Bagsarian v. Parker Metal Company

• Decision Date: 05 April 1968
• Docket Number: No. C 67-393.,C 67-393.
• Citation: 282 F. Supp. 766
• Parties: Genevieve BAGSARIAN, Plaintiff, v. PARKER METAL COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

282 F. Supp. 766

Genevieve BAGSARIAN, Plaintiff, v. PARKER METAL COMPANY, Defendant.

No. C 67-393.

United States District Court N. D. Ohio, E. D.

April 5, 1968.

James P. Hodsden, of Wallach, DeVinne & Ledsky, Cleveland, Ohio, for plaintiff.

John B. Robertson, of Hauxhurst, Sharp, Mollison & Gallagher, Cleveland, Ohio, for defendant.

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge:

This is a diversity case. Plaintiff alleges that she was severely injured on June 10, 1965, while using one of defendant's products. She alleges that these injuries occurred as a result of defendant's negligence in manufacturing the item, which was a clothesline hook, and also as a result of a breach of the warranty of fitness.

Plaintiff filed this action June 6, 1967. Service of process was attempted under Section 2307.383 of the Ohio Revised Code, commonly known as the Ohio Long-Arm Statute. This statute became effective on September 28, 1965, which was subsequent to the date on which plaintiff was injured, and prior to the date on which plaintiff attempted service of process.

Defendant, appearing specially for the purpose of contesting jurisdiction, has moved the Court to dismiss this action. Defendant asserts that the Ohio Long-Arm Statute cannot be used to effect service of process for causes of action which accrued prior to its effective date, that is, September 28, 1965. Defendant asserts that the service of process attempted in this case was, therefore, ineffective and that this court has no jurisdiction over the person of the defendant.

The sole issue presented in defendant's motion to dismiss is whether the Ohio Long-Arm Statute, Section 2307.381 et seq., Ohio Revised Code, can be utilized to obtain service of process in a case involving a cause of action which arose prior to its effective date.

Service of process in cases begun in the United States District Court will be effective, if similar service of process would be effective under the law of the state in which the court sits. Rule 4(d) (7), Federal Rules of Civil Procedure. This court must ascertain, therefore, whether, under the law of Ohio, the Long-Arm Statute may be utilized in situations in which the cause of action involved arose prior to the effective date of the statute and the case was filed subsequent to the effective date.

While there is a good deal of authority on this question, it appears to be divided almost equally. There are two reported Ohio Common Pleas decisions on the subject. O'Mara v. Aberto-Culver Co., 6 Ohio Misc. 132, 215 N.E.2d 735 (Common Pleas Ct., Hamilton Cty, 1966) held that the Long-Arm Statute is retroactive in application to causes of action existing on the effective date and not yet filed with any court. Bruney v. Little, 8 Ohio Misc. 393, 220 N.E.2d 446 (Common Pleas Ct., Belmont Cty, 1966) held that the statute is not applicable to causes of action accruing prior to its effective date. Counsel for the defendant has represented that there are four unreported Common Pleas Court cases in Cuyahoga County which also hold that the Long-Arm Statute is not retroactive to causes of action existing on its effective date.¹

In addition to these Common Pleas decisions, the Court has been able to discover a number of unreported Ohio Court of Appeals decisions. Kilbreath v. Rudy (C.A. Franklin Cty, No. 8788) decided November 14, 1967, held that the Long-Arm Statute is retroactive to causes of action existing on its effective date. On the other hand, Lantsbury v. Tilley Lamp Co. (C.A. Cuyahoga Cty, No. 28085) and Wise v. Tilley Lamp Co. (C.A. Cuyahoga Cty, No. 28086) held that the Long-Arm Statute is not retroactive upon causes of action existing on its effective date.

There are also Federal decisions on the subject. In Busch v. Service Plastics, Inc., 11 Ohio Misc. 131, 261 F.Supp. 136 (N.D.Ohio 1966), the Honorable William K. Thomas of this court, citing the O'Mara case, supra, stated briefly that the Long-Arm Statute is retroactive upon causes of action existing on its effective date. On the other hand, the Honorable John W. Peck, at that time sitting in the Southern District of Ohio, in a brief order stated that the Ohio Long-Arm Statute is not retroactive. This decision is reported in Partin v. Hassan Motors, Inc., 363 F.2d 104 (6th Cir. 1966) which affirmed the order on other grounds.

