Buddenberg v. Weisdack, et al

Filing 49

Opinion and Order granting in part Defendants' Motion to Certify Question of Law to the Ohio Supreme Court (Related Doc # 46 ). The Court will certify the following two questions to the Ohio Supreme Court: 1.Does O.R.C. § 2307.60s creation of a civil cause of action for injuries based on a "criminal act" require an underlying criminal conviction? 2. Is a criminal conviction a condition precedent to a civil claim pursuant to O.R.C. § 2921.03? Signed by Judge Dan Aaron Polster on 8/17/2018.(K,K)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Rebecca Buddenberg,
Plaintiff,
v.
Robert K. Weisdack, et al.,
Defendants.

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CASE NO. 1:18-cv-00522

JUDGE DAN AARON POLSTER

OPINION & ORDER

This case is before the Court on Defendants’ Motion to Certify Question of Law to the
Ohio Supreme Court (“Motion”), Doc #: 46. For the following reasons, the Court GRANTS the
Motion IN PART.
I.

Background
On March 6, 2018, Plaintiff Rebecca Buddenberg filed the instant civil rights action,

pursuant to both federal and state anti-discrimination laws. Doc #: 1. She alleges violations of
three Ohio criminal statutes and seeks civil damages for those violations pursuant to
O.R.C. § 2307.60. Doc #: 31, ¶¶ 187-207. She alleges violations of O.R.C. § 2921.05
(Retaliation), O.R.C. § 2921.03 (Intimidation), and O.R.C. § 2921.45 (Interfering with Civil
Rights). Id. O.R.C. § 2921.03(C) includes a civil right of action; Buddenberg seeks civil
liability for violations of O.R.C. §§ 2921.05 and 2921.45 pursuant only to O.R.C. § 2307.60.

Defendants moved to dismiss these claims, arguing that a criminal conviction is a condition
precedent to civil liability pursuant to O.R.C. § 2307.60. Doc #: 14, 20. On June 28, 2018, the
Court denied Defendants’ motions without prejudice, finding no clear authority on whether a
criminal conviction is required to bring claims pursuant to O.R.C. § 2307.60. 1 Doc #: 38.
Defendants moved to certify nine (mostly repetitive) questions to the Ohio Supreme Court on
August 1, 2018. Doc #: 46. After reviewing Defendants’ Motion, the Court issued an Order
limiting Buddenberg’s Response to two questions:
1.

Does O.R.C. § 2307.60’s creation of a civil cause of action for injuries based on a
“criminal act” require an underlying criminal conviction?

2.

Is a criminal conviction a condition precedent to a civil claim pursuant to
O.R.C. § 2921.03?

Buddenberg filed her Response in Opposition on August 15, 2018. Doc #: 48.
II.

Analysis
A district court has discretion to certify a question of state law to a state supreme court.

Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). “[U]se of the certification procedure is most
appropriate when the question of state law is new or state law is unsettled.” Transamerica Ins.
Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir.1995). The Ohio Supreme Court has
established a two-pronged test to certifying questions: (1) the question of Ohio law must be
determinative of the proceeding; and (2) there must be no controlling Ohio Supreme Court
precedent on the issue. Ohio Sup. Ct R. Prac. XVIII, Sec. 1. In this case, both prongs are met.

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The Court also denied without prejudice Defendant James Budzik’s qualified immunity claims. Defendant Budzik
filed a Notice of Appeal to the Sixth Circuit on July 18, 2018. Doc #: 43. His interlocutory appeal is currently
pending.

