1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

RICHARD MATHEWS, et al., 

 Plaintiffs, 

 vs. Civil Action 2:12-cv-1033 

 Magistrate Judge King 

OHIO PUBLIC EMPLOYEES RETIREMENT 

SYSTEM, 

 Defendant. 

OPINION AND ORDER

 This matter is before the Court, with the consent of the parties 

pursuant to 28 U.S.C. § 636(c), for consideration of the Motion for 

Judgment on the Pleadings of Plaintiff, Richard Mathews, ECF 26 

(“Plaintiff’s Motion”), and Ohio Public Employees Retirement System’s 

Motion for Leave to File Amended Answer and Counterclaim, Instanter, 

ECF 27 (“Motion to File Counterclaim”). 

I. PROCEDURAL BACKGROUND 

On November 8, 2012, plaintiff Richard Mathews1

 and his wife, 

Sandra Mathews, filed this action, asserting eight claims based on the 

termination of his disability retirement benefits. Complaint, ECF 2. 

Upon OPERS’ motion to dismiss, ECF 4, this Court dismissed all claims 

except plaintiff’s Fourteenth Amendment procedural due process claim. 

Opinion and Order, ECF 14. In reaching this decision, the Court 

specifically concluded that Ms. Mathews lacked standing to pursue her 

 

1 Unless otherwise specified, all references to “plaintiff” are to Richard 

Mathews. 

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claims based on the termination of her husband’s disability retirement 

benefits. Id. On October 4, 2013, OPERS filed an answer, denying 

liability and asserting a counterclaim for recovery of alleged 

overpaid benefits and for declaratory judgment. Answer and 

Counterclaim of Defendant Ohio Public Employees Retirement System, ECF 

15 (“Answer and Counterclaim to Original Complaint”). 

Following a pretrial conference with counsel for the parties, the 

Court issued a scheduling order pursuant to the provisions of Fed. R. 

Civ. P. 16(b), noting that OPERS had asserted a counterclaim and 

requiring plaintiff to reply to the counterclaim by October 25, 2013. 

Preliminary Pretrial Order, ECF 16, p. 1. The Court also established 

deadlines for plaintiff’s anticipated motion for leave to file an 

amended complaint as well as briefing of that motion. Id. The Court 

also set deadlines for completing discovery and filing motions for 

summary judgment at, respectively, February 28, 2014 and March 31, 

2014. Id. at 2. 

In later granting plaintiff’s motion for leave to amend the 

complaint, the Court noted that, although the proposed amended 

complaint purported to reassert all of plaintiffs’ previously 

dismissed claims, including claims on behalf of Ms. Mathews, 

plaintiffs clarified that they were merely trying to preserve the 

claims for appeal and not “attempt[ing] to resurrect these claims at 

this time.” Opinion and Order, ECF 22, pp. 5-6 (quoting plaintiffs’ 

reply memorandum, ECF 21, p. 4). Accordingly, the claims remaining 

for the Court’s consideration are plaintiff Richard Mathews’ 

procedural due process claims pursuant to the Fourteenth Amendment and 

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O.R.C. § 145.362 (addressing, inter alia, termination of disability 

benefits). Id. at 6. See also First Amended Complaint, ECF 23, ¶¶ 

41-43, 70-73 (“Amended Complaint”). Plaintiff seeks the following 

relief: 

(a) That Defendant be permanently enjoined from 

withholding Plaintiffs [sic] full disability retirement 

benefits; 

(b) That defendant pay Plaintiffs the full and complete 

retirement benefits; 

(c) That Defendant be ordered to return Plaintiffs to full 

disability retirement benefits status quo ante; 

(d) That Defendant pay compensatory damages as appropriate 

to compensate Plaintiffs for their losses caused from 

Defendant’s misconduct in the amount of Eighty Thousand and 

no/00 Dollars ($80,000.00) from the date of termination 

through the date of the court’s appropriate Order granting 

relief; 

