[Cite as PNH v. Alfa Laval, Inc., 189 Ohio App.3d 704, 2010-Ohio-3280.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

PNH, Inc. et al., ) 

 ) CASE NO. 09 MA 41 

 APPELLANTS and ) 

 CROSS-APPELLEES, ) 

 ) 

 - V - ) OPINION 

 ) 

ALFA LAVAL, INC., ) 

 ) 

 APPELLEE and ) June 29, 2010 

 CROSS-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 05 CV 1695. 

JUDGMENT: Affirmed. 

APPEARANCES: 

Witschey, Witschey & Firestone Co., L.P.A., Jeffrey Witschey, and Alex Ragon, for 

appellants and cross-appellees. 

Hanna, Campbell & Powell, L.L.P., Frank Mazcaj, James M. Lyons Jr., and Robert L. 

Tucker, for appellee and cross-appellant. 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

 DEGENARO, Judge. 

{¶ 1} This timely appeal comes for consideration upon the record in the trial court, 

the parties' briefs, and their oral arguments before this court. Plaintiff-appellants and 
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cross-appellees, PNH, Inc. and Ronald Creatore, appeal the judgment of the Mahoning 

County Court of Common Pleas that dismissed their claims against defendant-appellee 

and cross-appellant ,Alfa Laval, Inc. (incorrectly identified as Alfa Laval Flow, Inc.), for lack 

of subject-matter jurisdiction. Appellants also appeal the trial court's subsequent decision, 

issued during a limited remand from this court, which denied their Civ.R. 60(B) motion to 

vacate the dismissal order. Finally, appellants challenge the trial court's denial of their 

motions to amend the complaint and to compel discovery. 

{¶ 2} Upon review, we find that appellants' arguments are meritless. The trial court 

properly dismissed the case for lack of subject-matter jurisdiction because appellants' 

claims of abuse of process and tortious interference are preempted by federal bankruptcy 

law. The trial court did not abuse its discretion by denying appellants' subsequent Civ.R. 

60(B) motion. Appellants' arguments regarding the trial court's denial of their motion to 

amend and motion to compel discovery are moot based upon our conclusion that their 

claims were properly dismissed. 

{¶ 3} Alfa Laval filed a cross-appeal in this matter, in which it challenges the trial 

court's January 8, 2008 denial of its motion for summary judgment regarding appellants' 

tortious-interference and abuse-of-process claims. The cross-appeal is also moot based 

upon our resolution of this appeal in Alfa Laval's favor. Accordingly, the judgment of the 

trial court is affirmed. 

Facts and Procedural History 

{¶ 4} In 2000, appellant Ronald Creatore, William Sayavich, and David Barnitt 

formed a holding company called U.S. Sanitary Corporation (“USSC”) for the sole purpose 
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of purchasing all the stock of a fitting/valves distribution company called Girton, Oakes & 

Burger (“GO&B”). Creatore, through a living trust, Sayavich, and Barnitt entered into a 

close corporation agreement (“CCA”) with USSC, which among other things, contained 

confidentiality and noncompete provisions. Creatore, Barnitt, and Sayavich were the sole 

shareholders of USSC, with Creatore having a 49 percent ownership interest, Sayavich a 

33 percent interest, and Barnitt an 18 percent interest. 

{¶ 5} The purchase of GO&B was financed by a loan from Provident Bank to 

GO&B and USSC. The sale became final in 2001 and the three became employees of 

GO&B: Creatore as President, Barnitt as CFO, and Sayavich as the head of sales and 

marketing. Subsequently, pursuant to the authority granted to him by the CCA, Creatore 

terminated Barnitt and Sayavich, alleging that the two had committed financial 

malfeasance with regard to the Provident loan. 

{¶ 6} Appellee Alfa Laval's business includes the manufacture and sale of 

components and parts to the food and beverage sanitary- processing industry. Prior to the 

incidents which gave rise to this lawsuit, GO&B was a distributor for Alfa Laval's products 

in the Ohio, New York, and western Pennsylvania areas. GO&B was not bound by any 

exclusive distribution arrangement with Alfa Laval and, thus, GO&B began quietly 

producing a competing private-label line of products called "BuyPep." 

{¶ 7} By 2003, GO&B owed Alfa Laval in excess of $1,000,000. Provident Bank 

was threatening foreclosure on the Provident loan. Alfa Laval executives met with 

Creatore to discuss their concerns. Alfa Laval presented Creatore a plan to minimize the 

impact on Alfa Laval if Provident Bank were to call in its loan and foreclose on GO&B. Alfa 
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Laval proposed that it (1) assume GO&B's customer base, (2) establish preference over 

GO&B's assets, (3) transfer GO&B's market share to another of Alfa Laval's distributors, 

and (4) obtain a noncompete covenant against Creatore preventing his competition 

against Alfa Laval and its distributors. Ultimately, Creatore did not accept those options 

and instead decided to purchase the Provident loan through a company he created for 

that sole purpose, PNH, Inc., the other appellant in this action. PNH is an acronym for 

Provident Note Holder. 

{¶ 8} According to appellants, a disgruntled Barnitt and Sayavich contacted Alfa 

Laval and at Alfa Laval's behest and in violation of the confidentiality provisions of the 

CCA, of which Alfa Laval was purportedly aware, disclosed confidential information about 

GO&B, including information about the competing BuyPep line, and Creatore's plan to 

purchase the Provident loan. Appellants also allege that Barnitt's attorney told Alfa Laval's 

attorney about the closing date of the loan sale and that Barnitt and Sayavich began 

covertly helping Alfa Laval plan an involuntary-bankruptcy filing against GO&B. 

