The opinion
[Cite as Khatri v. Ohio State Univ., 2024-Ohio-563.]
IN THE COURT OF CLAIMS OF OHIO
MAHESH KHATRI Case No. 2022-00768JD
Plaintiff Judge Lisa L. Sadler
Magistrate Robert Van Schoyck
v.
DECISION
THE OHIO STATE UNIVERSITY
Defendant
{¶1} Plaintiff brings this action arising out of his former employment as a Research
Scientist at Defendant’s regional campus in Wooster, where he worked from 2008 until
the termination of his employment on March 5, 2018. Plaintiff’s amended complaint sets
forth the following theories of recovery: (1) Civil Conspiracy; (2) “Ohio Common Law Tort
Action – Wrongful denial of faculty positions and wrongful termination in violation of public
policy”; (3) Conversion; (4) “Intellectual Theft”; (5) Unjust Enrichment; and, (6) “Lost
Opportunities for Wrongful employment termination”. Plaintiff has also requested
determinations as to whether Dr. David Benfield, Dr. Yehia Mohamed Saif, Dr. Chang-
Won Lee, Dr. Gireesh Rajashekara, Dr. Linda Saif, and Elayne Siegfried are entitled to
personal immunity as state employees under R.C. 2743.02(F) and 9.86.
{¶2} On October 20, 2023, Plaintiff, Defendant, and Dr. Linda Saif filed motions for
summary judgment pursuant to Civ.R. 56. The motions have been briefed and are now
before the Court for a non-oral hearing pursuant to Civ.R. 56 and L.C.C.R. 4.
Standard for Summary Judgment
{¶3} Civ.R. 56(C) states, in part, as follows:
{¶4} “Summary judgment shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, timely filed in the action, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
Case No. 2022-00768JD -2- DECISION
of law. No evidence or stipulation may be considered except as stated in this rule. A
summary judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds can come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence or
stipulation construed most strongly in the party’s favor.” See also Gilbert v. Summit Cty.,
104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6, citing Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).
{¶5} “The party moving for summary judgment bears the initial burden of informing
the trial court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact.” Starner v. Onda, 10th Dist.
Franklin No. 22AP-599, 2023-Ohio-1955, ¶ 20, citing Dresher v. Burt, 75 Ohio St.3d 280,
293, 662 N.E.2d 264 (1996). “The moving party does not discharge this initial burden
under Civ.R. 56 by simply making conclusory allegations.” Id. “Rather, the moving party
must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that
there are no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law.” Id. “Once the moving party discharges its initial burden, summary
judgment is appropriate if the non-moving party does not respond, by affidavit or as
otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists
for trial.” Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-4783, 204 N.E.3d 1174, ¶ 17
(10th Dist.), citing Dresher at 293; Vahila v. Hall, 77 Ohio St.3d 421, 430, 674 N.E.2d
1164 (1997); Civ.R. 56(E).
Analysis
{¶6} Defendant argues that Plaintiff’s claims were not timely filed under the statute
of limitations applicable to the Court of Claims, R.C. 2743.16(A), which provides, in
pertinent part:
civil actions against the state permitted by sections 2743.01 to 2743.20 of
the Revised Code shall be commenced no later than two years after the
date of accrual of the cause of action or within any shorter period that is
applicable to similar suits between private parties.
Case No. 2022-00768JD -3- DECISION
{¶7} Plaintiff commenced this action on November 2, 2022, more than four years
after the termination of his employment on March 5, 2018. Plaintiff has separate theories
as to how Claims One and Two of the Amended Complaint, and Claims Three through
Six of the Amended Complaint, were nevertheless timely filed.
Claims One and Two
{¶8} Claims One and Two of the amended complaint, respectively, are for civil
conspiracy and wrongful termination in violation of public policy. Plaintiff states in the
amended complaint that these claims “are timely by 28 U.S.C. 1367(d) and continuing
violation doctrine.” (Amended Complaint, ¶ 2, fn. 1.)
{¶9} There is no dispute that Plaintiff initially filed an action against Defendant in
this Court on August 28, 2018, which the Court dismissed without prejudice on
November 20, 2018. It is also undisputed that in December 2018, Plaintiff filed an action
against Defendant and several individuals in the United States District Court for the
Northern District of Ohio, which dismissed his claims without prejudice on February 12,
2021; the Sixth Circuit Court of Appeals affirmed the dismissal on January 25, 2022, and
the Supreme Court of the United States declined Plaintiff’s petition for a writ of certiorari
on October 3, 2022.