(e) That Defendant pay compensatory damages as appropriate 

to compensate Plaintiffs for their losses caused from 

Defendant’s misconduct in the amount of Twenty Thousand and 

no/00 Dollars ($20,000.00) representing the costs of health 

insurance benefits coverage(s) which Plaintiff’s [sic] now 

have to purchase and procure on their own and at their own 

expense; from the date of termination through the date of 

the court’s appropriate Order granting relief; 

(f) That Defendant pay compensatory damages as appropriate 

to compensate Plaintiffs for their losses caused from 

Defendant’s misconduct in an amount appropriate from the 

date of termination of Plaintiffs’ disability retirement 

benefits through the date of the court’s appropriate Order 

granting relief; 

(g) That Defendant pay Plaintiffs’ costs, expenses, and 

reasonable attorneys’ fees; 

(h) That this Court determine that Ohio Revised Code 

Sections 145.20, 145.01 and 145.362 deny OPERS [sic] and 

other disability retirants of their fundamental First 

Amendment Constitutional rights of freedom of speech, 

freedom of association and freedom to participate in the 

political process; 

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(i) That Ohio Revised Code Sections 145.20 and 145.01 are 

unconstitutional, unconstitutionally vague and ambiguous, 

as applied or otherwise; 

(j) That Ohio Revised Code Sections [sic] 145.362 is 

unconstitutional, on its face, as applied or otherwise; and 

(j)[sic] That this Court award such other and appropriate 

relief it deems proper, either at law or in equity. 

Id. at “Prayer for Relief,” pp. 16-17. 

On December 4, 2013, OPERS filed an answer to the Amended 

Complaint, Ohio Public Employees Retirement System’s Answer to the 

Amended Complaint, ECF 24 (“Answer to the Amended Complaint”), which 

did not include a counterclaim. In responding to the Amended 

Complaint, OPERS admitted, inter alia, that “it is not aware of any 

facts or circumstances arising prior to January 1, 2010 indicating 

Richard Mathews was no longer eligible for disability benefits” and 

averred, inter alia, that plaintiff’s “election to, and subsequent 

service with, the New Richmond village Counsel [sic] triggers the 

automatic termination provisions in R.C. 145.362.” Id. at ¶ 15. 

On February 27, 2014, Plaintiff’s Motion was filed. In that 

motion, plaintiff noted that OPERS had answered the Amended Complaint, 

but had not asserted a counterclaim. Plaintiff’s Motion, p. 2. 

Shortly thereafter, OPERS’ Motion to File Counterclaim was filed. 

Plaintiff opposes the Motion to File Counterclaim, see Plaintiff’s 

Memorandum in Opposition to Defendants [sic] Motion for Leave to File 

Amended Answer and Counterclaim, Instanter, ECF 29 (“Opposition to 

File Counterclaim”), and OPERS has filed a reply. See Reply in 

Support of the Ohio Public Employees Retirement System’s Motion for 

Leave, ECF 33 (“Reply in Support of Motion to File Counterclaim”). 

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In response to Plaintiff’s Motion, OPERS filed Ohio Public 

Employees Retirement System’s Joint Motion for Summary Judgment and 

Memorandum in Opposition to Plaintiff’s Motion for Judgment on the 

Pleadings, ECF 32 (“OPERS’ Motion for Summary Judgment”), which 

combines OPERS’ brief in opposition to plaintiff’s motion for judgment 

on the pleadings with its request for summary judgment. In response, 

plaintiff filed Plaintiff’s Brief in Opposition, Defendant’s Motion 

for Summary Judgment, ECF 36 (“Plaintiff’s Opposition to OPERS’ Motion 

for Summary Judgment”), and OPERS has filed a reply. Reply in Support 

of the Ohio Public Employees Retirement System’s Motion for Summary 

Judgment, ECF 37 (“OPERS’ Reply in Support of Motion for Summary 

Judgment”). No other briefs or motions have been filed in connection 

with Plaintiff’s Motion and OPERS’ Motion for Summary Judgment. 

