests are not
adequately represented by the existing parties is on the would-be intervenor. Aultman v. Board
of County Commissioners, 1983 Ohio App. LEXIS 12645, *6. The Second Appellate District
has noted “[t]he burden is minimal and is met if [the movant] show[s] that representation of their
interests may be inadequate.” (Emphasis added) Id., citing Foster v. Gueory, 655 F.2d 1319.
The City has shown that the coroner’s representation of its interests is inadequate for the simple
reason that the coroner was not on the scene at the time of Mr. English’s death and is not in
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FREUND, FREEZE & ARNOLD
A Legal Professional Association
possession of the physical evidence. Moreover, the coroner has no interest in defending the City
against Plaintiffs’ allegations of accident and/or homicide. Simply put, the coroner has limited
information and evidence to represent the City’s evidentiary interest in cause of death and the
manner of and mode in which it occurred. In that sense, at the very least, the coroner’s
representation may be inadequate. As such, the City has met its burden to show inadequacy of
representation for purposes of Civ. R. 24(A).
Plaintiffs’ arguments in opposition to the City’s motion to intervene are without merit.
Plaintiffs have undoubtedly made allegations against the City that the City needs, and is entitled,
to defend. The City has a protectable interest in supporting and preserving the findings
contained within the coroner’s death certificate for Mr. English. The City has sufficiently shown
the coroner is not situated to adequately defend its evidentiary interest in this matter. Moreover,
the City has met all requirements to intervene as a matter of right pursuant to Civ. R. 24(A) and,
alternatively, met all requirements to intervene permissively pursuant to Civ. R. 24(B). As such,
and because Ohio law favors liberal construction in favor of intervention, the City must be
permitted to intervene in this matter. Ohio Consumers’ Council v. Public Utilities Commission,
111 Ohio St.3d 384, 856 N.E.2d 940 (2006).
-3-
FREUND, FREEZE & ARNOLD
A Legal Professional Association
JOHN J. DANISH (0046639)
Director of Law
by s/s Neil F. Freund
Neil F. Freund (0012183)
Leonard J. Bazelak (0064023)
FREUND, FREEZE & ARNOLD
Fifth Third Center
1 South Main Street, Suite 1800
Dayton, OH 45402-2017
Phone: (937) 222-2424
Fax: (937) 222-5369
callison@ffalaw.com
lbazelak@ffalaw.com
Counsel For Defendants
City of Dayton and Officer Alex Magill
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing was served this 6th day of
day of August, 2013, via this Court’s electronic filing system upon the following:
James R. Greene, III (0034267) Laura G. Mariani (0063284)
Valerie L. Colbert (0074075) Assistant Prosecuting Attorney
James R. Greene, III & Associates 301 West Third Street
120 West Second Street, Suite 900 P.O. Box 972
Dayton, OH 45402 Dayton, OH 45422
Phone: (937) 225-3991 Phone: (937) 225-5780
Fax: (937) 285-4719 Fax: (937) 225-4822
jrgatlaw@aol.com marianil@mcohio.org
valerie.colbert@ymail.com Attorney for Defendant
Attorney for Plaintiff James H. Davis, M.D.,
Former Montgomery County Coroner
s/ Neil F. Freund__________________
Neil F. Freund
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FREUND, FREEZE & ARNOLD
A Legal Professional Association
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, August 06, 2013 1:25:54 PM CASE NUMBER: 2013 CV 03471 Docket ID: 18365445 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 V. * JAMES H. DAVIS, M.D., CITY OF DAYTON’S REPLY MEMORANDUM IN SUPPORT Defendant * OF MOTION TO INTERVENE The City of Dayton (“the City”) is entitled to intervene as a matter of right pursuant to Civ. R. 24(A). The City has an evidentiary interest in the coroner’s findings contained within the death certificate of Kylen English. The disposition of this matter impairs the City’s ability to protect said evidentiary interest. No party in this matter is situated to adequately represent the City’s evidentiary interest. As such, the City is entitled to intervene as a matter of right. Alternatively, pursuant to Civ. R. 24(B), the City should be permitted to intervene as the concurrent § 1983 litigation against the City involves the exact same issues of fact as those presented in this matter. Plaintiffs’ arguments are an attempt to confuse the simple requirements set forth in Civ. R. 24 and are without merit. Plaintiffs first argue the City should not be permitted to intervene because no allegations have been made against the City in this matter. Plaintiffs have undoubtedly made allegations in their complaint against the City by alleging Mr. English’s cause of death was accident or homicide. Although Plaintiffs have not directly alleged the City’s involvement in that accident or homicide, the implication is crystal clear, made clearer by the concurrent § 1983 litigation – Plaintiffs feel the City of Dayton is somehow responsible for the death of Mr. English. (See Exhibit D, Complaint