UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Frieda Aaron, et al., 

 Plaintiffs,

 vs.

Hon. Maureen O'Connor, et al.,

 

 Defendants.

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Consolidated Case No. 1:18cv139

Judge Michael R. Barrett

OPINION and ORDER 

This matter is before the Court on two Motions to Dismiss, one filed by 

Defendants the Justices of the Supreme Court of Ohio (Doc. 39) and the other by 

Defendant Judge Mark R. Schweikert (Doc. 42). These Motions are fully briefed (see

Docs. 44–47) and thus ripe for decision.

I. BACKGROUND/FACTS

Plaintiffs' counsel represent hundreds of clients in medical malpractice claims 

against Dr. Abubakar Atiq Durrani and the different hospitals where he treated patients

(“the Durrani cases”). (Amended Complaint, Doc. 26 ¶ 9 at PageID 1296). Defendant 

Maureen O’Connor, the Chief Justice of the Supreme Court of Ohio, appointed 

Defendant Judge Schweikert to preside over the Durrani cases filed in the Hamilton 

County Court of Common Pleas.1 (Id. ¶ 10).

1 “The chief justice . . . , as necessity arises, shall assign any judge of a court of common pleas or a 

division thereof temporarily to sit or hold court on any other court of common pleas or division thereof . . . 

and upon such assignment said judge shall serve in such assigned capacity until the termination of the 

assignment. Ohio Const. art. IV, § 5(B). The Court takes judicial notice of the fact that, effective January 

1, 2020, Chief Justice O’Connor appointed the Honorable Guy L. Reece, II in place of Judge Schweikert. 

See Certificate of Assignment M1901262, attached hereto. In the interim since this replacement, the 
2

Plaintiffs filed their original Complaint in this case on February 23, 2018, naming 

as Defendants the Justices of the Supreme Court of Ohio2 (Doc. 1), and, on March 5, 

2018, they filed an Amended Complaint (Doc. 26). Soon thereafter, on March 7, 2018, 

Plaintiffs filed a Complaint in Case No. 1:18cv169 against the same Justices as well as 

the Honorable Mark R. Schweikert, Special Judge of the Hamilton County Court of 

Common Pleas. (Case No. 1:18cv169, Doc. 1, Caption at PageID 1–3). The Defendant 

Justices filed a Motion to Consolidate. (Case No. 1:18cv169, Doc. 5). They argued 

that, in both cases,

Plaintiffs raise due process challenges to Ohio’s recusal and 

disqualification rules for Ohio judges and Supreme Court justices. 

Additionally, Plaintiffs seek the same relief—they want the recusal 

and disqualification rules enjoined, an order preventing the Chief 

Justice from ruling on Plaintiffs’ various affidavits of disqualification, 

and an order preventing Judge Mark Schweikert from proceeding in 

Plaintiffs’ underlying state cases.

(Case No. 1:18cv169 at PageID 277–78). Then-presiding District Judge Timothy S. 

Black agreed. He ordered the two cases consolidated pursuant to Fed. R. Civ. P. 42

and instructed that all future filings be made in this case, 1:18cv139, the case with the 

lower docket number. (See March 12, 2018 Docket Entries). On April 6, 2018, the 

consolidated case was transferred to the undersigned’s docket because it was deemed 

related to a case then-pending but since-closed, Aaron v. O'Connor, No. 1:17cv846, 

2018 WL 582503 (S.D. Ohio Jan. 26, 2018), aff'd & remanded, 914 F.3d 1010 (6th Cir. 

2019) (“Aaron I”). (Doc. 41). A summary of the allegations in all three cases follow, 

parties have not addressed whether the appointment of Judge Reece moots any portion of this 

consolidated case. 

2 As delineated in the original Complaint, the Justices include the Honorable Maureen O’Connor, Chief 

Justice, along with the Honorable Terrence O’Donnell, the Honorable Sharon L. Kennedy, the Honorable 

Judith L. French, the Honorable Patrick F. Fischer, the Honorable R. Patrick DeWine, and the Honorable 

Mary DeGenaro (Doc. 1, Caption at PageID 1–3). By operation of Fed. R. Civ. P. 25(d), Michael P. 

Donnelly and Melody J. Stewart substituted for Terrence O’Donnell and Mary DeGenaro, respectively. 
3

beginning with Plaintiffs’ first federal lawsuit.

