Schwering et al v. TRW Vehicle Safety Systems Inc et al

Filing 45

ORDER denying #40 Motion to disregard answer of the Ohio Supreme Court; granting motion to lift stay; granting #43 Renewed Motion to Dismiss. The complaint is dismissed with prejudice. Signed by Judge Sandra S Beckwith on 5/17/12. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Kenneth M. Schwering,
et al.,
Plaintiffs,
vs.
TRW Vehicle Safety Systems,
Inc., et al.,
Defendants.

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) Case No. 1:10-CV-679
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O R D E R

This matter is before the Court on Plaintiff Kenneth
Schwering’s motion to disregard the answer of the Supreme Court
of Ohio as to the Certified Question (Doc. No. 40) and
Defendants’ joint motion to lift stay and for renewal of their
motions to dismiss (Doc. No. 43).

For the reasons that follow,

Plaintiff’s motion to disregard is not well-taken and is DENIED;
Defendants’ motion to lift stay and for renewal of their motions
to dismiss is well-taken and is GRANTED.
Plaintiff Kenneth M. Schwering filed products liability
and negligence claims on behalf of himself and his decedent
arising out of a 2002 SUV accident in which he was seriously
injured and his decedent was fatally injured.

Plaintiff

previously asserted the same claims in a suit he filed against
the Defendants in the Hamilton County Court of Common Pleas.
Complaint ¶ 5.

The case proceeded to a jury trial on May 18,

2009 but ended in a mistrial on June 9, 2009 during Plaintiff’s

case-in-chief.

Id. ¶ 6.

Thereafter, Plaintiff filed a notice of

voluntary dismissal pursuant to Ohio Civ. R. 41(A)(1)(a) and the
case was closed on the state court docket.

Id. ¶ 7.

Plaintiff re-filed the same claims in this Court in
September 2010.

Defendants moved to dismiss the complaint on the

grounds that under Ohio law, Plaintiff’s voluntarily dismissal of
the complaint in state court after the jury had been empaneled
and sworn was an adjudication on the merits since trial had
commenced for purposes of Ohio Rule 41(A)(1)(A) at the time of
the dismissal.

Defendants argued, therefore, that this Court

must dismiss Plaintiff’s federal complaint since a district court
is required to give the same preclusive effect to a state court
judgment that a state court would.

Plaintiff’s position was that

the state judge’s declaration of a mistrial essentially rendered
all of the prior proceedings a nullity and put the case in the
same position as if the trial have never commenced.

Therefore,

according to Plaintiff, under the state rules of procedure, he
was entitled to voluntarily dismiss his case without leave of
court and without the dismissal operating as an adjudication on
the merits.

Consequently, Plaintiff argued, the voluntary

dismissal of his state court complaint did not preclude re-filing
the same claims later in federal court.
Since the issue raised by Plaintiff’s complaint and
Defendants’ motions to dismiss was a potentially dispositive

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issue of state law, this Court certified the following question
to the Supreme Court of Ohio for resolution:
Where a jury has been empaneled and sworn and the trial
has commenced for purposes of Ohio Civ. R. 41(A)(1)(a),
and the trial court subsequently declares a mistrial,
does Rule 41(A)(1)(a) permit the plaintiff to
unilaterally voluntarily dismiss his or her claims
without prejudice?
Doc. No. 36, at 4.

The Court then stayed this case pending the

Supreme Court of Ohio’s answer to the certified question.
On April 4, 2012, the Supreme Court of Ohio issued an
opinion which answered the certified question in the negative.
Schwering v. TRW Vehicle Safety Sys., Inc., ___N.E.2d___, No.
2011-0438, 2012 WL 1138195 (Ohio Apr. 4, 2012).

Specifically,

the Supreme Court held that “[a] plaintiff may not voluntarily
dismiss a claim without prejudice pursuant to Civ. R. 41(A)(1)(a)
when a trial court declares a mistrial after the jury has been
empaneled and the trial has commenced.”

Id. at *1 syl. 1.

In

other words, according to the Supreme Court of Ohio, Plaintiff’s
voluntary dismissal of his claims without leave of court after
the trial court declared a mistrial was an adjudication on the
merits of his claims.

Therefore, pursuant to Schwering,

Plaintiff is precluded under state law from re-filing his
products liability and negligence claims.

This Court, therefore,

is required to give the same preclusive effect that Ohio courts
would and dismiss Plaintiff’s complaint.

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Despite the clarity of the answer to the certified
question, Plaintiff now moves this Court to disregard the Supreme
Court’s opinion on the grounds that it conflicts with his right
under the Seventh Amendment to the U.S Constitution to a jury
trial on his claims.

Plaintiff’s motion to disregard the Supreme

Court of Ohio’s decision is untenable - the Court simply is not
at liberty to do so.

Grover v. Eli Lilly & Co., 33 F.3d 716, 719

(6th Cir. 1994) (“When a state supreme court accepts a certified
question, it voluntarily undertakes a substantial burden and its
resolution of the issue must not be disregarded.”); (“Having
represented to the Ohio Supreme Court that its answer would be
dispositive of the case, the district court was bound to follow
state law as declared in the answer.”).

Plaintiff’s contention

that the Ohio Supreme Court’s decision violates his Seventh
Amendment right to a jury trial is without merit.

Plaintiff

forfeited his right to a jury trial by improperly voluntarily
dismissing his complaint in state court.
In light of the Schwering decision, Defendants’ motion
to lift the stay in this case is well-taken and is GRANTED.
Additionally, as already discussed, Schwering compels the
conclusion that Plaintiff is precluded from re-filing his
products liability and negligence claims in this Court.
Accordingly, Defendants’ renewed motion to dismiss is well-taken

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and is GRANTED.

The complaint is DISMISSED WITH PREJUDICE.

THIS

CASE IS CLOSED.

IT IS SO ORDERED

Date May 17, 2012

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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