Opposition Brief — Mileti v. Cole

J ford 668

In The

upreme Court of the Gnited States

October Term, 1997

¢

iff

Nick J. MILETI,

Petitioner,

v.

MARCIA N. COLE,

REPRESENTATIVE OF THE ESTATE OF

JOSEPH E. COLE,

Respondent.

*

Petition For A Writ Of Certiorari

Te The United States Court of

Appeals For The Sixth Circuit

é

RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

of

*JOSHUA R. COHEN

KOHRMAN JACKSON & KRANTZ P.L.L.

1375 East Ninth Street

One Cleveland Center, 20th Floor

Cleveland, Ohio 44114

(216) 696-8700

Attorneys for Respondent

“Counsel of Record

luly 9, 1998

LEGAL ADVANTAGE * 432 Walnut Street * Cincinnati, OH 45202

(800) 581-2252

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.............................. i\

STATEMENT OF THE CASE.................... |

+, ROS TIES lorem RENEW aT CN ae a 3

1. MILETI HAS FAILED TO PRESENT ANY

VIABLE REASON FOR THE COURT TO

REVIEW THE SIXTH CIRCUIT’S

DETERMINATION OF THE APPLICABLE

STATUTE OF LIMITATIONG............................ 3

A. THE OHIO STATUTE OF

LIMITATIONS APPLIES TO

CLAIMS PROSECUTED IN THE

Ra eibchenstcadieds til te ee ee 3

B. THE REPEAL OF OHIO REV.

CODE § 2305.20 INVALIDATES

MILETI’S INVOCATION OF THE

CALIFORNIA STATUTE OF

SESE SRSTS Ree in ie 4

C. THe SIXTH CIRCUIT’S

DETERMINATION OF THE

APPLICABLE STATUTE OF

LIMITATIONS INVOLVES AN ISSUE

OF STATE LAW THAT DOES NOT

WARRANT THE COURT'S

i RTI INI concen Ae ed 7

Page

2. MILETI HAS FAILED TO PRESENT ANY

VIABLE REASON FOR THE COURT TO

REVIEW THE SIXTH CIRCUIT’S RULING ON

THE ISSUE OF PERSONAL JURISDICTION... )

A. MILETI’S ARGUMENTS

REGARDING PERSONAL

JURISDICTION RELATE SOLELY

TO THE PARTICULAR FACTS OF

ca. SERRE CER SAAR RS eR aD 9

B. THESIXTH CIRCUIT CORRECTLY

HELD THAT EXERCISING

PERSONAL JURISDICTION OVER

MILETI COMPORTED WITH THE

REQUIREMENTS OF DUE

i ee SIXTH CIRCUIT’S

APPLICATION OF THE OHIO

LONG-ARM STATUTE PRESENTS

AN ISSUE OF STATE LAW THAT

DOES NOT MERIT THE COURT'S

SHEE aR Sa ae ae EE 14

oe ne ne oS eee eC 15

TABLE OF CONTENTS

APPENDIX

Associates Fin. Serv. /APEX y Brogan,

No. 15-CA-90, 1990 WL, 163289

(Aue App. Oct: 22, 19901... A-|

(5 ORD ter oo A

TABLE OF AUTHORITIES

:

American Greetings Corp. v. Cohn,

$39 F.2d 1164 (6th Cir. 1988)... eeeeeeee es 13

Aristech Chemical Int'l Ltd. v.

Acrylic Fabricators Ltd.,

LSB F.3d G24 (Os Cit, 19GB ascicehecccssccssceccescseess.0s. 12

Associates Fin. Serv./APEX v. Brogan,

No. 15-CA-90, 1990 WL 163829

COTE, Fm CIE EE Tei eics cicncnceersssacnentncesseve 5-6

Bowen v. Massachusetts,

ee wack N

Burger King Corp. v. Rudzewicz,

rg h os yk), | SCRE R amon Depo ner nice eae 11,13

Butner v. United States,

ek 8

Charash vy. Oberlin College,

Re Ae 2 tC hs FO icra ecancevcscivcceretcedoctenns

‘a2

CompuServe, Inc. v. Patterson,

fe bags) Te a. 5 SERRE BeemEn 12,13

Cole v. Mileti,

EES Se ey! Le A, | SOR pammcren rN passim

Pe eT

TABLE OF AUTHORITIES

Cosgrove v. Williamsburg of

Cincinnati Management Co., Inc.,

70 Ohio St. 3d 281, 638 N.E.2d 991 (1994).......... 7

Goldstein v. Christiansen,

70 Ohio St. 3d 232, 638 N.E.2d 541 (1994). 000000... 15

Gordy v. Daily News, L.P.,

OS FST ry TI osicsnocecstaccccrsnsspesonccosess 12

Hilliard v. Pennsylvania R. Co.,

73 F.2d 473 (6th Cir. 1934),

cert. denied, 294 U.S. 721 (1935)...........ccccesssseceees 6

Howard v. Allen,

30 Ohio St. 2d 130, 283 N.E.2d 167,

appeal dis ‘d, 409 U.S. 908 (1972).....ccccceeeeereeees 6-7

International Shoe Co. v. State of Washington,

Be ce. SO acd aesiceltaaiseetae 1]

Kentucky Oaks Mall Co. v

Mitchell's Formal Wear, Inc.,

$3 Ohio St. 3d 73, 559 N.E.2d 477 (1990),

cert. denied, 499 U.S. 975 (1991)... eee eee 14

Koch v. Rodlin Enter., Inc..