A. Case No. 17cv846 (Aaron I)

On December 15, 2017, Plaintiffs’ counsel filed with the Clerk of the Supreme 

Court of Ohio an “Affidavit of Disqualification of Chief Justice Maureen O’Connor and 

Judge Mark Schweikert.” Aaron I, 2018 WL 582503, at *1.

3 The affidavit sought 

disqualification of both the Chief Justice and Judge Schweikert related to the Durrani 

cases pending before Judge Schweikert in Hamilton County because they have “a bias 

and prejudice against Plaintiffs and their claims.” Id. Three days later, on December 

18, 2017, Plaintiffs filed both a Complaint—naming Chief Justice O’Connor and Judge 

Schweikert as defendants—and a motion for injunctive relief here in the Southern 

District of Ohio. Id.4 Plaintiffs sought redress under

42 U.S.C. § 1983, alleging violations of their right to due process under the United 

States Constitution. Id.

5 Specifically, they sought to enjoin Chief Justice O’Connor from 

ruling on the affidavit of disqualification and Judge Schweikert “from taking any action 

on their cases” while their affidavit was pending. Id.6

On the authority of Younger v. Harris, 401 U.S. 37 (1971), the undersigned

concluded that the abstention doctrine precluded any decision on the merits and 

dismissed with prejudice Plaintiffs’ claims. Id. at **2–5.7 The Court reasoned as 

follows. In Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584 (2013), the Supreme Court 

clarified its ruling in Middlesex Cnty. Ethics Comm’n v. Jacobs, 457 U.S. 423, 431 

3 Aaron I, Case No. 1:17cv846 (Doc. 1-1 at PageID 56–92). 4 Aaron I, Case No. 1:17cv846 (Docs. 1, 2). Plaintiffs filed an Amended Motion for Temporary Restraining 

Order and/or Preliminary Injunction the next day. Id. (Doc. 8).

5 Aaron I, Case No. 1:17cv846 (Doc. 1 ¶¶ 121–23 at PageID 39). 6 Aaron I, Case No. 1:17cv846 (Doc. 1 ¶ 2 at PageID 2). 7 Aaron I, Case No. 1:17cv846 (Doc. 34).
4

(1982), and held that only three types of proceedings warrant abstention. Id. at *2. 

They are: 1) ongoing state criminal prosecutions; 2) certain civil enforcement 

proceedings; and 3) pending “civil proceedings involving certain orders . . . uniquely in 

furtherance of the state courts’ ability to perform their judicial functions.” Id. at *2 (citing 

Sprint, 134 S. Ct. at 591 (quoting New Orleans Public Service, Inc. v. Council of City of 

New Orleans, 491 U.S. 350, 368 (1989) (“NOPSI”)). Both parties agreed that the first 

two NOPSI circumstances were inapplicable, so the Court considered—and proceeded 

to find—that, as to the third circumstance, a pending affidavit of disqualification of a 

judge is “a proceeding that involves certain orders uniquely in furtherance of the state 

court’s ability to perform their judicial functions.” Id. at *2.

The Court next turned to whether the three additional factors set forth in 

Middlesex were satisfied to determine whether the Younger abstention doctrine applied. 

Id. at *4 (citing Middlesex, 457 U.S. at 432–34 (whether the underlying proceedings 

constitute an ongoing judicial proceeding; whether the proceedings implicate important 

state interests; and whether there is an adequate opportunity in the state proceedings to 

raise a constitutional challenge)). Finding the first two factors easily satisfied, see 

Gilbert v. Ferry, 401 F.3d 411, 419 (6th Cir. 2005), rev’d in part on other grounds, 413 

F.3d 578 (rehr’g), the Court focused on the third—that is, whether there was an 

adequate opportunity for Plaintiffs to raise a constitutional challenge in the state 

proceedings. Id. Gilbert again informed this Court’s reasoning. The arguments made in 

the original affidavit of disqualification (and the six that followed) were identical to those 

presented in their Complaint; thus, Ohio law provided Plaintiffs a procedure by which to 

raise their constitutional challenges vis-à-vis Judge Schweikert, of which Plaintiffs had 
5

taken full advantage. See id. The Court found further that Ohio Supreme Court 

Practice Rule 4.04, which allows a party to seek recusal of an Ohio Supreme Court 

Justice, “provides an adequate opportunity for a plaintiff to commence a constitutional 

challenge” in accord with Middlesex. Id. at *5. 

