IN THE SUPREME COURT OF OHIO

KEVIN LONGINO, et al. Case No. 09-2000 Plaintiffs-Appellants On Appeal from the Hamilton V. County Court of Appeals First Appellate District RADIO ONE, INC. et al. Court of Appeals Defendants-Appel lees Case No: 08-0905

DEFENDANT-APPELLEE BLUE CHIP BROADCASTING, LTD.'S MEMORANDUM IN RESPONSE TO JURISDICTION

Shondra C. Longino (00081874) Nathaniel Lampley, Jr. (0041543) sclongino7 @ aol.com [email protected] 14055 Cedar Road, Suite 310 Vorys, Sater, Seymour and Pease t-LP South Euclid, Ohio 44118 221 East Fourth Street Telephone: (216) 932-4444 Suite 2000, Atrium Two Fax: (216) 932-4434 Cincinnati, Ohio 45202 Telephone: (513) 723-4616 Counsel for Appellants Fax: (513) 852-7869

Counsel for Appellee Blue Chip Broadcasting, Ltd.

Maria P. Vitullo (0080632) [email protected] Taft, Stettinius & Hollister LLP 425 Walnut Street, Suite 1800 Cincinnati, Ohio 45202 Telephone: (513) 381-2838 Fax: (513) 381-0205

Counsel for Appellee National Underground Railroad Freedom Center TABLE OF CONTENTS

1. STATEMENT OF THE CASE AND FACTS ...... 't

II. STATEMENT IN OPPOSITION TO JURISDICTION ...... 3

III. BLUE CHIP'S RESONSE TO APPELLANT'S PROPOSITIONS OF LAW...... 4

A. RESPONSE TO APPELLANT'S PROPOSITION OF LAW NO. I ...... 4

B. RESPONSE TO APPELLANT'S PROPOSITION OF LAW NOS. 2 and 3..4

C. RESPONSE TO APPELLANT'S PROPOSITION OF LAW NO. 4 ...... 6

D. RESPONSE TO APPELLANT'S PROPOSITION OF LAW NO. 5 ...... 7

IV. CONCLUSION ...... 8

CERTIFICATE OF SERVICE...... :...... 9 I. STATEMENT OF THE CASE AND FACTS

The essential facts are these. On February 3, 2007, WDBZ the Buzz, a dba of

Defendarit-Appellee Blue Chip Broadcasting, Ltd. ("Blue Chip"), sponsored the Buzz

Black Book Fair (the "Book Fair"). The Book Fair was a free, public, community event interided to promote literacy and cultural learning. The Buzz had sponsored these free community events in the Cincinnati area in the past, and had taken photos of members of the community who had attended. A photograph of Plaintiff-Appellants, Kevin

Longino and his two minor children (collectively, "Appellants"), was published in a flyer used to prornote the Fourth Annual Book Fair. The flyer captured Appellants enjoying activities at a prior event but did not identify Appellants by name.

Appellarits filed suit against, among others, Radio One, Inc. and three local radio stations, seeking $2 million dollars for photos taken at a free, public event. Counsel for

Blue Chip subsequently notified Appellants' counsel that Blue Chip was the proper defendant to answer on behalf of the radio stations, given that Blue Chip owns arid operates the radio stations named in the suit, as well as Radio One. Blue Chip filed its answer on behalf of Radio One, which was incorrectly identified in the Complaint as

Radio One, Inc., and two radio stations (The Buzz 1230 AM and MOJO 100.3 FM), but due to a clerical error, did not answer on behalf of 101.1 WIZF. On November 29, 2007,

Appellants filed a motion for default judgment against Defendant 101.1 WIZ_F. On

Saturday, December 1, 2007, counsel for Appellants agreed to withdraw the motion for default judgrnent against 101.1 WIZF, and further agreed to accept a corrected entry identifying Blue Chip as the only proper party defendant. On Monday, December 3,

2007, a proposed entry, as contemplated by counsel for both parties, was transmitted via e-mail to Appellants' counsel. Three days later, rather than signing the proposed entry, Appellants' counsel informed Blue Chip's counsel that her client wished to proceed with the motion for default judgment. Thus, on January 3, 2008, Blue Chip sought leave under Civ. R. 6(B) to file an answer out of time, and on January 10, 2008, filed a memorandum in opposition to the motion for default judgment. On April 17,

2008, Appellants filed a motion for default judgment against Radio One, Inc., claiming that Radio One, Inc, was in default, even though Blue Chip had answered on behalf of

"Radio One ... incorrectly identified in the Complaint as Radio One, Inc." After considering the all the surrounding facts and circumstances, the trial court allowed

101.1 WIZF to file an answer out of time, denied Appellants' motions for default judgmerit against both 101.1 WIZF and Radio One, Inc., and granted Blue Chip's motiori to designate it as the proper party on behalf of Radio One and the radio stations.

At the close of discovery, both parties moved for summary judgment. The trial court denied Appellant's motion for default judgment, granted Blue Chip's motion to file and answer out of time, and granted Blue Chip's motion for summary judgment, finding that because the photograph depicted Appellants as members of the public, Ohio law did not allow for recovery for misappropriation.

