MOHAMMED M. ALJABERI, M.D. Plaintiff-Appellee
NEUROCARE CENTER, INC., ET AL. Defendants-Appellants
CHARACTER OF PROCEEDING: Civil appeal from the Stark County
Court of Common Pleas, Case No. 2016CV02671
Plaintiff-Appellee LEE PLAKAS
Defendants-Appellants STACIE ROTH
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
Appellants appeal the October 18, 2018 judgment entry of the
Stark County Court of Common Pleas denying their motion to
stay all actions and compel arbitration.
& Procedural History
On December 8, 2016, Dr. Mohammed Aljaberi
("Aljaberi") filed a complaint against appellants
Neurocare Center, Inc. ("Neurocare"), Dr. Andrew
Stalker ("Stalker"), and Dr. Ryan Drake
("Drake") for breach of fiduciary duty, breach of
contract, civil conspiracy, and a declaratory judgment action
to declare the covenant not to compete contained in
Aljaberi's employment contract unenforceable. The
complaint alleged Aljaberi is a shareholder and director of
Neurocare, as are Stalker and Drake. Further, that appellants
conspired to terminate Aljaberi's stock ownership,
conducted a secret meeting of the Neurocare Board to remove
Aljaberi as a director, and terminated his employment with
Neurocare. Aljaberi alleged he was not provided notice of the
meeting as required under the Neurocare Shareholders
Agreement, which was attached as an exhibit to the complaint.
Aljaberi avers such actions were in violation of the
fiduciary duties owed to him under common law and pursuant to
the Shareholders Agreement.
Section 14.8 of the Shareholders Agreement provides, in
pertinent part, * * * All disputes arising directly,
indirectly, or otherwise in connection with, out of, related
to, or from this Agreement, or the interpretation,
performance, or breach hereof, including but not limited to
alleged violations of state or federal statutory or common
law rights or duties (a "Dispute") shall be
resolved according to the procedures set forth in this
section which shall constitute the sole dispute mechanism
hereunder (except as otherwise specifically provided in this
Agreement). In the event that the parties are unable to
resolve any Dispute after meeting and attempting in good
faith to reach a negotiated resolution, such Dispute(s) shall
be resolved as hereinafter provided by binding arbitration in
accordance with the procedures of the American Arbitration
Association in Canton, Ohio. * * *
Appellants filed an answer to the complaint on January 11,
2017. Between December of 2016 and April of 2017, the parties
exchanged several rounds of written discovery.
On May 1, 2017, Aljaberi filed a motion for leave to file an
amended complaint. The trial court granted the motion and
permitted Aljaberi to file his amended complaint instanter.
The amended complaint added the following claims against
appellants: conversion of Aljaberi's stock ownership in
Neurocare; production of corporate records; and production of
annual financial statements. Appellants filed their answer to
the amended complaint on May 18, 2017. Appellants propounded
discovery on Aljaberi and the parties agreed to extend the
deadline to respond to that discovery until June 16, 2017.
Both parties stipulated to a protective order on July 6,
2017. On August 9, 2017, the trial court conducted an
in-person pre-trial with the parties to set case management
dates and address several outstanding discovery issues. The
trial court ordered Neurocare to produce financial records as
requested by Aljaberi in discovery, and set a briefing
schedule as to other discovery issues.
Appellants took the deposition of Dr. Charles Zollinger, M.D.
on July 26, 2017 and the deposition of Aljaberi on July 27,
2017. The parties engaged in extensive discovery disputes and
briefing regarding the discoverability of the financial
information of Neurocare. The parties participated in an
unsuccessful mediation on August 29, 2017.
On September 18, 2017, the trial court issued a judgment
entry finding allegations of misconduct reported to the Ohio
State Medical Board by appellants concerning Aljaberi were
discoverable and ordered appellants to turn the discovery
over to counsel for Aljaberi. Appellants filed an appeal of
the trial court's ruling on September 22, 2017. The trial
court stayed discovery in this case on January 5, 2018
pending the appeal. However, on February 20, 2018, appellants
issued a subpoena to the Cleveland Clinic to produce the
complete employment file of Aljaberi. Aljaberi filed a motion
to quash the subpoena since the case was on appeal with this
Court. The trial court granted the motion to quash.
In Aljaberi v. Neurocare Center, Inc., 5th Dist.
Stark No. 2017 CA 00176, 2018-Ohio-1800, this Court held that
reports made to the Ohio State Medical Board were privileged
and not subject to discovery. We remanded the case to the
trial court on May 7, 2018. After the case was remanded to
the trial court, the trial court set a pre-trial on June 25,
2018. On June 27, 2018, ...