COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

MARLENE VONDERHAAR CASE NO. A0900918

Plaintiff Judge Ralph Winkler

Vs. MOTION TO STAY SUMMARY

JUDGMENT MOTIONS AND TO
CONTINUE TRIAL DATE
BANKUNITED, ET AL

Defendants

Comes the Plaintiff and, pursuant to Rule 56(F), moves this court to stay the pending

motions for summary judgment filed by the Defendants BankUnited and Allied and to continue

the date for trial set in this matter of June 21, 2010 to a later date.. Plaintiff requests this

continuance pursuant to Civ. R. 56(F) because discovery has yet to finish and Plaintiff requires

additional time to complete discovery as it relates to these Motions for Summary Judgment.

Plaintiff has asked for no previous continuances and this Motion is not meant to unnecessarily

delay these proceedings.. A memorandum in support of these motions follows below.

___________________________________
James V. Magee, Jr. (0006809)
36 East 7th Street, Suite 2020
Cincinnati, Ohio 45202
Phone: 513-621-9660
Fax: 513-345-3900
Email: jvmageejr@mageelaw.com
Attorney for Defendants Yeary

MEMORANDUM

This is an action commenced in January with the filing of a multi-cause Complaint by the

Plaintiff against the Defendants BankUnited, Allied and others. Service was timely completed
and all parties have answered. Interrogatories and Requests for Production of Documents and

Requests for Admissions have been served by the Plaintiff on Defendants BankUnited and Allied

and they have likewise file paper discovery on the Plaintiff and have taken her deposition. On

May 7, 2010, Defendant BankUnited responded to discovery requests that had been made on it

prior to the termination of the discovery cutoff date. Then within the last week Notice of

Deposition of a material witness, Amy Long was served and her deposition set to be taken in

Columbus, Ohio on Monday May 17, 2010. In addition the deposition of Christopher Campbell,

a defendant was scheduled by agreement to also be taken in Columbus, Ohio on Monday May

17, 2010. It is anticipated that unless expedited service is requested in regard to these

depositions that the time for response to the motions for summary judgment will have passed.

The multiple motions for summary judgment were filed on April 30, 2010.

In addition, the Defendant BankUnited filed the deposition transcript of one Sandra

Wiley, an employee of Allied Home Mortgage Capital Corporation, which was taken in a case in

Federal court in the Northern District of Ohio in the case of Marvin and Barbara Boyd v. Allied

Home Mortgage Capital Corporation, et al. Plaintiff neither had the opportunity to participate in

the deposition and will need to determine whether this deposition should be stricken from the

pending matter.

Civ. R. 56(F) provides as follows:

Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party’s opposition, the
court may refuse the application for judgment or may order a continuance
to permit affidavits to be obtained or discovery to be had or may take such
other order as is just.

The decision to allow additional time under Civ.R. 56(F) is within a trial court’s sound

discretion and authorizes a trial court to grant a party seeking a continuance additional time to
respond to summary judgment where that party for some valid reason cannot even compose an

affidavit to justify denial of summary judgment.1 Further, under Civ.R. 56(F), a party who seeks

a continuance for further discovery is not required to specify what facts the party hopes to

discover, especially where the facts are in the control of the party moving for summary

judgment.2

The plaintiff cannot begin to address the multiple motions for summary judgment until

such time as the depositions of Amy Long and Christopher Campbell can be taken, transcribed,

reviewed and absorbed. And the voluminous documentation provided by Defendant BankUnited

on May 7, 2010, as well as the potential to require additional information or argue the depth of

discovery requested against that presented, necessitates a continuance of both the summary

judgment motions and the trial date.

Respectfully submitted,

__________________________________
James V. Magee, Jr.

1
Ramos v. Khwali, (7th dist. Mahoning Co., 2009)181 Ohio App. 3d 176
2
Drake Constr. Co. v. Kemper House Mentor, Inc., (11th Dist. Lake Co. 2007) 170 Ohio App. 3d 19.
 CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing Motion by ordinary US Mail, postage

prepaid, this 14th day of May, 2010 upon the following:

Nada G. Faddoul, Esq.

Terrence L. Seeberger, Esq.
Stark & Knoll
3475 Ridgewood Rd.
Akron, Ohio 44333

James S. Wertheim, Esq.

Brooke Turner Bautista, Esq.
McGlinchey Stafford, PLLC
25550 Chagrin Blvd., Suite 406
Cleveland, Ohio 44122

______________________________
James V. Magee, Jr.