Opinion
Case No. 2018-01140JD
02-28-2020
MICHAEL CIRINO Plaintiff v. BUREAU OF WORKERS' COMPENSATION Defendant
DECISION
{¶1} Plaintiff Michael Cirino, on his behalf and on behalf of a proposed class, moves for partial summary judgment on the issue of liability. Cirino also moves for certification of the proposed class, for leave to file a reply instanter, and for leave to file a memorandum and reply instanter. Defendant Bureau of Workers' Compensation (BWC) opposes Cirino's motions for partial summary judgment, class certification, and leave to file a reply instanter. BWC moves for a summary judgment in its favor and BWC moves to strike both Cirino's reply and Cirino's response to BWC's summary-judgment motion.
{¶2} For reasons set forth below, the court (1) denies Cirino's motion for partial summary judgment, (2) denies as moot Cirino's motion for class certification, (3) accepts Cirino's untimely response to BWC's summary-judgment motion, (4) denies as moot Cirino's motions for leave instanter, (5) grants BWC's summary-judgment motion, and (6) denies BWC's motion to strike.
I. Background and Procedural History
{¶3} In 2010, Cirino sued BWC in the Cuyahoga County Common Pleas Court, challenging the legality of fees incurred by some BWC recipients. BWC moved to dismiss Cirino's suit for lack of subject-matter jurisdiction. The common pleas court denied the motion and, on appeal, the Eighth District Court of Appeals affirmed. On BWC's motion, the Supreme Court of Ohio granted discretionary review. Reversing the appellate court, the Supreme Court of Ohio held that Cirino's suit against BWC in the Cuyahoga County Common Pleas Court was within the exclusive jurisdiction of this court—not within the subject-matter jurisdiction of the common pleas court. Cirino v. Ohio Bur. of Workers' Comp., 153 Ohio St.3d 333, 2018-Ohio-2665, 106 N.E.3d 41. The Supreme Court of Ohio vacated all orders issued by the common pleas court, including an order certifying a class, and remanded the case to the common pleas court for dismissal for lack of subject-matter jurisdiction. Cirino at ¶ 1, 31.
{¶4} Cirino thereafter filed a "class action complaint" in this court that is premised on the same circumstances as those that underlay the lawsuit in Cirino. The Supreme Court of Ohio discussed those circumstances in Cirino at ¶ 9-11, stating:
Cirino began receiving workers' compensation benefits in 2009. He was entitled to $443 per week, which was paid to him on a biweekly basis in the amount of $886. At first he received his payments by paper check, which he deposited in his account with PNC Bank. After receiving a few paper checks, however, he was notified that his payments would be made electronically and he would be enrolled in the debit-card program if he did not elect to receive direct deposits. Cirino testified that he did not want to provide the bureau with his bank-account number, which was required in order to receive payments by direct deposit. He was therefore sent a debit card and enrolled in the debit-card program.
After he received the debit card, Cirino activated it and made a withdrawal of his $886 biweekly benefit in cash from a teller at a Chase branch location. Later that same month, he attempted to make a second in-person withdrawal of $886, but his request was denied because his account did not have enough funds to provide him with $886 while also covering the $5 fee for making a second in-person withdrawal in the same
month. Cirino then went to a teller at another branch and withdrew $881 in cash, incurring a $5 fee for the transaction.Thus, Cirino chose to incur a fee for the convenience of a teller transaction.
After this, Cirino spoke to an attorney, who informed him that the $5 charge was a service fee imposed by Chase. Cirino continued to withdraw cash through multiple teller visits per month, incurring numerous additional $5 fees.
