Case No. 09 CV 0657

Judge Chris Martin



Defendant, the Fairfield County District Library (“Library”), has asked this court to dismiss Neinast’s complaint, under the relaxed mutuality exceptions to the principle that, for collateral estoppel to apply, all parties must either be the same or in privity with each other. The Library accepts that they are not in privity with the Columbus Metropolitan Library (“CML”), against whom Neinast pursued previous lawsuits in an effort to remove CML’s shoe rule. However, there are very few exceptions to this relaxation of the requirement of mutuality, and the instant case does not fall under those few exceptions. The Library is asking this Court to create a new exception, and the particulars of this case do not fit the standards for recognizing new exceptions.

Thus, the Library’s motion to dismiss must be denied.


Neinast concedes that the previous litigation against CML is detailed and confusing, and it might be difficult to ascertain just what points were or were not considered between the federal and state lawsuits. Here we attempt to lay that out clearly and concisely.

The Federal Lawsuit

Neinast first filed his 42 U.S.C. Section 1983 suit in the Franklin County Court of Common Pleas, Case No. 01-CVH-3104. This suit asked for relief under three theories: the shoe rule deprived him of his right to receive information (part of freedom of speech); the shoe rule deprived him of a liberty interest in his personal appearance; and the shoe rule deprived him of due process since it had never been promulgated by CML’s board of trustees as required under state law1  and even if the board had adopted the rule, they had no delegated authority to do so. CML removed this case to federal court, Case No. C2-01-442, and this is the case that led to the two federal opinions: Neinast v. Bd of Trustees of the Columbus Metro. Library (S.D. Ohio 2002), 190 F. Supp. 2d 1040; Neinast v. Bd. of Trustees of the Columbus Metro. Library (C.A. 6, 2003), 346 F. 3d 585.

There are three points from those opinions that are of particular relevance to the instant case: 1) those Courts made the factual determination that there were hazards to barefooted patrons in CML; 2) those Courts made the legal determination that under the rational basis review appropriate for questions of personal appearance, CML met that standard since shoes would protect patrons from the hazards in CML and since shoes would protect CML from tort claims; and 3) those Courts refused to address any of Neinast’s state claims.

As discussed in Neinast’s Motion for Summary Judgment of September 29, 2009, the determination of hazards to barefooted persons was rather dubious. That determination was not made by a full trial with the presentation of actual evidence, but was decided by summary judgment. Furthermore, the Sixth Circuit Court of Appeals did nothing more than take certain incident reports that had nothing to do with bare feet, and then speculate that any particular report showed that bare feet were in danger:

Here, the Board has provided incident reports documenting various hazards to barefoot patrons, including the presence of feces on the floor of the restroom and in the reading area (JA 133, 153, 163, 176, 197, 212, 250, 252, 254, 256, 257), vomit on the floor of the restroom and in the children's area (JA 170, 224), broken ceiling tiles on the floor of the restroom (JA 134), splintered chair pieces in the children's area (JA 140), drops of blood on the floor of the restroom (JA 184), urine in the elevator, on the floor of the bathroom, on a chair in the reading area, and on the floor of the reading area (JA 161, 165, 168, 176, 266, 276, 291), and broken glass in the lobby (JA 185).

Neinast, 346 F. 3d at 593. Notice that there was no evidence presented that any of these actually presented a danger to a barefooted patron. In fact, Neinast walks on glass all the time, uses restrooms all the time, and in general goes everywhere barefoot without difficulty.2  (Neinast Affidavit, ¶¶2-6, 8.) When presented with that information, the Court there ignored it (even though, in summary judgment, all evidence should be interpreted in favor of the person against who summary judgment is invoked). Also, as discussed in Neinast’s Motion for Summary Judgment, this is a hard case. It is way too easy for judges to apply their own (unconscious) biases and assume they know something about going barefoot when they do not.

The Sixth Circuit also determined, in regards to Neinast’s liberty interest in his personal appearance, because of the already-determined “hazards” in the library, that the rational basis standard of review was satisfied by the shoe rule:

the Board has made the reasonable determination that the requirement that patrons of the Library wear shoes is necessary to protect both “the health and safety of Library patrons, who may be harmed in the Library if allowed to enter barefoot,” and “the economic well-being of the Library, by averting tort claims and litigation expenses stemming from potential claims made by barefoot patrons who could have suffered injuries that shoes could have prevented.” Consequently, the Board's requirement that patrons of the Library wear shoes satisfies rational basis review.

Neinast, 346 F.3d at 596. Given the fact that it was shown that CML had insurance to cover such liability, that Court did not explain just how the economic well-being of CML would be affected. Again, it was pure speculation without evidence, and counter to the rules regarding the granting of summary judgment.

