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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARK A. PROSSER, et al., 

 Case No. 2:12-cv-0883 

 Plaintiffs, JUDGE GREGORY L. FROST 

 Magistrate Judge Kemp 

v. 

 

XTO ENERGY, INC., et al., 

 Defendants. 

OPINION AND ORDER

 This matter is before the Court on the following filings: 

1. Defendant XTO Energy, Inc.’s motion to dismiss for Plaintiffs’ failure to join absent 

parties (ECF No. 33), Plaintiffs’ response in opposition (ECF No. 42), and Defendant’s 

reply in support of its motion (ECF No. 44); and 

2. Plaintiffs’ application for entry of default (ECF No. 39), Defendant XTO Energy’s 

objection to Plaintiffs’ application for an entry of default (ECF No. 40), and Plaintiffs’ 

response to Defendant’s objection (ECF No. 43). 

For the reasons detailed below, the Court DENIES Defendant XTO Energy’s motion to 

dismiss, SUSTAINS Defendant’s objection to Plaintiffs’ application for default, and ORDERS 

Plaintiffs to obtain valid service of process upon the newly joined Defendants in the amended 

complaint within 60 days of the date of this Opinion and Order. 

I. 

This case arises out of an alleged breach of an oil and gas lease. In August 2012, 

Plaintiffs Mark A. Prosser and Greta L. Prosser filed a two-count complaint in the Belmont 

County (Ohio) Court of Common Pleas seeking (1) a declaratory judgment that they own the 

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entire fee simple interest in certain property located in Union Township, Belmont County, Ohio 

and (2) specific performance of an oil and gas lease they entered into with Defendant XTO 

Energy, Inc. (“XTO”). (Compl., ECF No. 3.) Plaintiffs alleged that XTO is in breach of the oil 

and gas lease and that XTO owes them $80,751.63. (Id. at && 17-18.) XTO timely removed the 

case to this Court in September 2012, invoking federal diversity jurisdiction. 28 U.S.C. § 1332. 

(ECF No. 1.) 

The allegations in the Complaint reveal a potential cloud upon title that is at the center of 

the parties’ dispute in the motions now before the Court. Plaintiffs allege that their predecessor 

in title—Anne Marie Hurchot—owned an undivided “one-fifth (1/5) interest” in the subject 

property by virtue of a deed conveyed and recorded in November 1982. (Am. Compl. & 4, ECF 

No. 29.) Plaintiffs further allege that John P. Korunych (aka John P. Kornick), Miro Korunych 

(aka Miro Cornish), Mike Korunych, Jr., and Nick Korunych (aka Nicholas Korunych) thereafter 

conveyed to Hurchot their “undivided four-sixths interest in” the relevant lands. (Id. at & 5.) 

Armed with a legal opinion from attorney John Costine attached to their Complaint, Plaintiffs 

contend that the “four-sixths” language was “merely a scrivener’s error” and that Hurchot 

actually received a four-fifths interest in the relevant lands, which would mean that Hurchot 

owned the entire fee simple interest in the property when she conveyed it to Plaintiffs. (Id. at ¶&

7-8.) 

On April 25, 2013, this Court granted Defendant XTO’s motion for joinder of required 

parties under Fed. R. Civ. P. 19(a). (Opinion and Order, ECF No. 27.) In light of the “foursixths” language in the conveyance to Hurchot, the Court found it possible that the Korunyches 

retained an interest in the property at issue. (Id. at PageID# 253.) Whether the “four-sixths” 

language was a “scrivener’s error” was an “issue to be determined with those absent parties 

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present, at least in a case like this one where there is an evident discrepancy on the face of the 

deeds to the relevant property.” (Id. at PageID# 254.) The Court ordered Plaintiffs to file an 

amended complaint joining the absent parties in the action. (Id. at PageID# 255.) 

Plaintiffs filed their amended complaint on May 15, 2013. (ECF No. 29.) Plaintiffs 

named “John P. Korunych, a/k/a John P. Kornick,” “Miro Korunych, a/k/a Miro Cornish,” “Mike 

Korunych, Jr.,” and “Nick Korunych, a/k/a Nicholas Korunych” as additional Defendants, as 

well as their “unknown spouse[s], heirs, guardians, devisees, personal representatives, and/or 

assignees, if any.” (Id. at PageID# 264-65.) Plaintiffs noted on their complaint that the 

residence addresses of these new Defendants were “all unknown.” (Id.) Attached to the 

amended complaint were exhibits showing that Plaintiffs served the new Defendants by 

publication only. (ECF Nos. 29-2, 29-3, 29-4, and 29-5.) In an affidavit attached to the 

amended complaint, attorney Kyle W. Bickford stated the basis for serving the newly joined 

Defendants by publication. (ECF No. 29-2.) Bickford stated, among other things, that (1) a 

review of the “Index to Estates” in the Belmont County Probate Court revealed no estates for any 

of the newly joined Defendants, (2) a “due diligence search of public records on Lexis Nexis” 

failed to produce residential addresses for the newly joined Defendants, and (3) “[a]ll of the 

efforts made on behalf of Plaintiffs to ascertain the residences” of the newly joined Defendants 

“were unsuccessful.” (Id. at ¶¶ 6-9.) 