{¶ 9} Just hours after PNH closed on the Provident loan purchase, Alfa Laval, 

along with two other GO&B creditors, filed an involuntary-bankruptcy petition against 

GO&B in the United States Bankruptcy Court for the Northern District of Ohio (case No. 03-

41957). Once in the bankruptcy court, pursuant to a motion by Alfa Laval, a Gap Interim 

Trustee was appointed and took over management of GO&B, thereby forcing Creatore to 

relinquish any operational control he had over the company. As the bankruptcy 

proceeded, Creatore formed another company called Diversified Process Components, 

Inc., which produced a product line that competed with Alfa Laval's. 
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{¶ 10} Alfa Laval subsequently moved the bankruptcy court to enjoin Creatore and 

Diversified Process Components from competing with Alfa Laval. The bankruptcy court 

refused to entertain the motion, finding that only the trustee could seek such relief on 

behalf of GO&B and only after filing an adversary complaint. 

{¶ 11} On May 29, 2003, Alfa Laval filed an adversary complaint in the bankruptcy 

court, naming itself and the Trustee as coplaintiffs and PNH, Creatore, and several other 

Creatore-affiliated companies as codefendants. The adversary complaint listed numerous 

alternative claims, including diversion of corporate assets and opportunities and 

preferential and fraudulent transfers, and requested a temporary restraining order. It also 

sought equitable subordination of the secured interests of PNH purchased from Provident 

Bank. The trustee did not initially sign the adversary complaint, but later ratified it. 

Appellants claim that Alfa Laval, through its attorneys, hounded and bullied the "malleable" 

trustee to pursue the adversary complaint and that Alfa Laval wrongfully used the 

adversary proceeding for an improper purpose, i.e., to eliminate Creatore and his new 

company from competing with Alfa Laval. Further, appellants allege that Alfa Laval 

improperly misappropriated the name, power, and authority of the trustee and committed 

other violations of bankruptcy law and procedure during the adversary proceeding. 

{¶ 12} The trustee eventually entered into a compromise settlement agreement with 

appellants with regard to the adversary proceeding. After a hearing, the bankruptcy court, 

in an order dated July 3, 2003, approved the compromise settlement agreement. The 

bankruptcy court weighed various criteria in deciding that the settlement agreement was 

fair and equitable. Among other things, the court ruled that "[b]ased upon prior testimony, 
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the allegations contained in the complaint, and the arguments of counsel at the hearing on 

the Motion, the Court found that the adversary complaint presents colorable claims which 

are the exclusive right of the Trustee herein to assert, with some chance of success as to 

many of these claims." Alfa Laval refused to sign the compromise settlement agreement. 

{¶ 13} On May 11, 2005, appellants filed the complaint giving rise to this appeal 

against Alfa Laval in the Mahoning County Court of Common Pleas, alleging defamation, 

tortious interference, and abuse of process. Appellant Creatore had previously brought 

the defamation and tortious-interference claims against Alfa Laval and several Alfa Laval 

executives in a previous action: Sayavich v. Creatore, Mahoning C.P. No. 03-CV-1081. 

However, Creatore voluntarily dismissed the claims against Alfa Laval without prejudice on 

May 25, 2004.1

{¶ 14} In the present case, Alfa Laval filed a motion to dismiss appellants' claims, or 

alternatively, a motion for more definite statement on September 9, 2005, which was 

overruled by the trial court. Alfa Laval then filed an answer with affirmative defenses. On 

December 18, 2006, Alfa Laval filed a motion for summary judgment on all appellants' 

claims, or alternatively a motion in limine. Appellants responded. Both sides sought the 

assistance of bankruptcy experts, who provided opinions about whether violations of 

 

1 Case No. 03-CV-1081 eventually went to trial on two remaining claims: Creatore's defamation and breach-of-contract 

claims against Barnitt. The breach-of-contract claim alleged that Barnitt shared information with Alfa Laval regarding 

Creatore's competing BuyPep line, in violation of the nondisclosure provisions of the CCA. At the close of evidence, the 

trial court granted a directed verdict on the contract claim. The defamation claim, which concerned Creatore's allegations 

that Barnitt fabricated a story that Creatore had planned a bankruptcy "bust-out" of GO&B and had set up a competing 

company as a plan to leave Alfa Laval with a $1,000,000 uncollectable account, went to the jury. The jury found in favor 

of Creatore on the defamation claim and initially awarded zero damages, but after being ordered by the trial court to 

further deliberate on damages, the jury awarded Creatore $25,000. Barnitt appealed, and Creatore cross-appealed. In 

an opinion styled Sayavich v. Creatore, 7th Dist. No. 07 MA 217, 2009-Ohio-5270, this court affirmed the judgment of the 

trial court. DeGenaro, J., dissented in part. 
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bankruptcy law and procedure had occurred during the GO&B bankruptcy case. On 

January 7, 2008, the trial court issued a judgment entry granting Alfa Laval's motion for 

summary judgment on the defamation claim and denying it on the abuse-of-process and 

tortious-interference claims. 

{¶ 15} The case was muddled by discovery disputes. Several motions to compel 

and motions for protective orders were filed by both sides. Appellants sought leave to file 

an amended complaint, which was overruled. 

{¶ 16} On October 29, 2008, Alfa Laval filed a motion to dismiss appellants' 

remaining claims for lack of subject-matter jurisdiction. The trial court held a hearing on 

that and other motions on January 13, 2009 and both filed posthearing briefs. On February 

2, 2009, the trial court granted Alfa Laval's motion to dismiss, agreeing that appellants' 

claims were preempted by federal bankruptcy law. 

{¶ 17} Appellants filed a notice of appeal on February 27, 2009. Alfa Laval filed a 

notice of cross-appeal on March 5, 2009. This court granted appellants' motion for a 

limited remand to pursue a Civ.R. 60(B) motion in the trial court. Appellants filed the 60(B) 

motion on April 28, 2009, which the trial court overruled on May 8, 2009. Appellants filed a 

supplemental notice of appeal from that judgment entry on June 2, 2009. 

