Mathews et al v. Ohio Public Employees Retirement System

Filing 38

OPINION AND ORDER GRANTING 27 Motion for Leave to File Amended Answer and Counterclaim Instanter; DENYING 26 Motion for Judgment on the Pleadings of Plaintiff, Richard Mathews. Signed by Magistrate Judge Norah McCann King on 9/23/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD MATHEWS, et al.,
Plaintiffs,
vs.

Civil Action 2:12-cv-1033
Magistrate Judge King

OHIO PUBLIC EMPLOYEES RETIREMENT
SYSTEM,
Defendant.

OPINION AND ORDER
This matter is before the Court, with the consent of the parties
pursuant to 28 U.S.C. § 636(c), for consideration of the Motion for
Judgment on the Pleadings of Plaintiff, Richard Mathews, ECF 26
(“Plaintiff’s Motion”), and Ohio Public Employees Retirement System’s
Motion for Leave to File Amended Answer and Counterclaim, Instanter,
ECF 27 (“Motion to File Counterclaim”).
I.

PROCEDURAL BACKGROUND
On November 8, 2012, plaintiff Richard Mathews1 and his wife,

Sandra Mathews, filed this action, asserting eight claims based on the
termination of his disability retirement benefits.

Complaint, ECF 2.

Upon OPERS’ motion to dismiss, ECF 4, this Court dismissed all claims
except plaintiff’s Fourteenth Amendment procedural due process claim.
Opinion and Order, ECF 14.

In reaching this decision, the Court

specifically concluded that Ms. Mathews lacked standing to pursue her

1

Unless otherwise specified, all references to “plaintiff” are to Richard
Mathews.

1

claims based on the termination of her husband’s disability retirement
benefits.

Id.

On October 4, 2013, OPERS filed an answer, denying

liability and asserting a counterclaim for recovery of alleged
overpaid benefits and for declaratory judgment.

Answer and

Counterclaim of Defendant Ohio Public Employees Retirement System, ECF
15 (“Answer and Counterclaim to Original Complaint”).
Following a pretrial conference with counsel for the parties, the
Court issued a scheduling order pursuant to the provisions of Fed. R.
Civ. P. 16(b), noting that OPERS had asserted a counterclaim and
requiring plaintiff to reply to the counterclaim by October 25, 2013.
Preliminary Pretrial Order, ECF 16, p. 1.

The Court also established

deadlines for plaintiff’s anticipated motion for leave to file an
amended complaint as well as briefing of that motion.

Id.

The Court

also set deadlines for completing discovery and filing motions for
summary judgment at, respectively, February 28, 2014 and March 31,
2014.

Id. at 2.
In later granting plaintiff’s motion for leave to amend the

complaint, the Court noted that, although the proposed amended
complaint purported to reassert all of plaintiffs’ previously
dismissed claims, including claims on behalf of Ms. Mathews,
plaintiffs clarified that they were merely trying to preserve the
claims for appeal and not “attempt[ing] to resurrect these claims at
this time.”

Opinion and Order, ECF 22, pp. 5-6 (quoting plaintiffs’

reply memorandum, ECF 21, p. 4).

Accordingly, the claims remaining

for the Court’s consideration are plaintiff Richard Mathews’
procedural due process claims pursuant to the Fourteenth Amendment and
2

O.R.C. § 145.362 (addressing, inter alia, termination of disability
benefits).

Id. at 6.

See also First Amended Complaint, ECF 23, ¶¶

41-43, 70-73 (“Amended Complaint”).