Appellants appealed to the First District Court of Appeals (hereinafter, "First

District"), setting forth substantially the same, although somewhat mutated, assignments of error as are presented here. The First District affirmed the trial court's decision and overruled all five assignments of error.

2 II. STATEMENT IN OPPOSITION TO JURISDICTION

This garden variety misappropriation case is neither of substantial constitutional import nor of public or great general interest. Appellant's appeal, although difficult to follow, essentially focuses ori three decisioris made by the trial court: (1) the deriial of

Appellants' rnotion for default judgment against defendants Radio One, Inc. and 101.1

WIZF; (2) the designation of Blue Chip as the only proper party defendant; and (3) the denial of Appellants' motions for sanctions. None of these involve issues that warrant this Court's involvement. Consequently, this Court should decline to take jurisdiction over this appeal.

In an attempt to manufacture a substantial constitutional question, Appellants accuse the First District of malfeasance, claiming that the lower court "disregard[ed] and purposely misconstrue[ed] the civil rules" in violation of Article IV, Section 5(B).1 This claim is as contrived as it is outrageous. Article IV, Section 5(B) is not implicated by the

First District correctly apptyirig the Ohio Rules of Civil Procedure to facts of this case.

Appellants are merely unhappy litigants lashing out at the First District.

For the same reasons, this case does not involve issues of public or great general interest. At the core of Appellant's rambling, largely incoherent brief, Appellants ask this Court to engage only in correction of perceived errors below. Holding aside the fact that the First District ruled correctly and made no error for this Court to correct, this

Court does not sit for mere error correction.2 Thus, Blue Chip respectfully requests that this Court decline to accept this case for further consideration,

' Appellant's Memorandum in Support of Jurisdiction at p. 3. 2 Ohio Corist. Article IV, Section 2(B)(2), S.Ct.Prac.R. III.

3 Ill. BLUE CHIP'S RESPONSE TO APPELLANTS' PROPOSITIONS OF LAW

A. Response to Proposition of Law No. I

Appellants' first proposition of law argues that the First District rendered its decision via unpublished judgment entry in order to "hide" the fact that they "disregarded and misconstrued Ohio's Civil Rules of Procedure."3 Appellants' brazen accusation has no basis in law or fact and thus warrants rio discussion. To the extent that this argurnent is "incorporated in all propositions of law in this matter," Blue Chip submits that it is equally outrageous and unfounded in each specific instance that it is asserted or incorporated.

B. Response to Propositions of Law Nos. 2 and 3

In their second and third propositions of law, Appellants take issue with the trial court's denying their motion for default judgment against 101.1 WIZF and Radio One,

Inc. and granting 101.1 WIZF's motion for leave to file an answer out of time.

Specifically, in their third proposition of law, Appellants claim that the trial court erred when it held that 101.1 WIZF had shown excusable neglect, pursuant to Civ. R. 6(6), when denying the motion for default judgment. Because these issues are intertwined,

Blue Chip will address both propositions of law in this section.

The trial court correctly denied Appellants' motion for default judgment against

Radio One, Inc. and 101.1 WIZF. Default judgments are generally disfavored in Ohio.4

"T'he granting of a default judgment, analogous to the granting of a dismissal, is a harsh rernedy that should be imposed only when 'the actions of the defaulting party create a

3 Appellant's Memorandum in Support of Jurisdiction at p 6. ' See e.c., Suki v. Blume (1983), 9 Ohio App.3d 289.

4 presuniption of willfulness or bad faith.`5 Instead, cases should be decided on their merits whenever possible.6 To that end, Civ. R. 6(B) permits a trial court to grant a moving party additional time to file a pleading or response. Specifically, Civ. R. 6(B)(2) provides that "[w]hen by these rules `*' an act is required or allowed to be done at or within a specified time, the court for cause shown rriay at any time in its discretion '"* upon motion rriade after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." Whether a properly supported Civ. R. 6(B) motion should be granted is left to the sound discretion of the trial court, and the trial court's decision will not be disturbed upon appeal "absent a showing of an abuse of discretion."7

In determining whether neglect was excusable or inexcusable, courts must take into consideration all the surrounding facts and circumstances.8 In this case, Blue Chip timely answered the complaint on behalf of two of three radio stations and Radio One, which was incorrectly identified in the Complaint as Radio One, Inc. Due to a clerical error, however, Blue Chip failed to file an answer on behalf of 101.1 WIZF. The trial court found this to be an inadvertent oversight that did not reflect the "complete disregard for the judicial system" condemned in GTE Automatic Elec., Inc. v. ARC

Industries Inc..9

Haddad v. English (2001), 145 Ohio App.3d 598, 603-604, citing Russo v. Goodvear Tire & t2ubber Co. (1987), 36 Ohio App.3d 175 6 See Perroti v. Ferguson (1983), 7 Ohio St. 3d 1. ' Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 271. Griffey v. Raian (1987), 33 Ohio St.3d 75, 79. See GTE Automatic Elec., Inc.(1976), 47 Ohio St.2d 146, 153.