II. MOTION TO FILE COUNTERCLAIM 

 OPERS seeks leave to file an amended answer and counterclaim 

instanter, taking the position that, although it was not required to 

re-file or re-plead its counterclaim, it nevertheless seeks leave to 

do so “in the interest of caution[.]” Motion to File Counterclaim, p. 

1.2

 OPERS contends that the approximate three-month interval between 

its original answer to the Amended Complaint and its present motion is 

minimal and that the grant of its Motion to File Counterclaim will not 

prejudice plaintiff. Id. at 1-2. OPERS further contends that, 

because the Preliminary Pretrial Order does not specify a deadline for 

amending pleadings, it is Rule 15(a) of the Federal Rules of Civil 

 

2 The Court refers to the page numbers appearing at the bottom of the page of 

the filing. 

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Procedure, rather than Rule 16(b), that controls OPERS’ request to 

file its proposed amended answer and counterclaim. Id. at 2. 

 Plaintiff disagrees, arguing that OPERS abandoned its 

Counterclaim when it failed to re-plead it in the Answer to the 

Amended Complaint. Opposition to Motion to File Counterclaim, pp. 1-3 

(citing Johnson v. Berry, 228 F. Supp.2d 1071 (E.D. Mo. 2002); Bremer 

Bank, Nat’l Ass’n, No. 06-1534, 2009 U.S. Dist. LEXIS 21055 (D. Minn. 

Mar. 13, 2009). Plaintiff also argues that the grant of leave to file 

the proposed amended answer and counterclaim will prejudice him 

because Plaintiff’s Motion was already pending at the time OPERS’ 

Motion to File Counterclaim was filed; the grant of OPERS’ motion 

would thereby “potentially destroy Plaintiff’s ability to dispose of 

this via its Motion for Judgment on the Pleadings.” Id. at 4. 

Finally, and noting that OPERS has conceded that its Answer to the 

Amended Complaint is a responsive pleading, not an amended pleading, 

plaintiff argues that the Preliminary Pretrial Order is irrelevant to 

the resolution of the Motion to File Counterclaim. Id. at 4-5. 

 OPERS insists, however, that it did not abandon its counterclaim 

and distinguishes plaintiff’s out-of-district cases. OPERS’ Motion 

for Summary Judgment, pp. 33-34;3 Reply in Support of Motion to File 

Counterclaim (incorporating by reference arguments raised in OPERS’ 

Motion for Summary Judgment).4

 OPERS also argues that other courts, 

 

3 The Court refers to the page numbers appearing at the bottom of the page of 

the filing. 

4 OPERS’ decision to incorporate by reference arguments raised in the briefing 

of OPERS’ Motion for Summary Judgment in connection with the briefing on the 

Motion to File Counterclaim unnecessarily complicates and extends briefing on 

the latter motion. Resolution of OPERS’ Motion to File Counterclaim requires 

consideration of six filings (the three filings related to the Motion to File 

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including the United States District Court for the Northern District 

of Ohio, have refused to follow these cited cases and that some courts 

have concluded that a failure to reassert counterclaims in response to 

an amended complaint did not constitute a waiver of the counterclaims. 

OPERS’ Motion for Summary Judgment, pp. 33-34 (collecting cases). 

OPERS insists that the grant of its Motion to File Counterclaim will 

not prejudice plaintiff, who had prior notice of OPERS’ intent to 

pursue its counterclaim and the opportunity to move for summary 

judgment on OPERS’ claims. Id. at 35. See also Reply in Support of 

Motion for Summary Judgment, pp. 17-18.5

 

 This Court agrees. As noted by OPERS, courts are divided on 

whether or not the Federal Rules of Civil Procedure require that a 

party replead a counterclaim in response to an amended complaint. 