Plaintiff seeks the following

relief:
(a) That Defendant be permanently enjoined from
withholding Plaintiffs [sic] full disability retirement
benefits;
(b) That defendant pay Plaintiffs the full and complete
retirement benefits;
(c) That Defendant be ordered to return Plaintiffs to full
disability retirement benefits status quo ante;
(d) That Defendant pay compensatory damages as appropriate
to compensate Plaintiffs for their losses caused from
Defendant’s misconduct in the amount of Eighty Thousand and
no/00 Dollars ($80,000.00) from the date of termination
through the date of the court’s appropriate Order granting
relief;
(e) That Defendant pay compensatory damages as appropriate
to compensate Plaintiffs for their losses caused from
Defendant’s misconduct in the amount of Twenty Thousand and
no/00 Dollars ($20,000.00) representing the costs of health
insurance benefits coverage(s) which Plaintiff’s [sic] now
have to purchase and procure on their own and at their own
expense; from the date of termination through the date of
the court’s appropriate Order granting relief;
(f) That Defendant pay compensatory damages as appropriate
to compensate Plaintiffs for their losses caused from
Defendant’s misconduct in an amount appropriate from the
date of termination of Plaintiffs’ disability retirement
benefits through the date of the court’s appropriate Order
granting relief;
(g) That Defendant pay Plaintiffs’ costs, expenses, and
reasonable attorneys’ fees;
(h) That this Court determine that Ohio Revised Code
Sections 145.20, 145.01 and 145.362 deny OPERS [sic] and
other disability retirants of their fundamental First
Amendment Constitutional rights of freedom of speech,
freedom of association and freedom to participate in the
political process;

3

(i) That Ohio Revised Code Sections 145.20 and 145.01 are
unconstitutional, unconstitutionally vague and ambiguous,
as applied or otherwise;
(j) That Ohio Revised Code Sections [sic] 145.362 is
unconstitutional, on its face, as applied or otherwise; and
(j)[sic]
That this Court award such other and appropriate
relief it deems proper, either at law or in equity.
Id. at “Prayer for Relief,” pp. 16-17.
On December 4, 2013, OPERS filed an answer to the Amended
Complaint, Ohio Public Employees Retirement System’s Answer to the
Amended Complaint, ECF 24 (“Answer to the Amended Complaint”), which
did not include a counterclaim.

In responding to the Amended

Complaint, OPERS admitted, inter alia, that “it is not aware of any
facts or circumstances arising prior to January 1, 2010 indicating
Richard Mathews was no longer eligible for disability benefits” and
averred, inter alia, that plaintiff’s “election to, and subsequent
service with, the New Richmond village Counsel [sic] triggers the
automatic termination provisions in R.C. 145.362.”

Id. at ¶ 15.

On February 27, 2014, Plaintiff’s Motion was filed.

In that

motion, plaintiff noted that OPERS had answered the Amended Complaint,
but had not asserted a counterclaim.

Plaintiff’s Motion, p. 2.

Shortly thereafter, OPERS’ Motion to File Counterclaim was filed.
Plaintiff opposes the Motion to File Counterclaim, see Plaintiff’s
Memorandum in Opposition to Defendants [sic] Motion for Leave to File
Amended Answer and Counterclaim, Instanter, ECF 29 (“Opposition to
File Counterclaim”), and OPERS has filed a reply.

See Reply in

Support of the Ohio Public Employees Retirement System’s Motion for
Leave, ECF 33 (“Reply in Support of Motion to File Counterclaim”).
4

In response to Plaintiff’s Motion, OPERS filed Ohio Public
Employees Retirement System’s Joint Motion for Summary Judgment and
Memorandum in Opposition to Plaintiff’s Motion for Judgment on the
Pleadings, ECF 32 (“OPERS’ Motion for Summary Judgment”), which
combines OPERS’ brief in opposition to plaintiff’s motion for judgment
on the pleadings with its request for summary judgment.

In response,

plaintiff filed Plaintiff’s Brief in Opposition, Defendant’s Motion
for Summary Judgment, ECF 36 (“Plaintiff’s Opposition to OPERS’ Motion
for Summary Judgment”), and OPERS has filed a reply.

Reply in Support

of the Ohio Public Employees Retirement System’s Motion for Summary
Judgment, ECF 37 (“OPERS’ Reply in Support of Motion for Summary
Judgment”).