Mary Manderson (BWC's current Benefits Payable Manager) has averred that the original fee schedule for the EBT card program "provided that every cardholder could access funds without a fee at any Chase or Allpoint ATM, through POS [point of service] transactions, and once per month through an in-person over-the counter withdrawal." (Manderson Affidavit, June 6, 2019, paragraph 10.) Manderson also has averred: "Any benefit recipient who wished to avoid the fees associated with the convenience options in the EBT card program as administered through the Chase contract could do so in several ways: by enrolling in the direct deposit program, by applying for a hardship exemption to continue receiving payment by paper warrant, by accessing cash at any Chase or Allpoint ATM, by using the card like a credit card for POS and online transactions, and by limiting over-the-counter withdrawals." (Manderson Affidavit, June 6, 2019, paragraph 17.)
{¶5} Cirino asserts in this case that BWC acted unlawfully when BWC permitted JPMorgan Chase Bank, N.A. (Chase Bank) to charge fees in the implementation of a BWC-authorized "debit card program," which, in Cirino's view, permitted BWC to shift administrative costs to BWC claimants in violation of R.C. 4123.341. Cirino further asserts that BWC violated duties set forth in R.C. 4123.67 by providing Cirino, and other members of a proposed class, with a method or mode of payment that was subject to monthly withholding of transaction fees, charges, costs, or expenses. Cirino seeks, among other things, legal, declaratory, injunctive, and other equitable relief.
{¶6} On BWC's motion for partial judgment on the pleadings, the court granted judgment in favor of BWC on Cirino's equitable claims, excepting Cirino's claims for declaratory relief and injunctive relief.
Entry, January 10, 2019.
{¶7} Cirino moved for class certification and partial summary judgment on liability. BWC moved (1) for an extension of time to file responses to Cirino's motions for class certification and partial summary judgment and (2) to stay any ruling on class certification until after the court issued a ruling on Cirino's motion for partial summary judgment on liability.
Cirino asks the court to certify a class consisting of "[a]ll current and former participants in the Ohio Workers' Compensation system who were assessed fees under authority of the Chase Direct Payment Card Program - Agency Service Agreement that was approved by [BWC], and dated December 22, 2006, and as amended," excluding "(i) all attorneys of record in these proceedings and (ii) all members of the judiciary presiding over this action as well as their staff and their immediate families." (Motion For Class Certification, 16.)
{¶8} The court granted BWC's motions, staying consideration of Cirino's motion for class certification until all summary judgment proceedings have been determined and permitting BWC to file responses to Cirino's motions for class certification and partial summary judgment within 120 days of the court's entry.
{¶9} Thereafter, BWC filed a document labeled "Defendant's Combined Motion For Summary Judgment And Memorandum In Opposition to Plaintiff's Motion For Partial Summary Judgment On Liability." Cirino moved (1) for an extension of time until July 1, 2019, to submit a response to BWC's combined motion for summary judgment and opposing memorandum, and (2) for leave to file a reply in support of Cirino's motion for class certification. The court granted Cirino's motions.
{¶10} On July 2, 2019—a day after the date requested by Cirino—Cirino filed a response to BWC's cross-motion for summary judgment and a reply in support of Cirino's motion for class certification. On July 2, 2019, Cirino also moved for leave to file a reply instanter. That same day (July 2, 2019) BWC moved to strike Cirino's response and reply because Cirino failed to timely file them. On July 3, 2019, Cirino filed a response opposing BWC's motion to strike; Cirino also moved for leave to file a memorandum and reply instanter. Notwithstanding that Cirino's response and reply, which Cirino filed on July 2, 2019, are untimely, the court determines that Cirino's untimely response and untimely reply should be accepted in the interest of justice. The court also determines that BWC's motion to strike should be denied. The court further determines that Cirino's motion of July 2, 2019, for leave to file a reply instanter should be denied as moot, and that Cirino's motion of July 3, 2019, for leave to file a memorandum and reply instanter should be denied as moot.