Bankruptcy Law Preemption 

{¶ 18} In their first of three assignments of error, appellants assert: 

{¶ 19} "The trial court erred in finding it did not have jurisdiction over Plaintiffs' state 

law claims of tortuous [sic] interference, abuse of process and unfair business competition 

on the basis of federal bankruptcy law preemption." 
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{¶ 20} Appellants challenge both the trial court's initial dismissal of their claims and 

the trial court's subsequent denial of their motion to vacate the court's judgment of 

dismissal. Although appellants intermingle arguments regarding the initial dismissal and 

the denial of the Civ.R. 60(B) motion, for ease of analysis, we will address these rulings 

separately. 

Initial Dismissal 

{¶ 21} Appellate review on a dismissal for lack of subject-matter jurisdiction is de 

novo. Crestmont Cleveland Partnership v. Ohio Dept. of Health (2000), 139 Ohio App.3d 

928, 936, 746 N.E.2d 222. Further, in determining whether the trial court properly 

dismissed the case for lack of subject-matter jurisdiction, the trial court and hence a 

reviewing court are not limited to an examination of the allegations in the complaint, but 

rather have the authority to consider any pertinent evidentiary material in the record. 

McGuffey v. LensCrafters, Inc. (2001), 141 Ohio App.3d 44, 50, 749 N.E.2d 825. 

{¶ 22} As indicated, at the time of dismissal, two of appellants’ claims remained: 

tortious interference with a contract and abuse of process. With regard to the tortiousinterference claim, appellants alleged that Alfa Laval had knowledge of the terms of the 

Close Corporation Agreement (“CCA”) between Creatore, Sayavich, Barnitt, and USSC 

and interfered with the CCA by soliciting Sayavich and Barnitt to reveal confidential 

information protected thereby. Appellants further alleged that the information Alfa Laval 

wrongly procured from Sayavich and Barnitt caused Alfa Laval to file the involuntarybankruptcy petition against GO&B, which in turn caused appellants’ damages. 

{¶ 23} More specifically, appellants alleged in their answers to interrogatories: 
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{¶ 24} "Defendant was in possession of the CCA at the time Defendant solicited 

Sayavich and Barnitt to violate the clear terms of that contract. Defendant used the 

information unlawfully solicited in violation of this contract and as a pretence and excuse to 

then force GO&B into Bankruptcy immediately after Plaintiffs purchased approximately 1.5 

million dollars of GO&B debt. All of these actions were done under false pretenses and 

were intended to financially ruin Plaintiffs." 

{¶ 25} The abuse-of-process claim concerned Alfa Laval's conduct in filing and 

pursuing the adversary complaint against appellants during the GO&B bankruptcy 

proceedings. More specifically, appellants alleged that the adversary complaint was 

wrongfully used to obtain an improper objective, i.e., to prevent appellant Creatore from 

operating a separate business in competition with Alfa Laval. In their answers to 

interrogatories, appellants more specifically alleged that "[i]n an effort to preclude Creatore 

and GO&B from lawfully competing against Alfa Laval, [Alfa Laval] filed an involuntary 

bankruptcy petition against GO&B and subsequently perverted this process by fabricating 

allegations against GO&B and Creatore and prepared an adversarial complaint for filing in 

the Bankruptcy Court to eliminate GO&B and Creatore as competitors. [Alfa Laval] then 

intentionally misrepresented information about Creatore's character to the Trustee to get 

the Truustee [sic] to pursue such false allegations." 

{¶ 26} Alfa Laval filed a motion to dismiss both claims based on lack of subjectmatter jurisdiction, arguing that the claims were preempted by federal bankruptcy law. The 

trial court granted the motion in a February 2, 2009 judgment entry, which stated in its 

entirety: 
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{¶ 27} "Because this court lacks subject matter jurisdiction, regarding the claims of 

the Plaintiff, the Motion to Dismiss of the Defendant, Alfa Laval Flow, Inc. is hereby 

granted. This court finds that the remedies available to the Plaintiffs are exclusive to those 

provided by bankruptcy law and procedure. This court finds that the state law claims, such 

as those herein and presented, have been preempted. The complaint is therefore 

dismissed." 

{¶ 28} State law is preempted by federal law under the Supremacy Clause of the 

United States Constitution in three circumstances. Clause 2, Article VI, United States 

Constitution. The first circumstance, often termed "express preemption," means that 

"Congress can define explicitly the extent to which its enactments preempt state law." 

English v. Gen. Elec. Co. (1990), 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65. The 

other two circumstances encompass forms of implied preemption, i.e., "field pre-emption" 

and "conflict preemption." Field preemption means "in absence of explicit statutory 

language, state law is pre-empted where it regulates conduct in a field that Congress 

intended the Federal Government to occupy exclusively." Id. at 79. Conflict preemption 

occurs when "state law is pre-empted to the extent that it actually conflicts with federal 

law." Id. Congressional intent is paramount in determining whether federal law preempts 

state law. California Fed. S. & L. Assn. v. Guerra (1987), 479 U.S. 272, 280, 107 S.Ct. 683, 

93 L.Ed.2d 613. 

{¶ 29} The Bankruptcy Code does not explicitly prohibit state-law tort claims that 

arise from bankruptcy proceedings. Thus, the question to be resolved in this appeal is 

whether Congress impliedly preempted such claims. This is an issue of first impression 
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for this court. Neither this district, nor the Ohio Supreme Court, has addressed this 

question. Courts across the country—both state and federal—are divided on this issue. 

The majority position holds that such claims are preempted under a field-preemption 

theory, and Alfa Laval urges this court to follow this line of decisions. The seminal case, 

often cited by other courts, is the Ninth Circuit's MSR Exploration, Ltd. v. Meridian Oil, Inc. 

(C.A.9, 1996), 74 F.3d 910. In MSR Exploration, debtor-plaintiffs brought a state-law claim 

of malicious prosecution against creditor-defendants for filing creditor's claims during 

bankruptcy proceedings. The federal district court dismissed the claims on the basis that 

the court lacked subject-matter jurisdiction because the action was preempted by 

bankruptcy law. On appeal, the Ninth Circuit affirmed the dismissal. Id. at 916. 