No other briefs or motions have been filed in connection

with Plaintiff’s Motion and OPERS’ Motion for Summary Judgment.
II.

MOTION TO FILE COUNTERCLAIM
OPERS seeks leave to file an amended answer and counterclaim

instanter, taking the position that, although it was not required to
re-file or re-plead its counterclaim, it nevertheless seeks leave to
do so “in the interest of caution[.]”
1.2

Motion to File Counterclaim, p.

OPERS contends that the approximate three-month interval between

its original answer to the Amended Complaint and its present motion is
minimal and that the grant of its Motion to File Counterclaim will not
prejudice plaintiff.

Id. at 1-2.

OPERS further contends that,

because the Preliminary Pretrial Order does not specify a deadline for
amending pleadings, it is Rule 15(a) of the Federal Rules of Civil

2

The Court refers to the page numbers appearing at the bottom of the page of
the filing.

5

Procedure, rather than Rule 16(b), that controls OPERS’ request to
file its proposed amended answer and counterclaim.

Id. at 2.

Plaintiff disagrees, arguing that OPERS abandoned its
Counterclaim when it failed to re-plead it in the Answer to the
Amended Complaint.

Opposition to Motion to File Counterclaim, pp. 1-3

(citing Johnson v. Berry, 228 F. Supp.2d 1071 (E.D. Mo. 2002); Bremer
Bank, Nat’l Ass’n, No. 06-1534, 2009 U.S. Dist. LEXIS 21055 (D. Minn.
Mar. 13, 2009).

Plaintiff also argues that the grant of leave to file

the proposed amended answer and counterclaim will prejudice him
because Plaintiff’s Motion was already pending at the time OPERS’
Motion to File Counterclaim was filed; the grant of OPERS’ motion
would thereby “potentially destroy Plaintiff’s ability to dispose of
this via its Motion for Judgment on the Pleadings.”

Id. at 4.

Finally, and noting that OPERS has conceded that its Answer to the
Amended Complaint is a responsive pleading, not an amended pleading,
plaintiff argues that the Preliminary Pretrial Order is irrelevant to
the resolution of the Motion to File Counterclaim. Id. at 4-5.
OPERS insists, however, that it did not abandon its counterclaim
and distinguishes plaintiff’s out-of-district cases.

OPERS’ Motion

for Summary Judgment, pp. 33-34;3 Reply in Support of Motion to File
Counterclaim (incorporating by reference arguments raised in OPERS’
Motion for Summary Judgment).4

OPERS also argues that other courts,

3

The Court refers to the page numbers appearing at the bottom of the page of
the filing.
4
OPERS’ decision to incorporate by reference arguments raised in the briefing
of OPERS’ Motion for Summary Judgment in connection with the briefing on the
Motion to File Counterclaim unnecessarily complicates and extends briefing on
the latter motion. Resolution of OPERS’ Motion to File Counterclaim requires
consideration of six filings (the three filings related to the Motion to File

6

including the United States District Court for the Northern District
of Ohio, have refused to follow these cited cases and that some courts
have concluded that a failure to reassert counterclaims in response to
an amended complaint did not constitute a waiver of the counterclaims.
OPERS’ Motion for Summary Judgment, pp. 33-34 (collecting cases).
OPERS insists that the grant of its Motion to File Counterclaim will
not prejudice plaintiff, who had prior notice of OPERS’ intent to
pursue its counterclaim and the opportunity to move for summary
judgment on OPERS’ claims. Id. at 35.

See also Reply in Support of

Motion for Summary Judgment, pp. 17-18.5
This Court agrees.

As noted by OPERS, courts are divided on

whether or not the Federal Rules of Civil Procedure require that a
party replead a counterclaim in response to an amended complaint.
Rule 13, which addresses counterclaims, provides that “a pleading”
must state any compulsory counterclaims and that “a pleading” may
state any permissive counterclaims.

Fed. R. Civ. P. 13(a), (b).