This Court’s Opinion and Order in Aaron I issued on January 26, 2018.8 Plaintiffs 

filed a Motion to Alter or Amend the Judgment under Fed. R. Civ. P. 59(e) on February 

5, 2018, which this Court denied on April 13, 2018.9 Plaintiffs’ Notice of Appeal 

followed on May 9, 2018.10 The Sixth Circuit affirmed on January 30, 2019, but 

remanded with the instruction that this Court amend its order to a dismissal without

prejudice. Aaron I, 914 F.3d at 1021 (“[T]he district court correctly determined that the 

Younger abstention doctrine permitted its abstention from entertaining the [P]laintiffs’ 

claims.”). On February 26, 2019, this Court amended its order consistent with the Sixth 

Circuit’s mandate and the Clerk’s judgment was modified accordingly.11 

As noted, multiple affidavits of disqualification against Chief Justice O’Connor 

and Judge Schweikert followed the one that underpinned this first federal lawsuit. On 

February 5, 2018, the same day Plaintiffs filed their Rule 59 Motion, Chief Justice

O’Connor issued a decision denying Plaintiffs’ then-pending seven affidavits of 

disqualification against Judge Schweikert (filed by attorney Matthew Hammer). (Case 

No. 18cv139, Doc. 30-1 at PageID 1351–55 (In re Disqualification of Hon. Mark 

Schweikert, Ohio Sup. Ct. Case No. 17-AP-128)). On February 26, 2018, the Chief 

Justice issued a second decision denying affidavits eight, nine, “amended nine,” ten, 

8 Aaron I, Case No. 1:17cv846 (Doc. 34).

9 Aaron I, Case No. 1:17cv846 (Docs. 36, 47).

10 Aaron I, Case No. 1:17cv846 (Doc. 48). 11 Aaron I, Case No. 1:17cv846 (Docs. 54, 55).
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and eleven (filed by attorney Matthew Hammer). (Case No. 18cv139, Doc. 30-2 at 

PageID 1356–61 (In re Disqualification of Hon. Mark Schweikert, Ohio Sup. Ct. Case 

No. 18-AP-019)). On March 6, 2018, the Chief Justice issued a third decision denying 

affidavits twelve, thirteen, and fourteen (filed by attorney Frederick Johnson). (Case No. 

18cv139, Doc. 30-3 at PageID 1362–65 (In re Disqualification of Hon. Mark Schweikert, 

Ohio Sup. Ct. Case No. 18-AP-019)).12

B. Case No. 1:18cv139

While the Rule 59 Motion was pending in Aaron I, on February 23, 2018 Plaintiffs 

filed their original Complaint in Case No. 1:18cv139, which they amended on March 5, 

2018. (See Docs. 1, 26). They allege that Defendant Chief Justice O’Connor “has 

consistently and wrongfully interfered with and injected herself into” the Durrani cases 

filed in the Hamilton County Court of Common Pleas and that Defendant Judge 

Schweikert has “acted and operated as the conduit for the Chief Justice in Plaintiffs’ 

cases by complying with directives received from her arising from her improper 

interference within them.” (Doc. 26 ¶ 11 at PageID 1296, ¶ 12 at PageID 1300). 

Plaintiffs contend that the Chief Justice and Judge Schweikert “were and are biased and 

exhibited partiality to bias against Plaintiffs and in favor of the medical professionals and 

their medical malpractice insurers.” (Id. ¶ 12 at PageID 1300). Because Judge 

Schweikert declined to “self-recuse,” Plaintiffs petitioned the Chief Justice to disqualify 

him pursuant to Ohio Rev. Code § 2701.03. (Id. ¶¶ 13, 14). When the Chief Justice 

12 The docket reflects the filing of additional affidavits of disqualification against Judge Schweikert by 

attorney Johnson (Case No. 18cv139, Docs. 38 & 38-3 (fifteenth); 31 & 31-1 (sixteenth); 35 & 35-1

(seventeenth); and by attorney Benjamin Maraan (Case No. 18cv139, Docs. 48 & 48-1 (first following 

seventeenth); 49 & 49-1 (second); 55 & 55-1 (sixth)). The docket further reflects the filing of three 

additional affidavits of disqualification against Chief Justice O’Connor by attorneys Johnson and Hammer 