II. Summary of the parties' arguments.
{¶11} In Cirino's partial summary-judgment motion, Cirino asserts that BWC failed to pay full benefits to him and certain BWC claimants because, in Cirino's view, Chase Bank improperly assessed fees when Chase Bank administered a BWC-authorized electronic-benefit-transfer (EBT) card program. Cirino contends that a partial summary judgment on liability should issue in his and certain claimants' favor because "[b]ased upon the evidence in the record complying with Civ.R. 56(E), reasonable minds could only conclude that the Bureau has violated R.C. 4123.341 by shifting the cost of the EBT [electronic benefits transfer] program to those injured workers who are unable to avoid the fees that are being deducted from their accounts by Chase." (Motion, 15.)
{¶12} BWC maintains that Cirino's motion for partial summary judgment on liability should be denied because BWC delivered full benefits to Cirino's EBT account and Cirino could access his account without incurring fees. BWC further contends that its EBT card program operated through Chase Bank did not violate any statute or legal duty, that Cirino's claims do not give rise to a private cause of action for which Cirino may recover money damages, and that there is no basis to grant non-monetary equitable relief in this case.
{¶13} Cirino maintains that BWC exceeded its statutory authority by granting Chase Bank the ability to collect fees through a service agreement of December 22, 2006. Cirino contends that the "entire process was illegal, and the obvious result was that the injured workers did not receive '100 percent of [their] benefit' as both required by R.C. 4121.39(B) and (C) and promised in the Electronic Benefit Card Agreement." (Response, 3.) Cirino further contends that neither he nor the proposed class members were warned that any fees would be charged.
{¶14} BWC also opposes Cirino's motion for class certification, urging, among other things, that Cirino's proposed class is too broad, that Cirino is not representative of all members of the proposed class, and that there is no predominant question of law common to all proposed class members, and that the claims and defenses applicable to the facts of Cirino's claims are not typical of the claims and defenses of all proposed class members. Additionally, BWC implies that Cirino's counsel engaged in misconduct during discovery and BWC suggests that Cirino's counsel therefore is unfit to serve as counsel for the proposed class.
{¶15} In his reply, Cirino contends that, notwithstanding BWC's argument that Cirino's proffered class is over-broad and too inclusive, of significance is BWC's practice of charging BWC benefit recipients any fees to access their benefits under the EBT program. Cirino reasons that the "happenstance that different class members were assessed different categories of fees is thus hardly a meaningful or logical reason to deny a classwide recovery." (Reply, 3.) Cirino urges the court to follow the reasoning of the Eighth District Court of Appeals, whose judgment was reversed by Cirino, supra, 153 Ohio St.3d 333. Cirino also disputes BWC's suggestion of misconduct by Cirino's counsel.
III. Law and Analysis
A. Legal Standard—Summary Judgment
{¶16} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule." Construing Civ.R. 56(C), the Supreme Court of Ohio has stated: "Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 Ohio Op. 3d 466, 472, 364 N.E.2d 267, 274." State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997).
B. BWC and Chase Bank entered into a contract that permitted Chase Bank to charge fees to debit cardholders in the EBT card program. Beginning in 2014 KeyBank, NA has operated the EBT card program.
{¶17} In 2006, the General Assembly authorized the administrator of BWC to contract with an agent to supply debit cards for claimants to access payments made to them pursuant to certain chapters of the Ohio Revised Code and to credit the debit cards with amounts specified by BWC's administrator by utilizing direct deposit of funds by electronic transfer. Former R.C. 4123.311(A)(3), effective June 30, 2006; see R.C. 4123.311(A)(3), effective September 10, 2007; Cirino at ¶ 4.
{¶18} In accordance with R.C. 4123.311(A)(3), in 2007 representatives of BWC and Chase Bank entered into an agreement (2007 Contract) to allow Chase Bank to provide debit cards to certain BWC claimants as an alternative to receiving BWC compensation or other disbursements by check. (Exhibit 3, Affidavit of Mary Manderson.) Under this agreement, Chase Bank was permitted to charge cardholders for services rendered in accordance with a fee schedule that was attached to the agreement. Representatives of BWC and Chase Bank periodically agreed to renew the agreement until "in 2014, Chase ceased operating the EBT card program and it came under the operation of KeyBank NA, which later entered into a separate contract with the state under a fee schedule different from either the original fee schedule or the amended fee schedule [set forth in the Third Addendum]." (Manderson Affidavit, ¶ 23.)
