No. 2015-0173

In the Supreme Court of Ohio_________________

ORIGINAL ACTION FOR WRIT OF PROHIBITION AND MANDAMUS

_________________

STATE ex rel. AYMAN DAHMAN, M.D., ET AL.,

Relators,

v.

THE HONORABLE BRIAN J. CORRIGAN, ET AL.

Respondents.

RELATORS’ MOTION FOR LEAVE TO FILE SECONDAMENDED COMPLAINT FOR WRIT OF PROHIBITION AND MANDAMUS

TIMOTHY J. McGINTY, ProsecutingAttorney of Cuyahoga County, OhioCHARLES E. HANNAN * (0037153)Assistant Prosecuting Attorney*Counsel of Record

The Justice Center, Courts Tower, 8th Floor1200 Ontario StreetCleveland, OH 44113Telephone: 216.443.7758Facsimile: 216.443.7602channan@prosecutor.cuyahogacounty.us

Counsel for Respondents Judge Brian J.Corrigan, Administrative Judge John J. Russo,and Visiting Judge Lillian Greene of theCuyahoga County Court of Common Pleas

ANNA MOORE CARULAS (0037161)STEPHEN W. FUNK* (0058506)*Counsel of RecordRoetzel & Andress, LPAOne Cleveland Center, Suite 9001375 East Ninth StreetCleveland, OH 44114Telephone: 216.623.0150Facsimile: 216.623.0134acarulas@ralaw.comsfunk@ralaw.com

Counsel for Relators Ayman Dahman, M.D., andMary Jo Alverson, CNM

Supreme Court of Ohio Clerk of Court - Filed April 17, 2015 - Case No. 2015-0173

MOTION

Pursuant to Civ. R. 15, Relators Ayman Dahman, M.D. and Mary Jo Alverson, CNM

hereby move for leave to file a Second Amended Complaint for Writ of Prohibition and

Mandamus. A true and correct copy of the proposed Second Amended Complaint is attached

hereto for the Court’s review, along with the Affidavit of Anna Carulas, dated April 17, 2015.

Civil Rule 15(A) provides that leave should be freely granted “when justice so requires.”

Here, as discussed more fully below, Relators’ Motion for Leave should be freely granted

because the attached Second Amended Complaint seeks to amend and update the original

Complaint by alleging additional facts that have occurred since the filing of the original

Complaint on February 2, 2015, and the Amended Complaint on March 9, 2015, as permitted by

Civ. R. 15(E). Moreover, the Second Amended Complaint updates the pleadings by naming an

additional Respondent (Visiting Judge Lillian J. Greene) and requesting additional relief based

upon recent events that have arisen since the filing of the original Complaint. As this Court has

held, “in determining actions involving extraordinary writs, a court is not limited to considering

the facts and circumstances at the time that the writ was requested but can consider the facts and

conditions at the time that entitlement to the writ is considered.” State ex rel. Howard v. Skow,

102 Ohio St.3d 423, 2004-Ohio-3652, 811 N.E.2d 1128, ¶ 9. Accordingly, leave should be

freely granted in this case in order to permit Relators to amend and supplement the operative

complaint under Civ. R. 15(A) and (E).

Indeed, in this case, leave should be freely granted because the circumstances are

substantially different from the circumstances presented in the original Complaint. When the

original Complaint was first filed on February 2, 2015, Administrative Judge John Russo had

issued a Journal Entry on January 30, 2015, that temporarily “transferred” the case to Visiting

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Judge Lillian Greene for trial “due to the unavailability of original Judge Brian J. Corrigan.”

(See 2nd Amd. Compl., Affidavit of Anna Carulas, Exhibit A, Docket of Hastings v. Southwest

General Health Center, Case No. CV-12-785788, Cuyahoga County Court of Common Pleas,

Journal Entry, dated 1/30/2015). After the filing of the original Complaint, however, the Docket

shows that the entire Hastings case has been re-assigned to Judge Greene for all purposes based

upon a manual docket entry that was not signed by any judge, but which states: “VISITING

JUDGE LILLIAN J. GREENE ASSIGNED TO CASE (MANUALLY).” (Id., Docket Entry,

dated 2/9/2015). Since there is no written order relating to the February 9th docket entry, it is far

from clear who actually approved and filed the docket entry, let alone the reasons for the re-

assignment of the entire case to Judge Lillian Greene for all purposes. Indeed, since Judge

Corrigan is no longer “unavailable” to try the case, it is far from clear why the case should be re-

assigned to Visiting Judge Greene at all, particularly given that the Cuyahoga County Court of

Common Pleas has not adopted a local rule that authorizes the re-assignment of cases to visiting

judges in accordance with Rule 36(B) of the Rules of Superintendence for the Courts of Ohio.