{¶10} “28 U.S.C. 1367(d) * * * tolls the period of limitations for any state claim over
which a federal court has supplemental jurisdiction if the claimant asserted the claim in a
federal court case. The period of limitations ‘shall be tolled while the claim is pending and
for a period of 30 days after it is dismissed unless State law provides for a longer tolling
period.’ 28 U.S.C. 1367(d).” Antoon v. Cleveland Clinic Found., 148 Ohio St.3d
Case No. 2022-00768JD -4- DECISION
483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 7. However, “the tolling provision does not apply
to claims filed in federal court against nonconsenting States.” Raygor v. Regents of the
Univ. of Minn., 534 U.S. 533, 536, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002).
{¶11} As Plaintiff acknowledges in his amended complaint, Defendant is an
instrumentality of the state of Ohio. (Amended Complaint, ¶ 2-3.) “The Sixth Circuit has
repeatedly and consistently held that the State of Ohio has not consented to be sued for
state law claims in federal court. Rather, Ohio has consented to be sued in only one
forum—the Ohio Court of Claims.” Allen v. Oho Dept. of Job & Family Servs., 697
F.Supp.2d 854, 908 (S.D.Ohio 2010). Accordingly, the tolling provision set forth in 28
U.S.C. 1367(d) does not apply.
{¶12} Nor were plaintiff’s claims tolled by the continuing violation doctrine. Courts
have been reluctant to apply the continuing violation doctrine outside the context of Title
VII of the Civil Rights Act of 1964, and Plaintiff has identified no authority extending the
doctrine to any cause of action raised in his amended complaint. See Marok v. Ohio
State Univ., 10th Dist. Franklin No. 13AP-12, 2014-Ohio-1184, ¶ 26; Cooper v. W.
Carrollton, 2018-Ohio-2547, 112 N.E.3d 477, ¶ 39-44 (2d Dist.).
{¶13} In addition to the theories raised in his amended complaint as to the
timeliness of the claims for civil conspiracy and wrongful termination in violation of public
policy, Plaintiff now raises an additional argument that these claims were rendered timely
by operation of the Ohio saving statute, R.C. 2305.19(A), which states as follows:
In any action that is commenced or attempted to be commenced, if in due
time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise
than upon the merits, the plaintiff * * * may commence a new action within
one year after the date of the reversal of the judgment or the plaintiff’s failure
otherwise than upon the merits or within the period of the original applicable
statute of limitations, whichever occurs later.
{¶14} As stated earlier, following the termination of his employment on March 5,
2018, Plaintiff filed his first action against Defendant challenging the termination of his
employment in this Court on August 28, 2018, which was dismissed without prejudice on
November 20, 2018. Plaintiff filed a second action against Defendant challenging the
termination of his employment in federal court in December 2018, and after it too was
Case No. 2022-00768JD -5- DECISION
dismissed without prejudice Plaintiff exhausted all appeals on October 3, 2022. Plaintiff
filed a third action against Defendant challenging the termination of his employment in
this Court on November 2, 2022. There is no dispute that in each action Plaintiff has
claimed that Defendant wrongfully terminated his employment in retaliation for his
reporting of alleged biological hazards in the workplace.
{¶15} Whether or not Plaintiff filed the second action within the period of the original
applicable statute of limitations, courts have held that “the refiled complaint is considered
to be filed through the invocation of R.C. 2305.19.” Rector v. Dorsey, 8th Dist. Cuyahoga
No. 109835, 2021-Ohio-2675, ¶ 9, appeal not accepted 165 Ohio St.3d 1479, 2021-Ohio-
4289, 177 N.E.3d 994; see also Owens College Nursing Students v. Owens State
Community College, 6th Dist. Wood No. WD-14-012, 2014-Ohio-5210, ¶ 28; Wright v.
Proctor-Donald, 5th Dist. Stark No. 2012-CA-00154, 2013-Ohio-1973, ¶ 14; but see
McCullough v. Bennett, 2022-Ohio-1880, 190 N.E.3d 126, ¶ 37 (2d Dist.), appeal
accepted 168 Ohio St.3d 1414, 2022-Ohio-3636, 196 N.E.3d 840. Plaintiff cannot again
invoke the saving statute to render timely this third action against Defendant challenging
the termination of his employment. See Rector at ¶ 10; Moore v. Dept. of Rehab. & Corr.,
10th Dist. Franklin No. 10AP-732, 2011-Ohio-1607, ¶ 20 (“It is axiomatic that the savings
statute may be used only once to re-file a case.”).