Rule

15(a)(3) provides that, “[u]nless the court orders otherwise, any
required response to an amended pleading must be made within the time
remaining to respond to the original pleading or within 14 days after
service of the amended pleading, whichever is later.”

Some courts

have concluded that a defendant must replead a counterclaim in
response to an amended complaint or be held to have abandoned or
waived the right to pursue the counterclaim.

See, e.g., Gen. Mills,

Counterclaim as well as the three filings related to OPERS’ Motion for
Summary Judgment).
5
Although Plaintiff’s Opposition to OPERS’ Motion for Summary Judgment
addresses OPERS’ counterclaim, see id. at 35-36, plaintiff incorporates by
reference its arguments raised in its Opposition to File Counterclaim.

7

Inc. v. Kraft Foods Global, Inc., 487 F.3d 1368, 1376-77 (Fed. Cir.
2007) (finding no abuse of discretion where the district court
concluded that the defendant had abandoned a counterclaim when
“[defendant] Kraft had filed a counterclaim to [plaintiff] General
Mills’ original complaint, but that complaint was superseded by
General Mills’ amended complaint, and at the time the district court
entered judgment, Kraft had not filed an amended answer re-pleading
the counterclaim”); Bremer Bank, Nat’l Ass’n, 2009 U.S. Dist. LEXIS
21055, at *40-41 (“The legal basis [Rules 15(a) and 13(a), (b) and the
interpretation of these rules as stated in Johnson, 228 F. Supp.2d at
1079] for deeming [defendant] Hancock’s counterclaim to be abandoned
or no longer pending is sound. . . . Hancock’s failure to replead the
counterclaim, together with nearly two years passing without discovery
or any action on the counterclaim casts doubt on whether the
counterclaim was ever viewed as being meritorious.”); Johnson, 228 F.
Supp.2d at 1079 (“The last sentence of Fed. R. Civ. P. 15(a) requires
a party to plead in response to an amended pleading.

No option is

given merely to stand on preexisting pleadings made in response to an
earlier complaint.

As the language of Rule 13(a) and (b) makes clear,

a counterclaim is part of the responsive pleading.”).

Cf. Pa. Nat’l

Mut. Cas. Ins. Co. v. Snider, 996 F. Supp. 2d 1173, 1180 n.8 (M.D.
Ala. 2014) (“Because the Beale Defendants failed to answer Penn
National’s amended complaint, and therefore, never reasserted their
counterclaims, the Court finds that the Beale Defendants’ duty to
defend counterclaims w[as] abandoned.”) (citing Settlement Capital
Corp., 649 F. Supp. 2d at 562(“While [defendants] Seneca and Route 28
8

asserted counterclaims for slander of title in their original answer,
these counterclaims were not reasserted in their amended answer and
thus have been abandoned.”).
Other courts, however, do not require a defendant to replead a
counterclaim in response to an amended complaint because Rule 13 does
not require a defendant to set forth a counterclaim in an answer.
See, e.g., Performance Sales & Mktg. LLC v. Lowe’s Cos., No. 5:07-cv00140, 2013 U.S. Dist. LEXIS 117835, at *9 n.2 (W.D. N.C. Aug. 20,
2013) (“Although Lowe’s has yet to file an Answer in response to
Plaintiffs' Amended Complaint, it has already set forth its
counterclaim within its Answer to the original Complaint.”) (citing
Ground Zero Museum Workshop v. Wilson, 813 F. Supp. 2d 678, 705-06 (D.
Md. Aug. 24, 2011) (“Revisions to a complaint do not require revisions
to a counterclaim.”); Dunkin’ Donuts, Inc. v. Romanias, 2002 U.S.
Dist. LEXIS 28405, at *5-6 (W.D. Pa. May 29, 2002)(“Rule 13, which
governs counterclaims, requires only that a counterclaim be set forth
in a pleading - it does not mandate that it be contained in an answer.
. . .