Judge Greene therefore is clearly and patently without any authority to exercise

jurisdiction over the Hastings case, including but not limited to scheduling a new trial date and

ruling on the pending motions, which under Rule 36(B) of the Rules of Superintendence and

Local Rule 15 of the Cuyahoga County Court of Common Pleas must be decided by the original

judge, Respondent Brian Corrigan, not Visiting Judge Greene. Yet, notwithstanding this fact,

Judge Greene has continued to exercise jurisdiction over the Hastings case, including, but not

limited to, the recent e-mail announcement on April 16, 2015, by her bailiff that the trial has

been re-scheduled for November 16, 2015, and that “Judge Greene has been sent and will be

ruling on the outstanding motions.” (See Affidavit of Anna Moore Carulas, Esq., Ex. L, E-Mail,

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dated April 16, 2015). Absent the prompt issuance of a Writ of Prohibition and Mandamus by

this Court, therefore, it is likely that Judge Greene will wrongfully exercise unauthorized

jurisdiction over the Hastings case by ruling upon the pending motions. See, e.g., State ex rel.

Engelhart v. Russo, 131 Ohio St.3d 137, 2012-Ohio-47, 961 N.E.2d 118, ¶ 14 (where “a lower

court patently and unambiguously lacks jurisdiction to proceed in a cause,” a writ of prohibition

and mandamus may be issued “to correct the results of prior jurisdictionally unauthorized

actions” and “to prevent any future unauthorized exercise of jurisdiction”).

Accordingly, in order to update the pleadings and to request the relief necessary to

prevent Visiting Judge Greene from continuing to exercise unauthorized jurisdiction over the

Hastings case, Relators respectfully request that the Court grant leave to file the attached Second

Amended Complaint for Prohibition and Mandamus and proceed to grant a peremptory or

alternative writ prohibiting Judge Greene from exercising any further jurisdiction over the

Hastings matter and compelling Respondents to re-assign the case back to the randomly assigned

judge in accordance with the requirements of Sup. R. 36(B). In this regard, Relators incorporate

by reference the points and authorities set forth in Relators’ Motion for Alternative Writ and

Memorandum in Support of the Writ, which is being contemporaneously filed with the Court.

Respectfully submitted,

/s/ Stephen W. FunkAnna Moore Carulas (0037161)Stephen W. Funk (0058506)ROETZEL & ANDRESS, LPA1375 East 9th Street, 9th FloorCleveland, OH 44114Telephone: 216.623.0150Facsimile: 216.623.0134acarulas@ralaw.com; sfunk@ralaw.comAttorneys for Relators Ayman Dahman, M.D.and Mary Jo Alverson, CNM

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PROOF OF SERVICE

A copy of the foregoing MOTION FOR LEAVE TO FILE SECOND AMENDED

COMPLAINT FOR WRIT OF PROHIBITION AND MANDAMUS was served on this 17th day of

April, 2015, via electronic mail pursuant to Civ. R. 5(B)(2)(f) upon the following counsel of

record:

Timothy J. McGintyCharles E. HannanCuyahoga County Prosecutor’s OfficeThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113channan@prosecutor.cuyahogacounty.usCounsel for Respondents

Pamela PantagesThe Becker Law Firm, LPA134 Middle AvenueElyria, OH 44035ppantages@beckerlawlpa.comAttorney for Hastings Plaintiffs

Paul FlowersPaul W. Flowers Co., LPATerminal Tower, 35th Floor50 Public SquareCleveland, Ohio 44113pwf@pwfco.comAttorney for Hastings Plaintiffs

David KrauseReminger Co., LPA101 W. Prospect Avenue, Suite 1400Cleveland, OH 44115dkrause@reminger.comAttorney for Johanna O'Neill, M.D. and Southwest General Medical Group, Inc.

/s/ Stephen W. FunkStephen W. Funk, Esq. (0058506)

9222584 _3

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, et rel.AYMAN DAHMAN, MD andMARY JO ALVERSON, CNM6900 Pearl Road, Suite 300Middleburg Hts., OH 44130

Relatorsvs.