223 Cal App. 3d 1591, 273 Cal Rptr. 438 (1990).. 4

Layne & Bowler Corp. v. Western Well Works,

ae re ee EE a ctetelitsscscedh sv cnsndaettngsceadiom tine 10-11

SO lr e 2s i

TABLE OF AUTHORITIES

;

| * SES P

| Leavitt v. Jane,

: SAB U.S. 137 (1G anna nnacevsccsescccscececerencsnssncnssnserecss 8-9

) Loughan vy. Firestone Tire & Rubber Co.,

) 624 F.2d 726 (Sth Cir. 1980).........ccccceceeeeeeeeseees 5

Mahalsky v. Salem Tool Co.,

461 F.2d 581 (6th Cir. 1972).......-ssecceeeeeseereeseenee 3

:

:

McMillian v. Monroe Cty.,

__ULS. _, 117 S.Ct. 1734 (1997). .ccececceereceterenene x

Miller v. State Farm Mut. Auto. Ins.,

87 F.3d 822 (6th Cir. 1996).................ccceceeeseeeeeeeens 3

Phelps v. McClellan,

30 F.3d 658 (6th Cir. 1994).............cccccacecereeeeneeeees 3-4

Pierson v. Ray,

3G U.S. $47 (19G7)......200-creceeccsssocscesceeeesessecsesnreees &

Pinney v. Cummings, a

26 Ohio St. 46 (1875).........cccccccrseceeceeeeeseesees ay ee 6

Preferred RX, Inc. v. American

Prescription Plan, Inc., i

46 F.3d 535 (6th Cir. 1995).............0ccc--eeeeeeeeneee: 15

v1

TABLE OF AUTHORITIES

CASES p

Records Deposition Serv., Inc. v.

Henderson & Goldberg, P.C.,

100 Ohio App. 3d 495, 654 N.E.2d 382

EPRI DF Fa isssscokcaichrcensqeesee iacecasansaceos 15

Salve Regina College v. Russell,

SF RA ee Biicdaicnin cies tine cinavcaccceoeass 8

Southern Mach. Co. v. Mohasco Industries, Inc..,

a Be. Le Ao.” : SeeROe enn ee ec enn 12,13

Spence v. Miles Lab., Ine.,

OEE Sk 8 2 aE, FR sss besarcenssenass 3

Theunissen v. Matthews,

9350.20 1658 CG PE iii 14

Third Nat'l Bank v. WEDGE Group. Inc,

882 F.2d 1087 (6th Cir. 1989),

cert. denied, 493 U.S. 1058 (1990)...............cc0s008 13

Travelers Indem. Co. v. Bell,

213 Cal App. 2d 541, 29 Cal. Rptr. 67 (1963)....... +

World-Wide Volkswagen Corp. v. Woodson,

444AUS. 206, 297 (UF) onccinicscenecncecenes seauiioasicdie 1]

STATUTES

CAL. CIV. P. CODE § 337

BB FS |) MRSS ST eer REO HP MULTE

i]

Vii

TABLE OF AUTHORITIES

OHIO REV. CODE ANN. § 2305.19

TIS TONS BSE sires cwhctsnnrrsesidensaccipaitsiinns 7

OHIO REV. CODE ANN. § 2305.20 (repealed)

SE es gg Pe Eero 4.5.6

OHIO REV. CODE ANN. § 2305.06

(eases TORR B98) ss i iiciesnriiiiinmnne 2

OHIO REV. CODE ANN. § 2307.382

Pa PU SR isla cc orcssrastncessrsareencsesnianes 14,15

OTHER

Re ee iiss i sainak cancap sunnah apdnseneniuniate l

16 OHIO JUR. 3d

CORTICES OF LAWS O91 LESTE io vccctcversicscreseacoensorsssy 8

Be ir aa al censneskacneatsiacumtboeades 8

16B Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper,

FEDERAL PRACTICE AND PROCEDURE

G8 CEP Esiscivackcbisstnesnstnanninntccccsenrmn eccinses 10

| Vill

:

:

STATEMENT OF THE CASE

In 1983, Respondent Nick J. Mileti formed a corporation

known as Streamers International Distributors to purchase and

distribute a film known as Streamers, which he had co-

produced with Robert Altman. Joseph E. Cole ' bought stock

in the Streamers company and loaned it $475,000. To fund

these transactions, Cole borrowed money from the Equitable

Bank of Baltimore, Maryland.

On September 4, 1984, Mileti and Cole entered into the

surety agreement, under which Mileti assumed responsibility

for discharging Cole’s obligation to Equitable Bank. In

exchange, Cole transferred to Mileti his Streamers stock and

the $475,000 promissory notes he had received from the

company. Paragraph 8 of the surety agreement designated

California law as controlling in the construction and

enforcement of the parties’ contract.

Mileti never fulfilled his obligation under the surety

agreement to repay the amounts owed to Equitable Bank,

forcing Cole to do so himself. In 1994, Cole filed this

diversity action in the United States District Court for the

Northern District Ohio to recoup these amounts from Mileti.

The parties consented to the jurisdiction of a United States

magistrate, who eventually awarded Cole $988,861.89 in

| Mr. Cole, the original plaintiff in this lawsuit, died during its

pendency in the district court. On January 8, 1995, Mr. Cole’s

widow, Marcia N. Cole, was substituted as the plaintiff pursuant

to Rule 25 of the Federal Rules of Civil Procedure. Mrs. Cole is

the respondent in these proceedings.

I

damages and $470,728.66 in prejudgment interest under his

claim for breach of the surety agreement.

Mileti appealed the judgment on two separate grounds.

A citizen of California, Mileti argued that the district court

lacked personal jurisdiction to adjudicate claims asserted

against him in Ohio.