Finally, the Federal Courts refused to address any of Neinast’s state law claims:

[T]he issue of whether the Board's delegation of authority to the Executive Director to establish the Eviction Procedures was proper is a matter of state law. Section 1983, upon which Neinast bases his claim, authorizes courts to redress violations of “rights, privileges, or immunities secured by the Constitution and [federal] laws” that occur under color of state law. “The statute is thus limited to deprivations of federal statutory and constitutional rights. It does not cover official conduct that allegedly violates state law.” . . . Neinast's claim turns upon a question of state law — namely, the amount of rulemaking authority the Board properly can delegate to its Executive Director under Ohio Revised Code § 3375.40 — and thus falls outside the scope of § 1983.

Neinast, 346 F.3d at 597. Thus, the resolution of any state law issues, including issues regarding the Ohio Constitution, was left open. It should also be noted that any issue regarding statutory immunity of CML from tort claims was never addressed.

The State Lawsuit

Neinast filed the second lawsuit in the Franklin County Court of Pleas in order to specifically get the state law issues addressed: was the shoe rule invalid because it had been promulgated by CML’s Executive Director instead of the Board of Trustees, and, if it had been created by the Board in an open meeting, would that have been an usurpation of the legislative function since the Board was not specifically delegated the responsibility to make a shoe rule? This of course raised an issue of res judicata since all parties were the same as in the original lawsuit.

However, during discovery, CML disclosed that the Board had just passed a resolution formally adopting the shoe rule in an open meeting and Neinast amended his complaint to address that. This prompted the Court of Common Pleas to rule that

This Court concludes that Plaintiff is barred from asserting any legal claim or issue which was determined, or which could have been determined, in the prior federal litigation against the Library. That covers everything except the adoption of the Consumer Code,3  which occurred four months after that federal litigation was completed. In addition, Mr. Neinast is collaterally estopped from relitigating factual finding made by the federal courts. Facts determined in the prior lawsuit are binding now, in deciding the one legal issue of state law not previously addressed, because those earlier federal decisions were between exactly the same parties and the Plaintiff had an ample opportunity to develop the facts in that prior lawsuit.

Decision Granting Defendants’ Motion for Summary Judgment and Denying Plaintiff’s Motion for Summary Judgment, Franklin County Court of Common Pleas No. 04CVH06-6341, May 27, 2005, p. 7. (Emphasis added.) (See attached.)

Thus, the second lawsuit was restricted to determining whether the Board had the authority to create the shoe rule, and that second lawsuit was required to accept as fact that CML contained material hazardous to the barefooted on its floors.


To summarize, here are the relevant issues related to the lawsuits against CML:

Mutuality and Collateral Estoppel

The general rule for collateral estoppel to apply is that the previous action must have been “between the same parties or their privies.” O'Nesti v. DeBartolo Realty Corp. (2007), 2007-Ohio-1102, 113 Ohio St.3d 59 at ¶7. This is called mutuality-of-estoppel. However, in Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 443 N.E.2d 978, the Ohio Supreme Court did discuss and allow for the relaxing of this mutuality requirement, when “justice would reasonably require it”. Id., 2 Ohio St.3d at 199. It discussed mutuality because it had already relaxed mutualtiy in Hicks v. De La Cruz (1977), 52 Ohio St.2d 71, 369 N.E.2d 776, without explicitly acknowledging it. In Hicks, the City of Cincinnati denied that they owned the Cincinnati General Hospital, even though they had argued, and prevailed, that they did own it in a previous lawsuit, Sears v. Cincinnati (1972), 31 Ohio St.2d 157, 285 N.E.2d 73. The Goodson Court did not look kindly upon Cincinnati trying to have it both ways.

In its discussion in Goodson, however, the Ohio Supreme Court did express quite a few caveats relating its concerns about relaxing the requirement of mutuality. First of all, “[t]he burden of pleading and proving the identity of issues rests on the party asserting the collateral estoppel.” Goodson, 2 Ohio St.3d at 198. It stated that such exceptions to mutuality must occur “upon the basis of serving justice within the framework of sound public policy.” Id. at 202. (Emphasis added.) The Goodson Court also cautioned against relaxing the mutuality requirement when the supposed savings in time and effort associated with collateral estoppel would not occur: “It seems that these procedures would often offset any savings derived from collateral estoppel, and may indeed increase the total amount of litigation, negating one of the prime supportive arguments, i.e., the economy of the judicial process.” Id., at 198. (Emphasis added.) The Goodson Court was also quite concerned about relaxing mutuality when the benefits from doing so do not outweigh some other costs: “The benefits garnered from applying collateral estoppel in any cause must be balanced against the costs associated with its application. The major risk linked to such an application is that of an erroneous determination in the first case.” Id., at 202-203. (Emphasis added.) In footnote 14, the Court then quoted, with approval, from 18 Wright, Miller & Cooper, Federal Practice & Procedure 142, Section 4416:

The dangers of issue preclusion are as apparent as its virtues. The central danger lies in the simple but devastating fact that the first litigated determination of an issue may be wrong. The risk of error runs far beyond the proposition that most matters in civil litigation are determined according to the preponderance of the evidence. The decisional process itself is not fully rational, at least if rationality is defined in terms of the formally stated substantive rules. Considerations of sympathy, prejudice, distaste for the substantive rules, and even ignorance or incapacity may control the outcome. Trial tactics are consciously adapted to these concerns, but efforts to reduce the irrationality may fail or backfire and efforts to exploit it may succeed.