THE HONORABLE BRIAN J.CORRIGANCourtroom 22-ACuyahoga County Common Pleas Court1200 Ontario StreetCleveland, OH 44113

THE HONORABLE JOHN J. RUSSOCourtroom 16-DCuyahoga County Common Pleas Court1200 Ontario StreetCleveland, OH 44113

THE HONORABLE LILLIAN J. GREENEVisiting Judge1200 Ontario StreetCleveland, OH 44113

Respondents

))))))))))))))))))))))))))))

CASE NO. 2015-0173

ORIGINAL ACTION FOR WRIT OFPROHIBITION AND MANDAMUS

SECOND AMENDED COMPLAINT FOR WRIT OF PROHIBITION AND MANDAMUSAND ALTERNATIVE WRIT WITH AFFIDAVIT IN SUPPORT

TIMOTHY J. McGINTY, ProsecutingAttorney of Cuyahoga County, OhioCHARLES E. HANNAN * (0037153)Assistant Prosecuting Attorney*Counsel of Record

The Justice Center, Courts Tower, 8th Floor1200 Ontario StreetCleveland, OH 44113Telephone: 216.443.7758channan@prosecutor.cuyahogacounty.usCounsel for Respondents

ANNA MOORE CARULAS (0037161)STEPHEN W. FUNK* (0058506)*Counsel of RecordRoetzel & Andress, LPAOne Cleveland Center, Suite 9001375 East Ninth StreetCleveland, OH 44114Telephone: 216.623.0150Facsimile: 216.623.0134acarulas@ralaw.com; sfunk@ralaw.comCounsel for Relators

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SECOND AMENDED COMPLAINTFOR WRIT OF PROHIBITION AND MANDAMUS

Relators Ayman Dahman, MD and Mary Jo Alverson, CNM (“Relators”) hereby submit

the following Second Amended Complaint for Writ of Prohibition and Mandamus against

Respondents Judge Brian J. Corrigan of the Cuyahoga County Court of Common Pleas, in his

official capacity as the presiding Judge (“Judge Corrigan”) in the civil action, Hastings, et al. v.

Southwest General Health Center, et al., Cuyahoga County Common Pleas Court Case No.

785788, Judge John J. Russo, Administrative Judge of the Cuyahoga County Court of Common

Pleas, and Judge Lillian J. Greene, Visiting Judge of the Cuyahoga County Court of Common

Pleas. In support of the Second Amended Complaint, Relators hereby state as follows.

INTRODUCTION

1. This original action for Writ of Prohibition and Mandamus arises from two

journal entries, dated January 30, 2015, and an unsigned manual docket entry, dated February 9,

2015, which purported to re-assign a civil action, Hastings, et al. v. Southwest General Health

Center, et al., Cuyahoga County Common Pleas Court Case No. 785788, from the original

assigned judge, Brian Corrigan, to a Visiting Judge, Lillian J. Greene, without any lawful

authority, in violation of the individual assignment system mandated by Rule 36(B) of the Rules

of Superintendence for the Ohio Courts and Local Rule 15.0 of the Cuyahoga County Court of

Common Pleas.

2. This Complaint seeks the issuance of a Writ of Prohibition and Mandamus to

prevent Visiting Judge Greene from exercising any judicial authority in the Hastings case, and to

compel Judges Corrigan and Russo to vacate all unauthorized docket entries that purported to

transfer the Hastings case to Judge Greene, without any lawful authority, and to compel

Respondents to re-assign the Hastings case back to the original assigned judge, Brian Corrigan.

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3. As required by S.Ct.Prac.R. 12.02, the Second Amended Complaint for Writ of

Prohibition and Mandamus is supported by the Affidavit of Anna M. Carulas, Esq., which is

attached hereto and incorporated herein by reference.

PARTIES

4. Relators Ayman Dahman, M.D., and Mary Jo Alverson, CNM are Defendants in the

case captioned Hastings, et al. v. Southwest General Health Center, et al., Cuyahoga County

Common Pleas Court Case No. 785788.

5. Respondent The Honorable Brian J. Corrigan is the randomly assigned judge for

Hastings, et al. v. Southwest General Health Center, et al., Cuyahoga County Common Pleas Court

Case No. 785788.

6. Respondent The Honorable John J. Russo is the Administrative Judge for the

Common Pleas Court of Cuyahoga County, Ohio.

7. Respondent The Honorable Lillian J. Greene is a Visiting Judge who, upon

information and belief, was temporarily assigned by the Chief Justice of the Ohio Supreme Court

under Article IV, Section 5 of the Ohio Constitution to serve as a visiting judge for the Court of

Common Pleas for Cuyahoga County for a limited period of time, and not for any particular case.