Mileti also found error in the magistrate’s refusal to bar

Cole’s recovery under Cal. Civ. P. Code § 337, the California

statute of limitations that requires claimants to file suit for

breach of contract within four years of executing the

instrument under dispute. See CAL. CIV. P. CODE § 337

(West 1923). Muiuleti contended that the surety agreement’s

choice-of-law provision mandated enforcement of § 337 over

the corresponding Ohio provision applied by the magistrate,

Ohio Rev. Code § 2305.06, which creates a fifteen-year

deadline for bringing such causes of action. See OHIO REV.

CODE ANN. § 2305.06 (Banks-Baldwin 1993).

The Sixth Circuit Court of Appeals affirmed the

judgment entered in Cole’s favor. Mileti now petitions this

Court for a writ of certiorari.

>

ARGUMENT

1. MILETI HAS FAILED TO PRESENT ANY VIABLE REASON

FOR THE COURT TO REVIEW THE SIXTH CIRCUIT’S

DETERMINATION OF THE APPLICABLE STATUTE OF

LIMITATIONS.

A. THE OHIO STATUTE OF LIMITATIONS

APPLIES TO CLAIMS PROSECUTED IN THE

STATE.

The Court of Appeals properly looked to the Ohio statute

of limitations in determining the timeliness of Cole’s claim

for breach of contract. “A federal court sitting in diversity

jurisdiction applies the choice of law rules of the forum state.”

Miller v. State Farm Mut. Auto. Ins., 87 F.3d 822, 824 (6th

Cir. 1996).

Cole brought this action in Ohio, which enforces its own

limitations period in all litigation prosecuted within its

borders. Charash v. Oberlin College, 14 F.3d 291, 299 (6th

Cir. 1994); Mahalsky v. Salem Tool Co., 461 F.2d 581, 584

(6th Cir. 1972). The Sixth Circuit followed this

straightforward rule in affirming application of Ohio’s statute

of limitations.

The surety agreement's choice-of-law provision did not

require enforcement of the California statute of limitations, as

Mileti has argued. In diversity litigation, the “procedural law

of the forum” controls. Spence v. Miles Lab., Inc., 37 F.3d

1185, 1188 (6th Cir. 1994). Choice-of-law provisions,

however, “incorporate only substantive law and _ not

laa

procedural law.” Phelps v. McClellan, 30 F.3d 658, 662 (6th

Cir. 1994),

As California law itself acknowledges,

[ijt is ... well established ... that the

statute of limitations is procedural. It

affects the remedy only; it does not

impair the substantive right or

obligation.

Travelers Indem. Co. v. Bell, 213 Cal App. 2d 541, 547, 29

Cal. Rptr. 67, 70 (1963); see also Kech v. Rodlin Enter., Inc.,

223 Cal App. 3d 1591, 273 Cal Rptr. 438 (1990).

This principle renders the choice-of-law provision

irrelevant in determining Cole’s deadline for filing suit. The

Sixth Circuit correctly applied the statute of limitations of

Ohio, the forum state in this diversity action.

B. THE REPEAL OF OHIO REV. CODE § 2305.20

INVALIDATES MILETI’S INVOCATION OF THE

CALIFORNIA STATUTE OF LIMITATIONS.

Mileti, however, argues that a different standard applies

when claims brought in Ohio actually accrued in another state

that has a shorter limitations period. According to him, Ohio

abandons its own statute in such cases in favor of the more

restrictive limitations period enforced in the other jurisdiction.

See Petitioner's Brief, pp. 14-17. The California statute of

limitations trumps Ohio’s under this purported rule and

requires dismissal of Cole's claim.

The Sixth Circuit would have had to turn back the clock

by more than three decades in order to accept the proposition

of law articulated by Mileti. Under former Ohio Rev. Code

§ 2305.20,

[i]f the laws of any state or country

where a cause of action arose limit the

time for the commencement of the

action to lesser number of years than do

the statutes of this state in like causes of

action then said causes of action shall be

barred in this state at the expiration of

said lesser number of years.

OHIO REV. CODE ANN. § 2305.20 (Banks-Baldwin 1917).

The Ohio Legislature repealed § 2305.20 as of

November 11. 1965. Loughan v. Firestone Tire & Rubber

Co.. 624 F.2d 726, 728 (5th Cir. 1980). In the wake of this

development. Ohio litigants can no longer challenge the

timeliness of claims under the statute of limitations from

other jurisdictions. See id.

In Associates Fin. Serv./APEX v. Brogan, No. 15-CA-90,

1990 WL 163829 (Ohio Ct. App. Oct. 22, 1990), the plaintiff

sued in Ohio to enforce a promissory note. The note

explicitly invoked the laws of Colorado, the state where the

plaintiff's claims apparently arose. /d. at *1. While the

litigation began well within the Ohio limitations period, the

Colorado statute had already lapsed. /d The repeal of

§ 2305.20 doomed the defendant’s attempt to secure dismissal

on this basis:

For many years ... [§ 2305.20] provided

that if the laws of a state where a cause

of action arose barred an action, the

action should be barred in Ohio. Were

the staiute still the law, the defendant's

motion might well be granted.

Jd. (emphasis added). Since § 2305.20 no longer applied, the

defendant in Brogan remained liable, regardless of whether

the Colorado statute of limitations would have barred the

lawsuit.

Notwithstanding the repeal of § 2305.20, Mileti argues

that Ohio's “conflicts-of-laws common law rule” requires

enforcement of the limitations period from elsewhere under

the identical circumstances prescribed by the former statute.

Petitioner's Brief, p. 16. Mileti cites Pinney v. Cummings, 26

Ohio St. 46 (1875) as the seminal authority for this alleged

principle. /d., pp. 14-16.