Further, an answer responds to allegations in a complaint, a

counterclaim is something independent.”) (internal citations omitted).
Another line of cases takes a less rigid view of Rule 15(a) and
considers the circumstances presented in each case, including whether
the plaintiff received notice of the counterclaim, whether the
defendant pursued the counterclaim and whether plaintiff will suffer
resulting undue prejudice if the counterclaim proceeds.

See, e.g.,

Davis v. Beaird, No. 4:10-CV-1429, 2014 U.S. Dist. LEXIS 30461, at
*12-13 (E.D. Mo. Mar. 10, 2014) (finding that equitable considerations
9

weighed in favor of permitting the defendant, who failed replead the
counterclaim in response to the amended complaint, to proceed with his
counterclaim where the plaintiff had notice of the defendant’s intent
to pursue the counterclaim); Ground Zero Museum Workshop, 813 F. Supp.
2d at 705-06 (concluding that the defendant, who did not reassert
counterclaims in answers to the first and second amended complaints,
did not waive his right to pursue the counterclaims where, inter alia,
the defendant manifested an intent to pursue such claims); Hitachi
Med. Sys. Am., Inc. v. Horizon Med. Grp., No. 5:07CV02035, 2008 U.S.
Dist. LEXIS 108078, at *10-14 (N.D. Ohio Aug. 29, 2008) (noting that
the plaintiff “has been on notice of the contents of the counterclaim
since it was filed timely in response to the original complaint[;]”
the substance of the counterclaim had not changed since it was filed;
the parties had opportunity to conduct discovery on the claim; the
plaintiff had not identified any prejudice in permitting the
counterclaim to stand; the failure to replead the counterclaim was
inadvertent; and the potential prejudice to the defendant was
considerable because it would lose its ability to adjudicate the claim
in the future if barred from asserting the compulsory counterclaim in
this action); AVKO Educ. Research Found. v. Morrow, No. 11-13381, 2013
U.S. Dist. LEXIS 49463, at *30 (E.D. Mich. Apr. 5, 2013) (concluding
that counterclaim remained pending even though the defendants had not
re-filed it with their answer to the amended complaint and citing
Hitachi, 2008 U.S. Dist. LEXIS 108078, at *4-5).

Cf. Freedom Med.,

Inc. v. Gillespie, No. 06-3195, 2013 U.S. Dist. LEXIS 103301, at *1213 (E.D. Pa. July 23, 2013) (rejecting the argument that Rule 13(a),
10

standing alone, supports “the proposition that pending counterclaims
are mooted by the filing of an amended complaint”); Cairo Marine Serv.
v. Homeland Ins. Co., No. 4:09CV1492, 2010 U.S. Dist. LEXIS 117365, at
*3-4 (E.D. Mo. Nov. 4, 2010) (distinguishing Johnson, 228 F. Supp.2d
at 1079, and finding that the defendant evidenced an intent to pursue
the counterclaim and that the plaintiff would not be prejudiced
because it had notice of the defendant’s counterclaim); Bell v. Nat’l
Safety Assocs., No. C-3-90-400, 1993 U.S. Dist. LEXIS 21302 (S.D. Ohio
Oct. 1, 1993) (analyzing the merits of the counterclaim where the
defendant filed a counterclaim as part of its answer to the original
complaint, but did not reassert the counterclaim when answering the
second amended complaint).
The Court finds persuasive this last line of cases, which weighs
equitable considerations, i.e., a “functional approach” taken by “most
courts[.]”

Davis, 2014 U.S. Dist. LEXIS 30461, at *9.

Indeed, even

the court that issued Johnson, 228 F. Supp.2d at 1079 (finding that
the defendant had abandoned a counterclaim after failing to replead
the counterclaim in response to an amended complaint), recently
rejected Johnson and its progeny.
30461, at *11-13.

See Davis, 2014 U.S. Dist. LEXIS

Moreover, courts within this circuit and even

within this district have permitted a counterclaim to proceed even
though the defendant had not repled the claim in response to an
amended complaint.