Rule 13, which addresses counterclaims, provides that “a pleading” 

must state any compulsory counterclaims and that “a pleading” may 

state any permissive counterclaims. Fed. R. Civ. P. 13(a), (b). Rule 

15(a)(3) provides that, “[u]nless the court orders otherwise, any 

required response to an amended pleading must be made within the time 

remaining to respond to the original pleading or within 14 days after 

service of the amended pleading, whichever is later.” Some courts 

have concluded that a defendant must replead a counterclaim in 

response to an amended complaint or be held to have abandoned or 

waived the right to pursue the counterclaim. See, e.g., Gen. Mills, 

 Counterclaim as well as the three filings related to OPERS’ Motion for 

Summary Judgment). 5 Although Plaintiff’s Opposition to OPERS’ Motion for Summary Judgment

addresses OPERS’ counterclaim, see id. at 35-36, plaintiff incorporates by 

reference its arguments raised in its Opposition to File Counterclaim. 

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Inc. v. Kraft Foods Global, Inc., 487 F.3d 1368, 1376-77 (Fed. Cir. 

2007) (finding no abuse of discretion where the district court 

concluded that the defendant had abandoned a counterclaim when 

“[defendant] Kraft had filed a counterclaim to [plaintiff] General 

Mills’ original complaint, but that complaint was superseded by 

General Mills’ amended complaint, and at the time the district court 

entered judgment, Kraft had not filed an amended answer re-pleading 

the counterclaim”); Bremer Bank, Nat’l Ass’n, 2009 U.S. Dist. LEXIS 

21055, at *40-41 (“The legal basis [Rules 15(a) and 13(a), (b) and the 

interpretation of these rules as stated in Johnson, 228 F. Supp.2d at 

1079] for deeming [defendant] Hancock’s counterclaim to be abandoned 

or no longer pending is sound. . . . Hancock’s failure to replead the 

counterclaim, together with nearly two years passing without discovery 

or any action on the counterclaim casts doubt on whether the 

counterclaim was ever viewed as being meritorious.”); Johnson, 228 F. 

Supp.2d at 1079 (“The last sentence of Fed. R. Civ. P. 15(a) requires 

a party to plead in response to an amended pleading. No option is 

given merely to stand on preexisting pleadings made in response to an 

earlier complaint. As the language of Rule 13(a) and (b) makes clear, 

a counterclaim is part of the responsive pleading.”). Cf. Pa. Nat’l 

Mut. Cas. Ins. Co. v. Snider, 996 F. Supp. 2d 1173, 1180 n.8 (M.D. 

Ala. 2014) (“Because the Beale Defendants failed to answer Penn 

National’s amended complaint, and therefore, never reasserted their 

counterclaims, the Court finds that the Beale Defendants’ duty to 

defend counterclaims w[as] abandoned.”) (citing Settlement Capital 

Corp., 649 F. Supp. 2d at 562(“While [defendants] Seneca and Route 28 

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asserted counterclaims for slander of title in their original answer, 

these counterclaims were not reasserted in their amended answer and 

thus have been abandoned.”). 

Other courts, however, do not require a defendant to replead a 

counterclaim in response to an amended complaint because Rule 13 does 

not require a defendant to set forth a counterclaim in an answer. 

See, e.g., Performance Sales & Mktg. LLC v. Lowe’s Cos., No. 5:07-cv00140, 2013 U.S. Dist. LEXIS 117835, at *9 n.2 (W.D. N.C. Aug. 20, 

2013) (“Although Lowe’s has yet to file an Answer in response to 

Plaintiffs' Amended Complaint, it has already set forth its 

counterclaim within its Answer to the original Complaint.”) (citing 

Ground Zero Museum Workshop v. Wilson, 813 F. Supp. 2d 678, 705-06 (D. 

Md. Aug. 24, 2011) (“Revisions to a complaint do not require revisions 

to a counterclaim.”); Dunkin’ Donuts, Inc. v. Romanias, 2002 U.S. 

Dist. LEXIS 28405, at *5-6 (W.D. Pa. May 29, 2002)(“Rule 13, which 

governs counterclaims, requires only that a counterclaim be set forth 

in a pleading - it does not mandate that it be contained in an answer. 

. . . Further, an answer responds to allegations in a complaint, a 

counterclaim is something independent.”) (internal citations omitted). 