C. Neither R.C. 4123.341 nor R.C. 4123.67 creates a private right of action for an alleged shifting of BWC's administrative costs.
{¶19} In a section of Cirino's complaint labeled "Count One (Statutory Violations)," Cirino alleges that BWC violated duties set forth in R.C. 4123.341 and 4123.67 (Complaint, ¶ 33, 34.) R.C. 4123.341 governs how administrative costs of BWC are to be borne, providing:
The administrative costs of * * * the bureau of workers' compensation shall be those costs and expenses that are incident to the discharge of the duties and performance of the activities of * * * the bureau under this chapter and Chapters 4121., 4125., 4127., 4131., and 4167. of the Revised Code, and all such costs shall be borne by the state and by other employers amenable to this chapter as follows:
See Cirino, 153 Ohio St.3d 333, ¶ 4 ("[r]egardless of which payment method the bureau chooses to offer, however, it is required to ensure that all 'administrative costs'—that is, all costs that are 'incident to the discharge of the duties and performance of the activities of the * * * bureau'—are borne by the state and employers. R.C. 4123.341").* * *.
{¶20} R.C. 4123.67 provides, that subject to exceptions, BWC compensation is exempt from attachment or execution. The statute states:
Except as otherwise provided in [R.C. 3119.80, 3119.81, 3121.02, 3121.03, and 3123.06], compensation before payment shall be exempt from all claims of creditors and from any attachment or execution, and shall be paid only to the employees or their dependents. In all cases where property of an employer is placed in the hands of an assignee, receiver, or trustee, claims arising under any award or finding of the
industrial commission or bureau of workers' compensation, pursuant to this chapter, including claims for premiums, and any judgment recovered thereon shall first be paid out of the trust fund in preference to all other claims, except claims for taxes and the cost of administration, and with the same preference given to claims for taxes.A review of R.C. 4123.341 and 4123.67 discloses that neither R.C. 4123.341 nor 4123.67 expressly provides for a private cause of action for the legal relief that Cirino seeks on his behalf and on behalf of the proposed class—i.e., relief for the alleged shifting of administrative fees. Notably, the Tenth District Court of Appeals has instructed: "Courts will not infer that a statute grants a private right of action unless the language of the statute indicates a clear intent that the legislature intended such a remedy." Perkins v. Columbus Bd. of Edn., 10th Dist. Franklin No. 13AP-803, 2014-Ohio-2783, ¶ 15.
{¶21} However, in Anderson v. Smith, 196 Ohio App.3d 540, 2011-Ohio-5619, 964 N.E.2d 468 (10th Dist.), the Tenth District Court of Appeals identified a three-part test to determine whether a private right of action should be inferred from a statute. Anderson states at ¶ 10:
That test examines: (1) whether the statute creates a right in favor of the plaintiff, (2) whether there is any indication of legislative intent, explicit or implicit, to create or deny a remedy through private right of action, and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy. Strack at 337; Adkins at 435. (Footnote omitted.)