The Ohio legislature, however, first enacted § 2305.20

(albeit under a different name) in /846, almost forty years

before Pinney. Hilliard v. Pennsylvania R. Co., 73 F.2d 473,

475 (6th Cir. 1934), cert. denied, 294 U.S. 721 (1935). The

state Supreme Court did not articulate some “common law

rule” in rendering this decision; it was instead merely

enforcing the statute, which remained in effect at the time but

had became inoperative long before the current lawsuit

commenced.

Howard vy. Allen, 30 Ohio St. 2d 130, 283 N.E.2d 167,

appeal dis ‘d, 409 U.S. 908 (1972), did not revive § 2305.20,

6

ir ais a Se ee x

as Mileti argues. The 1972 decision addresses the scope of

Ohio Rev. Code § 2305.19, which gives plaintiffs one year to

refile a claim after dismissal “otherwise than upon the

merits,” even if the statute of limitations lapsed during that

12-month period. /d. at 132, 169; see OHIO REV. CODE

ANN. §2305.19 (Banks-Baldwin 1953). Howard permits

invocation of § 2305.19 only by parties who originally filed

suit in Ohio -- if the plaintiffs first filed their action in another

state, where it was dismissed, they could not take advantage

of the one-year savings statute by reasserting the same claims

in Ohio. /d. at 169-70, 133-35.

Howard in no way considers the applicability of a

foreign statute of limitations in Ohio litigation. To the extent

the Supreme Court touched upon this issue, its discussion had

no bearing on the ultimate outcome of the case.

Dicta of this nature lack any “binding effect” in

subsequent lawsuits. Cosgrove v. Williamsburg of Cincinnati

Managemen: Co., Inc., 70 Ohio St. 3d 281, 284, 638 N.E.2d

991. 993 (1994). Neither Howard nor any other authority

establishes a “common law rule” that justifies Mileti’s

reliance upon the California statute of limitations.

C. THe SIXTH CIRCUIT’S DETERMINATION OF

THE APPLICABLE STATUTE OF LIMITATIONS

INVOLVES AN ISSUE OF STATE LAW THAT

DOES NOT WARRANT THE COURT’S REVIEW.

The black-letter law of Ohio remains clear -- even if the

foreign limitations

period has expired, suit may [be]

brought and the claim litigated at the

forum if the local time period has not

elapsed.

16 OHIO JUR. 3d Conflicts of Laws § 51 at 104 (1979).

Mileti has no legitimate grounds to attack the Sixth Circuit’s

adherence to this rule.

Even had the court of appeals erred in making this

ruling, the limitations question still would not present an

appropriate question for this Court’s review. “A petition for

a writ of certiorari will be granted only for compelling

reasons.” SUP. C. R. 10(a).

This standard does not ordinarily justify the Court’s

consideration of “state law” issues. Pierson v. Ray, 386 U.S.

547, 558, n. 12 (1967). The Court has a “settled and firm

policy of deferring” to the circuit courts with respect to such

matters. Bowne v. Massachusetts, 487 U.S. 879, 908 (1988).?

By refusing to pass upon state-law rulings, the Court

preserves “its limited resources in the exercise of its

discretionary jurisdiction.” Salve Regina College v. Russell,

499 U.S. 225, 235, n. 3 (1991).

Exceptions arise only under extreme circumstances, such

as when the circuit court’s interpretation of state law “flatly

contradict[s]” the express terms of an applicable state statute.

2 See also, McMillian v. Monroe Cty., — U.S. __, 117 S.Ct. 1734,

1737 (1997), Butner v. United States, 440 U.S. 48, 57-58 (1979).

8

Leavitt v. Jane, 518 U.S. 137, 138 (1996). Only such “blatant

federal-court nullification of state law” will warrant the grant

of certiorari to address questions of state law. See id. at 145.

Mileti focuses upon a relatively narrow point of Ohio

conflicts law in contesting the Sixth Circuit’s resolution of the

limitations issue. His argument neither raises constitutional

questions nor implicates federal law in any way.

The Court of Appeals cogently explained its reasons for

holding that the Ohio statute applied instead of California's.

133 F.3d at 436-37. While Mileti contests the correctness of

this determination, he cannot seriously accuse the appeals

court of defying indisputable precedent or otherwise flouting

jurisprudential norms in making its decision.

The Sixth Circuit did not engage in “blatant

nullification of state law” in rejecting Mileti’s arguments

concerning the controlling limitations period. Even had its

ruling ultimately proved wrong, Mileti would have still

lacked viable grounds to obtain a writ of certiorari from this

Court.

2. MILETI HAS FAILED TO PRESENT ANY VIABLE REASON

FOR THE COURT TO REVIEW THE SIXTH CIRCUIT’S

RULING ON THE ISSUE OF PERSONAL JURISDICTION.

A. MILETI’S ARGUMENTS REGARDING

PERSONAL JURISDICTION RELATE SOLELY TO

THE PARTICULAR FACTS OF THIS CASE.

In contesting the determination of personal jurisdiction,

Mileti does not accuse the Sixth Circuit of openly repudiating

9

the due process rules that govern such matters. Nor does he

suggest that the appeals court indulged in some arbitrary

flight from prevailing doctrine in affirming Cole’s right to sue

in Ohio. Mileti’s petition points to no conflict between the

Sixth Circuit's test for finding personal jurisdiction and the

corresponding rules from other circuits.

The parties do not dispute the essential contours of the

constitutional framework for assessing such matters. Mileti

instead charges the Sixth Circuit only with misapplying these

standards -- according to him, the particular circumstances

underlying Cole’s claims did not warrant a finding of

personal jurisdiction. See Petitioner's Brief, pp. 8-11.

