Submitted February 20, 2019
from the Court of Appeals for Portage County, No.
Connick Law, L.L.C., and Thomas J. Connick, for appellee.
& Rich Co., L.P.A., Stephen S. Zashin, Jeffrey J. Wedel,
and Helena Oroz, for appellant.
& Hostetler, L.L.P., John B. Lewis, Dustin M. Dow, and
Daniel R. Lemon, urging reversal for amicus curiae Ohio
Management Lawyers Association.
1} Appellant, PartsSource, Inc., appeals the
judgment of the Eleventh District Court of Appeals affirming
the trial court's judgment granting appellee Edward F.
Gembarski's motion to certify a class action. We accepted
jurisdiction over PartsSource's three propositions of law
related to the trial court's decision to grant class
certification. We will address only the second and third
propositions of law, however, as they are dispositive in this
2} We hold that in a class-certification case, when
the case originates with a single named plaintiff and that
plaintiff is not subject to an arbitration agreement that was
entered into by unnamed putative class members, the defendant
need not raise a specific argument referring or relating to
arbitration in the defendant's answer. In such
circumstances, the defendant may raise an argument that
relates to arbitration against putative class members at the
class-certification stage of the proceedings.
3} As relevant to this case, PartsSource had no duty
to assert arbitration as a defense in its answer because
Gembarski, the only named class representative, was
not subject to an arbitration agreement that had
been entered into by unnamed putative class members. A
defendant need not raise defenses that are related only to
unnamed putative class members because those unnamed putative
class members are not parties to the action prior to class
certification. Thus, because arbitration was not available as
a defense at the time PartsSource submitted its answer,
PartsSource could not waive a right to assert arbitration at
that time, as PartsSource had no such right to waive.
4} Prior to Gembarski's motion to certify a
class, PartsSource had no duty to raise an argument that,
because unnamed putative class members were parties to
arbitration agreements, Gembarski-as the representative of
that class-failed to satisfy Civ.R. 23(A)'s typicality
and adequacy requirements. Nor does any of Ohio's Rules
of Civil Procedure require PartsSource to file a motion to
strike the class action. The burden to certify the class
action or to maintain the class action is never on the
5} Thus, because PartsSource denied Gembarski's
averment that he met the requirements of Civ.R. 23(A) when it
filed its answer, PartsSource properly preserved its
arguments alleging that because unnamed putative class
members were parties to arbitration agreements and Gembarski
was not, Gembarski failed to satisfy Civ.R. 23(A)'s
typicality and adequacy requirements. Accordingly, we reverse
the judgment of the court of appeals and remand the cause to
that court for consideration of PartsSource's assignments
of error in light of this opinion.
6} In October 2012, Gembarski filed a class-action
complaint against his former employer, PartsSource, in the
Summit County Court of Common Pleas. Gembarski asserted
claims of breach of contract, unjust enrichment, conversion,
equitable restitution, constructive trust, and "money
had and received." Each claim was asserted on behalf of
the putative class. Gembarski claimed that while he worked
for PartsSource, PartsSource improperly withheld and deducted
commissions earned by Gembarski and other account managers.
Gembarski argued that his claims were typical of the putative
class, which included current and former PartsSource account
managers and employees, and that he would fairly and
adequately protect the class as the named representative.
7} PartsSource filed an answer to the complaint,
denying the allegations as to each class-action requirement
(including typicality and adequacy) and denying that the
lawsuit could be maintained as a class action. Shortly
thereafter, the parties agreed to transfer the case to the
Portage County Court of Common Pleas.
8} The parties agreed to participate in private
mediation but came to no resolution. The case was removed to
federal court but was then remanded to the Portage County
Court of Common Pleas. In September 2015, Gembarski, for the
first time, filed a motion asking that the trial court
certify the case as a class action.
9} PartsSource opposed Gembarski's motion to
certify the class action. PartsSource argued that it had
instituted an alternative-dispute-resolution program in
January 2011 and that, under that program, employees who
entered into an arbitration agreement waived their right to
file a lawsuit in favor of a "three-step process
culminating in mandatory and binding arbitration."
Claims covered under the arbitration agreement included
claims arising from or relating to the employees'
employment. Gembarski, however, had refused to sign the
arbitration agreement. So PartsSource alleged that Gembarski
could not meet the typicality requirement necessary for his
motion to certify the class to be granted because his claims
or defenses were not typical of the claims or defenses of the
putative class "where employees who signed arbitration
agreements * * * would be precluded from participating in
[the] case as absent class members." PartsSource also
claimed that Gembarski failed to establish adequacy, as his
interests diverged from those putative class members who were
subject to the arbitration agreement with PartsSource.
10} Gembarski argued that PartsSource had waived
"the defense of arbitration." Gembarski claimed
that PartsSource knew of "its alleged right to
arbitrate" at the onset of the litigation. Gembarski
maintained that because PartsSource participated in the
litigation and had not asserted an "arbitration
defense," PartsSource acted inconsistently with
"its alleged right of arbitration." Gembarski
concluded that because PartsSource waived an
"arbitration defense," there was "nothing
stopping, barring or otherwise prohibiting the absent class
members from participation in the class action as a
participating class member." (Emphasis sic.)
11} PartsSource countered that it did not waive
"the issue of arbitration." PartsSource argued that
it never had a right to demand arbitration from Gembarski.
PartsSource contended that it would have been premature to
raise any argument related to arbitration prior to the
class-certification phase of the litigation. PartsSource
added that it could not determine the defenses that may apply
to unnamed putative class members given that Gembarski's
proposed class definition was "a moving target"
that remained a "little more than the shadow of an idea
based in speculation about who might be in this class,"
particularly since Gembarski had proposed at least three
class definitions over the course of the proceedings.
12} After holding a hearing, the magistrate assigned
by the common pleas court recommended that the court grant
Gembarski's motion for class certification. The
magistrate determined, in its findings of fact and
conclusions of law, that PartsSource had waived "the
defense of arbitration it ha[d] asserted in this
matter." The magistrate found that PartsSource knew
"of its alleged right to arbitrate since the onset of
the filing of Plaintiff s Class Action Complaint" and
yet, over the course of several years of litigation,
PartsSource did not "raise the defense of
arbitration" until it opposed Gembarski's motion for
class certification. The magistrate further found that
PartsSource "actively and vigorously" participated
"in litigation in three (3) different Courts without
once mentioning, let alone affirmatively seeking,
arbitration." The magistrate determined that
PartsSource's actions were "manifestly inconsistent
with its alleged right of arbitration." Thus, the
magistrate concluded that PartsSource "fully and
expressly waived any right of arbitration in this
13} PartsSource filed numerous objections to the
magistrate's decision. PartsSource objected to the
magistrate's conclusions that PartsSource had waived any
argument regarding arbitration and that even though Gembarski
had refused to sign the arbitration agreement with
PartsSource, and thus was not subject to that agreement,
PartsSource should have raised the arbitration argument
against Gembarski prior to his seeking to certify a class.
The Portage County Court of Common Pleas reviewed the