JURISDICTION

8. This original action has been filed pursuant Article IV, Section 2(B)(1)(d) of the

Ohio Constitution and Section 12 of the Rules of Practice for the Ohio Supreme Court.

9. There is no original action for a writ of prohibition, writ of mandamus, or

alternative writ pending in any other Court regarding the facts and events that are the subject of

this Second Amended Complaint.

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STATEMENT OF FACTS

10. This original action arises from a medical malpractice action filed on June 26,

2012, by Plaintiffs Austin Hastings, a minor, by and through his parents, natural guardians and

next friends, Michelle and Brian Hastings, against Defendants Southwest Medical Group, Inc.,

Johanna O’Neill, M.D., Dr. Ayman Dahman, M.D., and Mary Jo Alverson, CNM. The case is

styled Hastings v. Southwest General Health Center, Cuyahoga County Common Pleas Court Case

No. 785788 (the “Hastings case”). A true and correct copy of the Docket for the Hastings case is

attached to the Affidavit of Anna Carulas as Exhibit A.

11. Upon filing of the complaint, the Hastings medical malpractice action was randomly

assigned to Judge Brian Corrigan under the individual assignment system mandated by Rule

36(B) of the Rules of Superintendence and Local Rule 15.0 of the Cuyahoga County Court of

Common Pleas.

12. Sup. R. 36(B) mandates that each multi-judge general division of the court of

common pleas must adopt an “individual assignment system,” which “means the system in

which, upon filing in or transfer to the court or a division of the court, a case immediately is

assigned by lot to a judge of the division, who becomes primarily responsible for the

determination of every issue and proceeding in the case until termination.” Id.

13. Although Sup. R. 36(B)(2) provides that “modifications to the individual

assignment system may be adopted” by the local courts of common pleas, it expressly provides

that “[a]ny modifications shall satisfy divisions (B)(1)(a) to (c) of this rule and shall be adopted

by local rule of court.” Id. (emphasis added).

14. In accordance with Sup. R. 36(B), the Cuyahoga Court of Common Pleas has

adopted a local rule – Local Rule 15.0 – which provides that “[a]ll civil cases shall be assigned to

a Judge through a process either manual or electronic, which ensures a random selection of the

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Judge and preserves the identity of the Judge until selected.” A true and correct copy of Local

Rule 15.0 is attached to the Affidavit of Anna Carulas as Exhibit B.

15. As required by Sup. R. 36(B), Cuyahoga County Local Rule 15.0(B) provides that

“[i]t shall be the duty of the assigned Judge to handle all Court activity, including motions,

emergency matters, Case Management Conferences, pretrials, trials, and any post trial matters

associated with the cases assigned to the docket.” Id. Moreover, Local Rule 15.0(D) provides

that “[t]he trial date for a case will be set by the Judge to whom the case is assigned.” Id.

16. Local Rule 15.0 does not contain any provisions for the re-assignment of cases to

a visiting judge. Rather, Local Rule 15.0 only provides for the re-assignment of cases in one of

three circumstances: (a) upon a motion for consolidation under Civ. R. 42, (b) upon the re-filing

of a case that was dismissed without prejudice under Civ. R. 41(A), or (c) upon the reversal and

remand by an appellate court. See Local Rule 15.0(H), (I), and (J). In the case of a re-filed case

or a case that has been reversed and remanded by an appellate court, the Local Rule provides that

the case shall be re-assigned to the original assigned Judge. Id.

17. Although there is no local rule that authorizes the administrative judge to transfer

civil cases to visiting judges, it has been the widespread custom and practice in the Cuyahoga

County Court of Common Pleas for elected judges to refer their cases to visiting judges for trial

with the consent of the parties. (Carulas Aff. ¶ 36-37). Under this long-standing custom and

practice, however, cases were never assigned to visiting judges without the consent of all parties,

and then only if the assigned Judge was unavailable to try the case on the scheduled trial date.

Id.; see, e.g., State ex rel. Peffer v. Russo, 110 Ohio St.3d 175, 2006-Ohio-4092, 852 N.E.2d 170,

¶ 3 (observing that assigned judge was unavailable and “offered to have the case assigned to a

visiting judge, but the parties refused”).

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18. In the Hastings case, the medical malpractice action was randomly assigned to

Judge Brian Corrigan who presided over the case for over two-and-a-half years. (Carulas Aff.

¶ 4). As provided by Local Rule 15.0(C), Judge Corrigan issued a Journal Entry on June 25,

2014, that originally scheduled the Hastings case for a jury trial to begin on February 2, 2015.

(Id. at ¶ 5, Ex. A, Docket, Journal Entry, dated 6/25/2014).