When none of the newly joined Defendants answered otherwise responded to the 

amended complaint following service by publication, Plaintiffs applied to the Clerk of Courts for 

an entry of default. (ECF No. 39.) Defendant XTO objects to an entry of default by the Clerk 

and also moves the Court for dismissal of this action due to Plaintiffs’ failure to properly join the 

new Defendants. (ECF No. 33.) 

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II. 

A. Defendant XTO’s Motion to Dismiss 

As XTO correctly points out in its motion to dismiss, this Court’s previous Order 

recognized that the previously absent parties (viz., the Korunyches identified above) must be 

joined in this action in order for the Court to make a complete determination as to the ownership 

of the subject property. (Def.’s Mot., ECF No. 33 at PageID# 325; see also Opinion and Order, 

ECF No. 27 at PageID# 252.) Despite Plaintiffs’ filing of an amended complaint adding the 

Korunyches as parties, XTO contends that the Court should nonetheless dismiss this action 

because Plaintiffs have not added the new Defendants through proper service of process. (ECF 

No. 33 at PageID# 326.) Service by publication does not suffice in this case, argues XTO, 

because Plaintiffs have not demonstrated the requisite diligence in ascertaining the residence 

addresses of the newly joined Defendants. 

Fed. R. Civ. P. 4(e) provides that an individual “may be served in a judicial district of the 

United States by . . . following state law for serving a summons in an action brought in courts of 

general jurisdiction in the state where the district court is located or where service is made.” In 

resorting to service by publication, Plaintiffs relied on this provision of the Federal Rules. 

Indeed, in their opposition to XTO’s motion, Plaintiffs cite Ohio Rev. Code § 2703.14(I) and 

Ohio Civil Rule 4.4 as authority allowing for service by publication. Under Ohio law, however, 

“a plaintiff must exercise reasonable diligence in his attempt to locate a defendant before he is 

entitled to service by publication.” Sizemore v. Smith, 6 Ohio St. 3d 330, 331, 453 N.E. 2d 632 

(Ohio 1983). 

Upon review of the briefing, the Court agrees with XTO: neither the Bickford affidavit 

nor Plaintiffs’ opposition to XTO’s motion shows the requisite due diligence to justify service by 

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publication. Bickford’s affidavit attests that Plaintiffs’ efforts to locate the newly joined 

Defendants were limited to (1) reviewing property and probate records in Belmont County, Ohio 

and (2) an unspecific public records search on Lexis Nexis®. (Bickford Aff. ¶¶ 5-7, ECF No. 

29-2.) Under different facts, these efforts might suffice to establish due diligence on Plaintiffs’ 

part to ascertain the residence addresses of the newly joined parties. But under the facts of 

record here, these efforts fall short of showing due diligence. 

For one thing, the Court is puzzled as to why Plaintiffs limited their property and probate 

searches to Belmont County, Ohio. As XTO points out, the deed that includes the “four-sixths” 

language that is at issue in this case reveals that Defendant John P. Korunych (aka John Kornick) 

executed the deed in Prince George’s County, Maryland, Defendant Miro Korunych executed it 

in Los Angeles County, California, Defendant Mike Korunych, Jr., executed it in Adams County, 

Colorado, and Defendant Nicholas Korunych (aka Nick Korunych) executed it in Tarrant 

County, Texas. (ECF No. 29-1, at PageID# 281-82.) Despite this information, there is no 

indication that Plaintiffs searched in these places for addresses at which to serve the newly joined 

Defendants. 

Also illustrative of the lack of due diligence is the affidavit of Daniel Broidy, a summer 

intern who was employed at the law offices of XTO’s counsel. Using basic internet searches, 

Broidy was able to locate, in less than 20 minutes, information pertaining to a John P. Kornick, a 

Mike Korunych, and a Nicholas Korunych in the states where each of them executed the deed at 

issue. (Broidy Aff. ¶¶ 4-7, ECF No. 33-1.) Broidy learned that John P. Kornick died in 1986 

and estates in his name were opened and closed in Prince George’s County, Maryland. (Id. at ¶ 

5.) Broidy also located information that a Nicholas Korunych died in 1996 and that his last 

residential address was in Fort Worth, Texas. (Id. at ¶ 6.) He also located information that a 

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Mike Korunych who resided in Aurora, Colorado, died in 1996, and also found documentation 

that a Maria Korunych residing at the same address is apparently still living. (Id. at ¶ 7.) The 

fact that this information was able to be gleaned from a 20-minute internet search cuts against a 

finding that Plaintiffs exercised due diligence before resorting to service by publication. 

