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Aljaberi v. Neurocare Center, Inc.

Court of Appeals of Ohio, Fifth District, Stark

June 3, 2019

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

          For Plaintiff-Appellee LEE PLAKAS

          For Defendants-Appellants STACIE ROTH

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.


          GWIN, P.J.

         {¶1} 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.

         Facts & Procedural History

         {¶2} 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. * * *

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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, ...

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