Hagy et al v. Demers & Adams, LLC et al
Filing
126
OPINION AND ORDER denying 124 Motion for Leave to File Supplemental Complaint. Signed by Magistrate Judge Terence P Kemp on 2/26/2014. (kk2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
James R. Hagy, III, et al.,
Plaintiffs,
:
:
v.
:
Case No. 2:11-cv-530
:
Demers & Adams, LLC, et al.,
Magistrate Judge Kemp
:
Defendants.
OPINION AND ORDER
This matter is before the Court on a motion for leave to
file a supplemental complaint filed by Plaintiff James R. Hagy,
III, on behalf of himself and Patricia R. Hagy1 (“the Hagys”)
(Doc. #124).
For the reasons set forth below, the motion will be
denied.
I. Background
The factual background of this case has been set forth in
previous orders of this Court and will not be repeated in great
detail here.
For purposes of resolving the present motion,
however, the Court notes that this case arises from a foreclosure
action initiated by the Law Firm Defendants on behalf of Green
Tree against the Hagys.
After the foreclosure action was filed,
the Hagys signed a warranty deed in lieu of foreclosure in return
for which it was agreed that there would be no attempt to collect
any deficiency balance.
Thereafter, the foreclosure complaint
was dismissed, but Green Tree began contacting the Hagys by
telephone for the collection of an alleged deficiency.
The Hagys filed this case against the Law Firm Defendants
and Green Tree alleging violations of the Fair Debt Collection
1
On February 9, 2012, this Court granted James R. Hagy’s
motion requesting that he be substituted for his wife, Patricia
R. Hagy, following Mrs. Hagy’s death. (Doc. #47).
Practices Act (“FDCPA”), 15 U.S.C. §§1692, et seq., the Ohio
Consumer Sales Practices Act (“OCSPA”), O.R.C. §§1345.01 et seq.,
and common law invasion of privacy.
In an opinion and order
issued on October 22, 2013, the Court awarded the following:
$500.00 per plaintiff for statutory damages under the FDCPA, for
a total of $1,000.00 in damages under the FDCPA; $400.00 per
plaintiff for the three OCSPA violations, for a total of $800.00
in damages under the OCSPA; attorney fees in the amount of
$74,195.62; and costs and expenses in the amount of $312.05.
On January 3, 2014, the Hagys filed the motion for leave to
file a supplemental complaint pursuant to Fed. R. Civ. P. 15(d).
In the motion, the Hagys allege that the proposed supplemental
complaint sets forth new facts bearing on the relationship
between the parties, and states a new claim against ProAssurance
Casualty Company (“ProAssurance”), the company that insures the
Law Firm Defendants.
Defendants have not filed any opposition to
the motion.
II. Discussion
The Hagys seek to bring the supplemental complaint pursuant
to O.R.C. §3929.06 and a complaint for declaratory judgment
pursuant to O.R.C. §§2201-2202.
Ohio Revised Code §3929.06
provides, in relevant part, that
(A)(1) If a court in a civil action enters a final
judgment that awards damages to a plaintiff for injury,
death, or loss to the person or property of the plaintiff
or another person for whom the plaintiff is a legal
representative and if, at the same time that the cause of
action accrued against the judgment debtor, the judgment
debtor was insured against liability for that injury,
death, or loss, the plaintiff or the plaintiff’s
successor in interest is entitled as judgment creditor to
have an amount up to the remaining limit of liability
coverage provided in the judgment debtor’s policy of
liability insurance applied to the satisfaction of the
final judgment.
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(2) If, within thirty days after the entry of the final
judgment referred to in division (A)(1) of this section,
the insurer that issued the policy of liability insurance
has not paid the judgment creditor an amount equal to the
remaining limit of liability coverage provided in that
policy, the judgment creditor may file in the court that
issued the final judgment a supplemental complaint
against the insurer seeking the entry of a judgment
ordering the insurer to pay the judgment creditor the
requisite amount.
Subject to division (C) of this
section, the civil action based on the supplemental
complaint shall proceed against the insurer in the same
manner as the original civil action against the judgment
debtor.
(B) Division (A)(2) of this section does not authorize
the commencement of a civil action against an insurer
until a court enters the final judgment described in
division (A)(1) of this section in the distinct civil
action for damages between the plaintiff and an insured
tortfeasor and until the expiration of the thirty-day
period referred to in division (A)(2) of this section.
The statute, therefore, “creates a subrogation action, wherein
the injured party stands in the shoes of the insured against his
or her insurer, and the statute may only be used to bring
insurers into an action.”
Elkins v. American Int’l Special Lines
Ins. Co., 611 F. Supp. 2d 752, 758 (S.D. Ohio 2009).
The statute
creates two conditions precedent to the filing of a supplemental
complaint.
Specifically, there must be (1) a final judgment and
(2) a lapse of thirty days since that judgment without payment of
the judgment in order for a judgment creditor to properly file a
supplemental complaint.
See Martin v. Turner & Son Building
Contractor, No. 2010-L-137, 2010 WL 5296143, at *3 (Ohio App. 11
Dist. Dec. 20, 2010)(citing O.R.C. §3929.06(B)).
In this case, there are no remaining claims against the Law
Firm Defendants.
There are, however, remaining claims against
the Green Tree Defendants that have been stayed pending
arbitration.
Fed. R. Civ. P. 54(b), captioned “Judgment upon
multiple claims or involving multiple parties,” provides
3
When more than one claim for relief is presented in an
action whether as a claim, counterclaim, cross-claim, or
third-party claim, and whether arising out of the same or
separate transactions, or when multiple parties are
involved, the court may enter final judgment as to one or
more but fewer than all of the claims or parties only
upon an express determination that there is no just
reason for delay. In the absence of a determination that
there is no just reason for delay, any order or other
form of decision, however designated, which adjudicates
fewer than all of the claims or the rights and
liabilities of fewer than all the parties, shall not
terminate the action as to any of the claims or parties,
and the order or other form of decision is subject to
revision at any time before the entry of judgment
adjudicating all the claims and the rights and
liabilities of all the parties.
(emphasis added).
Here, the Clerk entered judgment in favor of
the Hagys and against the Law Firm Defendants in the total amount
of $76,307.67 on October 22, 2013 (Doc. #118), but this Court has
not certified pursuant to Fed. R. Civ. P. 54(b) that there is no
just cause for delay.
this case.
Consequently, no final order exists in
Because the two conditions precedent, namely the
existence of a final judgment and a lapse of thirty days since
that judgment without payment, remain unsatisfied, the Court will
deny the Hagys’ motion for leave to file a supplemental complaint
as untimely.
See Martin, 2010 WL 5296143, at *3.
III. Conclusion
Based on the foregoing, the Hagys’ motion for leave to file
a supplemental complaint is denied (Doc. #124).
/s/ Terence P. Kemp
UNITED STATES MAGISTRATE JUDGE
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