Commentators have recognized the “manifest

impossibility” of granting certiorari “whenever there is any

possibility that the lower court was wrong.” 16B Charles

Alan Wright, Arthur R. Miller & Edward H. Cooper

FEDERAL PRACTICE AND PROCEDURE § 4004.1 at 34

(1996). Practical considerations preclude the Court from

“function[{ing] as an ordinary appellate court concerned with

achieving justice in individuals cases.” /d. at 25. It has itself

long acknowledged the necessity of denying

the writ of certiorari except in cases

involving principles the settlement of

which is of importance to the public as

distinguished from that of the parties,

and in cases where there is a real and

embarrassing conflict of opinion and

authority between the circuit courts.

10

Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387,

392-93 (1923) (emphasis added).

An alleged violation of Mileti’s constitutional rights (or

those of any other citizen) cannot be trivialized. No court

would abide or endorse the blatant deprivation of due process.

Mileti, however, cannot ascribe any transcendent legal

significance to his arguments regarding personal jurisdiction.

Reviewing the Sixth Circuit’s treatment of this issue would

serve no purpose that extends beyond this singular lawsuit.

Certiorari remains unavailable under these circumstances.

B. THESIXTH CIRCUIT CORRECTLY HELD THAT

EXERCISING PERSONAL JURISDICTION OVER

MILETI COMPORTED WITH THE

REQUIREMENTS OF DUE PROCESS.

S Whates er the import of its decision, the Sixth Circuit

correctly rejected Mileti’s challenge to personal jurisdiction.

Defendants become amenable to litigation in a particular

forum if they have sufficient “minimum contacts” with that

state. I/nternational Shoe Co. v. State of Washington, 326

U.S. 310, 316 (1945). This due-process standard requires a

meaningful nexus between the forum state and the

defendant’s voluntary, affirmative conduct. Burger King

Corp. v. Rudzewicz, 471 U.S. 482, 474-75 (1985). Where

“minimum contacts” exist, the defendant could have

“reasonably anticipate[d] being haled into court” in the forum

state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297 (1980).

ERO LEN ON ER ODE ee EN EE NE SR RS RR EE

The Sixth Circuit has established a three-part test to

determine whether “minimum contacts” permit the exercise

of personal jurisdiction:

1) The defendant must have purposefully availed

itself of the privilege of acting in the forum

State.

2) The plaintiff's claims must arise from the

. defendant’s activity in the forum.

3) The exercise of personal jurisdiction must be

fair and reasonable.

See e.g. Aristech Chemical Int'l Ltd. v. Acrylic Fabricators

Ltd., 138 F.3d 624, 627 (6th Cir. 1998), citing Southern

Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381

(6th Cir. 1968).

The purposeful availment “concept is an expansive one.”

Gordy v. Daily News, L.P., 95 F.3d 829, 832 (9th Cir. 1996).

It encompasses situations where a nonresident defendant has

not physically entered the state in question. CompuServe, Inc.

v. Patterson, 89 F.3d 1257, 1264 (6th Cir. 1996). If the

defendants direct mail and telephone calls to a party in the

forum in negotiating and performing a contract, they have

purposefully availed themselves of acting in that state.

See e.g. id. at 1263-65.

Cole lived in Ohio at all times pertinent to this lawsuit.

Id. The parties negotiated their surety agreement in telephone

calls and correspondence to and from that state. Jd Mileti

sent a signed written copy of the contract to Cole in Ohio,

12

—

where Cole himself ultimately executed it. Jd These facts

support the Sixth Circuit’s finding that Mileti purposefully

availed himself of doing business in Ohio creating a sustained

obligation to a resident of the state.

A claim may arise from the defendants’ activity in the

forum even if no proximate causal link exists between them.

Southern, 401 F.2d at 384, n. 27. Instead, so long as the

defendant’s contacts with the state in some way “relate[ | to

the operative facts of the controversy, then an action will be

deemed to have arisen from those contacts.” CompuServe, 89

F.3d at 1267: see also Third Nat'l Bank v. WEDGE Group,

Inc., 882 F.2d 1087, 1091 (6th Cir. 1989), cert. denied, 493

U.S. 1058 (1990). These principles confirm the Sixth

Circuit’s determination that Cole’s breach-of-contract claim

arose from the negotiations and other activity that Mileti

directed to Ohio.

Where the defendants have purposefully availed

themselves of the privilege of doing business in the forum

state, and where the plaintiff's claim arose from that activity,

the law presumes that exercise of personal jurisdiction over

the defendants will be fair and reasonable for purposes of

“minimum contacts.” CompuServe, 89 F.3d at 1268;

American Greetings Corp. v. Cohn, 839 F.2d 1164, 1170 (6th

Cir. 1988). Only “compelling” evidence can overcome this

presumption. Burger King, 471 U.S. at 477. The record

contains no evidence that satisfies this substantial burden.

The Sixth Circuit was correct in determining that due

process permitted the district court to exercise personal

jurisdiction over Mileti. Review by this Court could not

result in any other conclusion.

13

C. THe SIXTH CIRCUIT’S APPLICATION OF THE

OHIO LONG-ARM STATUTE PRESENTS AN

ISSUE OF STATE LAW THAT DOES NOT MERIT

THE COURT’S ATTENTION.

Even if “minimum contacts” exist, nonresident

defendants become subject to personal jurisdiction in the

forum state only if its long-arm statute covers the asserted

claims. Theunissen v. Matthews, 935 F.2d 1454 (6th Cir.

1991). Ohio Rev. Code § 2307.382 permits litigation in

Ohio on claims “arising from” the would be defendant’s

“transacting any business” in the state. OHIO REV. CODE

ANN. § 2307.382(A)(1) (Banks-Baldwin 1988); see

generally Kentucky Oaks Mall Co. v. Mitchell’s Formal

Wear, Inc., 53 Ohio St. 3d 73, 75, 559 N.E.2d 477, 480

(1990), cert. denied, 499 U.S. 975 (1991).

