[Cite as Smith v. Erie Cty. Sheriff’s Dept., 2016-Ohio-543.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


Christina Smith, Administrator for the                         Court of Appeals No. E-15-028
Estate of Margaret Stallard, Deceased
                                                               Trial Court No. 2015-CV-0121
        Appellant

v.

Erie County Sheriff’s Department, et al.                       DECISION AND JUDGMENT

        Appellees                                              Decided: February 12, 2016

                                                   *****

        John W. Gold, for appellant.

        Teresa L. Grigsby, Sarah K. Skow, and Jason Hinners, for appellee, Erie
        County Sheriff’s Department.

        Mel L. Lute, Jr., for appellee, Perkins Township Board of Trustees.


                                                   *****
       YARBROUGH, J.

                                     I. Introduction

       {¶ 1} Appellant, Christina Smith, as administrator for the estate of Margaret

Stallard, appeals the judgment of the Erie County Court of Common Pleas, dismissing

her complaint on the basis that the claims raised therein were time-barred. We affirm.

                         A. Facts and Procedural Background

       {¶ 2} On February 27, 2015, appellant filed her complaint in this action against

appellees, Erie County Sheriff’s Department, Erie County Board of Commissioners,

Terry Lions, D. Todd Dempsey, Brittany Hausman, Kyle Bellamy, Perkins Township

Board of Trustees, Ken Klamar, and Mark Kusser.1 The complaint stems from Stallard’s

detention in the Erie County jail on January 1, 2012.

       {¶ 3} According to the complaint, Stallard was arrested for disorderly conduct at

around 4 a.m. on January 1, 2012. She was transported to the Erie County jail and placed

into a cell after being booked. Appellant’s complaint alleges that Stallard was visibly

intoxicated at the time of her booking, although she verbally denied having consumed

alcohol earlier in the day. Several hours later, a nurse employed by the jail visited

Stallard’s cell and found her unresponsive. Paramedics were alerted, but Stallard was not




1
  Lions is the former Erie County Sheriff. Dempsey is the administrator of the Erie
County jail. Hausman and Bellamy are corrections officer employed by the Erie County
jail who were working on January 1, 2012. Klamar is the chief of police for the Perkins
Township Police Department, and Kusser is the Perkins Township police officer who
arrested Stallard prior to her detention in the Erie County jail.



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able to be resuscitated. She was subsequently pronounced dead in her cell. Appellant

alleged in her complaint that the coroner’s toxicology report revealed no alcohol was

found in Stallard’s system, but, rather, that Stallard died from a “lethal cocktail of

prescription drugs in her system.”

       {¶ 4} As a result of the foregoing, appellant filed her complaint in this action,

seeking damages in excess of $50,000, and alleging that appellees recklessly caused

Stallard’s death while Stallard was detained in the Erie County jail. In essence, appellant

avers that Stallard’s death was the result of appellees’ failure to administer proper

medical care or follow policies in effect at the Erie County jail concerning medical

screenings.

       {¶ 5} Prior to instituting the present action, appellant first sought to recover

damages against appellees in federal court. To that end, appellant filed a complaint on

July 8, 2012, in the United States District Court for the Northern District of Ohio. In that

action, appellant alleged civil rights violations under 42 U.S.C. 1983, as well as related

state claims. On January 29, 2014, the federal court dismissed appellant’s federal claims

and declined to exercise supplemental jurisdiction over the state claims, thereby

dismissing the state claims without prejudice.2




2
 Appellant appealed the federal trial court’s dismissal of her civil rights claim under 42
U.S.C. 1983 to the United States Court of Appeals for the Sixth Circuit. The trial court’s
dismissal was ultimately affirmed on appeal. Smith v. Erie Cty. Sheriff’s Dept., 603
Fed.Appx. 414 (6th Cir.2015).



3.
         {¶ 6} Almost 13 months later, appellant filed her complaint in the present action.

In response, appellees filed a motion to dismiss, arguing that the statute of limitations on

the state claims asserted in appellant’s complaint had expired. Appellant opposed the

motion by asserting that the statute of limitations tolled during the pendency of the

federal action under 28 U.S.C. 1367(d).

         {¶ 7} Before the court could rule on appellees’ motion, appellant filed an amended

complaint in which she essentially sought a declaration that the statute of limitations was

tolled on the state claims that were before the federal court pursuant to 28 U.S.C. 1367(d)

during the pendency of the federal action and for 30 days after the claims were dismissed

by the federal court.

         {¶ 8} Thereafter, on April 9, 2015, the trial court issued its decision on appellees’

motion to dismiss, in which it granted the motion upon a finding that the claims raised in

appellant’s complaint were time-barred. Four days later, the trial court granted appellees’

motion to strike appellant’s amended complaint because it was filed without leave of

court.

         {¶ 9} Following the trial court’s rulings on appellees’ motions, appellant filed a

motion for relief from judgment under Civ.R. 60(B). Thereafter, on May 11, 2015,

appellant filed her timely notice of appeal with this court, challenging the trial court’s

decision on appellees’ motion to dismiss. She did not appeal the trial court’s decision to

strike her amended complaint. Three days later, the trial court denied appellant’s motion

for relief from judgment.




