Scherber v. Online Auctions, LLC et al

Filing 36

Order. Sobb defendants motion to dismiss (Doc. 15 ) overruled; Defendants Mercer and Crawford shall show cause on or before 9/30/2013, why default should not be entered against them and judgment entered accordingly; Entity defendants Online Auctions, LLC, Central Auto Finance, Inc., and Riverwood Properties, Inc., shall, on or before 9/30/2013, cause an appearance to be entered on their behalf, or show cause why default should not be entered against them and judgment entered accordingly ; and Status Conference set for 10/7/2013 at 11:00 AM in Chambers 403 (Toledo) before Judge James G. Carr; Counsel and unrepresented individual parties to appear in person; failure to comply with this order shall result in entry of default against any non-appearing unrepresented individual parties. Judge James G. Carr on 9/3/2013. (G,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Craig E. Scherber,

Case No. 3:13CV530

Plaintiff
v.

ORDER

Online Auctions, LLC, et al.,
Defendants

This suit, involving ownership of a 1954 Kaiser Darrin automobile, arises under federal
and state law.1 Pending is a motion by the defendants Jack White and Allan G. Sobb, Executors
of the Estate of Beatrice Sobb (Sobb defendants), to dismiss. (Doc. 15).
For the reasons that follow, I deny the motion.
Background2

1

I note that plaintiff’s direct losses appear to be $13,000 (the $28,000 plaintiff paid for
the car to defendants Online Auctions, LLC and Steven Parker Hanson minus the $15,000 he
received when he, in turn, sold the car to another purchaser. If that is so, I question the
applicability of diversity as a jurisdictional basis.
2

I base my discussion of the background facts on the opinion of Lucas County Common
Pleas Court Judge Frederick H. McDonald. (Doc. 31-1). None of my factual statements herein is,
in any event, to have any res judicta effect: I recite them simply to set the framework for my
discussion of the issues.

Al Sobb Sr., now deceased, transferred title to the Darrin to his wife, Beatrice M. Sobb,
who bequeathed the vehicle to her son, Arthur Sobb, on her death in 2004. Defendants Allan G.
Sobb and Jack White, co-executors, did not include the Darrin in Ms. Sobb’s estate in the Lucas
County, Ohio, Probate Court. Before closing the estate in 2007, that court did not address
ownership of the car. The last time Arthur Sobb, the vehicle’s legatee, had seen the car was in
1997 when he left it with a former employer.
On August 28, 1997, defendant Howard Mercer bought the Darrin from someone who
represented himself to be Randy Dieger from Pro-Pak, a representative of Mr. Sobb’s former
employer. Mercer stored the vehicle for the next ten years. In May, 2007, Mercer contacted
defendant Online Auctions, LLC, which agreed to sell the vehicle. Mercer represented himself as
the sole owner of the Darrin.
Plaintiff Craig Scherber, who lives in Minnesota, bought the Darrin in September, 2010,
and took possession of the car. Defendant Hanson and/or others working on his behalf, promised
to deliver title to Scherber. That has not occurred.
In the meantime, defendant Allan Sobb obtained an Ohio replacement title in the name of
his brother Arthur. Plaintiff disputes the validity of the replacement title
On February 4, 2011, defendant Online Auctions, LLC filed a complaint against Allan
Sobb, Arthur Sobb, and Beatrice Sobb in Lucas County Court of Common Pleas, Case No.
11-1588. Judge McDonald held the 1980 title in Beatrice Sobb’s name was controlling. The
court ordered that her estate was entitled to possession of the Darrin.
On May 30, 2012, the Sobb defendants filed their first amended third-party complaint

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against Scherber and Steven Parker Hanson. On December 18, 2012, Scherber filed a Motion to
Set Aside Void Judgments, which Judge McDonald granted on June 6, 2013. He did so on the
basis that the Lucas County Probate Court, not the Common Pleas Court, had exclusive
jurisdiction to administer Beatrice’s estate and distribute its assets.
In addition, Judge McDonald stayed proceedings pending further court order as to the
other claims pending between the parties in the Lucas County Common Pleas action.
The Sobbs base their pending motion to dismiss on the doctrine of forum non conveniens.
Discussion
I can dispose of the pending motion fairly easily. This is so, because as plaintiff argues,
the Supreme Court noted in American Dredging Co. v. Miller, 510 U.S. 443, 449 n. 2 (1994), the
common law forum non conveniens doctrine applies only “where the alternative forum is
abroad.” That clearly is not the case here.
In any event, I am persuaded, even if the doctrine were somehow applicable, it would not
require dismissal of the claims against the Sobbs. They are, unquestionably, real parties in
interest: the outcome of plaintiff’s claims can potentially have a substantial adverse impact on
their claim to the car. As importantly, both the parties and matters at issue in this case are far
more extensive than those in the now stayed state court action. It appears, moreover, that
plaintiff has sued every individual and entity that either participated in the events giving rise to
this case or who might be affected by its outcome.
It makes good sense, in a word, to adjudicate everything in dispute in one court and at
one time. As Judge McDonald has stayed his proceedings, there is no risk of inconsistent
verdicts. Depending on the outcome here, Sobb defendants may remain able to re-open the estate

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in the Lucas Probate Court, which can determine how to distribute the estate’s interest, if any, in
the Darrin.
Conclusion
The doctrine on which defendants base their motion does not apply. In any event, if it
did, their contention that this is a forum non conveniens is not well taken on its merits.
It is, accordingly,
ORDERED THAT:
1.

The Sobb defendants’ motion to dismiss (Doc. 15) be, and the same hereby is
overruled;

2.

Defendants Mercer and Crawford shall show cause on or before September 30,
2013, why default should not be entered against them and judgment entered
accordingly;

3.

Entity defendants Online Auctions, LLC, Central Auto Finance, Inc., and
Riverwood Properties, Inc., shall, on or before September 30, 2013, cause an
appearance to be entered on their behalf, or show cause why default should not be
entered against them and judgment entered accordingly; and

4.

A status/scheduling conference on Monday, October 7, 2013, at 11:00 a.m. before
undersigned; counsel and unrepresented individual parties to appear in person; failure to
comply with this order shall result in entry of default against any non-appearing
unrepresented individual parties.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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