19. At the final pre-trial conference held on January 15, 2015, however, Judge

Corrigan orally advised counsel for the parties that the trial would likely be handled by a retired

or visiting judge because he was unavailable for trial on February 2, 2015. (Carulas Aff. ¶ 6).

Thereafter, on January 22, 2015, counsel received an e-mail from Judge Corrigan’s office

advising that two visiting judges were available in February, William Coyne and Patrick Kelly.

(See Carulas Aff. ¶ 7, Ex. C).

20. Shortly before the expected trial date, on Thursday, January 29, 2015, however,

Judge Corrigan's office sent an e-mail to all counsel that “there has been a change in the visiting

judge schedule for February. The judges are Judge Coyne and Judge Lillian Greene.” (Carulas

Aff. ¶ 10, Ex. D). In so doing, Judge Corrigan’s office advised counsel that Judge Greene “will

be hearing your case” on Monday “because Judge Greene has seniority and your case is first on

the list. . . .” (Id.)

21. In response to this notification, counsel for Defendants Ayman Dahman and Mary

Jo Alverson promptly notified Judge Corrigan’s office by e-mail on January 29, 2015, that

Defendants objected to the assignment of the case to a visiting judge without their consent.

(Carulas Aff. ¶ 11).

22. Thereafter, on Friday, January 30, 2015, a conference call took place between all

counsel of record and the Administrative Judge John Russo. During the telephone conference,

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Relators’ counsel advised Judge Russo that her clients did not consent to the transfer of the case

to Judge Greene, and objected to the re-assignment of the case. (Carulas Aff. ¶ 13-14).

23. In response, Respondent Russo inquired whether the parties would agree to try the

case before visiting Judge William Coyne. (Carulas Aff. ¶ 13). Plaintiffs’ counsel, however,

objected to any referral of the case to Judge Coyne, and insisted that the trial proceed before

Visiting Judge Lillian Greene. (Id.)

24. Judge Russo then advised the parties that he would be compelling them to appear

before Judge Lillian Greene for trial on Monday, February 2, 2015, but that the parties could

come down to the Court at 4:30 pm and place their objections on the record. (Carulas Aff. ¶ 14-

15). Shortly thereafter, however, Judge Russo’s office called back and indicated there would not

be a hearing that afternoon, and that the parties should appear before Judge Lillian Greene on

Monday morning, February 2, 2015. (Id. at ¶ 15).

25. Thereafter, on the afternoon of January 30, 2015, the docket reflects that Judge

Corrigan issued the following Journal Entry: “BECAUSE OF A CONFLICT ON THE

DOCKET OF THE ORIGINAL JUDGE, THIS CASE IS HEREBY REFERRED TO THE

PRESIDING/ADMINISTRATIVE JUDGE FOR REASSIGNMENT TO A VISITING JUDGE

FOR TRIAL.” (See Carulas Aff. ¶ 16, Ex. A, Docket in Hastings Case, Journal Entry, dated

January 30, 2015).

26. Moreover, the docket reflects that Judge Russo issued a separate Journal Entry,

dated January 30, 2015, which provides: “DUE TO THE UNAVAILABILITY OF ORIGINAL

JUDGE BRIAN J. CORRIGAN, THIS CASE IS HEREBY TRANSFERRED TO VISITING

JUDGE LILLIAN J. GREENE FOR TRIAL.” (Carulas Aff. ¶ 17, Ex. A, Docket in Hastings

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Case, Journal Entry, dated January 30, 2015). In so doing, Judge Russo did not reference any

statute or rule that authorized the re-assignment of the case to a visiting judge. (Id.)

27. Relators then filed a Notice of Objection to Re-Assignment of Trial Judge and

Intention to File Writ of Prohibition with the Court of Common Pleas. (Carulas Aff. Ex. A,

Docket in Hastings Case, Notice of Objection, filed January 30, 2015). Thereafter, Relators filed

a Complaint for Writ of Prohibition with the Ohio Supreme Court on February 2, 2015.

28. On the morning of February 2, 2015, Visiting Judge Greene conducted an in-

person conference with all counsel to discuss the status of the trial. Relators’ counsel left that

conference with a good faith belief that Visiting Judge Greene could not be fair and impartial

toward them, and therefore Relators filed an Affidavit of Disqualification with the Ohio Supreme

Court on February 2, 2015. (Carulas Aff. ¶ 18).