(Case No. 18cv139, Docs. 14 & 14-1 (second); 20, 20-1 & 20-2 (third); 40 & 40-2 (fourth).
7

refused to disqualify Judge Schweikert, Plaintiffs asked her to recuse herself “from any 

further participation in Plaintiffs’ cases” pursuant to Ohio Supreme Court Practice Rule 

4.04, which governs the recusal or disqualification of a justice. (Id. ¶¶ 16, 17 at PageID 

1303). According to Plaintiffs, the Chief Justice “has refused to recuse or disqualify 

herself.” (Id. ¶ 18). And because “[t]here is no independent review available to 

Plaintiffs of any decisions by the Chief Justice not to disqualify or recuse herself from 

further participating in Plaintiffs’ cases in the future,” Plaintiffs assert that their

constitutional right “to a fair trial of their cases before a fair tribunal that is free from 

unconstitutional the partiality to bias” has been compromised. (Id. ¶¶ 19, 20 at PageID 

1303–04). 

Plaintiffs seek redress under 42 U.S.C. § 1983 and allege violations of their due 

process rights under the Fourteenth Amendment to the United States Constitution. The 

Amended Complaint mounts both facial and as-applied attacks on Ohio Supreme Court 

Practice Rule 4.04(A) and (B).13 (Id. ¶¶ 27–38 at PageID 1306–09). As remedy, 

Plaintiffs ask for declaratory relief to that effect, as well as permanent injunctive relief 

“prohibiting the further application and enforcement of S.Ct.Prac.R. 4.04(A) and (B) 

generally in the absence of independent review of denials of requests for recusals or 

disqualifications or, in the alternative, prohibiting the Chief Justice from applying and 

enforcing S.Ct.Prac.R. 4.04(A) and (B) as applied in the application of these Rules to 

13 Rule 4.04(A) defines “justice” to include “the Chief Justice or any justice of the Supreme Court[.]” Ohio 

S. Ct. Prac. R. 4.04(A). Rule 4.04(B)(1) addresses the mechanics of filing a request to recuse, including 

the imperative that the request be supported by an affidavit and a recitation of “facts in support of the 

request.” Id. 4.04(B)(1). Then, “[t]he justice named in the request shall submit a written response to the 

Clerk indicating whether the justice will recuse from the case.” Id. 4.04(C). The response “shall be 

provided to the Clerk as soon as practicable[,]” after which it is to be filed and served on “all parties to the 

case.” Id. Plaintiffs do not challenge the constitutionality of Rule 4.04(C).
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Plaintiffs’ cases[.]” (Id., Prayer for Relief at PageID 1309–10).

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C. Case No. 1:18cv169

Plaintiffs filed this lawsuit on March 7, 2019, also while their Rule 59 Motion was 

pending in Aaron I. In this Complaint, Plaintiffs mount facial and as-applied attacks on

Section (D)(4) of Ohio Revised Code 2701.03 (“Affidavit of disqualification of judge of 

common pleas court for prejudice; procedure; replacement”), which governs their

requested disqualification of Defendant Judge Schweikert. (Case No. 1:18cv169, 

Doc. 1 at PageID 21–27). That statute provides:

If the clerk of the supreme court accepts an affidavit of 

disqualification for filing under divisions (B) and (C) of this section, 

if the chief justice of the supreme court, or a justice of the 

supreme court designated by the chief justice, denies the affidavit 

of disqualification pursuant to division (E) of this section, and if, 

after the denial, a second or subsequent affidavit of 

disqualification regarding the same judge and the same 

proceeding is filed by the same party who filed or on whose 

behalf was filed the affidavit that was denied or by counsel for the 

same party who filed or on whose behalf was filed the affidavit that 

was denied, the judge against whom the second or subsequent 

affidavit is filed may preside in the proceeding prior to the 

ruling of the chief justice of the supreme court, or a justice 

designated by the chief justice, on the second or subsequent 

affidavit.