The Sixth Circuit dealt with this aspect of personal

jurisdiction in summary fashion:

Although the Ohio Supreme Court

os recently held that [§ 2307.382(A)(1)]

does not reach to the limits of the Due

Process Clause, ... our central inquiry is

whether Méileti established certain

minimum business contacts with Ohio.

133 F.3d at 436. Mileti argues that since the Ohio statute and

the “minimum contacts” test do in fact differ, the Court

should grant certiorari for purposes of remanding the case and

requiring the Sixth Circuit to make a specific finding on the

applicability of Ohio Rev. Code § 2307.382(A)(1). See

Petitioner's Brief, pp. 12-13.

14

Pee ere

Courts have historically regarded the Ohio long-arm

statute as extending to the outer reach of due process.

Preferred RX, Inc. v. American Prescription Plan, Inc., 46

F.3d 535, 550 (6th Cir. 1995); accord, Records Deposition

Serv., Inc. v. Henderson & Goldberg, P.C., 100 Ohio App. 3d

495, 499, 654 N.E.2d 382, 384 (Ohio Ct. App. 1995). This

construction negates any possible need for remand, since the

Sixth Circuit's finding of “minimum contacts” would

necessarily establish personal jurisdiction under § 2307.382.

Goldstein v. Christiansen, 70 Ohio St. 3d 232, 638

N.E.2d 541 (1994), the Ohio Supreme Court case referenced

by the Sixth Circuit, does not foreclose such a conclusion.

Goldstein discusses the relative scope of the due process

clause and § 2307.382 only in an aside that had no bearing on

the disposition of the case. See id. at 238, 545-46, n. 1. As

previously discussed, dicta of this kind carry no precedential

weight. See p. 7, supra.

Whatever the import of Goldstein, the requirements of

§ 2307.382 in this particular action represent the kind of state-

law matter that warrants the Court’s review under only the

most extraordinary of circumstances. See pp. 7-9, supra. The

public interplay between the statute and the “minimum

contacts” test also lacks the wide-ranging significance needed

to invoke the discretionary jurisdiction of this tribunal. See

pp. 9-10, supra. The Sixth Circuit's treatment of § 2307.382

creates no grounds for issuance of a writ of certiorari.

15

CONCLUSION

Mileti has failed to present any viable reason why the

Court should review the decision entered by the Sixth Circuit

Court of Appeals in this case. The Court should deny his

Petition for Writ of Certiorari.

Respectfully submitted,

Joshua R. Cohen

Kohrman Jackson & Krantz P.L.L.

20th Floor, One Cleveland Center

1375 East Ninth Street

Cleveland, Ohio 44114

(216) 696-8700

Counsel for Respondent Marcia N. Cole,

Respresentative of the Estate of Joseph

E. Cole

16

NO. _

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1997

: NICK J. MILETI.

PETITIONER

: v.

MARCIA N. COLE.

| REPRESENTATIVE OF THE ESTATE OF

JOSEPH E. COLE,

REPONDENT.

ove

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Sixth Circuit

SLI teal PONE Nn LRA, RN He tS RIE IO N'Y

APPENDIX

Doi

JOSHUA R. COHEN

KOHRMAN JACKSON & KRANTZ P.L.L.

Ohio Bar No. 0032368

1375 East Ninth Street

One Cleveland Center, 20th Floor

Cleveland, Ohio 44114

(216) 696-8700 Nez

ibe

Counsel of Record for Respondent.

Copr. (C) West 1998 No Claim to Orig. U.S. Govt. Works

Not Reported in N.E.2d

(Cite as: 1990 WL 163829 (Ohio App. 5 Dist.)

NOTICE: RULE 2 OF THE OHIO SUPREME COURT

RULES FOR THE REPORTING OF OPINIONS IMPOSES

RESTRICTIONS AND LIMITATIONS ON THE USE OF

UNPUBLISHED OPINIONS.

ASSOCIATES FINANCIAL SERVICES/APEX,

Plaintiff-Appellee,

v.

Teresa L. BROGAN, Defendant-Appellant.

No. 15-CA-90.

Court of Appeals of Ohio, Fairfield County.

Oct. 22, 1990.

Civil Appeal from Common Pleas Court, Case No.

89CV-MY-0198.

Louis P. Endres, Gayton, Tilton & Endres, Columbus, for

plaintiff-appellee.

David L. Day, Terence L. Gallagher, David L. Day, L.P.A..,

Columbus, for defendant-appellant.

Before PUTMAN, P.J., and HOFFMAN and SMART, JJ.

OPINION

EXHIBIT B.

March 27, 1990.

JUDGMENT ENTRY

*] This cause of action came on for hearing upon the

Plaintiff's Motion for Summary Judgment and the Defendant's

Motion for Summary Judgment as well as the memoranda and

evidence of all the parties. Upon consideration of the motions,

memoranda and evidence adduced and the affidavits of the

parties, and for the reasons stated in this Court's memorandum

dated February 27, 1990, the Plaintiff's Motion for Summary

Judgment is sustained and Defendant's Motion for Summary

Judgment is overruled.

It is therefore ORDERED, ADJUDGED and DECREED that

Plaintiff Associates Financial Services/APEX is hereby

granted judgment against Defendant Teresa L. Brogan in the

amount of $36,862.21 plus interest at the rate of 10% from

February 28, 1990. Costs taxed by the Clerk of Courts

pursuant to statutory authority to be paid by Defendant.

Both parties have moved for summary judgment, defendant

on the basis of a six- year statute of limitations effective in

Colorado and plaintiff on the grounds that the Ohio limitation

of fifteen years on written agreements is the appropriate

statute. The only issue in the case is whether plaintiff's claim

is barred by the Colorado statute.