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First, whether Buddenberg can only seek civil liability pursuant to O.R.C. §§ 2307.60 and
2921.03 if Defendants have been convicted of the underlying criminal offenses is determinative.
Buddenberg does not allege that any Defendant has been convicted of violating
O.R.C. §§ 2921.05, 2921. 03, or 2921.45. Thus, if a criminal conviction is required before a
plaintiff can seek civil damages pursuant to O.R.C. §§ 2307.60 and 2921.03, Buddenberg’s
Claims 6-8 must be dismissed for failing to state a claim upon which relief can be granted.
Second, no controlling Ohio Supreme Court precedent exists. O.R.C. § 2307.60 provides
that “[a]nyone injured in person or property by a criminal act has, and may recover full damages
in, a civil action . . ..” ORC § 2307.60(A)(1) (emphasis added). Recently, in Jacobson v.
Kaforey, the Ohio Supreme Court held that O.R.C. § 2307.60 independently authorizes a civil
action for damages caused by criminal acts. 75 N.E.3d 203, 204 (Ohio 2016). 2 The Ohio
Supreme Court determined that the language of O.R.C. § 2307.60 is plain and unambiguous and
found that ORC § 2307.60(A)(1) “specifically authorize[s] a civil action for damages based on
the violation of any criminal statute.” Id. at 206 (emphasis added). Jacobson brought claims
pursuant to O.R.C. § 2307.60 for violations of three criminal statutes: O.R.C. § 2905.03
(Unlawful Restraint); O.R.C. § 2905.01 (Kidnapping); and O.R.C. § 2905.05 (Child Enticement).
None of the Jacobson defendants had been convicted of the alleged criminal violations.
Although Jacobson is informative, the Ohio Supreme Court specifically stated in its
opinion that what a plaintiff must do to prove a claim under O.R.C. § 2307.60 was beyond the
scope of the question certified for the Court’s review. There is authority from this district that
the state statute requires a plaintiff to allege and prove that the defendant was criminally
convicted. See Jane v. Patterson, No. 1:16-CV-2195, 2017 WL 1345242 (N.D. Ohio Apr. 12,

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Prior to Jacobson, ORC § 2307.60 was thought to “merely codif[y] Ohio common law that a civil action does not
merge into a criminal prosecution.” Id. at 205.

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2017); A.A. v. Otsego Local Sch. Bd. of Educ., No. 3:15-CV-1747, 2016 WL 7387261 (N.D.
Ohio Dec. 21, 2016); and Ortiz v. Kazimer, No. 1:11 CV 01521, 2015 WL 1400539 (N.D. Ohio
Mar. 26, 2015). However, two of these cases were decided pre-Jacobson and the only postJacobson opinion, Jane, does not cite Jacobson.
Interestingly, in 2007, the Ohio General Assembly amended O.R.C. § 2307.60 to create a
presumption of civil liability when the defendant had been convicted of a criminal violation.
Am. Sub. S.B. 117. Had the General Assembly wanted to make a criminal conviction a
condition precedent to establishing an O.R.C. § 2307.60 claim, they presumably could have done
so. However, the creation of this presumption does not conclusively establish that a conviction
is not required for civil liability. Accordingly, no controlling authority exists as to whether a
criminal conviction is required for a plaintiff to seek civil damages pursuant to O.R.C. § 2307.60.
Similarly, O.R.C. § 2921.03(C) states that:
A person who violates this section is liable in a civil action to any person harmed
by the violation for injury, death, or loss to person or property incurred as a result
of the commission of the offense and for reasonable attorney’s fees, court costs,
and other expenses incurred as a result of prosecuting the civil action commenced
under this division. A civil action under this division is not the exclusive remedy
of a person who incurs injury, death, or loss to person or property as a result of a
violation of this section.
O.R.C. § 2921.03(C) (emphasis added). O.R.C. § 2921.03(C) does not specifically mention
whether a criminal conviction is required for a plaintiff to recover civil damages pursuant to the
statute. Additionally, the Ohio Supreme Court has not addressed this issue so no controlling
authority exists. Accordingly, both questions meet the Ohio Supreme Court’s two-pronged test
for certification.
Furthermore, certification of these questions will not delay the case because Defendant
Budzik has taken an interlocutory appeal on qualified immunity grounds.

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III.

Conclusion
Accordingly, the Court GRANTS Defendants’ Motion IN PART. The Court will certify

the following two questions to the Ohio Supreme Court:
1.

Does O.R.C. § 2307.60’s creation of a civil cause of action for injuries based on a
“criminal act” require an underlying criminal conviction?

2.

Is a criminal conviction a condition precedent to a civil claim pursuant to
O.R.C. § 2921.03?

IT IS SO ORDERED.
/s/Dan Aaron Polster Aug. 17, 2018
DAN AARON POLSTER
UNITED STATES DISTRICT COURT

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