29. On February 5, 2015, Chief Justice Maureen O’Connor denied the Affidavit of

Disqualification under R.C. 2701.03 A true and correct copy of the Chief Justice’s Judgment

Entry is attached to the Affidavit of Anna Carulas as Exhibit E.

30. In denying the Affidavit of Disqualification, Chief Justice O’Connor ruled on the

allegations of bias and prejudice against Judge Greene, but did not address whether the re-

assignment of the case to Lillian Greene was authorized by Sup. R. 36 or rule upon any of the

other legal issues that are the subject of this original action. (See Carulas Aff. Ex. E).

31. The trial did not begin on February 2, 2015, as originally scheduled. Defendants

Johanna O’Neill, M.D. and Southwest General Medical Group, Inc. then filed a motion on

February 5, 2015, for a continuance of the trial and for the scheduling of a pretrial conference for

the purpose of setting a new trial date. (Docket, Motion for Continuance, filed 2/5/2015).

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32. Instead of having the case returned to the docket of Judge Corrigan to set a new

trial date, however, the parties were instructed to appear before Visiting Judge Greene on

February 9, 2015, in order to schedule a new trial date. (Carulas Aff. ¶ 22).

33. Over Relators’ objection, the parties appeared before Visiting Judge Greene on

February 9, 2015, for a hearing to schedule a new trial date. A transcript of the February 9th

hearing is attached to the Affidavit of Anna Carulas as Exhibit F.

34. At the hearing on February 9, 2015, Relators repeated their objections to the

initial transfer as well as Visiting Judge Greene’s continuing jurisdiction over this matter. In so

doing, counsel for Relators specifically requested that “this case should go back to Judge

Corrigan to set a trial date.” (Feb. 9th Transcript, pp. 4-5).

35. Notwithstanding such objections, Judge Greene advised the parties that she was

“going to set the trial for April 6, 2015.” (Id. at pg. 8). In so doing, Judge Greene stated that

whatever transpires “between now and April 6th, the Court will deal with or Judge Corrigan will

deal with it.” (Id.) When counsel for Plaintiffs advised that she was “going to file a motion for

costs,” however, Judge Greene advised counsel that she should “submit it to Judge Corrigan, not

me. I’m just here to try the case . . .” (Feb. 9th Transcript, pg. 12).

36. After the conference, however, Relators discovered that there was a manual

docket entry on February 9, 2015, which reads: “VISITING JUDGE LILLIAN J. GREENE

ASSIGNED TO CASE (MANUALLY).” (Carulas Aff. ¶ 25, Ex. A, Docket, Journal Entry,

dated February 9, 2015).

37. This February 9th Docket Entry, however, is not accompanied by written, signed

order or journal entry, so it is not clear whether this docket entry was authorized by Judge

Greene, Judge Corrigan, or Judge Russo. Moreover, the February 9th Docket Entry cites no

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statute or rule and does not explain why the case was re-assigned to Judge Greene, given that

Judge Corrigan is no longer “unavailable” to try the case and rule on all pending motions.

38. The proposed trial date of April 6, 2015, also was never journalized. Indeed, due

to conflicts with the proposed April 6, 2015 trial date, both Relators and Codefendants Southwest

General and O’Neill filed Motions for Continuances on February 10, 2015 and February 12,

2015, respectively. (See Carulas Aff. Ex. A, Docket, Motions for Continuances, filed 2/10/15

and 2/12/15).

39. Moreover, on February 12, 2015, Relators filed a Motion to Return This Case to

the Docket of Respondent Judge Corrigan for Ruling on the Motions to Continue, Motions in

Limine, Trial, and Final Disposition. (Id.)

40. Since February 9th, there have been no rulings on any pending motions, but

counsel for the parties have been orally advised that Visiting Judge Greene would be selecting a

new trial date. (Carulas Aff. ¶ 29-30).

41. Due to Relators’ continuing objections to the case proceeding before Judge

Greene, counsel for Relators has requested that any scheduling of a new trial date by Judge

Greene should take place on the record before a court reporter, so that the parties may properly

place their objections on the record. (Carulas Aff. ¶ 31, Ex. I).

42. Judge Greene’s bailiff has advised, however, that Judge Greene was not available

for such a pretrial conference because “visiting Judges aren’t supposed to come in unless in

trial.” (Carulas Aff. ¶ 32, Ex. I). In so doing, Judge Greene’s bailiff has stated in an e-mail,

dated April 7, 2015, that “[i]t’s become very clear to me that Judge Corrigan has no intention

[of] taking this case back from Judge Greene,” and thus she asked for counsel to identify “[w]hat

motion or motions are before Judge Greene at this time.” (Id.)

