NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0100n.06
No. 12-3725
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
KENNET H M. SCHW ERI NG, I ndividually and as Per sonal Repre sentative of the Estate on behalf of B ever ly

D. Schwer ing, Plaintiff-Appellant,

v. TRW VEHI CL E SAFETY SYSTEMS , I NC.; FORD MOT OR COMPANY, I NC., Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUT HERN DI STRI CT OF OH I O

BEF ORE: BOG GS and WHI TE, Circuit J udg es; MCCAL L A, Chief District Judge. *

PER CURI AM. Kenne th M. Schwer ing appea ls a district court o rd er dismiss ing his complaint in a diversity tort action seeking damag es for his injuries and his wife’ s death in a motor vehicle a ccide nt in 2002. Schwer ing filed a complaint against the defe ndants in an Ohio state court in 2003. Trial
eventua lly commence d in 2009, but a mistrial was decla red af t er a dispute arose over the admissibili ty of the testimony of one of Schwer ing’ s expert witnesses. Be fore a new trial was schedule d , S ch we ri ng voluntarily dismiss ed his complaint. He filed a new complaint raising the

same claims in the fede ral district c ourt in 2010. Defe ndants moved to dismiss on the g round that

T h e Honora

ble J on Phipps McCalla, Chief United States District J udg e for the Western * District of Tenne ssee, sitting by desig nation.No. 12-3725

Schwering v. TRW

Vehicle Safety Sys., I

nc., et al. Schwer ing’ s voluntary dismiss al of the state action was on the merits, as it was filed afte r a trial on the complaint had commence d, pursuant to Ohio Rule of Civil Procedur e 41(B )(3)

. Schwer ing responde d that the mistrial rende red the orig inal trial a nullity , so that he was pe rmitted to dismi ss his action voluntarily

without prejudice unde r Ohio Rule of Civil Procedure 41(A)( 1)(a ). Finding

no state-law authority on t h e is sue whether a voluntary dismiss al wit hout prejudice could be filed following a mistrial, the district court cer tified the question to t h e Ohi o Supreme Court with the
consent of the parties. The Ohio Supreme Court answe red the cer tified q u es t i o n in the neg ative, concluding that, bec au s e a t ri al had commence d, the option to file a voluntary dismiss al without prejudice was no longe r available

. Schwering v. TRW Vehicle Safety Sys.,Inc

. , 970 N.E.2d 865, 870 1 (Ohio 2012). Schwer ing then moved the district court to disreg ard the Ohio Supreme Court’s ruling

. The defe ndants rene wed their motions to dismiss

. The district court denied Schwer ing’ s motion and grante d defe ndants’ motions, dismiss ing the complaint. On appea l, Schwer ing argues that t h e district court should not have followed the ruling of the Ohio Supreme Court beca use it denied him his right to a jur

y trial.
A fede ral court sitti ng in diversity is require d to follow the law of the state’s highe st court. Mich. First Credit Union v. C UMIS Ins. Soc., Inc. , 641 F.3d 240, 251–52 (6th Cir. 2011); Grove r by Grover v. Eli Lill

y & Co. , 33 F.3d 716, 719 (6th Cir. 1994 ). Particularly wher e a fede ral court

We note that the Ohio Supreme Court held only that voluntary dismiss al under Ohio Rules 1 of Civil Proce d u re 41(A)( 1)(a ) was not available to Schwer ing afte r the trial commence d. Schwering , 970 N.E.2d at 869–70 (obser ving that, afte r trial commence s, a plaintiff “must have the concur renc e to t he withdra

wal of all other parties (dismissed by stipulation), or subj ect hims elf to the court’s discret io n by moving for a court-or dere d dismiss al pursuant to [Ohio] Civ. R. 41(A)( 2).”) We express no opinion on t he pre sent leg al status of Schwe ring ’s ca se in the Ohio cour ts. -2-No. 12-3725

Schwering v. TRW

Vehicle Safety Sys., I

nc., et al. has cer tified a question of sta t e l aw t o t he state supreme court, it cannot then disreg ard the state court’s decision. Grove r , 33 F.3d at 719. Alt h o u gh S ch we ring argues that he has a Seventh Amendment rig ht to a jury trial in the fede ral c ourt, that is not the case where he initially chose to file his complaint in the state cour t. Acc ording ly , we a ffirm the district c ourt’s orde r of dismissal.

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