Another line of cases takes a less rigid view of Rule 15(a) and 

considers the circumstances presented in each case, including whether 

the plaintiff received notice of the counterclaim, whether the 

defendant pursued the counterclaim and whether plaintiff will suffer 

resulting undue prejudice if the counterclaim proceeds. See, e.g., 

Davis v. Beaird, No. 4:10-CV-1429, 2014 U.S. Dist. LEXIS 30461, at 

*12-13 (E.D. Mo. Mar. 10, 2014) (finding that equitable considerations 

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weighed in favor of permitting the defendant, who failed replead the 

counterclaim in response to the amended complaint, to proceed with his 

counterclaim where the plaintiff had notice of the defendant’s intent 

to pursue the counterclaim); Ground Zero Museum Workshop, 813 F. Supp. 

2d at 705-06 (concluding that the defendant, who did not reassert 

counterclaims in answers to the first and second amended complaints, 

did not waive his right to pursue the counterclaims where, inter alia, 

the defendant manifested an intent to pursue such claims); Hitachi 

Med. Sys. Am., Inc. v. Horizon Med. Grp., No. 5:07CV02035, 2008 U.S. 

Dist. LEXIS 108078, at *10-14 (N.D. Ohio Aug. 29, 2008) (noting that 

the plaintiff “has been on notice of the contents of the counterclaim 

since it was filed timely in response to the original complaint[;]” 

the substance of the counterclaim had not changed since it was filed; 

the parties had opportunity to conduct discovery on the claim; the 

plaintiff had not identified any prejudice in permitting the 

counterclaim to stand; the failure to replead the counterclaim was 

inadvertent; and the potential prejudice to the defendant was 

considerable because it would lose its ability to adjudicate the claim 

in the future if barred from asserting the compulsory counterclaim in 

this action); AVKO Educ. Research Found. v. Morrow, No. 11-13381, 2013 

U.S. Dist. LEXIS 49463, at *30 (E.D. Mich. Apr. 5, 2013) (concluding 

that counterclaim remained pending even though the defendants had not 

re-filed it with their answer to the amended complaint and citing 

Hitachi, 2008 U.S. Dist. LEXIS 108078, at *4-5). Cf. Freedom Med., 

Inc. v. Gillespie, No. 06-3195, 2013 U.S. Dist. LEXIS 103301, at *12-

13 (E.D. Pa. July 23, 2013) (rejecting the argument that Rule 13(a), 

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standing alone, supports “the proposition that pending counterclaims 

are mooted by the filing of an amended complaint”); Cairo Marine Serv. 

v. Homeland Ins. Co., No. 4:09CV1492, 2010 U.S. Dist. LEXIS 117365, at 

*3-4 (E.D. Mo. Nov. 4, 2010) (distinguishing Johnson, 228 F. Supp.2d 

at 1079, and finding that the defendant evidenced an intent to pursue 

the counterclaim and that the plaintiff would not be prejudiced 

because it had notice of the defendant’s counterclaim); Bell v. Nat’l 

Safety Assocs., No. C-3-90-400, 1993 U.S. Dist. LEXIS 21302 (S.D. Ohio 

Oct. 1, 1993) (analyzing the merits of the counterclaim where the 

defendant filed a counterclaim as part of its answer to the original 

complaint, but did not reassert the counterclaim when answering the 

second amended complaint). 

The Court finds persuasive this last line of cases, which weighs 

equitable considerations, i.e., a “functional approach” taken by “most 

courts[.]” Davis, 2014 U.S. Dist. LEXIS 30461, at *9. Indeed, even 

the court that issued Johnson, 228 F. Supp.2d at 1079 (finding that 

the defendant had abandoned a counterclaim after failing to replead 

the counterclaim in response to an amended complaint), recently 

rejected Johnson and its progeny. See Davis, 2014 U.S. Dist. LEXIS 

30461, at *11-13. Moreover, courts within this circuit and even 

within this district have permitted a counterclaim to proceed even 

though the defendant had not repled the claim in response to an 

amended complaint. See, e.g., AVKO Educ. Research Found., 2013 U.S. 

Dist. LEXIS 49463, at *30; Hitachi Med. Sys. Am., Inc., 2008 U.S. 