{¶16} Accordingly, judgment shall be granted in Defendant’s favor on Claims One
and Two.
Claims Three through Six
{¶17} Claims Three through Six of the amended complaint, respectively, are styled
as claims for conversion, “Intellectual Theft”, unjust enrichment, and “Lost Opportunities
for Wrongful employment termination”. In contrast to his arguments about Claims One
and Two being rendered timely only by operation of statute or the continuing violation
doctrine, Plaintiff argues in conclusory fashion that these claims were filed “well within the
two-year statute of limitations set forth in R.C. 2743.16.” (Plaintiff’s Motion for Summary
Judgment, p. 4; Plaintiff’s Response to Defendant’s Motion for Summary Judgment, pp.
4-6.)
Case No. 2022-00768JD -6- DECISION
{¶18} It is evident from the face of the amended complaint, however, that these
theories of relief arise, at least in part, out of acts or omissions on the part of Defendant
that took place during his former employment with Defendant, which ended more than
four years before he commenced this action. For example, Plaintiff alleges for the
conversion claim that one or more employees of Defendant “terminated his employment
so that Plaintiff could not compete with her group and deprived Plaintiff from using his cell
line to do research and develop vaccines and diagnostics against viral agents.”
(Amended Complaint, ¶ 104.) Similarly, for the theory of “Intellectual Theft”, Plaintiff
alleges that one or employees of Defendant conspired to “wrongfully terminate Plaintiff’s
employment in March 2018 so that she and her group could take Plaintiff’s research and
Plaintiff is not able to compete with her group for grants and patents.” (Id. at ¶ 112.)
Plaintiff complains for his unjust enrichment claim that he “did not receive any support
from [Defendant] for his research” and that “[Defendant] got rich” from grant funds that he
brought in while he “was kept as a slave and was forced to pay his modest salary from
his own grants.” (Id. at ¶ 122-123.) And, for the theory of “Lost Opportunities for Wrongful
employment termination”, Plaintiff again complains that Defendant “did not pay Plaintiff’s
salary or support his research” and that he was “wrongfully terminated in March, 2018.”
(Id. at ¶ 128-129.)
{¶19} Plaintiff does not point to specific facts that would support the conclusion that
these claims were timely filed. Upon review, to the extent that it is apparent from the
amended complaint that Claims Three through Six arise from acts or omissions occurring
more than two years before the commencement of this action on November 2, 2022, any
such claims are barred by the statute of limitations (R.C. 2743.16(A)).
{¶20} Defendant also argues that even if they were timely filed, Claims Three
through Six of the amended complaint fail as a matter of law.
{¶21} Defendant first asserts that neither “Intellectual Theft” nor “Lost Opportunities
for Wrongful employment termination” are causes of action recognized under Ohio law.
Plaintiff offers no argument or authority to the contrary and concedes that these claims
sound in other theories of relief enumerated elsewhere in the amended complaint,
specifically conversion and wrongful termination in violation of public policy. (Response
to Defendant’s MSJ, pp. 9, 11.) Upon review, it can only be concluded that no recovery
Case No. 2022-00768JD -7- DECISION
may be had for the claims of “Intellectual Theft” and “Lost Opportunities for Wrongful
employment termination” given that these are not independent claims for relief under Ohio
law and the underlying allegations are subsumed under other enumerated theories of
relief.
{¶22} Defendant further asserts that the claims of conversion and unjust
enrichment are predicated on allegations that Defendant wrongfully converted or was
unjustly enriched by intellectual property that Plaintiff helped develop in the course of his
research for Defendant. Defendant asserts that Plaintiff cannot obtain relief on these
claims as a matter of law because Defendant owns any intellectual property that he
assisted in creating pursuant to R.C. 3345.14(B), which states:
All rights to and interests in discoveries, inventions, or patents which result
from research or investigation conducted in any experiment station, bureau,
laboratory, research facility, or other facility of any state college or
university, or by employees of any state college or university acting within
the scope of their employment or with funding, equipment, or infrastructure
provided by or through any state college or university, shall be the sole
property of that college or university. No person, firm, association,
corporation, or governmental agency which uses the facilities of such
college or university in connection with such research or investigation and
no faculty member, employee, or student of such college or university
participating in or making such discoveries or inventions, shall have any
rights to or interests in such discoveries or inventions, including income
therefrom, except as may, by determination of the board of trustees of such
college or university, be assigned, licensed, transferred, or paid to such
persons or entities in accordance with division (C) of this section or in
accordance with rules adopted under division (D) of this section.