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43. Thereafter, over the written objections of Relators’ counsel, Judge Greene’s

bailiff sent an e-mail to all counsel to confirm that the trial in the Hastings matter “is now

rescheduled for Monday, November 16, 2015,” and that “Judge Greene has been sent and will be

ruling on the outstanding motions.” (See Carulas Aff. ¶ 35, Ex. L, E-Mail, dated April 16, 2015).

44. Absent the issuance of a peremptory or alternative writ by this Court, therefore, it

is clear that Visiting Judge Greene will continue to exercise unauthorized jurisdiction over the

Hastings case, including but not limited to the imminent ruling on all pending motions.

COUNT ONE: WRIT OF PROHIBITION

45. Relators incorporate by reference the allegations of Paragraphs 1 through 44 of

this Second Amended Complaint as if fully restated herein.

46. A party is entitled to a writ of prohibition under Ohio law if “(1) the court against

whom the writ is sought is exercising or about to exercise judicial power; (2) that the exercise of

power is unauthorized by law, and (3) that denying the writ will result in injury for which no

other adequate remedy exists in the ordinary course of law.” State ex rel. Cleveland Elec. Illum.

Co. v. Cuyahoga County Court of Common Pleas, 88 Ohio St.3d 447, 727 N.E.2d 900 (2000)

(citing State ex rel. Ohio Edison Co. v. Parrott, 73 Ohio St.3d 705, 707, 654 N.E.2d 106, 108

(1995)). “However, where there is a patent and unambiguous lack of subject matter jurisdiction

in the court exercising judicial authority, it is not necessary to establish that the relator has no

adequate remedy at law in order for a writ to issue.” Id.

47. Here, Respondents have wrongly exercised judicial power by acting, without any

lawful authority, to re-assign the Hastings case from the randomly assigned Judge Brian

Corrigan to Visiting Judge Lillian Greene. This wrongful exercise of judicial power is not

authorized by any constitutional provision, statute, rule or any other legal authority and

constitutes a clear and blatant violation of Sup. R. 36(B), particularly given that the randomly

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assigned judge, Judge Brian Corrigan, is now available to schedule a new trial date and to rule

upon all pending motions.

48. Given that the purported re-assignment of the case to Visiting Judge Lillian

Greene is not authorized by the Ohio Constitution, the Rules of Superintendence, or any of the

Local Rules of the Cuyahoga County Court of Common Pleas, Respondent Greene is patently

and unambiguously without any jurisdiction to preside over the Hastings case under Ohio law.

Yet, Judge Greene is wrongfully exercising jurisdiction over the Hastings case by, among other

things, scheduling a new trial date and announcing her intent to rule on all outstanding motions.

49. Accordingly, Relators are entitled to a Writ of Prohibition to prohibit Respondent

Judge Lillian Greene from continuing to exercise any jurisdiction over the Hastings case and to

prohibit Respondents, Judge John Russo and Judge Brian Corrigan, from taking any further

actions to re-assign the case to Visiting Judge Greene in violation of the requirements of Rule

36(B) of the Rules of Superintendence.

COUNT TWO: WRIT OF MANDAMUS

50. Relators hereby incorporate by reference the allegations of Paragraphs 1 through

49 of this Second Amended Complaint as if fully restated herein.

51. Under Ohio law, a writ of mandamus should be granted if the Relator establishes

a clear legal right to the requested relief and a clear legal duty on the part of the Respondent to

provide the requested relief.

52. Here, under Sup. R. 36(B) and Local Rule 15.0, Judge Corrigan had a clear and

mandatory duty, as the assigned Judge for the Hastings case, “to handle all Court activity,

including motions, emergency matters, Case Management Conferences, pretrials, trials, and any

post trial matters associated with the cases assigned to the docket.” Id. Moreover, Local Rule

15.0(D) provides that “[t]he trial date for a case will be set by the Judge to whom the case is

13

assigned.” Id. Relators therefore have a clear legal right to have Judge Corrigan preside over the

Hastings case, including the scheduling of a new trial date and the ruling on any pending

motions.

53. This Court has held that where a lower court patently and unambiguously lacks

jurisdiction to proceed in a cause of action, a writ of mandamus may issue “to correct the results

of prior jurisdictionally unauthorized actions.” State ex rel. Engelhart v. Russo, 131 Ohio St.3d

137, 2012-Ohio-47, ¶ 14 (granting prohibition and mandamus relief to prevent the unauthorized

exercise of jurisdiction and to vacate prior orders entered in violation of Civ. R. 41(A)).