Ohio Rev. Code § 2701.03(D)(4) (emphasis added). Plaintiffs similarly seek redress 

under 42 U.S.C. § 1983, and again allege violations of their due process rights under 

the Fourteenth Amendment to the United States Constitution. (Case No. 1:18cv169, 

Doc. 1 ¶ 1 at PageID 9). They maintain that Section (D)(4) “unduly impairs their 

constitutional right to a fair trial of their civil actions before a fair tribunal that is free from 

14 Plaintiffs also ask the Court to find Chief Justice O’Connor’s assignment of Judge Schweikert to preside 

over the Durrani cases to be “null and void.” (Doc. 26, Prayer for Relief at PageID 1310). 
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unconstitutional bias, the partiality to bias, or prejudgment[.]” (Case No. 1:18cv169,

Doc. 1 ¶ 1 at PageID 9). To be more precise,

The axiom ‘no man can be a judge in his own case’ is fundamental 

to the guaranty to Due Process. The axiom will have little 

substance if [an] unconstitutionally biased judge is permitted under 

subsection (D)(4) to continue presiding over cases when two or 

more Affidavits of Disqualification are duly filed but not ruled upon 

because of the preexisting interest of the Chief Justice. The 

guarantee of Due Process requires that a judge who is the 

subject of two or more duly-filed Affidavits of Disqualification 

be deprived of any authority to preside in the proceeding until 

the Chief Justice, or her delegate, rules on the Affidavits – in [ ] 

the manner extended to an initial Affidavit of Disqualification 

pursuant to R.C. 2701.03(D)(1). Consequently, R.C. 

2701.03(D)([4]) does not pass constitutional muster under the Due 

Process Clause.

(Case No. 1:18cv169, Doc. 1 ¶ 40 at PageID 22 (emphasis added); see ¶ 45 at PageID 

22). In other words, “the safeguards at R.C. 2701.03(D)(1) pertaining to an initial 

Affidavit of Disqualification must be applied to proceedings involving subsequent 

Affidavits of Disqualification.” (Case No. 1:18cv169, Doc. 1 ¶ 48 at PageID 25). 

Plaintiffs ask the Court to declare Section (D)(4) unconstitutional, both on its face and 

as applied to their “second and subsequent Affidavits of Disqualification[.]” (Case No. 

1:18cv169, Doc. 1 ¶ 42 at PageID 23, ¶ 50 at PageID 25). They also seek permanent 

injunctive relief that prohibits “application and enforcement of R.C. 2701.03(D)(4) where 

a judge is the subject of two or more pending Affidavits of Disqualification in the same 

cases over which he is presiding[.]” (Case No. 1:18cv169, Prayer for Relief at PageID 

26).

II. ANALYSIS

A. The Principles of Res Judicata Bar Plaintiffs’ Claims

Defendants argue that Plaintiffs’ claims are barred by the principles of res 
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judicata, citing Fieger v. Corrigan, 602 F.3d 775 (6th Cir. 2010).15 Because all three 

federal complaints (1:17cv846, 1:18cv139, 1:18cv169) ultimately turn on Plaintiffs’ due 

process challenge to Ohio’s judicial recusal and disqualification process, which this 

Court addressed in Aaron I, Plaintiffs should not be permitted to re-litigate the issue. 

Fieger, 602 F.3d at 778 (“[T]he principles underlying res judicata still operate to bar 

Fieger from bringing materially identical cases in rapid succession.”). Defendants are 

correct.

Fieger concerned a Michigan trial attorney “involved in an on-going public spat” 

with several justices of the Michigan Supreme Court. Id. at 776. He brought multiple 

federal court cases seeking intervention in Michigan’s judicial recusal process. Id. In 

one of the cases, the “first” for purposes of this discussion, Fieger complained of the 

justices’ past refusals to recuse themselves and brought facial and as applied 

constitutional challenges to Michigan’s judicial recusal rule. Id. at 777. The district 

court initially dismissed Fieger’s complaint on Rooker-Feldman16, but the Sixth Circuit 

reversed in part and remanded to allow the district court to reconsider Fieger’s claims 

as to future recusal decisions. Id. But before that reconsideration took place, fearing 

that the district court on remand would dismiss his first case, Fieger filed yet another 

federal lawsuit—his “second” for purposes of this discussion and the one from which the 

Fieger opinion issues. Id. Fieger was right about the district court dismissing his first 

15 Defendant Judge Schweikert initially argued that Plaintiffs’ claims are barred by the doctrine (versus 

instead the principles) of res judicata. (Doc. 42 at PageID 1780–82). However, in his reply he argues the 

principles of res judicata, aligning his position with that consistently taken by the Defendant Justices. 

(Compare Doc. 47 at PageID 1883–85 with Doc. 39 at PageID 1753–57 & Doc. 46 at PageID 1871–74). 

16 “Rooker-Feldman is the name for the doctrine which holds that federal courts below the United States 

Supreme Court may not exercise appellate jurisdiction over the decisions and/or proceedings of state 

courts, including claims that are ‘inextricably intertwined’ with issues decided in state court proceedings.” 