In their response to XTO’s motion, Plaintiffs seem to acknowledge that they found some 

of the same information in their Lexis Nexis search as Broidy found in his internet search. (Pls.’ 

Opp., ECF No. 42 at PageID# 380.) Plaintiffs contend, however, that the information on John P. 

Korunych was “minimal” and “inconclusive.” (Id.) Plaintiffs also contend that the “locator 

service” provided no results for Miro or John Korunych and that the Lexis-Nexis database 

provided no “potential relatives” for Nicholas Korunych in Plaintiffs’ search results. (Id.) Also, 

because of the dates on which Michael Korunych and Nicholas Korunych died, Plaintiffs 

contend that online records produced no “reasonably current address.” (Id. at PageID# 380-81.) 

Finally, as to Maria Korunych, Plaintiffs say it is “not conclusive” that she is an heir to Michael 

Korunych’s estate. (Id. at PageID# 382.) 

Plaintiffs’ justifications, however, do not establish due diligence; if anything, they 

corroborate the fact that there was information that provided at least a starting point to ascertain 

possible addresses for service upon the newly joined Defendants or their estates. Instead of 

investigating these leads any further, it appears that Plaintiffs simply concluded they would not 

be fruitful and resorted instead to service by publication. Service by publication, however, is a 

last resort device. Anstaett v. Benjamin, 1st Dist. No.C-10376, 2002-Ohio-7339, at ¶ 15 (Ohio 

Ct. App. Dec. 31, 2002). On the record before it, with the information that Plaintiffs had at their 

disposal, the Court cannot say that Plaintiffs had to go to the last resort of service by publication. 

With information that the newly joined Defendants resided in other states before their deaths and 

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that at least one possible heir to a newly joined Defendant was living in Colorado, it is dubious to 

conclude that service by publication in Belmont County, Ohio was the best that Plaintiffs could 

do here. 

While the Court agrees with Defendant XTO that Plaintiffs failed to exercise due 

diligence before resorting to service by publication, the Court does not deem dismissal of 

Plaintiffs’ action to be the proper course of action at this time. Though XTO moves to dismiss 

under Fed. R. Civ. P. 19, dismissal under that rule is appropriate only if “a person who is 

required to be joined if feasible cannot be joined.” Fed. R. Civ. P. 19(b). The basis of XTO’s 

motion, however, is not that joinder of the new Defendants is not feasible; rather, XTO contends 

that Plaintiffs did not try hard enough to serve the new Defendants before resorting to service by 

publication. Accordingly, while the Court does not foreclose the possibility that dismissal may 

be appropriate under Rule 19 if joinder proves not to be feasible, the rule does not provide a 

basis to dismiss the action at this time. 

For these reasons, the Court DENIES Defendant XTO’s motion to dismiss for failure to 

properly join the absent parties. Based on the Court’s ruling today that Plaintiffs have not 

properly served the newly joined Defendants, Plaintiffs have failed to serve the newly joined 

Defendants within 120 days, as required by Fed. R. Civ. P. 4(m). Pursuant to Fed. R. Civ. P. 

4(m), the Court ORDERS Plaintiffs to serve the newly joined Defendants within 60 days of the 

date of this Opinion and Order. Failure to do so may result in dismissal of the newly joined 

Defendants under Fed. R. Civ. P. 4(m) and possible dismissal of this action under Fed. R. Civ. P. 

19(b). 

 

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B. Plaintiffs’ Application for Default 

Plaintiffs filed with the Clerk an application for default under the theory that the newly 

joined Defendants failed to plead in response to the amended complaint within the time required 

under the Federal Rules of Civil Procedure following final publication of Plaintiffs’ purported 

service by publication. (ECF No. 39.) Defendant XTO objects to an entry of default, however, 

based on its position that service by publication was improper. (ECF No. 40.) 

 The Court SUSTAINS Defendant XTO’s objection. As Plaintiffs have not perfected 

service of process upon the new Defendants joined in the amended complaint, Plaintiffs are not 

entitled to an entry of default. 

III. 

For the foregoing reasons, the Court DENIES Defendant XTO’s motion to dismiss (ECF 

No. 33). The Court also SUSTAINS Defendant XTO’s objection (ECF No. 40) to Plaintiffs’ 

application for an entry of default (ECF No. 39). The Court ORDERS Plaintiffs to obtain 

service of process upon the newly joined Defendants in the amended complaint within 60 days of 

the date of this Opinion and Order. 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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