4.
       {¶ 10} We subsequently vacated the trial court’s judgment on appellant’s motion

for relief from judgment since the matter was already before our court on appeal at the

time the trial court issued its decision. On June 30, 2015, we remanded this matter to the

trial court so that it could re-enter its decision on appellant’s motion for relief from

judgment. The trial court ultimately denied appellant’s motion on July 8, 2015. We have

since granted appellant’s motion to amend her notice of appeal to allow her to appeal the

trial court’s denial of her motion for relief from judgment.

                                 B. Assignments of Error

       {¶ 11} On appeal, appellant assigns the following errors for our review:

              I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR

       WHEN IT REFUSED TO APPLY THE TOLLING PROVISIONS SET

       FORTH IN 28 U.S.C. 1367(D) TO PLAINTIFF’S STATE LAW

       WRONGFUL DEATH CLAIMS ASSERTED IN HER COMPLAINT.

              II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR

       WHEN IT GRANTED DEFENDANT-APPELLEES’ PROCEDURALLY

       MOOT MOTIONS TO DISMISS.

              III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR

       WHEN IT DENIED PLAINTIFF-APPELLANT’S CIV.R. 60(B) MOTION

       AFTER THE INSTANT APPEAL WAS FILED.




5.
                                          II. Analysis

        {¶ 12} Our resolution of the instant appeal hinges upon the interpretation of the

tolling provisions found in 28 U.S.C. 1367(d). “The interpretation of a statute is a

question of law, and accordingly, we review the matter de novo.” State v. Vanzandt, 142

Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 6, citing State v. Pariag, 137 Ohio

St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9.

        {¶ 13} In appellant’s first assignment of error, she argues that the trial court erred

in its application of 28 U.S.C. 1367(d). 28 U.S.C. 1367 grants federal courts

supplemental jurisdiction over state law claims that are related to claims over which the

federal court has original jurisdiction. Specifically, 28 U.S.C. 1367 provides, in relevant

part:

               (a) Except as provided in subsections (b) and (c) or as expressly

        provided otherwise by Federal statute, in any civil action of which the

        district courts have original jurisdiction, the district courts shall have

        supplemental jurisdiction over all other claims that are so related to claims

        in the action within such original jurisdiction that they form part of the

        same case or controversy under Article III of the United States

        Constitution. Such supplemental jurisdiction shall include claims that

        involve the joinder or intervention of additional parties.

               ***




6.
              (c) The district courts may decline to exercise supplemental

       jurisdiction over a claim under subsection (a) if--

              ***

              (3) the district court has dismissed all claims over which it has

       original jurisdiction[.]

              ***

              (d) The period of limitations for any claim asserted under subsection

       (a), and for any other claim in the same action that is voluntarily dismissed

       at the same time as or after the dismissal of the claim under subsection (a),

       shall be tolled while the claim is pending and for a period of 30 days after it

       is dismissed unless State law provides for a longer tolling period.

       {¶ 14} According to appellant’s interpretation of the tolling provisions of 28

U.S.C. 1367(d), the clock on the two-year statute of limitations that applies to wrongful

death claims under R.C. 2125.02(D)(1) should have stopped on July 8, 2012, the day she

filed her complaint in federal court. Further, appellant reasons that the clock did not

restart until 30 days after the wrongful death claims were dismissed by the federal court

on January 29, 2014. Thus, according to appellant, the two-year statute of limitations did

not expire until July 14, 2015.

       {¶ 15} It is not clear how appellant arrives at this date under her interpretation of

28 U.S.C. 1367(d). In order to arrive at the appropriate date, we begin by counting 199

days from the date of Stallard’s death until the date appellant filed her complaint in




7.
federal court. Reducing the 2-year (730 days) statute of limitations by 199 days,

appellant would have had 531 days from February 28, 2014, the date the clock restarted,

to file her complaint in state court. Therefore, under appellant’s reading of the tolling

provisions of 28 U.S.C. 1367(d), the two-year statute of limitations would not have

expired until August 15, 2015. In any event, the date upon which the statute of

limitations would have expired under appellant’s understanding of 28 U.S.C. 1367(d) was

after she filed her complaint on February 27, 2015.

       {¶ 16} In support of her interpretation of 28 U.S.C. 1367(d), appellant cites the

Sixth Circuit’s decision in In re Vertrue Inc. Marketing and Sales Practices Litigation,

719 F.3d 474 (6th Cir.2013). There, the Sixth Circuit considered several possible

interpretations of the tolling provisions of 28 U.S.C. 1367(d), stating:

              There are three possible interpretations of this statute. See Turner v.