See, e.g., AVKO Educ. Research Found., 2013 U.S.

Dist. LEXIS 49463, at *30; Hitachi Med. Sys. Am., Inc., 2008 U.S.
Dist. LEXIS 108078, at *10-14; Bell, 1993 U.S. Dist. LEXIS 21302.

11

In the case presently before the Court, OPERS filed its
counterclaim in its answer to the original Complaint.

Therefore,

plaintiff has been on notice since October 4, 2013 that OPERS intended
to pursue the counterclaim.

See also Preliminary Pretrial Order, p. 1

(setting deadline for reply to counterclaim).6

Indeed, plaintiff

replied to the counterclaim, ECF 17, and had several months to conduct
discovery regarding OPERS’ claims.

See Preliminary Pretrial Order, p.

2 (establishing a discovery deadline of February 28, 2014).

Thus, the

record reflects OPERS’ intent to pursue its counterclaim and
plaintiff’s opportunity to respond to and investigate those claims.
Although OPERS did not replead the counterclaim in its answer to
the Amended Complaint, see ECF 24, and waited until March 4, 2014 to
seek leave to amend its answer to the Amended Complaint to include the
counterclaim, plaintiff has failed to establish resulting undue
prejudice.

According to plaintiff, to permit the counterclaim to

proceed will prejudice him because doing so “could potentially destroy
Plaintiff’s ability to dispose of this [counterclaim] via its Motion
for Judgment on the Pleadings” and that the purpose of such a motion
“is to preserve judicial economy and to timely dispose of a claim
based on only the pleadings without the involvement of additional
costly discovery and fact finding.”
Counterclaim, p. 4.

Opposition to Motion to File

The flaw in plaintiff’s reasoning in this regard,

however, is its failure to note that Plaintiff’s Motion was filed just

6

The Preliminary Pretrial Order does not set forth a deadline for filing an
amended counterclaim. Id. Because the Motion for Leave to File Counterclaim
does not impact any date in the Preliminary Pretrial Schedule, Rule 16(b),
which requires good cause and the judge’s consent to modify a pretrial
schedule, does not apply.

12

one day before the discovery completion deadline.

Plaintiff

presumably had already completed his discovery by the time the Motion
to File Counterclaim was filed.

Cf. Ground Zero Museum Workshop, 813

F. Supp. 2d at 705 (“Plaintiffs failed to conduct discovery regarding
the [counter]claims at their own peril and their claim of prejudice if
the claims are not deemed waived is not compelling.”).

The proposed

amended answer and counterclaim add nothing new to the previously
asserted counterclaim.

The proposed filing simply combines the

previously filed Counterclaim and the Answer to Amended Complaint;
there is nothing in the proposed pleading that would unfairly surprise
plaintiff or that would require additional discovery.

Under these

circumstances, OPERS’ Motion to File Counterclaim is GRANTED.
III. PLAINTIFF’S MOTION
Plaintiff has moved for judgment on the pleadings pursuant to
Rule 12(c).

See Plaintiff’s Motion.

also moved for summary judgment.

In opposing that motion, OPERS

Throughout the briefing of OPERS’

Motion for Summary Judgment, both parties rely on evidence outside the
pleadings and plaintiff has not filed a separate reply in support of
his motion for judgment on the pleadings.

Under these circumstances,

the Court will consider whether to treat Plaintiff’s Motion as a
motion for summary judgment under Rule 56.
Rule 12(d) requires that, if parties present matters outside the
pleadings that are not excluded by the court, a motion for judgment on
the pleadings must be treated as one for summary judgment.

See also

Northville Downs v. Granholm, 622 F.3d 579, 585 (6th Cir. 2010) (“It
is well-established that ‘Rule 12(c) requires only one action by the
13

district court for the conversion to a summary judgment motion to
occur: failure to exclude presented outside evidence.’”) (quoting Max
Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir.
2006)).

When converting a Rule 12(c) motion to one under Rule 56,

“[a]ll parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.”

