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Eckmeyer v. Blough

Court of Appeals of Ohio, Ninth District

August 21, 2013

KEVIN ECKMEYER, Appellant
v.
DAVID A. BLOUGH, et al., Appellee

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2008-02-1769.

PAUL R. HOFFER, Attorney at Law, for Appellant.

GREGORY A. BECK and ANTHONY E. BROWN, Attorneys at Law, for Appellee.

DECISION AND JOURNAL ENTRY

WHITMORE, Judge.

(¶1} Plaintiff-Appellant, Kevin Eckmeyer, appeals from the judgment of the Summit County Court of Common Pleas, granting summary judgment in favor of Defendant-Appellees. This Court affirms.

I

(¶2} In November 2005, Eckmeyer filed a complaint in the Summit County Court of Common Pleas alleging a violation of his civil rights, malicious prosecution, abuse of process, and civil conspiracy. Eckmeyer listed as defendants: Brimfield Township Board of Trustees, Brimfield Township, Brimfield Township Police Department, Brimfield Police Chief David Blough, Detective Sharon Hissom, Officer William Reese, Officer David Kinar, and John Doe, officer for the Brimfield Police Department (collectively, "the Brimfield Defendants"). Eckmeyer also named other defendants including, Nora Hunt, Irene Jordan, John Klapp, Debbie Klapp, Marcel Mundy, Howard Thomas, and New Beginnings Fellowship Church, (collectively, "the Remaining Defendants"). The case was removed to federal court.

(¶3} In federal court, the Brimfield Defendants filed a motion for summary judgment. On January 11, 2007, the United States District Court issued an order granting their motion. The order dismissed the federal claims against the Brimfield Defendants with prejudice and declined jurisdiction over the state law claims, dismissing them without prejudice. The order concludes: "[t]here are no remaining allegations against these Defendants and therefore, the Court finds no just reason for delay from the granting of summary judgment to Defendants on these issues. Fed.R.Civ.P 54(b)." The federal case, however, remained open until February 28, 2007, when the court granted summary judgment in favor of the Remaining Defendants.

(¶4} On February 27, 2008, Eckmeyer re-filed his complaint in the Summit County Court of Common Pleas. The Brimfield Defendants filed a motion for summary judgment arguing, in part, that the complaint was untimely filed. Eckmeyer filed a response in opposition. The trial court granted the Brimfield Defendants' motion for summary judgment finding that the time to re-file under the savings statute had expired. Eckmeyer appeals and raises one assignment of error for our review.

II

Assignment of Error

(¶5} In his sole assignment of error, Eckmeyer argues that the court erred when it did not find that his claim was re-filed within a year of the dismissal of his federal lawsuit. Specifically, Eckmeyer argues that time under the savings statute only begins to run when an entire action has been terminated and not when the claims against one party are dismissed.

(¶6} Pursuant to Civ.R. 56(C), summary judgment is proper if:

(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 party against whom the ...

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