United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK, UNITED STATES DISTRICT JUDGE
1970's, Philips' predecessor, Sylvania Electric
Products, Inc., owned two parcels of property in Ottawa,
Ohio. Each parcel had a warehouse and the two parcels were
separated by land owned by the Railroad. Philips'
predecessor connected the two buildings by constructing a
conveyor bridge across the railroad's land, subject to an
Easement and License Agreement. Prior to 1987, Philips's
predecessor, Philips ECG, Inc., constructed a second bridge
subject to a License General Form between it and Grand Trunk
Western Railway Company. Philips then sold the two parcels to
January 2006, DBI divided the parcels and sold one to Pandora
Distribution, LLC. As part of the purchase, the parties
entered into an Encroachment Agreement drafted by First
American Title Insurance Co. This Encroachment Agreement
addressed rights to the bridges.
December 2006, Ottawa bought the other building and land from
DBI. DBI and First American allegedly promised to disclose
all agreements affecting title to the property. Ottawa
alleges DBI and First American failed to disclose the
instituted this litigation in November 2012. At the initial
pretrial with the Court, in April 2013, Ottawa indicated it
was contemplating filing a third-party complaint. By November
2013, it appeared that all the relevant parties were joined
and the parties were referred to Magistrate Judge Knepp for a
settlement conference. In April 2014 and following
unsuccessful settlement discussions, new deadlines were
implemented and I set a trial date in November 2015.
October 2015, First American and Ottawa presented a
significant discovery dispute regarding email communications
which was the subject of a formal motion to compel. On
October 6, 2016, I granted Ottawa's motion to compel and
ordered First American to produce pre-denial email
status conferences addressed the issues of mediation and a
plan to move the litigation forward. Discovery continued in
fits and starts.
status conference in March 2017, the vintage of the
litigation was discussed and efforts were made to get the
litigation back on the discovery track. After getting leave
of Court, Pandora filed its Fourth Amended Complaint on April
12, 2017, and Ottawa filed its Second Amended Third-Party
Complaint on May 9, 2017.
Fourth Amended Complaint alleges claims against Ottawa, DBI,
Philips, and its successor, and the Railroad sounding in: (1)
breach of contract vs. Ottawa; (2) breach of contract vs.
DBI; (3) trespass and nuisance vs. Ottawa; (4) declaratory
judgment; (5) quiet title and ejectment vs. Ottawa; (6)
breach of contract vs. Philips; (7) declaratory judgment vs.
Philips; (8) damages and other relief vs. Philips; (9)
negligence vs. Philips; (10) equitable relief vs. Ottawa; and
(11) equitable relief vs. the Railroad. (Doc. No. 205).
Second Amended Third-Party Complaint alleges the following
claims against First American: (V) negligence; (VI) breach of
fiduciary duty; (VII) fraud and constructive fraud; (VIII)
breach of contract; (IX) bad faith; and (X) declaratory
noted in my previous order:
The various claims, cross claims, counterclaims, and third
party claims in this lawsuit seek to establish liability for
the removal of, and remediation of damage caused by, two
conveyor bridges which connect two commercial warehouses in
Ottawa, Ohio. . . . There currently exists a dispute