Exec. Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 793 (6th Cir. 2004) (citing D.C. Ct. of

Appeals v. Feldman, 460 U.S. 462, 486–87 (1983)).
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case on remand, and he once again appealed. Id. On appeal, the Sixth Circuit 

dismissed his “forward-looking” declaratory judgment claims as moot because, in the 

interim, the Michigan Supreme Court amended its judicial recusal rules “in a manner 

that substantially addressed Fieger’s claims against the justices of the Michigan 

Supreme Court.” Id. Meanwhile, the district court hearing his second lawsuit dismissed 

it on res judicata grounds. Id. The Sixth Circuit agreed that dismissal was appropriate 

but noted that application of the formal res judicata doctrine was incorrect, because the 

first case was on appeal and therefore no final decision had issued. Id. And once a 

decision did issue, the first case was dismissed on mootness grounds and, as such, “did 

not result in a final judgment on the merits to which we could now give preclusive 

effect.” Id. at 778. Nonetheless:

[T]he principles underlying res judicata still operate to bar Fieger 

from bringing materially identical cases in rapid succession. 

Litigants may not escape res judiciata’s preclusive finality merely by 

filing a new, identical case before the prior case becomes final. 

Id. (emphasis added). The first case “was Fieger’s exclusive vehicle for pursuing any 

claims he may have had against the justices of the Michigan Supreme Court at that 

time.” Id. (emphasis added). “Any claims that he had were either in that case or 

should have been in that case.” Id. (emphasis added).

Fieger noted the four “textbook” elements of res judicata are: “(1) a final decision 

on the merits of the first action by a court of competent jurisdiction; (2) that the second 

action involve the same parties, or their privies, as the first; (3) that the second action 

raise an issue actually litigated or which should have been litigated in the first action; 

and (4) identity of claims.” Id. at 777 n.3 (citing Bittinger v. Tecumseh Prods. Co., 123 

F.3d 877, 880 (6th Cir. 1997)). Applying them to its facts, the second, third, and fourth 
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elements were “clearly” met; the first element was not “technically” met, because the 

final judgment “rest[ed] on mootness grounds.” Id. Hence, the Sixth Circuit’s resort to 

dismissal based on the principles of res judicata.

This consolidated case mirrors Fieger. Plaintiffs commenced their suits in 

1:18cv139 and 1:18cv169 before there was a final decision in Aaron I (1:17cv846). 

Once final, though, the decision in Aaron I did not result in a judgment on the merits, 

but, rather, was a dismissal without prejudice based on Younger abstention. Thus, this

Court, like the court in Fieger, looks to whether the principles underlying res judicata bar 

Plaintiffs’ second and third lawsuits. They do. 

As to the second element, the same parties—or their privies—are most certainly 

involved. In Aaron I, Plaintiffs sued Chief Justice O’Connor and Judge Schweikert. 

Here, they sue all the justices of the Ohio Supreme Court, including Chief Justice 

O’Connor, as well as Judge Schweikert. But the justices are each sued in their official 

capacity (see Amended Complaint, Doc. 26 Preface at PageID 1293; Case No. 

1:18cv169, Complaint, Doc. 1 Caption at PageID 1–3 & Preface at PageID 8), just as 

the Chief Justice and Judge Schweikert were sued in Aaron I17. Defendants sued in 

their official capacities, of course, “stand in the shoes of the entity they represent.” 

Heike v. Cent. Mich. Univ. Bd. of Trs., 573 F. App’x 476, 481 (6th Cir. 2014) (quoting 

Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003)). In all three cases, then, by suing the 

Chief Justice in her official capacity, Plaintiffs have simply sued the Ohio Supreme 

Court, and adding the remaining justices in their official capacities alters nothing. For 

purposes of res judicata, “a prior judgment for an official in his or her official capacity will 

preclude a subsequent action on the same claim (or a claim that could have been

17 Aaron I, Case No. 1:17cv846 (Complaint, Doc. 1 Caption at PageID 1).
13

brought in the first action) against the relevant governmental entity.” Heike, 573 F. 

App’x at 481 (emphasis added).

