# Opposition Brief — Mileti v. Cole

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1376%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 810

## Text

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

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s
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1376%3A2. Public record. Not legal advice.