of Rachel Shaw, etc. v. City of Dayton, et. al., Case No. 3:13 cv 00210, FREUND, FREEZE & ARNOLD A Legal Professional Association attached to Defendant City of Dayton’s Motion to Intervene, filed July 29, 2013.) Plaintiffs cannot now, in good faith and in light of the pending § 1983 litigation, claim they have made no allegations against the City. The City should be afforded the opportunity to defend against these allegations in order to preserve its evidentiary interest in the § 1983 litigation. Plaintiffs next argue the City does not have a protectable interest in the findings contained within the coroner’s death certificate for Kylen English. This is simply untrue. Civ. R. 24(A) requires the would-be intervenor to have an “interest relating to the property or transaction that is the subject of the action” in order to intervene as a matter of right. In Ohio, an “interest” as it relates to Civ. R. 24 is defined as “[a]n interest recognized by law or an interest that is legally protectable.” (Internal quotations omitted) Velocity Dev., LLC v. Perrysbury Twp. Bd. of Trs., 2011 Ohio 6192, P17, citing Black’s Law Dictionary (9 Ed.2009) 886 and In re Scmidt, 25 Ohio St.3d 331, 336, 496 N.E.2d 952. The City undoubtedly has an interest recognized by law (an evidentiary determination to be given presumptive effect in a concurrent proceeding) sufficient to meet the requirements of Civ. R. 24(A). Plaintiffs’ argument that the City does not have a protectable interest at stake is without merit. Plaintiffs additionally argue the City’s motion to intervene is premature in that there is no record from which to conclude that the coroner is not positioned to adequately represent whatever interest the City may have. In Ohio, the burden to show that its interests are not adequately represented by the existing parties is on the would-be intervenor. Aultman v. Board of County Commissioners, 1983 Ohio App. LEXIS 12645, *6. The Second Appellate District has noted “[t]he burden is minimal and is met if [the movant] show[s] that representation of their interests may be inadequate.” (Emphasis added) Id., citing Foster v. Gueory, 655 F.2d 1319. The City has shown that the coroner’s representation of its interests is inadequate for the simple reason that the coroner was not on the scene at the time of Mr. English’s death and is not in -2- FREUND, FREEZE & ARNOLD A Legal Professional Association possession of the physical evidence. Moreover, the coroner has no interest in defending the City against Plaintiffs’ allegations of accident and/or homicide. Simply put, the coroner has limited information and evidence to represent the City’s evidentiary interest in cause of death and the manner of and mode in which it occurred. In that sense, at the very least, the coroner’s representation may be inadequate. As such, the City has met its burden to show inadequacy of representation for purposes of Civ. R. 24(A). Plaintiffs’ arguments in opposition to the City’s motion to intervene are without merit. Plaintiffs have undoubtedly made allegations against the City that the City needs, and is entitled, to defend. The City has a protectable interest in supporting and preserving the findings contained within the coroner’s death certificate for Mr. English. The City has sufficiently shown the coroner is not situated to adequately defend its evidentiary interest in this matter. Moreover, the City has met all requirements to intervene as a matter of right pursuant to Civ. R. 24(A) and, alternatively, met all requirements to intervene permissively pursuant to Civ. R. 24(B). As such, and because Ohio law favors liberal construction in favor of intervention, the City must be permitted to intervene in this matter. Ohio Consumers’ Council v. Public Utilities Commission, 111 Ohio St.3d 384, 856 N.E.2d 940 (2006). -3- FREUND, FREEZE & ARNOLD A Legal Professional Association JOHN J. DANISH (0046639) Director of Law by s/s Neil F. Freund Neil F. Freund (0012183) Leonard J. Bazelak (0064023) FREUND, FREEZE & ARNOLD Fifth Third Center 1 South Main Street, Suite 1800 Dayton, OH 45402-2017 Phone: (937) 222-2424 Fax: (937) 222-5369 callison@ffalaw.com lbazelak@ffalaw.com Counsel For Defendants City of Dayton and Officer Alex Magill CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing was served this 6th day of day of August, 2013, via this Court’s electronic filing system upon the following: James R. Greene, III (0034267) Laura G. Mariani (0063284) Valerie L. Colbert (0074075) Assistant Prosecuting Attorney James R. Greene, III & Associates 301 West Third Street 120 West Second Street, Suite 900 P.O. Box 972 Dayton, OH 45402 Dayton, OH 45422 Phone: (937) 225-3991 Phone: (937) 225-5780 Fax: (937) 285-4719 Fax: (937) 225-4822 jrgatlaw@aol.com marianil@mcohio.org valerie.colbert@ymail.com Attorney for Defendant Attorney for Plaintiff James H. Davis, M.D., Former Montgomery County Coroner s/ Neil F. Freund__________________ Neil F. Freund -4- FREUND, FREEZE & ARNOLD A Legal Professional Association