54. Here, Respondents Russo and/or Corrigan, without any legal authority, have

wrongfully purported to re-assign the entire Hastings case to Visiting Judge Lillian Greene in

direct violation of the requirements of the Ohio Constitution, the Rules of Superintendence, and

the Local Rules of the Cuyahoga County Court of Common Pleas. Moreover, Judge Greene has

wrongfully exercised jurisdiction over the Hastings case without any legal authority whatsoever.

55. Accordingly, in addition to a writ of prohibition, Relators are entitled to a writ of

mandamus to compel Respondents to vacate all prior orders and docket entries that purported to re-

assign the Hastings case to Visiting Judge Lillian Greene in violation of Sup. R. 36(B) and Local

Rule 15.0, to vacate all journal entries and orders that were wrongfully issued by Judge Greene, and

to compel Respondents to re-assign the Hastings case back to the original assigned Judge.

COUNT THREE: ALTERNATIVE WRIT

56. Relators hereby incorporate by reference the allegations of Paragraphs 1 through

55 of this Second Amended Complaint as if fully restated herein.

57. Judge Greene has wrongfully exercised jurisdiction over the Hastings case by,

among other things, re-scheduling the trial date for November 16, 2015, and announcing her

intent to rule on outstanding motions. Absent the issuance of an alternative writ, therefore, Judge

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Greene likely will be continuing to exercise jurisdiction over the Hastings case by, among other

things, ruling on all pending motions.

58. Absent the issuance of an alternative writ by this Court, Relators do not have an

adequate remedy at law that would prohibit Judge Greene from continuing to exercise jurisdiction

over the Hastings case by ruling on all pending motions and presiding over the trial.

59. Relators therefore request that the Court grant an alternative writ to prohibit Judge

Greene from exercising any further jurisdiction over the Hastings case and to compel

Respondents to re-assign the Hastings case back to the randomly assigned judge in accordance

with the requirements of Sup. R. 36(B).

PRAYER FOR RELIEF

WHEREFORE, Relators respectfully request that the Court grant the following relief:

(A) Grant a Writ of Prohibition and/or a Writ of Mandamus against Respondents John

Russo and Brian Corrigan compelling them to vacate the unsigned Docket Entry of February 9,

2015, and the journal entries of January 30, 2015, that purported to re-assign the Hastings case to

Visiting Judge Lillian J. Greene, and compelling them to re-assign the Hastings case back to the

original assigned judge.

(B) Grant a Writ of Prohibition against Respondent Lillian J. Greene prohibiting

Judge Greene from exercising any judicial authority over the Hastings case and vacating all

orders and journal entries issued by Judge Greene.

(C) Grant an Alternative Writ to prohibit Judge Greene from exercising any further

jurisdiction over the Hastings case and compelling Respondents to re-assign the case back to the

randomly assigned judge under Sup. R. 36(B).

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(D) Grant any further relief that may be just and appropriate under the circumstances.

Respectfully submitted,

s/ Stephen W. FunkAnna Moore Carulas (0037161)Stephen W. Funk* (0058506)* Counsel of RecordRoetzel & Andress, LPA1375 East 9th Street, 9th FloorCleveland, OH 44114Telephone: 216.623.0150Facsimile: 216.623.0134acarulas@ralaw.com; sfunk@ralaw.comAttorneys for Relators

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PROOF OF SERVICE

A copy of the foregoing Second Amended Complaint for Writ of Prohibition andMandamus and Alternative Writ with Affidavit of Anna Carulas, was served on this 17th day ofApril, 2015, via electronic mail pursuant to Civ. R. 5(B)(2)(f) upon the following counsel ofrecord:

Timothy J. McGintyCharles E. HannanCuyahoga County Prosecutor’s OfficeThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113channan@prosecutor.cuyahogacounty.usCounsel for Respondents

Pamela PantagesThe Becker Law Firm, LPA134 Middle AvenueElyria, OH 44035ppantages@beckerlawlpa.comAttorney for Hastings Plaintiffs

Paul FlowersPaul W. Flowers Co., LPATerminal Tower, 35th Floor50 Public SquareCleveland, Ohio 44113pwf@pwfco.comAttorney for Hastings Plaintiffs

David KrauseReminger Co., LPA101 W. Prospect Avenue, Suite 1400Cleveland, OH 44115dkrause@reminger.comAttorney for Johanna O'Neill, M.D. and Southwest General Medical Group, Inc.

/s/ Stephen W. FunkStephen W. Funk, Esq. (0058506)

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