{¶22} Here, neither R.C. 4123.341 nor R.C. 4123.67 creates a right in favor of Cirino or the proposed class. (However, R.C. 4123.67 does appear to create rights for certain creditors.) Neither is there an indication of explicit or implicit legislative intent to create or deny a remedy through private right of action based on an allegation of impermissible shifting of administrative costs. Compare Vos v. Ohio Environmental Protection Agency, 10th Dist. Franklin No. 17AP-749, 2018-Ohio-2956, ¶ 11 (concerning a complaint's allegations of an agency's alleged failure to enforce its own rules with regard to inspecting and granting operational permits to a landfill and stating that "[i]n the absence of statutory authority for a private cause of action, appellants have not pled a viable cause of action for money damages against the state"). Actions "that do not sound in tort but seek recovery purely for a statutory violation will not necessarily lie against the state--particularly if the statute in question provides no private right of action." Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 37. Moreover, to infer an implicit private right of action as a remedy is inconsistent with the legislative scheme of the Ohio workers' compensation system. A treatise on Ohio workers' compensation law has explained the legislative scheme of the Ohio workers' compensation system as follows:
The General Assembly established the Ohio Workers' Compensation system to supplant unsatisfactory common law remedies, not merely to supplement or amend those previously available. * * * The rights and duties thus created are purely statutory, resting not on any common law principles but exclusively on the grant of legislative authority by the enabling Workers' Compensation Act.(Footnotes omitted.) Fulton, Ohio Workers' Compensation Law, Section 1.1, at 2 (5th Ed. 2018). See Indus. Com. of Ohio v. Weigandt, 102 Ohio St. 1, 1, 130 N.E. 38 (1921); Indus. Com. of Ohio v. Kamrath, 118 Ohio St. 1, 3-4, 160 N.E. 470 (1928).
{¶23} The court concludes that the statutes identified in "Count One (Statutory Violations)" do not create a private cause of action under the circumstances of this case.
{¶24} However, even assuming for the sake of argument that the statutes identified in "Count One" were to create a private cause of action under the circumstances of this case, the court, after viewing the evidence most strongly in favor of Cirino, would be compelled to conclude that (1) no genuine issue of material fact remains to be litigated whether BWC improperly shifted administrative costs through the EBT card program, (2) BWC is entitled to judgment as matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion that is adverse to Cirino and the proposed class.
D. Fees charged by Chase Bank constitute consumer charges for bank clients—not administrative costs of BWC.
{¶25} Cirino asks the court to find that BWC failed to pay full benefits to him and certain BWC claimants because, in Cirino's view, BWC unlawfully permitted Chase Bank to assess fees in Chase Bank's implementation of the BWC-authorized EBT card program. Cirino essentially contends that Chase Bank's assessment of fees constituted an improper shift of BWC's administrative costs to Cirino and certain BWC claimants. See R.C. 4123.341 (governing how administrative costs of BWC are to be borne); Cirino, 153 Ohio St.3d 333, ¶ 4.
{¶26} At issue therefore is whether the fees charged by Chase Bank constitute "administrative costs," which, as charged against Cirino and certain BWC claimants, thereby deprived them of their workers' compensation benefits. The term "administrative costs" contained in R.C. 4123.341 is not defined in the statute. It follows therefore that the meaning of the term "administrative costs," as used in R.C. 4123.341, may be subject to more than one reasonable interpretation, which, in turn, makes the term ambiguous and subject to interpretation. See State v. Jordan, 89 Ohio St.3d 488, 492, 2000-Ohio-225, 733 N.E.2d 601 (2000) (a court "may interpret a statute only where the words of the statute are ambiguous. * * * Ambiguity exists if the language is susceptible of more than one reasonable interpretation").
{¶27} Because the term "administrative costs" is undefined, the term's common, everyday meaning applies. See Satterfield v. Ameritech Mobile Communications, Inc., 155 Ohio St.3d 463, 2018-Ohio-5023, 122 N.E.3d 144, ¶ 18 ("[t]erms that are undefined in a statute are accorded their common, everyday meaning"); R.C. 1.42. In common usage, "administrative" means "of, belonging to, proceeding from, or suited to administration, or an administration: EXECUTIVE," Webster's Third New International Dictionary 28 (2002), and "cost" means "an item of outlay incurred in the operation of a business enterprise (as for the purchase of raw materials, labor, services, supplies) including depreciation and amortization of capital." Webster's Third New International Dictionary at 515. Considering the term "administrative costs" in the context of this case and construing the term according to the rules of grammar and common usage, the term "administrative cost" pertains to an outlay or expenditure by BWC relating to its execution of the payment of benefits to BWC claimants. "Administrative costs" are tantamount to overhead, which constitutes business expenses (e.g., rent, insurance, postage, salaries of employees, and supplies) that are not chargeable to a particular part of the work or benefits authorized under R.C. Chapters 4121, 4123, 4127, and 4131. Accord Cirino at ¶ 4 ("administrative costs" are all costs "incident to the discharge of the duties and performance of the activities of the * * * bureau").