       Kight, 406 Md. 167, 957 A.2d 984 (2008); Goodman v. Best Buy, 755

       N.W.2d 354 (Minn.Ct.App.2008). As set forth in Turner and Goodman,

       the statute could arguably be interpreted as “annulling” the state statute of

       limitations. In this manner, the state statute of limitations period is

       completely replaced “by a fixed period: the thirty-day period after federal

       dismissal.” This interpretation is known as the “substitution approach.”

       The second, and related interpretation, is that Section 1367(d) only tolls the

       expiration of the statute of limitations[.]




8.
              This interpretation treats that period in the statute—the

       federal claim period plus thirty days—as a single span of time. If

       the state limitations period runs out during that span, the thirtieth day

       after dismissal becomes the new filing deadline. Under these

       circumstances, the outcome is the same as under the ‘annul and

       replace’ interpretations. If, however, the state limitations period

       does not run out during that span of time, the state limitations period

       is unaffected and terminates without regard to any federal court

       filings. Goodman, 755 N.W.2d at 357.

              The second interpretation is known as the “extension approach.”

       The third possible interpretation is that Section 1367(d) suspends the

       running of the statute of limitations, i.e., “the clock is stopped and the time

       is not counted—while the federal court is considering the claim and for

       thirty days after the claim is dismissed.” Id. This is referred to as the

       “suspension approach.” Vertrue at 481.

       {¶ 17} The court proceeded to dismiss the substitution approach on the basis that

no other courts have adopted that approach and the statutory language does not lend itself

to such an interpretation. Id. The court went on to recognize that courts are split as to the

application of the extension approach or the suspension approach. Ultimately, the




9.
Vertrue court determined that the suspension approach was the “fairest reading of the

statute,” and was the only approach that provided all supplemental state claims with a

tolling benefit. Id.

       {¶ 18} Notably, in citing several courts that have adopted the extension approach,

the Vertrue court cited Harris v. O’Brien, 8th Dist. Cuyahoga Nos. 86218, 86323, 2006-

Ohio-109. In Harris, the Eighth District determined that 28 U.S.C. 1367(d) tolled the

relevant statute of limitations on Harris’s state law claims for 30 days after the claims

were dismissed in federal court. The court did not indicate any stoppage of the statute of

limitations during the period the claims were pending before the federal court. Rather,

the court found that Harris’s action was time-barred simply because the one-year statute

of limitations had run by the time he refiled his state claims, and because he did not refile

the action within the 30-day window set forth in 28 U.S.C. 1367(d). Id. at ¶ 16; see also

Antoon v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 101373, 2015-Ohio-421, ¶

18 (“Our reading of 28 U.S.C. 1367(d) is that it only applies when the statute of

limitations expires while the action that contains state causes of action is pending in

federal court.”).

       {¶ 19} Upon consideration of the three possible approaches concerning the tolling

provisions found in 28 U.S.C. 1367(d), we are of the same mind as the Eighth District in

concluding that the extension approach presents the most reasonable interpretation of the

statute. In so holding, we disagree with the Sixth Circuit’s premise that all state law

supplemental claims should enjoy a tolling benefit under 28 U.S.C. 1367(d). We note




10.
that “we are not bound by rulings on federal statutory or constitutional law made by a

federal court other than the United States Supreme Court.” State v. Burnett, 93 Ohio

St.3d 419, 424, 755 N.E.2d 857 (2001).

       {¶ 20} Were we to accept the Sixth Circuit’s view, litigants could delay the filing

of state claims in a state court for a period of time well in excess of the relevant statute of

limitations by simply filing first in federal court. Under the extension approach, Ohio’s

statutes of limitations are preserved and the tolling provisions within 28 U.S.C. 1367(d)

remain effective in providing litigants an additional 30 days to refile state claims that

were dismissed from federal court, thereby preventing litigants from having to choose

between federal court and state court on the basis of a statute of limitations. We find

appellant’s arguments to the contrary unavailing.

       {¶ 21} Having adopted the extension approach, we find that appellant’s wrongful

death claims in this case were untimely as they were filed after the expiration of the two-

year statute of limitations, and more than 30 days after the claims were dismissed from

federal court. Accordingly, appellant’s first assignment of error is not well-taken.

Because we conclude that the trial court properly found that appellant’s claims were

time-barred, we find that appellant’s second assignment of error, contesting the trial

court’s dismissal of appellant’s claims, is not well-taken.

       {¶ 22} In appellant’s third assignment of error, she argues that the trial court erred

in rendering a decision on her motion for relief from judgment while the case was

pending before this court on appeal. We find this argument moot since we already




11.
vacated the trial court’s initial denial of appellant’s motion on jurisdictional grounds. We

then remanded the matter to the trial court so that it could re-enter its decision on

appellant’s motion. Therefore, appellant’s third assignment of error is not well-taken.

                                      III. Conclusion

       {¶ 23} In light of the foregoing, we affirm the judgment of the Erie County Court

of Common Pleas. Costs are hereby assessed to appellant in accordance with App.R. 24.

                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See
also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                             _______________________________
                                                             JUDGE
Stephen A. Yarbrough, J.
                                                 _______________________________
James D. Jensen, P.J.                                        JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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