Ohio has consistently applied the practically universal rule

that limitations of actions are fixed by the laws of the state in

which suit is filed rather than that in which a cause of action

A-2

arises. Alropa Corp. v. Kirchwehm (1941), 138 Ohio St. 30,

19 Ohio Opns. 484; Meekison v. Groschner, et al. (1950),

150 Ohio St. 301, 41 Ohio Opns. 298; McCormick v. Taft,

Exr., et al. (1938), 61 Ohio App. 200, 12 Ohio Opns. 454;

Barile v. University of Virginia (1986), 30 Ohio App.3d 190;

Males, et al. v. W.E. Gates Associates, et al. (1985), 29 Ohio

Misc.2d 13, 29 OBR 229. For many years General Code

Section 11234 (later Revised Code 2305.20) provided thai if

the laws of a state where the cause of action arose barred an

action, the action should be barred in Ohio. Were that statute

still law, the defendant's motion might well be granted.

However, the statute was repealed effective November 5,

1965, thus emphasizing the classic doctrine as Ohio law.

Notwithstanding the general rule applying limitations set by

the law of the forum, defendant asserts that because the

contract now in suit shall by its terms be governed by

Colorado law, therefore the Colorado statute of limitations

should apply as well. It is certainly true that unless prohibited

by statute, parties to a contract may agree to set their own

period of limitations for enforcement, especially if a shorter

than that fixed by law is adopted. 66 O.fur.3d, 169,

paragraph 32 on Limitations and Laches; Appeal,

Administrator v. Cooper Insurance Company (1907), 76 Ohio

St. 52. See also annotation in 6 ALR3d 1197. However, in

the majority of such contracts-- whether insurance policy, bill

of lading or manifest--the shorter period is specifically

mentioned in the agreement. The clause on which defendant

relies in the case at bar is too general in its terms to include

such a meaning; furthermore, it applies Colorado law only to

the validity and effect of the defendant's obligation and not to

its enforcement.

*2 THEREFORE, the court sustains the plaintiff's motion for

summary judgment and overrules the defendant's motion for

summary judgment.

Counsel for the plaintiff shall prepare a judgment entry

accordingly, submit it to counsel for the defendant for

approval and file it with the court within ten days.

Judge Joseph T. Clark

XC: Atty. Louis P. Endres, III

Atty. David L. Day

EXHIBIT A

IN THE COURT OF COMMON PLEAS OF

FAIRFIELD COUNTY, OHIO

CASE NO. 89 CV MY 0198

ASSOCIATES FINANCIAL SERVICES/APEX,

Plaintiff,

v.

TERESA L. BROGAN, Defendant.

Feb. 27, 1990.

MEMORANDUM

This cause of action came on for hearing upon the plaintiff

and defendant's motions for summary judgment and after

consideration of the memoranda of the parties, the court

makes the following decision:

A-4

dieascsiiaai ere

oe a SS “A, eS -ATEted Blt as

:

t

a

s

4

£

i

?

1

On July 13, 1978, Hearl Brogan, hi'sband of defendant

borrowed $20,106.38 from plaintiff to purchase a Chevrolet

agency in Tallahassee, Florida. The note was apparently

executed in Indiana where the Brogans then lived, but it

carried the following clause: "Debtors jointly and severally

agree--that the construction, validity and effect of this

contract shall be governed by the laws of the state of

Colorado and of the United States." The note was signed by

defendant as well as her husband but the check for the loan

was made to him alone.

Hearl's business venture was unsuccessful; the husband

obtained a discharge in bankruptcy but the defendant did not.

The Brogans ultimately made their way to Fairfield County,

Ohio, where plaintiff has sued the wife only.

JUDGMENT ENTRY

For the reasons stated in the Memorandum-Opinion on file,

the judgment of the Court of Common Pleas of Fairfield

County 1s reversed and, pursuant to App.R. 12(B), we enter

final judgment in favor of defendant-appellant Teresa L.

Brogan.

The analogous Ohio statute, R.C. 2305.06, enforces a 15 year

statute of limitations. It is undisputed that the following

provision is contained within the promissory note between

appellant and Capital, Colorado Company:

Construction: Debtors jointly and severally agree that,

"Debtor" and "Debtors" are interchangeable and include his

or their heirs, successors, and assigns; that "Lender" includes

A-5

his or its heirs, successors, and assigns; and that the

construction, validity, and effect of this contract shall be

governed by the laws of the State of Colorado and of the

United States. (Emphasis supplied.)

In determining that the Ohio statute controls, and not the

Colorado statute, the court stated (referring to "Construction"

cited supra ):

The clause on which defendant relies in the case at bar is too

general in its terms to include such a meaning; furthermore,

it applies Colorado law only to the validity and effect of the

defendant's obligation and not to its enforcement.

THEREFORE, the court sustains the plaintiff's motion for

summary judgment and overrules the defendant's motion for

summary judgment.

*3 It is settled that parties to a contract may choose the

"forum law" which shall control. Jarvis v. Ashland Oil, Inc.

(1985), 17 Ohio St.3d 189. As stated in Jarvis, where

contracting parties have made such an "effective choice," a

reviewing court will not embark upon a conflicts of law

determination. At 192. That is what ensued at the trial level

in the case sub judice. The common pleas court interpreted

the subject provision, unambiguous on its face both as to

meaning and reflecting the choice of the parties, as "too

general" to be enforced. We find otherwise and state that the

"construction, validity and effect" language contained within

the contract squarely applies to the ultimate enforcement of

the note as prosecuted herein.

Se ee ee nce ee ee ne ee rt ee

A Ri aes Oe Mian teal os

A NED 2 rere ni A retee alle Beat cox 0

|

Summary judgment should have been granted in favor of

defendant-appellant herein. (See this court's judgment entry

to that effect.)