{¶23} Plaintiff claims that Defendant converted or was unjustly enriched by
intellectual property that allegedly resulted from research that he conducted in a
laboratory or other facility of a state university within the scope of his employment there
as a research scientist. By the plain language of R.C. 3345.14(B), all rights and interest
to such intellectual property belong solely to Defendant. Plaintiff argues that “[e]ven
Case No. 2022-00768JD -8- DECISION
assuming that OSU owns Plaintiff’s cell line, Plaintiff is entitled to receive his share of
royalties.” (Response to Defendant’s MSJ, p. 9.) But the lone authority Plaintiff cites in
support is Ohio Adm.Code 3349-20-50, which pertains to Northeast Ohio Medical
University, not Defendant. Therefore, reasonable minds can only conclude that no
recovery may be had on Plaintiff’s claims of conversion or unjust enrichment.
{¶24} Accordingly, judgment shall be granted in Defendant’s favor on Claims Three
through Six.
Immunity Determinations
{¶25} On December 9, 2022, Plaintiff filed a motion pursuant to L.C.C.R. 4.1
requesting a determination as to whether Dr. David Benfield, Dr. Yehia Mohamed Saif,
Dr. Chang-Won Lee, Dr. Gireesh Rajashekara, Dr. Linda Saif, and Elayne Siegfried are
entitled to personal immunity as state employees under R.C. 2743.02(F) and 9.86. The
motion was subsequently granted such that the immunity issues were to be determined
with the merits of the case.
{¶26} Defendant and Dr. Linda Saif argue that Plaintiff is not entitled to an immunity
determination for several reasons, including that the request for the immunity
determination is time-barred and moot.
{¶27} R.C. Chapter 2743 “provides a limited waiver of the state’s immunity, thus
offering the statutory right to file an action against the state under certain circumstances.
One such circumstance is set out in R.C. 2743.02(F) * * *.” Taylor v. Ohio State Univ.,
10th Dist. Franklin No. 94API11-1639, 1995 Ohio App. LEXIS 1910, *5 (May 11, 1995).
R.C. 2743.02(F) provides, in pertinent part:
A civil action against an officer or employee, as defined in section 109.36 of
the Revised Code, that alleges that the officer’s or employee’s conduct was
manifestly outside the scope of the officer’s or employee’s employment or
official responsibilities, or that the officer or employee acted with malicious
purpose, in bad faith, or in a wanton or reckless manner shall first be filed
against the state in the court of claims that has exclusive, original jurisdiction
to determine, initially, whether the officer or employee is entitled to personal
Case No. 2022-00768JD -9- DECISION
immunity under section 9.86 of the Revised Code and whether the courts
of common pleas have jurisdiction over the civil action. * * *
{¶28} According to R.C. 2743.16(A), “civil actions against the state permitted by
sections 2743.01 to 2743.20 of the Revised Code shall be commenced no later than two
years after the date of accrual of the cause of action * * *.”
{¶29} There is no dispute that Plaintiff’s employment with Defendant ended on
March 5, 2018, and it was more than four years later when Plaintiff filed this action against
the state and requested an immunity determination under R.C. 2743.02(F). In Liebling v.
Columbus State Community College, 10th Dist. Franklin No. 14AP-172, 2014-Ohio-3256,
however, the Tenth District Court of Appeals held that even though an action was filed
more than two years later than the underlying events and the claims against the state
were dismissed as untimely, the Court of Claims was still required to make an immunity
determination pursuant to R.C. 2743.02(F) where “the statute of limitations has not run
as to the claims against the * * * employees if they were acting outside of the scope of
their employment.” Id. at ¶ 4.
{¶30} It is not clear which claims Plaintiff seeks to bring against the individuals at
issue in this case, but as previously explained the amended complaint essentially
identifies four theories of relief recognized under Ohio law: wrongful termination in
violation of public policy, conspiracy, conversion, and unjust enrichment.