Dist. LEXIS 108078, at *10-14; Bell, 1993 U.S. Dist. LEXIS 21302. 

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In the case presently before the Court, OPERS filed its 

counterclaim in its answer to the original Complaint. Therefore, 

plaintiff has been on notice since October 4, 2013 that OPERS intended 

to pursue the counterclaim. See also Preliminary Pretrial Order, p. 1 

(setting deadline for reply to counterclaim).6

 Indeed, plaintiff 

replied to the counterclaim, ECF 17, and had several months to conduct 

discovery regarding OPERS’ claims. See Preliminary Pretrial Order, p. 

2 (establishing a discovery deadline of February 28, 2014). Thus, the 

record reflects OPERS’ intent to pursue its counterclaim and 

plaintiff’s opportunity to respond to and investigate those claims. 

Although OPERS did not replead the counterclaim in its answer to 

the Amended Complaint, see ECF 24, and waited until March 4, 2014 to 

seek leave to amend its answer to the Amended Complaint to include the 

counterclaim, plaintiff has failed to establish resulting undue 

prejudice. According to plaintiff, to permit the counterclaim to 

proceed will prejudice him because doing so “could potentially destroy 

Plaintiff’s ability to dispose of this [counterclaim] via its Motion 

for Judgment on the Pleadings” and that the purpose of such a motion 

“is to preserve judicial economy and to timely dispose of a claim 

based on only the pleadings without the involvement of additional 

costly discovery and fact finding.” Opposition to Motion to File 

Counterclaim, p. 4. The flaw in plaintiff’s reasoning in this regard, 

however, is its failure to note that Plaintiff’s Motion was filed just 

 

6 The Preliminary Pretrial Order does not set forth a deadline for filing an 

amended counterclaim. Id. Because the Motion for Leave to File Counterclaim 

does not impact any date in the Preliminary Pretrial Schedule, Rule 16(b), 

which requires good cause and the judge’s consent to modify a pretrial 

schedule, does not apply. 

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one day before the discovery completion deadline. Plaintiff 

presumably had already completed his discovery by the time the Motion 

to File Counterclaim was filed. Cf. Ground Zero Museum Workshop, 813 

F. Supp. 2d at 705 (“Plaintiffs failed to conduct discovery regarding 

the [counter]claims at their own peril and their claim of prejudice if 

the claims are not deemed waived is not compelling.”). The proposed 

amended answer and counterclaim add nothing new to the previously 

asserted counterclaim. The proposed filing simply combines the 

previously filed Counterclaim and the Answer to Amended Complaint;

there is nothing in the proposed pleading that would unfairly surprise 

plaintiff or that would require additional discovery. Under these 

circumstances, OPERS’ Motion to File Counterclaim is GRANTED. 

III. PLAINTIFF’S MOTION

 Plaintiff has moved for judgment on the pleadings pursuant to 

Rule 12(c). See Plaintiff’s Motion. In opposing that motion, OPERS 

also moved for summary judgment. Throughout the briefing of OPERS’ 

Motion for Summary Judgment, both parties rely on evidence outside the 

pleadings and plaintiff has not filed a separate reply in support of 

his motion for judgment on the pleadings. Under these circumstances, 

the Court will consider whether to treat Plaintiff’s Motion as a 

motion for summary judgment under Rule 56. 

Rule 12(d) requires that, if parties present matters outside the 

pleadings that are not excluded by the court, a motion for judgment on 

the pleadings must be treated as one for summary judgment. See also 

Northville Downs v. Granholm, 622 F.3d 579, 585 (6th Cir. 2010) (“It 

is well-established that ‘Rule 12(c) requires only one action by the 

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district court for the conversion to a summary judgment motion to 

occur: failure to exclude presented outside evidence.’”) (quoting Max 

Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir. 

2006)). When converting a Rule 12(c) motion to one under Rule 56, 

“[a]ll parties must be given a reasonable opportunity to present all 

the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). 

