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Fairley v. Lorain County Probate Court, Clerk of Court

Court of Claims of Ohio

December 17, 2019

JULIETTE FAIRLEY Requester
v.
LORAIN COUNTY PROBATE COURT, CLERK OF THE COURT Respondent

          Sent to S.C. Reporter 1/16/20

          DECISION AND ENTRY

          PATRICK M. MCGRATH JUDGE

         {¶1} Requester Juliette Fairley, a self-represented litigant, has filed a document labeled "Request for Judicial Notice." Fairley also has filed a document labeled "Supplement to Requester's Response to Request for Judicial Notice and to Deny Dismissal."

         I. Background

         {¶2} On August 21, 2019, pursuant to R.C. 2743.75(D), Fairley sued respondent Lorain County Probate Court, Clerk of Court, alleging a denial of access to public records. The court appointed a special master in the cause. The court, through the special master, referred the case to mediation. After mediation failed to successfully resolve all disputed issues between the parties, respondent, through counsel, moved for dismissal pursuant to Civ.R. 12(B)(6) (failure to state a claim upon which relief can be granted).

         {¶3} On November 6, 2019, the special master issued a report and recommendation (R&R) wherein he recommended dismissal of Fairley's complaint pursuant to Civ.R. 12(B)(1) (lack of subject-matter jurisdiction).

         {¶4} On November 18, 2019-five business days after Fairley received a copy of the R&R-she filed a document labeled "Request for Judicial Notice." According to a certificate of service accompanying Fairley's document, Fairley sent a copy of the document "via email and the United States Postal Service first class with adequate postage prepaid" to respondent's counsel.

          {¶5} On December 4, 2019, Fairley submitted another filing, which is labeled "Supplement to Requester's Response to Request for Judicial Notice and to Deny Dismissal." With this filing Fairley appended an order of the special master that is dated November 22, 2019 (Exhibit A). In the filing Fairley "requests that [the court] supplement her response with the decision (EXH A), deny dismissal and instead issue an Order that requires the Honorable Clerk of the Lorain County Probate Clerk to uphold press freedom and release the records queried." According to a certificate of service accompanying Fairley's filing, Fairley served the document on respondent's counsel by email and first-class mail, postage prepaid.

         {¶6} The court's docket identifies Fairley's filing of November 18, 2019, as an objection to the special master's decision of November 6, 2019. The court's docket lists Fairley's filing of December 4, 2019, as a miscellaneous filing.

         II. Law and Analysis

         1. R.C. 2743.75(F)(2) governs objections to a special master's report and recommendation.

         {¶7} R.C. 2743.75(F)(2) sets forth the standard for reviewing objections to a special master's R&R issued under R.C. 2743.75. Pursuant to R.C. 2743.75(F)(2), [e]ither party may object to the report and recommendation within seven business days after receiving the report and recommendation by filing a written objection with the clerk and sending a copy to the other party by certified mail, return receipt requested. Any objection to the report and recommendation shall be specific and state with particularity all grounds for the objection. If neither party timely objects, the court of claims shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect evident on the face of the report and recommendation. If either party timely objects, the other party may file with the clerk a response within seven business days after receiving the objection and send a copy of the response to the objecting party by certified mail, return receipt requested. The court, within seven business days after the response to the objection is filed, shall issue a final order that adopts, modifies, or rejects the report and recommendation.

         2. Fairley's filing of November 18, 2019, is a request for judicial notice-not an objection. Fairley's request for judicial notice is not well-taken.

         {¶8} Whether Fairley's filing of November 18, 2019, constitutes an objection, as contemplated under R.C. 2743.75(F)(2), is dubious because (1) the filing is plainly denominated as a "Request for Judicial Notice," (2) the word "objection," "object," or a variant of "object" does not appear within the body of the filing, and (3) the filing does not challenge the R&R issued by the special master, including the special master's recommendation for dismissal for lack of subject-matter jurisdiction. Rather, in the filing Fairley asks the court to take judicial notice of a news article purportedly published on November 15, 2019, which, according to Fairley, pertains to "a motion filed in the Cuyahoga County Court of Common Pleas that would limit subpoena power in the underlying racketeering claim that is currently pending before Judge Sherrie Miday relating to the Guardianship of Mrs. Fourough Bakhtiar [Saghafi] in the Lorain County Probate Court." Fairley ...


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