{¶ 30} The court provided several reasons for its determination that the cause of 

action was preempted. First, the court opined that Congress's intent to preempt the field is 

demonstrated by the fact that bankruptcy matters fall under the exclusive jurisdiction of 

federal courts. Id. at 913. 

{¶ 31} Second, the court noted that "a mere browse through the complex, detailed, 

and comprehensive provisions of the lengthy Bankruptcy Code, 11 U.S.C. Sec. 101 et 

seq., demonstrates Congress's intent to create a whole system under federal control 

which is designed to bring together and adjust all of the rights and duties of creditors and 

embarrassed debtors alike. While it is true that bankruptcy law makes reference to state 

law at many points, the adjustment of rights and duties within the bankruptcy process itself 

is uniquely and exclusively federal. It is very unlikely that Congress intended to permit the 

superimposition of state remedies on the many activities that might be undertaken in the 
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management of the bankruptcy process. 

{¶ 32} "Debtors' petitions, creditors' claims, disputes over reorganization plans, 

disputes over discharge, and innumerable other proceedings, would all lend themselves to 

claims of malicious prosecution. Those possibilities might gravely affect the already 

complicated processes of the bankruptcy court. * * * Of course, the opportunities for 

asserting malicious prosecution claims would only be limited by the fertility of the pleader's 

mind and by the laws of the state in which the proceeding took place." Id. at 914. 

{¶ 33} Third, the court noted that the need for uniformity in bankruptcy proceedings 

was so important historically that the framers of the United States Constitution were 

persuaded to expressly grant Congress the power " ‘to establish * * * uniform Laws on the 

subject of Bankruptcies throughout the United States.’ " Id., quoting Clause 4, Section 8, 

Article I, United States Constitution. 

{¶ 34} Finally, the court expounded upon the fact that Congress has created specific 

remedies to prevent misuse of the bankruptcy process, including Fed.R.Bankr.P. 9011 

(frivolous and harassing filings); Section 105(a), Title 11, U.S.Code (authority to prevent 

abuse of process); Section 303(i)(2), Title 11, U.S.Code (bad-faith filing of involuntary 

petitions); Section 362(h), Title 11, U.S.Code (willful violation of stays); Section 707(b), 

Title 11, U.S.Code (dismissal for substantial abuse); Section 930, Title 11, U.S.Code 

(dismissal under Chapter 9); and Section 1112, Title 11, U.S.Code (dismissal under 

Chapter 11). This suggested to the court that "Congress has considered the need to deter 

misuse of the process and has not merely overlooked the creation of additional deterrents." 

MSR Exploration,74 F.3d at 915, citing Mertens v. Hewitt Assoc. (1993), 508 U.S. 248, 
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113 S.Ct. 2063, 124 L.Ed.2d 161 (enforcement scheme in ERISA indicates that Congress 

did not forget other remedies); Pilot Life Ins. Co. v. Dedeaux (1987), 481 U.S. 41, 54, 107 

S.Ct. 1549, 95 L.Ed.2d 39 (ERISA remedies preempt others, even if some possible 

remedies are left out); and Gibson v. Prudential Ins. Co. (C.A.9, 1990), 915 F.2d 414, 418. 

{¶ 35} Most jurisdictions have adopted the position as set forth in MSR Exploration. 

See, e.g., Casden v. Burns (N.D.Ohio 2007), 504 F.Supp.2d 272 (shareholder's claim that 

corporate officers breached fiduciary duty by deciding to file bankruptcy petition 

preempted); In re Miles (C.A.9, 2005), 430 F.3d 1083 (claims by debtor and debtor's 

relatives against creditors, their attorneys, and legal staff for alleged bad-faith conduct in 

filing involuntary-bankruptcy petitions preempted); Lewis v. Chelsea G.C.A. Realty 

Partnership, L.P. (2004), 86 Conn.App. 596, 862 A.2d 368 (federal preemption in field of 

bankruptcy deprives Connecticut courts of jurisdiction to hear state-law unfair-tradepractices claim asserting that an action brought in federal bankruptcy court was improper); 

Glannon v. Garrett & Assoc., Inc. (D.Kan.2001), 261 B.R. 259 (state-law claims based on 

filing of involuntary-bankruptcy petition, adversary proceeding, and violation of automatic 

stay preempted); Shiner v. Moriarty (Pa.Super.1998), 706 A.2d 1228 (state-law tort claim 

against creditors, their attorneys, and law firm for filing various improper bankruptcy papers 

preempted); Raymark Industries, Inc. v. Baron (June 23, 1997), E.D.Pa. No. 96-7625 

(debtor's state-law tort claims against creditors arising from creditors' filing of an 

involuntary-bankruptcy petition preempted); Mason v. Smith (1996), 140 N.H. 696, 672 

A.2d 705 (state tort action against creditors who instituted involuntary-bankruptcy 

proceeding preempted); Koffman v. Osteoimplant Technology., Inc. (D.Md.1995), 182 B.R. 
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115 (debtor's claims of abuse of process and malicious prosecution against creditors who 

instituted involuntary-bankruptcy proceeding preempted); Edmonds v. Lawrence Natl. Bank 

& Trust Co. (1991), 16 Kan.App.2d 331, 823 P.2d 219 (abuse-of-process and maliciousprosecution claims arising from defendant's filing of complaint to revoke plaintiffs' 

discharge granted by bankruptcy court preempted); Idell v. Goodman (1990), 224 

Cal.App.3d 262, 273 Cal.Rptr. 605 (malicious-prosecution action by a debtor against a 

creditor for "improperly" objecting to the discharge of the debtor's fiscal obligations 

preempted); Smith Corp. v. Terry's Tractor, Inc. (1989), 209 Cal.App.3d 951, 257 Cal.Rptr. 