{¶31} For claims of wrongful termination in violation of public policy, the limitations
period is, at most, four years. Walker v. Nationwide Mut. Ins. Co., 10th Dist. Franklin No.
15AP-520, 2015-Ohio-5371, ¶ 5, citing Pytlinski v. Brocar Prods., 94 Ohio St.3d 77, 80,
760 N.E.2d 385 (2002). While R.C. 2743.02(F) states, in part, that “[t]he filing of a claim
against an officer or employee under this division tolls the running of the applicable statute
of limitations until the court of claims determines whether the officer or employee is
entitled to personal immunity under section 9.86 of the Revised Code”, given that Plaintiff
initiated this action more than four years after the termination of his employment, the
statute of limitations has run as to any potential claim for wrongful termination in violation
of public policy against the individuals for whom he seeks an immunity determination.
Therefore, plaintiff has no claim for wrongful termination in violation of public policy
Case No. 2022-00768JD -10- DECISION
against the individuals for which the Court would have authority to decide an immunity
question.
{¶32} With respect to the claims of both conversion and unjust enrichment, the
Court previously concluded that relief cannot be sustained on such claims inasmuch as
the intellectual property in question does not belong to Plaintiff as a matter of law. See
R.C. 3345.14(B).
{¶33} Finally, “[a] civil conspiracy can only exist when two or more defendants have
committed an underlying tort against the plaintiff: ‘[I]f all of the substantive claims
underlying the conspiracy are without merit, the conspiracy claim must also fail.’” Morris
v. Broska, 11th Dist. Portage No. 2018-P-0086, 2019-Ohio-2510, ¶ 29, quoting Lanzer v.
Louisville, 2016-Ohio-8071, 75 N.E.3d 752, ¶ 47 (5th Dist.). For the reasons previously
explained, Plaintiff has no actionable tort claims underlying any alleged conspiracy
between Defendant and the individuals for whom he seeks an immunity determination.
{¶34} Given that Plaintiff has no claims for relief arising under state law against the
individuals for whom he seeks an immunity determination, the Court has no basis upon
which to conduct an immunity determination. See Miracle v. Ohio Dept. of Veterans
Servs., 157 Ohio St.3d 413, 2019-Ohio-3308, 137 N.E.3d 1110, ¶ 30 (“Given our
conclusion that Miracle failed to state any wrongful-discharge claim arising under state
law, the Court of Claims has no basis upon which to conduct an immunity determination.”).
{¶35} Accordingly, the request for immunity determinations is moot.
Conclusion
{¶36} Based upon the foregoing the Court concludes that there are no genuine
issues of material fact, that Defendant is entitled to judgment as a matter of law, and that
the Court has no basis upon which to conduct an immunity determination. Accordingly,
Defendant and Dr. Linda Saif’s Motions for Summary Judgment shall be granted such
Case No. 2022-00768JD -11- DECISION
that judgment shall be rendered in favor of Defendant and the request for an immunity
determination shall be dismissed. Plaintiff’s Motion for Summary Judgment shall be
denied.
LISA L. SADLER
Judge
[Cite as Khatri v. Ohio State Univ., 2024-Ohio-563.]
IN THE COURT OF CLAIMS OF OHIO
MAHESH KHATRI Case No. 2022-00768JD
Plaintiff Judge Lisa L. Sadler
Magistrate Robert Van Schoyck
v.
JUDGMENT ENTRY
THE OHIO STATE UNIVERSITY
Defendant
{¶37} A non-oral hearing was conducted in this case upon the Motions for
Summary Judgment filed by Plaintiff, Defendant, and Dr. Linda Saif. For the reasons set
forth in the decision filed concurrently herewith, the Court concludes that there are no
genuine issues of material fact, that Defendant is entitled to judgment as a matter of law,
and that the Court has no basis upon which to conduct an immunity determination. As a
result, Defendant and Dr. Saif’s Motions for Summary Judgment are GRANTED such that
judgment is hereby rendered in favor of Defendant and Plaintiff’s request for an immunity
determination is DISMISSED. Plaintiff’s Motion for Summary Judgment is DENIED.
Court costs are assessed against Plaintiff. The clerk shall serve upon all parties notice
of this judgment and its date of entry upon the journal.
LISA L. SADLER
Judge
Filed January 12, 2024
Sent to S.C. Reporter 2/15/24