H. Steven Poulos v. Parker Sweeper Co.
| Decision Date | 23 May 1988 |
| Docket Number | 7393,88-LW-1958 |
| Parties | H. Steven POULOS, Plaintiff-Appellant, v. PARKER SWEEPER COMPANY, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Civil Appeal from Common Pleas Court, Case No. 87-1259.
Beth A Raies, Tzangas, Plakas & Mannos, Canton, for plaintiff-appellant.
Glenn W. Collier, Martin, Browne, Hull & Harper, Springfield, Wayne C. Kyhos, Canton, for defendant-appellee.
Before MILLIGAN, P.J., and HOFFMAN and TURPIN, JJ.
DISCOVERY COMPLAINT, R.C. 2317.48^PATENT LAW JURISDICTION, 28 U.S.C.A 1338(a)
The Stark County Common Pleas Court granted the defendant's motion to dismiss, dismissing the within action for discovery, R.C. 2317.48. Plaintiff appeals.
Although appellant does not articulate an appropriate assignment of error, we construct the following:
I.THE COURT ERRED AS A MATTER OF LAW IN DISMISSING THE COMPLAINT UPON THE GROUNDS THAT THE FEDERAL COURTS HAVE EXCLUSIVE JURISDICTION.
II.THE TRIAL COURT ERRED AS A MATTER OF LAW IN DISMISSING THE COMPLAINT UPON THE GROUNDS THAT IT FAILS TO IDENTIFY A CAUSE OF ACTION.
Appellant failed to comply with Local App.R. 4.
Inasmuch as the entire focus of this appeal is upon the adequacy of the complaint for discovery, the same is replicated and attached hereto.
In dismissing the case, the trial court concluded, "no viable cause of action exists in this court to support plaintiff's claim for discovery."
When a person claiming to have a cause of action or a defense to an action commenced against him, without the discovery of a fact from the adverse party, is unable to file his complaint or answer, he may bring an action for discovery, setting forth in his complaint in the action for discovery the necessity and the grounds for the action, with any interrogatories relating to the subject matter of the discovery that are necessary to procure the discovery sought. Unless a motion to dismiss the action is filed under Civil Rule 12, the complaint shall be fully and directly answered under oath by the defendant. Upon the final disposition of the action, the costs of the action shall be taxed in the manner the court deems equitable.
The trial court's dismissal of the action is grounded in its conclusion that the allegations of the discovery complaint involved patent law and are cognizable only in the federal courts.
Although the proposition of law is correct, 28 U.S.C.A. 1338(a), it is equally clear that state courts have jurisdiction in matters arising under the common law of Ohio as opposed to federal patent law. State courts have jurisdiction to litigate contract issues involving patents. Luekett v. Delpark, Inc. (1926), 270 U.S. 496, 70 L.Ed. 703, 45 S.Ct. 397.
The first assignment of error, challenging the legal propriety of dismissal based upon exclusive patent law jurisdiction, is sustained.
The question remains as to whether the complaint falls within the penumbra of R.C. 2317.48.
For an excellent analysis of the statute, see "The Recent Amendment to Ohio Revised Code Section 2317.48," Aumiller, 20 Akr.L.R. 47, 1986.
Law practice and procedure have been, and continue to be, dramatically impacted by the increasing proclivity of parties to seek legal redress as the mechanism of choice for conflict resolution. As a result, the law of practice and procedure has reacted in numerous, sometimes inconsistent, ways.
"Reforms" to expedite and improve the administration of justice are legend.
Historically, Ohio required verified pleadings as a mechanism to discourage frivolous, fraudulent lawsuits and attach significant consequences for untruthful pleading. With the Modern Courts Amendment and the advent of notice pleading, the civil rules provided for extensive pretrial discovery and disclosure^justice was thought better served by eliminating trial surprises and placing litigants in a position of parity. The expectation that settlement would be more readily attained seems erased by experience.
The "new wave" of thought is epitomized in the 1987 Tort Reform Act, HB 1, HB 327, 117 General Assembly. Included is a frivolous conduct statute, R.C. 2323.51, providing sanctions for frivolous claims, sham pleadings, and frivolous pleadings.
It is clear that Ohio's new efforts to control meritless litigation has moved away from the mechanism of summary judgment, Civ.R. 56, and toward sanctions.
Throughout this period of transition, the legislative provisions of an action for discovery have persisted, virtually without change. R.C. 2317.48, formerly General Code 11555. This legislation needs to be read in the context of the current changed legislative policy.
Thus, if a person must have, in fact, a cause of action before he can claim same for purposes of an action for discovery, the statute is virtually meaningless. Pretrial discovery techniques are immediately available upon the filing of the primary action. The statute must mean that a person claims something less than an articulated, vouched for, cause of action.
In the face of the potential sanctions for filing frivolous lawsuits, a party, but more particularly his attorney, faces a "Catch-22" dilemma.
We sustain the second assignment of error and distinguish our previous holding in Webler v. Dyneer Corporation (Nov. 17, 1986), Stark App. No. CA-6901, unreported.
Appellee argues that the complaint is "a fishing expedition and nothing more." The potential for abuse of process does exist in implementation of the discovery statute and a fishing expedition is possible. However, the trial court has clear authority to control and protect the limits and extent to which the "fishing line" extends as it does in an action under the civil rules after a case has been filed.
We conclude, upon a reading of the entire complaint, that a complainant does "claim[ing] to have a cause of action" when he says, inter alia, that he "believes that he has a claim of right."
The assignments of error, as constructed, are sustained, the dismissal judgment of the Court of Common Pleas is reversed and vacated, and this cause is remanded for further proceedings according to law.
PARKER SWEEPER COMPANY, c/o Mr. Oscar Martin, Statutory Agent, 203 First National Bank Building, Springfield, Ohio 45504 Defendant
Judge: Unger
July 23, 1987.
COMPLAINT:...
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