Cirino v. Bureau of Workers' Comp., Case No. 2018-01140JD

2020 Ohio 3165

MICHAEL CIRINO Plaintiff v. BUREAU OF WORKERS' COMPENSATION Defendant

Case No. 2018-01140JD

Court of Claims of Ohio

To S.C. Reporter June 3, 2020

February 28, 2020

Judge Patrick M. McGrath

DECISION

{¶1} Plaintiff Michael Cirino, on his behalf and on behalf of a proposed class, moves for partial summary judgment on the issue of liability. Cirino also moves for certification of the proposed class, for leave to file a reply instanter, and for leave to file a memorandum and reply instanter. Defendant Bureau of Workers' Compensation (BWC) opposes Cirino's motions for partial summary judgment, class certification, and leave to file a reply instanter. BWC moves for a summary judgment in its favor and BWC moves to strike both Cirino's reply and Cirino's response to BWC's summary-judgment motion.

{¶2} For reasons set forth below, the court (1) denies Cirino's motion for partial summary judgment, (2) denies as moot Cirino's motion for class certification, (3) accepts Cirino's untimely response to BWC's summary-judgment motion, (4) denies as moot Cirino's motions for leave instanter, (5) grants BWC's summary-judgment motion, and (6) denies BWC's motion to strike.

I. Background and Procedural History

{¶3} In 2010, Cirino sued BWC in the Cuyahoga County Common Pleas Court, challenging the legality of fees incurred by some BWC recipients. BWC moved to dismiss Cirino's suit for lack of subject-matter jurisdiction. The common pleas court denied the motion and, on appeal, the Eighth District Court of Appeals affirmed. On BWC's motion, the Supreme Court of Ohio granted discretionary review. Reversing the appellate court, the Supreme Court of Ohio held that Cirino's suit against BWC in the Cuyahoga County Common Pleas Court was within the exclusive jurisdiction of this court—not within the subject-matter jurisdiction of the common pleas court. Cirino v. Ohio Bur. of Workers' Comp., 153 Ohio St.3d 333, 2018-Ohio-2665, 106 N.E.3d 41. The Supreme Court of Ohio vacated all orders issued by the common pleas court, including an order certifying a class, and remanded the case to the common pleas court for dismissal for lack of subject-matter jurisdiction. Cirino at ¶ 1, 31.

{¶4} Cirino thereafter filed a "class action complaint" in this court that is premised on the same circumstances as those that underlay the lawsuit in Cirino. The Supreme Court of Ohio discussed those circumstances in Cirino at ¶ 9-11, stating:

Cirino began receiving workers' compensation benefits in 2009. He was entitled to $443 per week, which was paid to him on a biweekly basis in the amount of $886. At first he received his payments by paper check, which he deposited in his account with PNC Bank. After receiving a few paper checks, however, he was notified that his payments would be made electronically and he would be enrolled in the debit-card program if he did not elect to receive direct deposits. Cirino testified that he did not want to provide the bureau with his bank-account number, which was required in order to receive payments by direct deposit. He was therefore sent a debit card and enrolled in the debit-card program.

After he received the debit card, Cirino activated it and made a withdrawal of his $886 biweekly benefit in cash from a teller at a Chase branch location. Later that same month, he attempted to make a second in-person withdrawal of $886, but his request was denied because his account did not have enough funds to provide him with $886 while also covering the $5 fee for making a second in-person withdrawal in the same month. Cirino then went to a teller at another branch and withdrew $881 in cash, incurring a $5 fee for the transaction.

After this, Cirino spoke to an attorney, who informed him that the $5 charge was a service fee imposed by Chase. Cirino continued to withdraw cash through multiple teller visits per month, incurring numerous additional $5 fees.

Thus, Cirino chose to incur a fee for the convenience of a teller transaction.¹

{¶5} Cirino asserts in this case that BWC acted unlawfully when BWC permitted JPMorgan Chase Bank, N.A. (Chase Bank) to charge fees in the implementation of a BWC-authorized "debit card program," which, in Cirino's view, permitted BWC to shift administrative costs to BWC claimants in violation of R.C. 4123.341. Cirino further asserts that BWC violated duties set forth in R.C. 4123.67 by providing Cirino, and other members of a proposed class, with a method or mode of payment that was subject to monthly withholding of transaction fees, charges, costs, or expenses. Cirino seeks, among other things, legal, declaratory, injunctive, and other equitable relief.