The third element is just as easily satisfied. Both Aaron I and this consolidated 

case present due process challenges to Ohio’s judicial recusal and disqualification 

process. As earlier noted, in Aaron I Plaintiffs sought to enjoin the Chief Justice from 

ruling on the first affidavit of disqualification against Judge Schweikert (and herself) and

to enjoin Judge Schweikert himself “from taking any action of their cases” while said 

affidavit was pending.18 Underpinning their request was the purported bias and 

prejudice of Chief Justice O’Connor and Judge Schweikert. Although Plaintiffs did not 

present specific challenges to Rule 4.04 and § 2701.03(D)(4), they could, and plainly 

should, have. As the Defendant Justices accurately point out, the Chief Justice is 

designated—both by statute and the Ohio Constitution—to rule on affidavits of 

disqualification. (Doc. 39 at PageID 1743 (citing Ohio Rev. Code § 2701.03; Ohio 

Const. art. IV, § 5(C))). Section 2701.03 sets forth the procedure for disqualification of 

judges and Rule 4.04 sets forth the procedure for when a justice is asked to recuse 

herself from matters before the Ohio Supreme Court, which would include affidavits of 

disqualification of inferior judges. Any due process challenge to Chief Justice 

O’Connor’s authority to rule on the first affidavit of disqualification and to Judge 

Schweikert’s ability to preside over the underlying tort case obviously should have 

included facial and as-applied challenges to Rule 4.04 and § 2701.03(D)(4). Aaron I

was Plaintiffs’ “exclusive vehicle for pursuing any claims [they] may have had against 

the justices. Fieger, 602 F.3d at 778 (emphasis added). Plaintiffs’ failure to raise them 

then serves as a bar to raise them now.

18 Aaron I, Case No. 1:17cv846 (Doc. 1 ¶ 2 at PageID 2). 
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Finally, there is identity of claims between Aaron I and this consolidated case. 

Identity of claims requires “the same factual predicate.” Heike, 573 F. App’x at 483. As

the Defendant Justices again accurately point out, review of the three operative 

complaints reveal the same allegations of bias, same history between the parties, same 

rules governing recusals, and same decisions not to recuse. (See Docs. 39 at PageID 

1743, Doc. 46 at PageID 1874). Although Plaintiffs’ second and third complaints 

articulated new legal theories, specifically their facial and as-applied constitutional 

challenges to Rule 4.04 and § 2701.03(D)(4), the “basic” facts giving rise to all three 

civil actions are identical.

“The purpose of res judicata is to promote the finality of judgments and thereby 

increase certainty, discourage multiple litigation, and conserve judicial resources.” 

GMAC Mortgage, LLC v. McKeever, 651 F. App’x 332, 344 (6th Cir. 2016) (quoting 

Westwood Chem. Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981)). Allowing 

Plaintiffs to proceed with their subsequent challenges to Rule 4.04 (in Case No. 

1:18cv139) and § 2701.03(D)(4) (in 1:18cv169) unquestionably would frustrate this 

purpose. This consolidated case must be dismissed, because Plaintiffs’ subsequent 

challenges are barred by the principles of res judicata. 

B. Younger Abstention Requires Dismissal of Plaintiffs’ Claims

Even if they were not barred by the principles of res judicata, this Court 

determines that Plaintiffs’ new claims—set forth in their second and third complaints—

are barred by Younger abstention. 

As discussed in Part I.A of this Opinion and Order, the Sixth Circuit affirmed this 

Court’s conclusion in Aaron I that Younger abstention precluded a decision on the 
15

merits of Plaintiffs’ first federal lawsuit. The Sixth Circuit’s decision was released on 

January 30, 2019, some eight months after briefing was complete on the instant 

Motions. 

“The Younger breed of abstention requires abstention in three different 

circumstances.” Aaron I, 914 F.3d at 1016 (citing NOPSI). Relevant in Aaron I and 

here, a court may abstain “when there is a ‘civil proceeding[ ] involving certain orders 

that are uniquely in furtherance of the state courts’ ability to perform their judicial 

functions.’” Id. (quoting NOPSI, 491 U.S. at 368). “We conclude that the ability of the 

courts of the State of Ohio to determine when recusal of a judge or justice is appropriate 

and to administer the recusal decision proceed in accordance with state law operates 

‘uniquely in furtherance of the state courts’ ability to perform their judicial functions.’” Id.

at 1017 (quoting NOPSI, 491 U.S. at 368). This consolidated case, of course, 

challenges the very same statute and rule at issue in Aaron I.