For the reasons stated above, all three of appellant's

assignments of error are sustained, and the judgment of the

Court of Common Pleas is reversed.

PUTMAN, P.J., and SMART, J., concur.

HOFFMAN, Judge.

Associates Financial Services/APEX is plaintiff-appellee and

Teresa L. Brogan is defendant-appellant.

On July 13, 1978, appellant and her husband Hear! Brogan

together signed a promissory note in favor of Capital

Financial Services in exchange for a loan of some $20,106.

The loan agreement, executed in the state of Indiana, provided

for complete repayment on or about June 13, 1982.

On January 25, 1979, Capital assigned the note to appellee

Associates Financial Services/APEX (Associates). The last

payment tendered by the Brogans to Associates was February

27, 1980.

No action of any consequence took place until May 22, 1989,

when Associates filed its original complaint in the Court of

Common Pleas of Fairfield County against Teresa Brogan

only. (As determined by the trial court, Hearl Brogan had

obtained a discharge in bankruptcy prior to the filing of the

complaint. He was not a party to the action at trial nor is he

one upon appeal.)

A-7

In her answer, Mrs. Brogan asserted the affirmative defenses

of failure to state a claim and failure to comply with the

appropriate statute of limitations, 1.e., Colorado Rev. Statute

13-80-110, which carries a six (6) year statute of limitations

in this situation. (A copy of the statute is attached to our

memorandum-opinion.)

Brogan filed for summary judgment as did Associates. By

Memorandum Decision filed February 27, 1990, trial court

denied appellant's motion for summary judgment and granted

that of Associates. (A copy of this memorandum is attached

as is the court's judgment entry to this effect filed March 27,

1990.) Appellant now raises the following three assignments

of error:

I. THE TRIAL COURT ERRED IN FAILING TO GRANT

THE MOTION FOR SUMMARY JUDGMENT OF

DEFENDANT-APPELLANT, TERESA L. BROGAN, AS

NO GENUINE ISSUES OF MATERIAL FACT EXIST

AND SHE HAS DEMONSTRATED ENTITLEMENT TO

JUDGMENT AS A MATTER OF LAW.

*4 I]. THE TRIAL COURT ERRED IN GRANTING THE

MOTION FOR SUMMARY JUDGMENT OF

PLAINTIFF-APPELLEE, ASSOCIATES FINANCIAL -

SERVICES/APEX, AS THERE WAS PRESENTED VALID

AFFIRMATIVE DEFENSE TOITS CLAIM.

Ill. THE TRIAL COURT ERRED IN GRANTING THE

MOTION FOR SUMMARY JUDGMENT OF

PLAINTIFF-APPELLEE, ASSOCIATES FINANCIAL

SERVICES/APEX, AS THERE EXISTS A GENUINE

MATERIAL ISSUE OF FACT AS TO AMBIGUOUS

A-8

LANGUAGE IN THE CONTRACT WHICH IS THE

SUBJECT OF THIS ACTION.

I, I & ill

We discuss all three assigned errors together.

Colorado Rev. Statute Sec. 13-80-110, cited supra and

attached provides in pertinent part:

The following actions shall be commenced within six years

after the cause of action accrues, and not afterwards:

(a) All actions of debt founded upon any contract...

(Emphasis added.)

Colorado Revised Statutes (3 Bound Volume)

EXHIBIT E

13-80-110. Actions barred in six years. (1) Except as

otherwise provided in section 4-2-725, C.R.S.1973, the

following actions shall be commenced within six years after

the cause of action accrues, and not afterwards:

(a) All actions of debt founded upon any contract or liability

in action;

(b) All actions upon judgments rendered in any court not

being a court of record;

(c) All actions for arrears of rent;

A-9

(d) All actions of assumpsit, or on the case founded on any

contract or liability, express or implied;

(e) All actions of waste and for trespass upon land;

(f) All actions of replevin, and all other actions for taking,

detaining, or injuring goods or chattels;

(g) All other actions on the case, except actions for slander

and for libel.

Source: R.S. p. 438,s 1; G.L.s 1671; G.S.s 2163; R.S. 08,

s 4061; C.L.s 6392; CSA. C. 102, s 1; CRS 53, s 87-1-11:

C.R.S.1963, s 87-1-11; L. 65, p. 1481, s 4.

I. General Consideration.

A. In General.

B. Waiver.

Il. Applicable Actions.

A. In General.

B. Debt.

C. Judgments of Courts not of Record.

D. Contract.

E. Waste and Trespass on Land.

F. Replevin.

II]. When Statute Begins to Run.

IV. When Running is Arrested.

A-10

I GENERAL CONSIDERATION.

A. In General.

Cross references. As to necessity of affirmatively pleading

the statute of limitations, see Rule 8(a), C.R.C.P. As to

statute of limitations for contracts of sale, see s 4-2-725.

Law reviews. For article, "State Statutes of Limitation

Contrasted and Compared", see 3 Rocky Mt.L.Rev. 106

(1931). For note, “Necessity for Filing Secured Claims in

Bankruptcy Proceedings", see 3 Rocky Mt.L.Rev. 209 (1931).

For article, "One Year Review of Agency, Partnerships,

Corporations, and Municipal Corporations", see 41

Den.L.Ctr.J. 61 (1964). For note, "Rural Poverty and the Law

in Southern Colorado", see 47 Den.L.J. 82 (1970).

This section is not a general or catch-all limitation statute.

The six-year term there limited applies to the several

categories of claims or cases therein mentioned. Board of

Trustees of Policemen's Pension Fund v. Koman, 133 Colo.

598, 298 P.2d 737 (1956).

END OF DOCUMENT

A-11