The only other case this court has been able to discover relevant to the issue is American Compressed Steel v. Pettibone Mulliken Corp., 271 F.Supp. 864 (S.D. Ohio 1967). In that case the parties were apparently so certain that the statute was retroactive that they stipulated this fact.

The Ohio Supreme Court has not spoken on this issue. However, the Tilley Lamp cases, supra, were certified to the Ohio Supreme Court on September 1, 1967 (S.C. Nos. 41080, 41081). As of this date, the Court has not decided these cases.

From the above, it is readily apparent that the authority on the issue presented here is almost evenly balanced. There is virtually an identical number of cases on each side.

Before proceeding further, two items should be noted. First, there is no problem of constitutional dimension involved here. A state may constitutionally give retrospective application to laws providing for service of process. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). The question, then, is not whether the statute can have retroactive application, but rather whether it does so operate.

Second, it should be emphasized that the issue in this case is whether the statute has application to causes of action which accrued prior to the effective date of the statute, but which were not filed as a lawsuit prior to the effective date. We are not here concerned with a situation in which litigation was begun prior to the effective date of the statute. The law of Ohio draws a substantial distinction between these two situations.

The Ohio Legislature, when it enacted the Ohio Long-Arm Statute, did not include therein any language expressing its intention with respect to whether the statute should be applied retroactively. Had the Legislature chosen to include such language, there is no question that it could legally have given the law retroactive effect. McGee v. International Life Ins. Co., supra. Since, however, the Legislature did not express its intent, this court must determine whether the Ohio courts would construe the statute to operate retroactively or prospectively only.

Ohio has a statute to be used in construing the legislative intent on the subject of retroactivity. Section 1.20, Ohio Revised Code, states:

"When a statute is repealed or amended, such repeal or amendment does not affect pending actions, prosecutions, or proceedings, civil or criminal. When the repeal or amendment relates to the remedy, it does not affect pending actions, prosecutions, or proceedings, unless so expressed, nor does any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act."

The language in this statute is rather ambiguous, and the courts of Ohio have often been called upon to interpret its provisions. The important case in this area is Smith v. The N. Y. C. Ry. Co., 122 Ohio St. 45, 170 N.E. 637 (1930). The Supreme Court in that case interpreted Section 1.20 as providing that (in the absence of an expressed intention to the contrary) the repeal or amendment of a statute has prospective effect only and does not affect pending actions; nor does such an amendment or repeal affect pending causes of action which have not yet become actions.

The Court, however, construed Section 1.20 as providing one exception to this general rule. With respect to remedial legislation, i. e., repeals or amendments which "relate to the remedy," these are applicable to pending causes of action, although they do not affect pending actions. Thus, under the interpretation given to Section 1.20 by the Ohio Supreme Court, all statutes operate prospectively only (unless a contrary intention is expressed in the legislation); but this general rule is qualified by one exception, which is that remedial legislation operates retroactively on pending causes of action.

Is the Long-Arm Statute substantive or remedial legislation? The courts which have considered this question have disagreed. The O'Mara case, supra, held that the Long-Arm Statute was remedial, stating that the statute deals only with the remedy or procedure for enforcing a right as opposed to substantive rights themselves. The Bruney case, however, after stating that the Long-Arm Statute was in part remedial and in part substantive, treated the statute as substantive.

This court is of the opinion that the Ohio Long-Arm Statute is remedial legislation. Statutes relating to service of process and venue have generally been held to be remedial legislation. For example, in Ward v. Swartz, 25 Ohio App. 175, 158 N.E. 318, (C.A. Sandusky Cty, 1927), an Ohio court held that a statute providing for service of process and venue in cases involving out-of-county motorists was remedial legislation. The Court noted that the statute did not affect the cause of action itself, but only affected where the suit could be brought.

This decision is consistent with most judicial statements concerning the definition of remedial legislation. A remedial statute is generally defined as one which neither enlarges nor impairs substantive rights, but rather relates to the means and procedure for enforcing those rights. McGee v. International Life Ins. Co., supra. Ohio applies this definition:

"It is doubtful if a perfect definition of `substantive law' or `procedural or remedial law' could be devised. However, the authorities agree that, in general terms, substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of

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