Once a court has “determined that a case falls into a NOPSI category in which 

Younger abstention may be proper, [the court] next analyze[s] the case using a threefactor test laid out in Middlesex.” Id. at 1018. A court may abstain from hearing a 

federal claim under Middlesex if “(1) state proceedings are currently pending; (2) the 

proceedings involve an important state interest; and (3) the state proceedings will 

provide the federal plaintiff[s] with an adequate opportunity to raise [their] constitutional 

claims.” Id. (quoting Doe v. Univ. of Ky., 860 F.3d 365, 369 (6th Cir. 2017) (citing 

Middlesex, 457 U.S. at 432–34)).

With respect to the first factor, Plaintiffs contend that Younger abstention is 

inapplicable here because, at the time they filed their memoranda in opposition to 
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Defendants’ Motions, there were no longer any pending recusal requests regarding the 

Defendant Chief Justice or affidavits of disqualification regarding Defendant Judge 

Schweikert. (Doc. 44 at PageID 1815–17; Doc. 45 at PageID 1858–59). But that is not 

the test. Rather, the proper measure is the “day-of-filing” rule. See Fed. Express Corp. 

v. Tenn. Pub. Serv. Comm'n, 925 F.2d 962, 969 (6th Cir. 1991) (“[I]f a state proceeding 

is pending at the time the action is filed in federal court, the first criteria for Younger

abstention is satisfied.”); Zalman v. Armstrong, 802 F.2d 199, 204 (6th Cir. 1986) (“[T]he 

proper time of reference for determining the applicability of Younger abstention is the 

time that the federal complaint is filed.”)). And Plaintiffs’ own recitation of the facts19

establish that there were pending requests for recusal and affidavits of disqualifications 

when they filed their original complaints on February 23, 2018 (in Case No. 1:18cv139) 

and on March 7, 2018 (in Case No. 1:18cv169). Hence, the first Middlesex factor is 

met.

Plaintiffs offer no argument in their memoranda in opposition to Defendants’ 

Motions regarding the remaining two Middlesex factors, and the Court deems them both 

admitted. Plaintiffs likewise offer no argument in these memoranda that any of the three 

exceptions to Younger abstention apply.20 Any such arguments, therefore, are waived. 

Plaintiffs’ claims are barred not only by the principles of res judicata, then, but also by 

Younger abstention. Their second and third complaints must be dismissed.

19 (See Doc. 44 at PageID 1815–16; Doc. 45 at PageID 1858–59).

20 “The first is where ‘the state proceeding is motivated by a desire to harass or is conducted in bad faith.’” 

Aaron I, 914 F.3d at 1019 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975)). “The second is 

where ‘the challenged statute is flagrantly and patently violative of express constitutional prohibitions.’” 

Id. (quoting Moore v. Sims, 442 U.S. 415, 424 (1979) (quoting Huffman)). “And third, the federal court 

should not abstain where there is ‘an extraordinarily pressing need for immediate federal equitable relief.’” 

Id. (quoting Kugler v. Helfant, 421 U.S. 117, 125 (1975))
17

C. Because Plaintiffs’ Claims Are Barred by the Principles of Res 

Judicata and Younger Abstention, the Court Need Not Address 

Defendants’ Other Alternative Grounds for Dismissal

As an alternative ground for dismissal, the Defendant Justices and Defendant 

Judge Schweikert argue that Plaintiffs’ facial and as-applied procedural due process 

challenges to Rule 4.04 and § 2701.03(D)(4) fail as a matter of law under Fed. R. Civ. 

P. 12(b)(6). (Doc. 39 at PageID 1743–69 & Doc. 46 at PageID 1876–80; Doc. 42 at 

PageID 1788–94 & Doc. 47 at PageID 1888–90). Defendant Judge Schweikert also 

argues that Plaintiffs’ claims are barred by the Anti-Injunction Act, 28 U.S.C. § 2283. 

(Doc. 42 at PageID 1782–83 & Doc. 47 at PageID 1885–86). Having already 

determined that Plaintiffs’ Claims are barred by the principles of res judicata and 

Younger abstention, the Court need not address either of these arguments. 

III. CONCLUSION

For the reasons discussed, Defendants’ Motions to Dismiss (Docs. 39, 42) are 

GRANTED and Plaintiffs’ Motion for Preliminary Injunction (Doc. 65) is DENIED as 

moot. This consolidated case is CLOSED and TERMINATED from the active docket of 

this Court.

IT IS SO ORDERED. 

 /s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Court