5 As to Blue Chip's oversight with respect to 101.1 WIZF, the procedural posture of this case was not affected. After Appellants filed their motion for default judgment,

101.1 WIZF sought leave to file an answer out of tirne. This motion was made some 40 days prior to the initial case management conference. With respect to Radio One, Inc.,

Appellants' counsel cannot allege with any credibility that Radio One, Inc. did riot. respond to the complaint. In the first responsive pleading to Appellant's complaint, Blue

Chip responded on behalf of "Radio One ... incorrectly identified in the complaint as

Radio One, Inc." Thus, Appellants' argument with respect to Radio Orie, Inc. is perplexing and unfounded.

Most importantly, though, after the trial court granted Blue Chip's motion designating it as the only proper party defendant, neither Radio One nor 101.1 WIZF remained defendants in the case. As the First District Court of Appeals succinctly stated: "Given that Blue Chip was the proper party and had filed a timely answer, and being mindful that cases should be decided on their merits, we coriclude that tiie default-judgment motion was properly denied."l0

C. Response to Proposition of Law No. 4

Here, Appellarifs cobble together a proposition of law that appears to take issue with the trial court's graritirig Blue Chip's motion to designate it as the proper party defendant. Granted on September 2, 2008, Blue Chip's motion sought to correct the caption in this matter and establish that Blue Chip was the only proper party defendant.

Attached to Blue Chip's motion was the supporting affidavit of Linda J. Vilardo, the Vice

President and Assistant Secretary of Blue Chip, which established the following: (1)

1° Appellant's Memorandum in Support of Jurisdiction at p. 5.

6 Blue Chip owns and operates radio stations 1230am WDBZ, 100.3FM WMOJ (MOJO), and 101.1 WIZF; and (2) Radio One was improperly identified in the complaint as Radio

One, Inc. Appellants offered no admissible evidence in response, and did not otherwise challenge either the authenticity or the substance of the matters asserted in Ms.

Vilardo's affidavit. As such, it was well within the trial court's discretion to designate

Blue Chip as the proper party," and the First District correctly affirmed the trial court's decision.

D. Response to Proposition of Law No. 5

Appellant's Proposition of Law No. 5 is as baseless as it is incoherent. For clarity's sake, counsel for Appellants sought to obtain the deposition of a non-party witness, Cheryl Love. Ms. Love was never sued in her personal capacity, did not have ari ownership interest in any of the businesses named in the Complaint, and had no firiaricial stake in this controversy. She is neither a party nor an officer in any company involved in this case. Nevertheless, counsel for Appellants noticed the deposition of

Ms. Love, failed to obtain her attendance at that deposition, and subsequently sought sanctions against Blue Chip for Appellants' counsel's own sanctionable behavior.t2 As the First District Court of Appeals rightly decided: "Blue Chip had no obligation to secure

[Ms.] Love's presence at the deposition."13

Counsel for Appellants then attempted to serve Ms. Love via subpoena at The

Buzz radio station - an entity to which Ms. Love is not affiliated. The Buzz radio station was not authorized to accept service of a subpoena on behalf of Ms. Love. As such,

11 See, e.Lc, Miller v. Lint (1980), 62 Ohio St.2d 209, 214, 404 N.E.2d 752 (recognizing that "trial courts have broad discretion in settling procedural matters."). 12 See Civ. R. 30(G)(2). 13 Appellant's Memorandum in Support of Jurisdiction at p. 8.

7 both lower courts found that Ms. Love was not properly served with the subpoena.

Because Appellants failed to demonstrate that they obtained effective service on Ms.

Love, a non-party witness, and because no sanctionable conduct occurred, the trial court denied Appellants' motion for sanctions and the First District correctly affirmed that decision.

II. CONCLUSION

For the foregoing reasons, Blue Chip respectfully requests that this Court decline to accept discretionary jurisdiction over this appeal

Respectfully submitted,

Nathaniel ^^pl^y, Jr " (^41543) Maureen ^.' Haney (0070920) Vorys, Sater, Seymour and Pease LLP Suite 2000, Atrium Two 221 East Fourth Street Cincinnati, Ohio 45202 Phone:(513) 723-4616 Fax: (513) 852-7869 E-Mail: [email protected]

Attorneys for Defendant Blue Chip Broadcasting, Ltd.

8 CERTIFICATE OF SERViCE

The undersigned hereby certifies that a true and accurate opy of the foregoing was served upon the following via regular U.S. mail on this 34T^day of November 2009:

Shondra C. Longino, Esq. Maria Vitullo, Esq. 14055 Cedar Road Taft, Stettinius & Hollister LLP Suite 310 425 Walnut Street, Suite 1800 South Euclid, OH 44118 Cincinnati, OH 45202-3957

UFCW Local 32D, Central Region 7523 Anthony Wayne Avenue Cincinnati, Ohio 45216-1698

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