Fed. R. Civ. P. 12(d).

See also Hansbrough v. TitleMax of Tenn., Inc., 977 F. Supp. 2d 859,
866 (W.D. Tenn. 2013) (treating motion for judgment on the pleadings
as one for summary judgment where “[b]oth parties have presented
evidence outside the pleadings for the court to consider”).
In the case presently before the Court, plaintiff offers and
relies on outside evidence.

See generally Plaintiff’s Opposition to

OPERS’ Motion for Summary Judgment.

For example, plaintiff submits

his own affidavit, detailing his communications with OPERS in support
of his position that he received no written notice before his
disability benefits were terminated.

Plaintiff offers additional

documentary evidence that he contends establishes that OPERS never
responded when it learned that plaintiff had become a council member
for the Village of New Richmond, Ohio, but instead continued to pay
his disability benefits.

See Exhibits D (plaintiff’s letter dated

March 29, 2010) and E (EE Statements for the years 2003-2009, 2011),
attached to Plaintiff’s Opposition to OPERS’ Motion for Summary
Judgment.

Plaintiff also relies on the Administrative Record as well

as evidentiary materials submitted by OPERS.

See, e.g., Plaintiff’s

Opposition to OPERS’ Motion for Summary Judgment, pp. 8-9, 16, 19, 2223, 26-27.
14

Although plaintiff insists that he is entitled to judgment “based
on the pleadings alone,” see Plaintiff’s Opposition to OPERS’ Motion
for Summary Judgment, p. 37, the Court notes that plaintiff has not
filed a reply in support of his motion for judgment on the pleadings.
Instead, he simply renews his request for judgment in his favor when
opposing, with ample citations to evidentiary materials, OPERS’ Motion
for Summary Judgment.

Id. at 38.

Accordingly, the parties are

ADVISED that the Court intends to treat the Motion for Judgment on the
Pleadings of Plaintiff, Richard Mathews, ECF 26, as one for summary
judgment under Rule 56.
However, although the parties briefly addressed the merits of
OPERS’ counterclaim in the briefing on summary judgment, the parties
were uncertain whether or not OPERS’ counterclaim would proceed.
Under these circumstances, the Court is persuaded that additional
briefing on summary judgment is warranted.

The parties are ORDERED to

supplement their positions on summary judgment on the remaining claims
within 14 days of the date of this Opinion and Order.

The parties are

specifically ADVISED that the supplemental briefing, limited to no
more than 15 pages, should address, inter alia, the following issues:
1.

OPERS’ counterclaim, including plaintiff’s authority, if

any, that equitable considerations, such as OPERS’ failure to
terminate benefits upon alleged notification of plaintiff’s return to
service as purportedly reflected in plaintiff’s letter dated March 29,
2010 and in plaintiff’s “Statement of Employment and Earnings After
Receipt of a Disability Benefit” for the year 2010, are relevant, see,
e.g., Ohio State Bd. of Pharm. v. Frantz, 51 Ohio St.3d 143, 145-46
15

(1990) (“It is well-settled that, as a general rule, the principle of
estoppel does not apply against a state or its agencies in the
exercise of a governmental function.”);
2.

Whether or not OPERS provided plaintiff written notice of

the termination of plaintiff’s disability benefits (the parties do not
cite to such a document in the administrative record and the Court has
been unable to locate such notice in the present record);
3.

Whether OPERS’ verbal notification in approximately March

2012 that plaintiff’s benefits would be terminated as of April 30,
2012, satisfied the notice requirement of the Due Process Clause, see,
e.g., Memphis Light, Gas & Water Div. Craft, 436 U.S. 1, 14 (1976)
(“The purpose of notice under the Due Process Clause is to apprise the
affected individual of, and permit adequate preparing for, an
impending ‘hearing.’”); Flaim v. Med. College of Ohio, 418 F.3d 629
(6th Cir. 2005) (“The stronger the private interest, however, the more
likely that formal written notice . . . is constitutionally
required.”); Shoemaker v. City of Howell, 982 F. Supp. 2d 745, 755
(E.D. Mich. 2013) (“Mere notice of an impending deprivation alone,
however, does not satisfy the notice requirements of procedural Due
Process.