See also Hansbrough v. TitleMax of Tenn., Inc., 977 F. Supp. 2d 859, 

866 (W.D. Tenn. 2013) (treating motion for judgment on the pleadings 

as one for summary judgment where “[b]oth parties have presented 

evidence outside the pleadings for the court to consider”). 

 In the case presently before the Court, plaintiff offers and 

relies on outside evidence. See generally Plaintiff’s Opposition to 

OPERS’ Motion for Summary Judgment. For example, plaintiff submits 

his own affidavit, detailing his communications with OPERS in support 

of his position that he received no written notice before his 

disability benefits were terminated. Plaintiff offers additional 

documentary evidence that he contends establishes that OPERS never 

responded when it learned that plaintiff had become a council member 

for the Village of New Richmond, Ohio, but instead continued to pay 

his disability benefits. See Exhibits D (plaintiff’s letter dated 

March 29, 2010) and E (EE Statements for the years 2003-2009, 2011), 

attached to Plaintiff’s Opposition to OPERS’ Motion for Summary 

Judgment. Plaintiff also relies on the Administrative Record as well 

as evidentiary materials submitted by OPERS. See, e.g., Plaintiff’s 

Opposition to OPERS’ Motion for Summary Judgment, pp. 8-9, 16, 19, 22-

23, 26-27. 

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 Although plaintiff insists that he is entitled to judgment “based 

on the pleadings alone,” see Plaintiff’s Opposition to OPERS’ Motion 

for Summary Judgment, p. 37, the Court notes that plaintiff has not 

filed a reply in support of his motion for judgment on the pleadings. 

Instead, he simply renews his request for judgment in his favor when 

opposing, with ample citations to evidentiary materials, OPERS’ Motion 

for Summary Judgment. Id. at 38. Accordingly, the parties are 

ADVISED that the Court intends to treat the Motion for Judgment on the 

Pleadings of Plaintiff, Richard Mathews, ECF 26, as one for summary 

judgment under Rule 56. 

 However, although the parties briefly addressed the merits of 

OPERS’ counterclaim in the briefing on summary judgment, the parties 

were uncertain whether or not OPERS’ counterclaim would proceed. 

Under these circumstances, the Court is persuaded that additional 

briefing on summary judgment is warranted. The parties are ORDERED to 

supplement their positions on summary judgment on the remaining claims 

within 14 days of the date of this Opinion and Order. The parties are 

specifically ADVISED that the supplemental briefing, limited to no 

more than 15 pages, should address, inter alia, the following issues: 

 1. OPERS’ counterclaim, including plaintiff’s authority, if 

any, that equitable considerations, such as OPERS’ failure to 

terminate benefits upon alleged notification of plaintiff’s return to 

service as purportedly reflected in plaintiff’s letter dated March 29, 

2010 and in plaintiff’s “Statement of Employment and Earnings After 

Receipt of a Disability Benefit” for the year 2010, are relevant, see, 

e.g., Ohio State Bd. of Pharm. v. Frantz, 51 Ohio St.3d 143, 145-46 

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(1990) (“It is well-settled that, as a general rule, the principle of 

estoppel does not apply against a state or its agencies in the 

exercise of a governmental function.”); 

2. Whether or not OPERS provided plaintiff written notice of 

the termination of plaintiff’s disability benefits (the parties do not 

cite to such a document in the administrative record and the Court has 

been unable to locate such notice in the present record); 

 3. Whether OPERS’ verbal notification in approximately March 

2012 that plaintiff’s benefits would be terminated as of April 30, 

2012, satisfied the notice requirement of the Due Process Clause, see, 

e.g., Memphis Light, Gas & Water Div. Craft, 436 U.S. 1, 14 (1976) 

(“The purpose of notice under the Due Process Clause is to apprise the 

affected individual of, and permit adequate preparing for, an 

impending ‘hearing.’”); Flaim v. Med. College of Ohio, 418 F.3d 629 

(6th Cir. 2005) (“The stronger the private interest, however, the more 

likely that formal written notice . . . is constitutionally 

required.”); Shoemaker v. City of Howell, 982 F. Supp. 2d 745, 755 

(E.D. Mich. 2013) (“Mere notice of an impending deprivation alone, 

however, does not satisfy the notice requirements of procedural Due 

Process. Such notice must also provide the way this deprivation will 

occur and the means by which the deprivation may be contested.”); 