598 (debtor's claims of abuse of process and malicious prosecution against creditors who 

instituted involuntary-bankruptcy proceeding were preempted by federal law); Gonzales v. 

Parks (C.A.9, 1987), 830 F.2d 1033 (abuse-of-process claim regarding filing of a 

bankruptcy petition preempted). 

{¶ 36} Notably, the Sixth Circuit Court of Appeals also favors preemption. See 

Pertuso v. Ford Motor Credit Co. (C.A.6, 2000), 233 F.3d 417. In Pertuso, bankruptcy 

debtors brought a purported class-action suit against their secured creditor in federal court 

asserting Ohio common-law claims for unjust enrichment and an accounting. More 

specifically, the debtor-plaintiffs challenged the creditor's conduct in the bankruptcy court 

with regard to a reaffirmation agreement. The Sixth Circuit, citing MSR Exploration, held 

that those claims were preempted by bankruptcy law as Congress had preempted the field. 

 Id. at 425-426. The court continued: 

{¶ 37} "As [the defendant] correctly points out, the [the plaintiffs'] state law claims 

presuppose a violation of the Bankruptcy Code. Permitting assertion of a host of state law 
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causes of action to redress wrongs under the Bankruptcy Code would undermine the 

uniformity the Code endeavors to preserve and would 'stand[ ] as an obstacle to the 

accomplishment and execution of the full purposes and objectives of Congress.'" Id. at 

426, quoting Bibbo v. Dean Witter Reynolds, Inc. (C.A.6, 1998), 151 F.3d 559, 562-563. 

{¶ 38} A recent Pennsylvania Supreme Court case, Stone Crushed Partnership v. 

Kassab Archbold Jackson & O'Brien (2006), 589 Pa. 296, 908 A.2d 875, follows the 

majority rule as well. In Stone Crushed Partnership, one of the plaintiffs, James Jackson, 

had partnered with several of the defendants to form Granite Partners One, Ltd. In a 

situation similar to that in the case at bar, Granite defaulted on its loan obligations and 

Jackson, seeking to avoid foreclosure, formed a separate partnership called Stone 

Crushed Partnership (“Stone”) to assume Granite's debt. Stone was essentially Jackson 

acting in accordance with the protection afforded to a limited-partnership entity. Granite's 

remaining partners, defendants Archbold and O'Brien, put Granite into bankruptcy by 

instituting Chapter 11 bankruptcy proceedings. While in bankruptcy, Stone instituted an 

adversary action against the debtor Granite and the nondebtors Archbold, and O'Brien. 

Granite, Archbold, and O'Brien in turn filed counterclaims against Stone and Jackson, 

which were dismissed by the bankruptcy court. 

{¶ 39} Stone and Jackson then brought suit in Pennsylvania state court alleging 

state-law claims of abuse of process and wrongful use of civil proceedings arising from the 

counterclaims filed in the adversary proceeding. Summary judgment was granted in favor 

of Archbold and O'Brien, and the Pennsylvania Supreme Court affirmed, following the 

majority of courts and holding that the state-law claims were preempted by federal 
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bankruptcy law. The court noted that even though a state-law action would have provided 

greater remedies than those available in the Bankruptcy Code, the plaintiffs' claims were 

nonetheless preempted. Stone Crushed Partnership at 314-315. Stone Crushed 

Partnership is factually very similar to the present case, and we find it telling that 

appellants do not attempt to distinguish it. 

{¶ 40} Instead, appellants urge us to adopt the minority position and to conclude that 

state-law tort claims are not preempted. However, the overwhelming weight of authority is 

against that position, and moreover, decisions favoring the minority view are often 

fractured. 

{¶ 41} For instance, in a recent five-to-four Texas Supreme Court decision, Graber 

v. Fuqua (Tex.2009), 279 S.W.3d 608, a slim majority of the court held that a state-law 

malicious-prosecution claim concerning an adversary complaint filed during the course of 

a Chapter 7 bankruptcy proceeding was not preempted by federal law. Id. at 610. A 

strong dissent concluded the opposite, stating that "[d[ebtors have adequate recourse for 

abuse of the bankruptcy process in the Bankruptcy Code and Rules." Id. at 621 

(Wainwright, J., dissenting). The dissent expressed its concern that the majority's holding 

"undermines the uniformity mandated for bankruptcy law in the United States Constitution, 

as under the [majority's] rationale all fifty states could overlay their state remedies on the 

bankruptcy proceedings and multiply the controversy for years beyond the controlled 

confines of the federal bankruptcy process." Id. (Wainwright, J., dissenting). 

{¶ 42} Although a divided panel from the Fifth District implicitly favored the minority 

rule in Dever v. Lucas, 174 Ohio App.3d 725, 2008-Ohio-332, 884 N.E.2d 641, there was 
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a dissent in that case as well. Dever involved malicious-prosecution and abuse-of-process 

claims arising from a bankruptcy proceeding. The trial court granted defendants' Civ.R. 

12(B)(6) motion and dismissed both claims. Plaintiffs appealed. The majority's analysis 

centered on whether the plaintiffs' complaint stated claims for malicious prosecution and 

abuse of process. Id. at ¶29, 42. The majority did not directly address preemption, 

apparently because the issue had not been raised. 

{¶ 43} The dissent concluded that the claims should have been dismissed for lack 

of subject-matter jurisdiction, noting that subject-matter jurisdiction may be raised sua 

sponte by the court at any stage of the proceedings, including for the first time on appeal. 

Id. at ¶46-47 (Delaney, J., dissenting). The dissent continued: 

{¶ 44} "I agree with other jurisdictions that have determined that the Bankruptcy 

Code and Federal Rules of Civil Procedure, specifically Section 105, Title 11, U.S.Code 

and Fed.R.Civ.P. 11, preempt state-law claims of malicious prosecution and abuse of 

process for conduct that occurred in bankruptcy proceedings. 