Such notice must also provide the way this deprivation will

occur and the means by which the deprivation may be contested.”);
4.

Whether plaintiff’s opportunity to call the OPERS’ call

center in March and April 2012, and the telephone calls of plaintiff
and his counsel to OPERS during that period, satisfied the hearing
requirement of the Due Process Clause, see, e.g., Chernin v. Welchans,
844 F.2d 322, 326 (6th Cir. 1988) (“Depending on the circumstances of
16

the particular case, the hearing called for by the fourteenth
amendment may be a pre-deprivation hearing . . . or a pre-deprivation
abbreviated ‘opportunity to be respond’ with a prompt post-deprivation
hearing . . . or solely a prompt post-deprivation hearing.”) (internal
citations omitted);
5.

If plaintiff takes the position that a state court mandamus

action does not constitute a proper post-deprivation hearing, he must
identify authority that supports that position, see, e.g., Lane v.
City of Pickerington, No. 2:11-cv-00966, 2013 U.S. Dist. LEXIS 117970,
at *19 (S.D. Ohio Aug. 20, 2013) (“Plaintiff alleges that he was
denied access to the Personnel Appeals Board and his right to a posttermination hearing, but he had an adequate state law remedy for the
alleged deprivation through a mandamus action.”); State ex rel. Cydrus
v. Ohio Pub. Employees Ret. Sys., 127 Ohio St.3d 257, 260 (2010)
(“Because there is no right to appeal the retirement board’s decision
terminating disability-retirement benefits, mandamus is an appropriate
remedy.”); State ex rel. McLean v. Ret. Bd., Pub. Emp. Ret. Fund, 161
Ohio St. 327, 331 (1954) (granting writ of mandamus ordering OPERS to
pay retroactive disability benefits);
6.

Plaintiff should describe the format of the “opportunity to

be heard” that he seeks, see Plaintiff’s Motion, p. 9 (describing
“Plaintiff’s Remedy” as including, inter alia, “prior to giving any
other consideration to terminating benefits, OPERS must afford Mathews
an opportunity to be heard”), and how such a hearing will establish
that the version of O.R.C. § 145.362 effective at the time that his

17

benefits were terminated authorizes OPERS to restore his disability
benefits;
7.

The procedures, if any, available to a disability benefits

recipient who disagrees that he or she was “elected to an elective
office,” or disagrees that his or her “employer [is] covered by”
Chapter 145 of the Ohio Revised Code, see O.R.C. § 145.362 (“If a
disability benefit recipient is restored to service by, or elected to
an elective office with, an employer covered by this chapter, the
recipient’s benefits shall cease.”), or disagrees that his benefits
should be terminated on the basis of such office; and
8.

This Court’s authority, if any, to “order OPERS to act in

direct contravention of its governing statute [O.R.C. § 145.362],”
OPERS’ Reply in Support of Motion for Summary Judgment, p. 13.
If the parties conclude that oral argument on their requests for
summary judgment is appropriate, they shall so indicate in their
supplemental filings.
WHEREUPON, Ohio Public Employees Retirement System’s Motion for
Leave to File Amended Answer and Counterclaim, Instanter, ECF 27, is
GRANTED.

The Clerk is DIRECTED to file OPERS’ proposed Ohio Public

Employees Retirement System’s Answer to the Amended Complaint and
Counterclaim, ECF 27-1.
The Motion for Judgment on the Pleadings of Plaintiff, Richard
Mathews, ECF 26, is DENIED to the extent that it seeks judgment on the
pleadings pursuant to Rule 12(c).

However, whether or not summary

judgment should be granted in favor of either party remains for the

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Court’s consideration following supplemental briefing and oral
argument.

September 23, 2014

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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