{¶28} Here, according to the evidence, BWC paid no compensation to Chase Bank when it entered into the 2007 Contract. (Ralph S. Morgan, Deposition, 102; 103). And under the second addendum between BWC and Chase Bank, a conversion to a certain ATM system was "without cost" to BWC. (Appx. 00014, Motion for Partial Summary Judgment.) Also, according to Tracy Dangott, Chase Bank's Vice President and Senior Product Manager, Public Sector Prepaid Cards, Chase Bank does not charge governmental entities for programs similar to BWC's program with Chase. (Dangott, Deposition, 22-25.) Construing this evidence in favor of either BWC or Cirino, reasonable minds could only conclude that BWC's agreement with Chase Bank did not result in any administrative cost to BWC. Absent any administrative cost to BWC for the EBT card program through Chase Bank, it follows that there was no administrative cost to shift to Cirino and certain other BWC claimants relative to BWC's EBT program through Chase Bank. Any savings that BWC may have realized from its contract with Chase Bank is not tantamount to an impermissible shifting of costs to Cirino or certain other BWC claimants. Viewing the evidence in favor of BWC or Cirino, reasonable minds can only conclude that Cirino has not sustained his burden to show an improper shifting of administrative costs.
{¶29} And construing the evidence in favor of BWC or Cirino, reasonable minds could only conclude that fees charged by Chase Bank—e.g., fees for ATM balance inquiries, ATM withdrawals, expedited card replacement, standard card replacement, check issuance when an account is closed, denied transactions, an international balance inquiry, point of sale purchase cash advance (teller withdrawal) in excess of one per month, conversion to foreign currency, inactivity, and bill payment (Apx. 00011; Tracy Dangott, Deposition, 50-52, 63)—constitute consumer charges for bank clients, which, in this case, were EBT cardholders under BWC's contract with Chase Bank. Such consumer charges are not administrative costs of BWC. Therefore, Cirino has not sustained his burden to show that a genuine issue of material facts exists whether BWC shifted its administrative costs to Cirino and certain other BWC claimants.
{¶30} Additionally, construing the evidence in favor of BWC or Cirino, reasonable minds could only conclude that, beginning on August 25, 2009, BWC paid benefits to Cirino approximately every two weeks, thereby delivering a full benefit amount to Cirino's BWC account. (Exhibit 6, Manderson Affidavit.) Because BWC fully credited Cirino's account, reasonable minds could only conclude that BWC did not improperly shift any administrative costs to Cirino. Reasonable minds could only conclude that BWC has sustained its burden to show that no genuine issue of material facts exists whether BWC improperly shifted fees to Cirino and certain BWC claimants.
E. Because Cirino has not pled a viable cause of action against BWC for money damages, this court lacks jurisdiction over Cirino's claims for declaratory and injunctive relief.
{¶31} Besides Cirino's assertion of statutory violations in the complaint, Cirino also has asserted claims of restitution, unjust enrichment, equitable disgorgement, and he has asked for injunctive and declaratory relief. The court has previously granted partial judgment on the pleadings in favor of BWC on Cirino's equitable claims, excepting claims for declaratory relief and injunctive relief. Thus, Cirino's claims for restitution, unjust enrichment, equitable disgorgement are not at issue here—only Cirino's claims for injunctive relief and declaratory judgment.