{¶6} On BWC's motion for partial judgment on the pleadings, the court granted judgment in favor of BWC on Cirino's equitable claims, excepting Cirino's claims for declaratory relief and injunctive relief.²

{¶7} Cirino moved for class certification and partial summary judgment on liability.³ BWC moved (1) for an extension of time to file responses to Cirino's motions for class certification and partial summary judgment and (2) to stay any ruling on class certification until after the court issued a ruling on Cirino's motion for partial summary judgment on liability.

{¶8} The court granted BWC's motions, staying consideration of Cirino's motion for class certification until all summary judgment proceedings have been determined and permitting BWC to file responses to Cirino's motions for class certification and partial summary judgment within 120 days of the court's entry.

{¶9} Thereafter, BWC filed a document labeled "Defendant's Combined Motion For Summary Judgment And Memorandum In Opposition to Plaintiff's Motion For Partial Summary Judgment On Liability." Cirino moved (1) for an extension of time until July 1, 2019, to submit a response to BWC's combined motion for summary judgment and opposing memorandum, and (2) for leave to file a reply in support of Cirino's motion for class certification. The court granted Cirino's motions.

{¶10} On July 2, 2019—a day after the date requested by Cirino—Cirino filed a response to BWC's cross-motion for summary judgment and a reply in support of Cirino's motion for class certification. On July 2, 2019, Cirino also moved for leave to file a reply instanter. That same day (July 2, 2019) BWC moved to strike Cirino's response and reply because Cirino failed to timely file them. On July 3, 2019, Cirino filed a response opposing BWC's motion to strike; Cirino also moved for leave to file a memorandum and reply instanter. Notwithstanding that Cirino's response and reply, which Cirino filed on July 2, 2019, are untimely, the court determines that Cirino'suntimely response and untimely reply should be accepted in the interest of justice. The court also determines that BWC's motion to strike should be denied. The court further determines that Cirino's motion of July 2, 2019, for leave to file a reply instanter should be denied as moot, and that Cirino's motion of July 3, 2019, for leave to file a memorandum and reply instanter should be denied as moot.

II. Summary of the parties' arguments.

{¶11} In Cirino's partial summary-judgment motion, Cirino asserts that BWC failed to pay full benefits to him and certain BWC claimants because, in Cirino's view, Chase Bank improperly assessed fees when Chase Bank administered a BWC-authorized electronic-benefit-transfer (EBT) card program. Cirino contends that a partial summary judgment on liability should issue in his and certain claimants' favor because "[b]ased upon the evidence in the record complying with Civ.R. 56(E), reasonable minds could only conclude that the Bureau has violated R.C. 4123.341 by shifting the cost of the EBT [electronic benefits transfer] program to those injured workers who are unable to avoid the fees that are being deducted from their accounts by Chase." (Motion, 15.)

{¶12} BWC maintains that Cirino's motion for partial summary judgment on liability should be denied because BWC delivered full benefits to Cirino's EBT account and Cirino could access his account without incurring fees. BWC further contends that its EBT card program operated through Chase Bank did not violate any statute or legal duty, that Cirino's claims do not give rise to a private cause of action for which Cirino may recover money damages, and that there is no basis to grant non-monetary equitable relief in this case.

{¶13} Cirino maintains that BWC exceeded its statutory authority by granting Chase Bank the ability to collect fees through a service agreement of December 22, 2006. Cirino contends that the "entire process was illegal, and the obvious result was that the injured workers did not receive '100 percent of [their] benefit' as both required by R.C. 4121.39(B) and (C) and promised in the Electronic Benefit Card Agreement." (Response, 3.) Cirino further contends that neither he nor the proposed class members were warned that any fees would be charged.

{¶14} BWC also opposes Cirino's motion for class certification, urging, among other things, that Cirino's proposed class is too broad, that Cirino is not representative of all members of the proposed class, and that there is no predominant question of law common to all proposed class members, and that the claims and defenses applicable to the facts of Cirino's claims are not typical of the claims and defenses of all proposed class members. Additionally, BWC implies that Cirino's counsel engaged in misconduct during discovery and BWC suggests that Cirino's counsel therefore is unfit to serve as counsel for the proposed class.

{¶15} In his reply, Cirino contends that, notwithstanding BWC's argument that Cirino's proffered class is over-broad and too inclusive, of significance is BWC's practice of charging BWC benefit recipients any fees to access their benefits under the EBT program. Cirino reasons that the "happenstance that different class members were assessed different categories of fees is thus hardly a meaningful or...