{¶ 45} "As recently recognized by the Supreme Court of Pennsylvania in Stone 

Crushed Partnership v. Kassab Archbold Jackson & O'Brien (2006), 589 Pa. 296, 908 A.2d 

875, parties could be deterred from exercising their rights in bankruptcy if, by filing a 

bankruptcy action, they risk being faced with a state-court lawsuit and liability for 

substantial damages, citing Gonzales v. Parks (C.A.9, 1987), 830 F.2d 1033, 1036. It is for 

Congress and the federal courts, not the state courts, to decide what incentives and 

penalties are appropriate for use in connection with the bankruptcy process and when 

those incentives or penalties shall be utilized. Id. at 308, 908 A.2d 875. * * * Accordingly, I 
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would affirm the trial court's dismissal of the complaint, albeit on different grounds." Dever

at ¶48-51 (Delaney, J., dissenting). 

{¶ 46} This analysis is persuasive. We share the concerns of many other courts 

that state tort actions which presuppose bankruptcy-law violations could undermine the 

uniformity of the bankruptcy process. In addition, parties could be deterred from exercising 

their rights in bankruptcy if, by filing a bankruptcy action, they risk being faced with a statecourt lawsuit and liability for substantial damages. Moreover, the Bankruptcy Code 

contains many remedies for improper conduct during a bankruptcy proceeding. Section 

303(i), Title 11, U.S.Code authorizes sanctions for involuntary-bankruptcy petitions filed in 

bad faith which includes costs, reasonable attorney fees, damages proximately caused by 

the filing, and punitive damages. Section 105(a), Title 11, U.S.Code provides that the 

bankruptcy court "may issue any order, process, or judgment that is necessary or 

appropriate * * * to prevent an abuse of process." (Emphasis added.) Rule 9011 of the 

Federal Rules of Bankruptcy Procedure provides sanctions for frivolous and harassing 

filings. The fact that Congress provided remedies for bad-faith conduct and abuse of 

process in a bankruptcy proceeding evinces its intent that state-law tort claims arising from 

misuse of those proceedings are preempted. 

{¶ 47} Appellants argue that even if we side with the majority of courts on the 

overarching preemption issue, their claims are somehow unique and therefore factually 

distinguishable from the above cases, thus making preemption unwarranted. First, with 

respect to their abuse-of-process claim, which centers on the adversary complaint, 

appellants contend that the adversary proceeding was not a "core proceeding" under 
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Section 1334(a) and that therefore the bankruptcy court had only concurrent jurisdiction 

over the claim, which, according to appellants, makes preemption unwarranted. Appellants 

cite In re Wolverine Radio Co. (C.A.6, 1991), 930 F.2d 1132, in support of this argument. 

However, Wolverine is not on point. There the Sixth Circuit held that a proceeding brought 

by a Chapter 11 debtor to determine the Michigan Employment Security Commission's 

authority to transfer the debtor's experience rating to an assignee of a purchaser of the 

debtor's assets and to determine assignee's liability under the Michigan Employment 

Security Act was a "core proceeding," over which the district court had exclusive 

jurisdiction. Id. at 1143-1144. 

{¶ 48} Moreover, as Alfa Laval points out, MSR Exploration and its progeny turned 

on the detailed, highly complex laws governing bankruptcy in concluding preemption, not 

on whether the claims of abuse during the bankruptcy process concern a "core 

proceeding." In other words, conspicuously absent from the analyses of those courts is 

any discussion of whether or not the proceedings were "core." Stone Crushed Partnership

involved an adversary dispute between nondebtors, something appellants would 

characterize as "non-core," yet the Pennsylvania Supreme Court nonetheless found 

preemption. 589 Pa.296, 908 A.2d 875. 

{¶ 49} Second, appellants argue that because none of the parties to the state-court 

litigation in the instant case were debtors in the bankruptcy court action, preemption is 

improper. However, several of the cases favoring preemption concerned state-court suits 

involving nondebtors. See, e.g., Stone Crushed Partnership, 589 Pa. 296, 908 A.2d 875, 

and In re Miles, 430 F.3d 1083. For instance, In re Miles involved a suit brought in 
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California state court against a creditor by the relatives of several bankruptcy debtors for 

alleged bad-faith filing of a bankruptcy petition. None of the relatives sought damages for 

involuntary-bankruptcy petitions filed against them personally. Despite the fact that the 

case involved purely nondebtors, the Ninth Circuit found the state-law claims preempted 

by federal bankruptcy law. Id. at 1091. 

{¶ 50} Third, appellants make a timing argument with respect to their tortiousinterference claim. Namely, they argue that this claim arose prior to Alfa Laval filing the 

involuntary-bankruptcy petition against GO&B and that the claim cannot be preempted for 

this reason. However, an analogous argument was raised and rejected in Casden, 504 

F.Supp.2d 272, supra. Casden involved a shareholder suit where one of the claims 

alleged that the corporate officers' decision to file a voluntary Chapter 11 bankruptcy 

petition constituted a breach of fiduciary duty. Among other things, the shareholder-plaintiff 

argued that the claims should not be preempted by federal bankruptcy law because the 

alleged breach of fiduciary duty occurred prior to any filing in the bankruptcy court. The 

federal district court rejected this argument. The court reasoned that the claim for breach 

of fiduciary duty could not accrue until such time as damages occurred and that any 

alleged damages could not have occurred until the Chapter 11 bankruptcy petition was 

filed. Id. at 281, citing, inter alia, Kunz v. Buckeye Union Ins. Co., 1 Ohio St.3d 79, 81-82, 

437 N.E.2d 1194 (finding tort cause of action accrued as of date that damages were 

incurred and not earlier date when duty was breached). 