 4. Whether plaintiff’s opportunity to call the OPERS’ call 

center in March and April 2012, and the telephone calls of plaintiff 

and his counsel to OPERS during that period, satisfied the hearing 

requirement of the Due Process Clause, see, e.g., Chernin v. Welchans, 

844 F.2d 322, 326 (6th Cir. 1988) (“Depending on the circumstances of 

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the particular case, the hearing called for by the fourteenth 

amendment may be a pre-deprivation hearing . . . or a pre-deprivation 

abbreviated ‘opportunity to be respond’ with a prompt post-deprivation 

hearing . . . or solely a prompt post-deprivation hearing.”) (internal 

citations omitted); 

 5. If plaintiff takes the position that a state court mandamus 

action does not constitute a proper post-deprivation hearing, he must 

identify authority that supports that position, see, e.g., Lane v. 

City of Pickerington, No. 2:11-cv-00966, 2013 U.S. Dist. LEXIS 117970, 

at *19 (S.D. Ohio Aug. 20, 2013) (“Plaintiff alleges that he was 

denied access to the Personnel Appeals Board and his right to a posttermination hearing, but he had an adequate state law remedy for the 

alleged deprivation through a mandamus action.”); State ex rel. Cydrus 

v. Ohio Pub. Employees Ret. Sys., 127 Ohio St.3d 257, 260 (2010) 

(“Because there is no right to appeal the retirement board’s decision 

terminating disability-retirement benefits, mandamus is an appropriate 

remedy.”); State ex rel. McLean v. Ret. Bd., Pub. Emp. Ret. Fund, 161 

Ohio St. 327, 331 (1954) (granting writ of mandamus ordering OPERS to 

pay retroactive disability benefits); 

 6. Plaintiff should describe the format of the “opportunity to 

be heard” that he seeks, see Plaintiff’s Motion, p. 9 (describing 

“Plaintiff’s Remedy” as including, inter alia, “prior to giving any 

other consideration to terminating benefits, OPERS must afford Mathews 

an opportunity to be heard”), and how such a hearing will establish 

that the version of O.R.C. § 145.362 effective at the time that his 

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benefits were terminated authorizes OPERS to restore his disability 

benefits; 

7. The procedures, if any, available to a disability benefits 

recipient who disagrees that he or she was “elected to an elective 

office,” or disagrees that his or her “employer [is] covered by” 

Chapter 145 of the Ohio Revised Code, see O.R.C. § 145.362 (“If a 

disability benefit recipient is restored to service by, or elected to 

an elective office with, an employer covered by this chapter, the 

recipient’s benefits shall cease.”), or disagrees that his benefits 

should be terminated on the basis of such office; and 

 8. This Court’s authority, if any, to “order OPERS to act in 

direct contravention of its governing statute [O.R.C. § 145.362],” 

OPERS’ Reply in Support of Motion for Summary Judgment, p. 13. 

 If the parties conclude that oral argument on their requests for 

summary judgment is appropriate, they shall so indicate in their 

supplemental filings. 

WHEREUPON, Ohio Public Employees Retirement System’s Motion for 

Leave to File Amended Answer and Counterclaim, Instanter, ECF 27, is 

GRANTED. The Clerk is DIRECTED to file OPERS’ proposed Ohio Public 

Employees Retirement System’s Answer to the Amended Complaint and 

Counterclaim, ECF 27-1. 

 The Motion for Judgment on the Pleadings of Plaintiff, Richard 

Mathews, ECF 26, is DENIED to the extent that it seeks judgment on the 

pleadings pursuant to Rule 12(c). However, whether or not summary 

judgment should be granted in favor of either party remains for the 

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Court’s consideration following supplemental briefing and oral 

argument. 

September 23, 2014 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

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