(Entry dated January 10, 2019.) In granting partial judgment on the pleadings in favor of BWC, the court noted: "Because both the lead opinion and concurrence in [Cirino v. Ohio Bur. of Workers' Comp., 153 Ohio St.3d 333, 2018-Ohio-2665, 106 N.E.3d 41] indicate that Cirino's equitable claims should be viewed as seeking legal relief, it follows that * * * Cirino's equitable claims in this case should be viewed as legal claims." (Decision, 8, January 10, 2019.) --------
{¶32} The court has concluded that, pursuant to R.C. 4123.341 or 4123.67, Cirino has not established a private right of action for an alleged improper shifting of administrative costs by BWC and that, as a matter of law, Cirino is not entitled to summary judgment based on a claim of improper shifting of administrative costs by BWC. Consequently, Cirino has not pled a viable cause of action for money damages. See Vos v. Ohio Environmental Protection Agency, 10th Dist. Franklin No. 17AP-749, 2018-Ohio-2956, ¶ 11 (stating that "[i]n the absence of statutory authority for a private cause of action, appellants have not pled a viable cause of action for money damages against the state"). Without a viable cause of action for money damages, this court lacks jurisdiction over Cirino's claims for declaratory and injunctive relief. Cardi v. State, 10th Dist. Franklin No. 12AP-15, 2012-Ohio-6157, ¶ 8.
{¶33} Here, however, without a viable cause of action for money damages, Cirino has not asserted a legal claim under R.C. 2743.03(A)(1), and consequently, this court lacks jurisdiction over Cirino's claims for injunctive and declaratory relief—ancillary claims arising out of the same circumstances underlying Cirino's claims that he has brought pursuant to R.C. 2743.03(A)(1).
IV. Conclusion
{¶34} Accordingly, for reasons set forth above, the court concludes that, as a matter of law, Cirino is not entitled to partial summary judgment on the issue of liability and that, as a matter of law, BWC is entitled to summary judgment. The court holds that Cirino's motion for partial summary judgment should be denied and that BWC's motion for summary judgment should be granted. The court further holds that, because Cirino has not pled a viable cause of action for money damages, this court lacks jurisdiction over Cirino's ancillary claims for injunctive and declaratory relief. Because Cirino has not pled a viable claim for money damages and because this court lacks jurisdiction over Cirino's ancillary claims, the court also holds that Cirino's motion for class certification is moot.
{¶35} The court determines that Cirino's untimely response to BWC's motion for summary judgment, which Cirino filed on July 2, 2019, and Cirino's untimely reply brief in support of Cirino's motion for class certification, which Cirino filed on July 2, 2019, should be accepted. The court also determines that BWC's motion to strike of July 2, 2019, should be denied. The court further determines that Cirino's motion of July 2, 2019, for leave to file a reply instanter should be denied as moot, and that Cirino's motion of July 3, 2019, for leave to file a memorandum and reply instanter should be denied as moot.
/s/_________
PATRICK M. MCGRATH
Judge
JUDGMENT ENTRY
{¶36} For the reasons set forth in the decision filed concurrently herewith, the court DENIES plaintiff Michael Cirino's motion for partial summary judgment on liability filed on December 19, 2018 and DENIES as moot Cirino's motion for class certification filed on December 18, 2018. The court accepts Cirino's untimely response to the motion for summary judgment filed by defendant Bureau of Workers' Compensation (BWC), which Cirino filed on July 2, 2019, and Cirino's untimely reply brief in support of Cirino's motion for class certification, which Cirino filed on July 2, 2019. The court DENIES as moot Cirino's motions for leave instanter filed on July 2, 2019, and July 3, 2019.
{¶37} The court GRANTS BWC's motion for summary judgment filed on June 10, 2019. The court DENIES BWC's motion to strike Cirino's response in opposition to BWC's motion for summary judgment and Cirino's reply in support of the motion for class certification, which BWC filed on July 2, 2019.
{¶38} Judgment is rendered in favor of BWC. Court costs are assessed against Cirino. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
/s/_________
PATRICK M. MCGRATH
Judge Filed February 28, 2020
Sent to S.C. Reporter 6/3/20