{¶ 51} The federal district court continued: 

{¶ 52} "When, as here, injury to shareholders might never occur, and thus plaintiff's 
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claim would not accrue, if at all, until after the company files its bankruptcy petition, and 

accrual of the claim depends on what happens in the Bankruptcy Court, the potential future 

claim would interfere sufficiently with the bankruptcy process to trigger preemption." 

Casden at 281, citing Pertuso, 233 F.3d 417, and MSR Exploration, 74 F.3d 910.

{¶ 53} This logic can be applied here. Appellants argue that the tortious interference 

occurred prior to the bankruptcy filing and therefore should not be preempted. However, 

any damage from the alleged tortious interference did not occur until Alfa Laval filed the 

involuntary-bankruptcy petition. In order to succeed on their tortious-interference claim, 

appellants would necessarily have to prove that the bankruptcy was filed in bad faith. Cf. 

Casden, 504 F.Supp.2d at 280. Numerous courts have held that state-law claims based 

on the bad-faith filing of an involuntary-bankruptcy petition are preempted. See, e.g., In re 

Miles; Glannon, 261 B.R.259; Raymark Industries, E.D.Pa. No. 96-7625; Mason, 140 N.H. 

696, 672 A.2d 705; Koffman, 182 B.R. 115; and Smith, 209 Cal.App.3d 951, 257 Cal.Rptr. 

598. Even the majority in Graber, which concluded there was no preemption of a state-law 

claim arising from an adversary proceeding, signaled in dicta that a state-law claim based 

upon the bad-faith filing of an involuntary petition would be preempted. Graber, 279 

S.W.3d at 65 ("it is more likely that Congress considered the need to deter misuse of the 

unique involuntary petition process it created, and more likely that it intended section 303(i) 

to be the exclusive remedy"). 

{¶ 54} Finally, appellants argue in their reply brief that a 2005 United States 

Supreme Court case, Bates v. Dow Agrosciences, L.L.C. (2005), 544 U.S. 431, 125 S.Ct. 

1788, 161 L.Ed.2d 687, supports their argument against preemption. In their view, Bates
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narrowed the federal-law preemption to situations where Congress's intent to preempt is 

"clear and manifest." In Bates, the United States Supreme Court held that certain statelaw claims were not preempted by the Federal Insecticide, Rodenticide & Fungicide Act 

(“FIRFA”). The court further ruled that "[i]n areas of traditional state regulation, we assume 

that a federal statute has not supplanted state law unless Congress has made such an 

intention 'clear and manifest.'" Id. at 449, quoting New York State Conference of Blue 

Cross & Blue Shield Plans v. Travelers Ins. Co. (1995), 514 U.S. 645, 655, 115 S.Ct. 1671, 

131 L.Ed.2d 695, quoting Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 67 

S.Ct. 1146, 91 L.Ed. 1447. 

{¶ 55} Bates is not entirely on point because it does not deal with preemption under 

the Bankruptcy Code, but rather under FIRFA. Further, bankruptcy law is far from an area 

of "traditional state regulation." Moreover, even applying the clear-and-manifest standard 

to the case at hand, Congress's intent to preempt the entire field of bankruptcy law meets 

that standard. 

{¶ 56} Thus, based on the foregoing, we conclude that the trial court properly 

dismissed appellants' claims for lack of subject-matter jurisdiction as they were preempted 

by federal bankruptcy law. The first part of appellants' first assignment of error is meritless. 

Ruling on the Civ.R. 60(B) Motion 

{¶ 57} Appellants also appeal the trial court's ruling on the Civ.R. 60(B) motion, 

which denied their motion to vacate the court's judgment of dismissal. As aforementioned, 

following the trial court's dismissal of this case for lack of subject-matter jurisdiction, 

appellants filed a motion for relief from the automatic stay in the bankruptcy court. After a 
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hearing, the bankruptcy court denied the motion for relief from stay as moot since the state 

trial court action had already been dismissed. In the body of the opinion, the bankruptcy 

court did state, "The Court finds that the automatic stay is not applicable to the State Court 

Case. Debtor Girton, Oakes & Burger (Debtor) is not a party to the State Court Case, and 

the State Court case does not affect any property of the estate." 

{¶ 58} Upon motion of appellants, we granted a limited remand so that appellants 

could pursue a Civ.R. 60(B) motion in the trial court, in light of the bankruptcy court 

decision. In that motion, appellants claimed that the bankruptcy court's ruling warranted 

the trial court to vacate its judgment of dismissal. The trial court denied the motion, and 

appellants filed a supplemental notice of appeal from that judgment. 

{¶ 59} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the 

movant must demonstrate that "(1) the party has a meritorious defense or claim to present 

if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. 

R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where 

the grounds of relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the 

judgment, order or proceeding was entered or taken." GTE Automatic Elec., Inc. v. ARC 

Industries, Inc. (1976), 47 Ohio St.2d 146, 150-151, 1 O.O.3d 86, 351 N.E.2d 113. 

{¶ 60} The five listed grounds in Civ.R. 60(B) are as follows: "(1) mistake, 

inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due 

diligence could not have been discovered in time to move for a new trial under Rule 59(B); 

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other 

misconduct of an adverse party; (4) the judgment has been satisfied, released or 
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discharged, or a prior judgment upon which it is based has been reversed or otherwise 

vacated, or it is no longer equitable that the judgment should have prospective application; 

or (5) any other reason justifying relief from the judgment." 

{¶ 61} A trial court's ruling on a Civ.R. 60(B) motion is reviewed for an abuse of 

discretion. Riesbeck v. Indus. Paint & Strip, 7th Dist. No. 08 MO 11, 2009-Ohio-6250, at ¶ 

17, citing Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. "The term 

'abuse of discretion' connotes more than an error of law or judgment; it implies that the 

court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. 

