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National City Bank v. Aronson

December 11, 2006

NATIONAL CITY BANK, PLAINTIFF,
v.
ANDREW D. ARONSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge King

Judge Marbley

OPINION AND ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff National City Banks's Motion to Remand ("Plaintiff's Motion to Remand"), Doc. No. 8, and Defendants' Motion to File a Sur-Reply, Doc. No. 17. For the reasons set forth below, defendants' motion is GRANTED and it is RECOMMENDED that plaintiff's motion be GRANTED.

I. BACKGROUND

The Complaint alleges that Eleanor S. Resler, as Grantor, entered into a trust agreement with BancOhio National Bank, as Trustee. Doc. No. 3, Complaint ¶ 1. Plaintiff became the successor to BancOhio National Bank. Id. ¶ 2. The Eleanor S. Resler Trust created six inter vivos trusts; each of the three defendants was named the beneficiary of two trusts. See id. ¶¶ 4-5. In January 2004, plaintiff was removed as Trustee. Id. ¶ 8. On February 16, 2006, National City Bank ("plaintiff") filed a complaint in the Probate Court of Franklin County, Ohio, seeking a declaration that any claims defendants could otherwise have brought against it for investment losses that occurred in any of the six Resler trusts is now barred by O.R.C. § 1339.69(c)). See id. ¶¶ 23, 30, 37.

On March 13, 2006, defendants filed a Notice of Removal, invoking the diversity jurisdiction of this Court, 28 U.S.C. §1332. Doc. No. 2, Notice of Removal ¶ 8. The Notice of Removal alleged the following:

Defendant, Andrew D. Aronson, is an individual with a principal residence at 1207C Lakewood Drive, Greensboro, North Carolina 27410-4439. Defendant Janie Baskin is an individual with a principal place of residence located at 1949 Clover Road, Northbrook, Illinois 60062. Defendant, Cristine Aronson-Ewbank is a United States citizen with a principal place of residence located in the foreign nation of New Zealand. Defendant, Cristine Aronson-Ewbank also has a residence located at 271 Cedar Grove, Glenwood Springs, Colorado.

Notice of Removal ¶ 1.

On March 30, 2006, plaintiff filed Plaintiff's Motion to Remand. Doc. No. 8. On April 19, 2006 defendants filed both a First Amended Petition for Removal, Doc., No. 14 ("Amended Notice of Removal"), and a memorandum contra plaintiff's motion ("Defendants' Memorandum in Opposition"), Doc. No. 15. On April 24, 2006, plaintiff filed its reply brief in support of its motion to remand ("Plaintiff's Reply"), Doc. No. 16.

On May 5, 2006, defendants filed a motion for leave to file a sur-reply in opposition to plaintiff's motion to remand ("Defendants' Motion to File Sur-Reply"), Doc. No. 17, and on that same day filed the actual sur-reply ("Defendants' Sur-reply"), Doc. No. 18. On May 25, 2006, plaintiff filed a memorandum contra Defendants' Motion to File Defendants' Sur-reply. Doc. No. 21.

II. DISCUSSION

A. Defendants' Motion to File Sur-Reply

The rules of this Court contemplate the filing of motions, memoranda in opposition, and replies and provide that "no additional memoranda beyond those enumerated will be permitted except upon leave of court for good cause shown." S.D. Ohio Civ. R. 7.2(a)(2). Defendants seek leave to file a sur-reply but offer no good reason for their failure to present all their arguments in support of jurisdiction in Defendants' Memorandum in Opposition. That being said, however, plaintiff will suffer no prejudice by the filing of the sur-reply. See Burt v. Life Ins. Co. of N. Am., Case No. C-1-05-673, 2006 U.S. Dist. LEXIS 54630, *9 (S.D. Ohio, August 7, 2006) (M.J. Hogan) (granting motion to file sur-reply when good cause not shown because, "allowing Defendant to file its Sur-Reply results in no prejudice toward Plaintiff"). Moreover, in this circuit, there is a "strong preference that claims be adjudicated on their merits." Coleman v. Shoney's, Inc., 79 Fed. Appx. 155, 157 (6th Cir. 2003) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th ...


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