{¶ 62} Here the trial court did not abuse its discretion by denying the motion. The 

bankruptcy court's decision does not justify vacating the dismissal order and reinstating 

the case for several reasons. First, the bankruptcy court's ruling on appellants’ motion for 

relief from the automatic stay is not dispositive of the preemption issue. Federal 

bankruptcy law preemption and violations of the automatic stay are two separate and 

distinct legal concepts. With regard to the automatic stay, the Bankruptcy Code mandates 

a stay in further judicial proceedings against the debtor until a bankruptcy dispute is 

resolved. Section 362(a)(1), Title 11, U.S.Code provides that unless the action falls under 

one of the exceptions listed in subsection (b), the filing of a bankruptcy petition operates as 

a stay of "the commencement or continuation, including the issuance or employment of 

process, of a judicial, administrative, or other action or proceeding against the debtor that 

was or could have been commenced before the commencement of the case under this 

title, or to recover a claim against the debtor that arose before the commencement of the 
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case under this title." (Emphasis added.) 

{¶ 63} Thus, the automatic stay protects bankruptcy debtors from most types of suits 

filed against them during the course of the bankruptcy proceeding. By contrast, 

preemption relates to certain types of state-law claims, which may or may not involve the 

debtor as a defendant, that conflict with federal law, either implicitly or explicitly. See 

English, 496 U.S. at 78, 110 St. Ct. 2270, 110 L.Ed.2d 65. 

{¶ 64} Appellants focus on the bankruptcy court's declaration that "the State Court 

Case does not affect any property of the estate," to justify their position that preemption of 

their claims was unwarranted. However, appellants take that statement out of context; it 

was made by the bankruptcy court pursuant to its ruling on appellants' motion for relief 

from the automatic stay. The bankruptcy court's full statement on this topic in its judgment 

entry was as follows: "The Court finds that the automatic stay is not applicable to the State 

Court Case. Debtor Girton, Oakes & Burger (‘Debtor’) is not a party to the State Court 

Case, and the State Court case does not affect any property of the estate." (Emphasis 

added.) 

{¶ 65} Moreover, the bankruptcy court stated during the hearing on the motion for 

relief from stay that it believed that the trial court was correct in dismissing the present case 

for lack of subject-matter jurisdiction: 

{¶ 66} "[J]ust to make sure that it is very clear, the allegations in the State Court 

case that the Court has read appear to go to the good faith of the filing [of the involuntarybankruptcy petition] by Alfa Laval, which I think has long passed and is not something that 

another creditor can assert to begin with, and I think the allegations with respect to the 
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filing of the adversary proceeding are also not for this creditor to assert, and to the extent 

that the Trustee had any of those concerns, I think those concerns have been waived or 

ratified. 

{¶ 67} "So I think that the State Court was correct that the State Court does not 

have jurisdiction over at least most of the allegations that are, that have been asserted in 

the State Court suit." (Emphasis added.) 

{¶ 68} The bankruptcy court then ruled that the automatic stay does not apply to the 

present suit and denied appellants' motion for relief as moot because this case had already 

been dismissed by the trial court. Thus, the bankruptcy court's ruling does not support 

appellants' motion to vacate the dismissal. If anything, it actually supports the trial court's 

decision to dismiss the case for lack of subject-matter jurisdiction. 

{¶ 69} Finally, as Alfa Laval notes, appellants failed to argue precisely how they 

were entitled to relief from judgment under any of the listed grounds in Civ.R. 60(B). They 

cited sections (1), (2), and (5) in their motion, but offered no explanation as to how or why 

they were entitled to relief under those sections. For all of these reasons, the trial court 

properly denied appellants' Civ.R. 60(B) motion. 

{¶ 70} Based on the foregoing, the trial court properly dismissed appellants' claims 

for lack of subject-matter jurisdiction, and the court did not abuse its discretion in denying 

the subsequent Civ.R. 60(B) motion. Accordingly, appellants' first assignment of error is 

meritless. 

Appellants' Remaining Assignments of Error 

{¶ 71} In their second and third assignments of error, appellants assert: 
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{¶ 72} "The state trial court erred in denying plaintiff's motion to amend their 

complaint to add a claim for unfair competition and unfair trade practices." 

{¶ 73} "The trial court erred in denying Plaintiff's motion to compel the production of 

documents withheld by the Defendant under a claim of attorney-client privilege and work 

product." 

{¶ 74} Based upon our resolution of appellants' first assignment of error, which 

concludes that the trial court correctly dismissed all of appellants' claims, these 

assignments of error are moot, and we decline to address them. 

Alfa Laval's Cross-Appeal 

{¶ 75} Alfa Laval filed a cross-appeal in this matter, in which it assigns two errors: 

{¶ 76} "The trial court erred when it failed to grant summary judgment in favor of Alfa 

Laval concerning the tortious interference claim." 

{¶ 77} "The trial court erred when it failed to grant summary judgment in favor of Alfa 

Laval concerning the abuse of process claim." 

{¶ 78} Here, Alfa Laval attempts to challenge the trial court's January 8, 2008 denial 

of Alfa Laval's motion for summary judgment on appellants' tortious-interference and 

abuse-of-process claims. Because we have resolved this appeal in Alfa Laval's favor, we 

decline to discuss the merits of Alfa Laval's cross-assignments of error; these issues are 

moot. 

Conclusion 

{¶ 79} All of appellants' arguments are meritless. The trial court properly dismissed 

the case for lack of subject-matter jurisdiction because appellants' abuse-of-process and 
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tortious-interference claims are preempted by federal bankruptcy law. The trial court did 

not abuse its discretion by denying appellants' subsequent Civ.R. 60(B) motion. 

Appellants' arguments regarding the trial court's denial of their motion to amend and 

motion to compel discovery are moot based upon our conclusion that their claims were 

properly dismissed. Alfa Laval's cross-appeal is also moot based upon our resolution of 

this appeal in Alfa Laval's favor. Accordingly, the judgment of the trial court is affirmed. 

Judgment affirmed. 

 VUKOVICH, P.J., and DONOFRIO, J., concurs.