Note particularly that, even after discussing relaxing mutuality, the Court did not do so in Goodson, saying, “we hold that nonmutual collateral estoppel may not be used to preclude the relitigation of design issues relating to mass-produced products when the injuries arise out of distinct underlying incidents.” Id., at 204.

There appears to be only one other case in which the Ohio Supreme Court has relaxed mutuality. In Gilbraith v. Hixson (1987), 32 Ohio St.3d 127, 512 N.E.2d 956, the Court said that the establishment of paternity in an earlier suit, agreed to by the father, could not be re-litigated by that same father. However, it did not relax mutuality in State v. Williams (1996), 76 Ohio St.3d 290, 667 N.E.2d 932, in which the administrative DUI hearing did not preclude re-litigating that question of DUI in a criminal proceeding, and it did not relax mutuality in Broz v. Winland (1994), 68 Ohio St.3d 521, 629 N.E.2d 395. In Broz,

The legal issue we are asked to decide is whether a determination made in a declaratory judgment action between an insurance company and its insureds binds persons injured by the insured's negligence who are not parties to the declaratory judgment action. For the reasons which follow, we hold that injured persons not parties to a separate declaratory judgment action are not bound by such decision, and thus are not precluded from litigating the issue of insurance coverage in an R.C. 3929.06 supplemental proceeding.4 

Id., 68 Ohio St.3d at 523. Of particular note in Broz is the Court’s concern about the directed verdict in the preceeding case:

In ruling on a motion for a directed verdict, the court must construe the evidence most strongly in favor of the party against whom the motion is made and must give that party the benefit of all reasonable inferences that may be drawn from the evidence. Civ.R. 50(A)(4). This the court did not do. Whether Melissa had a reasonable belief that she was entitled to use the car is a jury issue.

Id., 68 Ohio St.3d at 526. (Emphasis added.)

Almost all of the current case law regarding relaxing mutuality has been developed in the Courts of Appeal (and the case that the Library relies on the most was in the Franklin County Court of Common Pleas). The test that those lower courts have relied upon is given in Monahan v. Eagle Picher Industries, Inc. (Dist. 1, 1984), 21 Ohio App.3d 179, 486 N.E.2d 1165:

In order to assert collateral estoppel successfully, a party must plead and prove the following elements:

  1. The party against whom estoppel is sought was a party or in privity with a party to the prior action;
  2. There was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue;
  3. The issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and
  4. The issue must have been identical to the issue involved in the prior suit.

Id., 21 Ohio App.3d at 180-181. See also Cashelmara Villas Ltd. Partnership v. DiBenedetto (Dist. 8, 1993), 87 Ohio App.3d 809, 813-814, 623 N.E.2d 213, 215; Balboa Ins. Co. v. S.S.D. Distrib. Sys., Inc. (Dist. 12, 1996), 109 Ohio App.3d 523, 672 N.E.2d 718; Young v. Gorski (Dist. 6, 2004), 2004-Ohio-1325, at ¶8; Frank v. Simon (Dist. 6, 2007), 2007-Ohio-1324, at ¶9. This test is functionally equivalent to the test that the Library cites in Blackwell v. Gorman, (C.C.P., Franklin, 2007), 142 Ohio Misc.2d 50, 63.

There are very few exceptions to the requirement of mutuality when it comes to collateral estoppel. (“Goodson, however, recognized a narrow exception that relaxes the mutuality requirement in certain circumstances.” Nye v. Ohio Board of Examiners of Architects (Dist. 10, 2006), 2006-Ohio-948, 165 Ohio App.3d 502, 847 N.E.2d 46, at ¶15.) (“With few exceptions, strangers to the previous judgment or decree will not be affected by the previous adjudication, and the doctrine of estoppel is irrelevant.” Alternatives Unlimited-Special, Inc. v. Ohio Dep't of Education (Dist. 10, 2006), 2006-Ohio-4779, 168 Ohio App.3d 592, 861 N.E.2d 163, at ¶38.) They generally fall into just a few categories.

In the first category are those cases in which a party tries to argue the opposite of what they argued in the previous lawsuit. See Hicks, supra; Alternatives Unlimited-Special, supra. In the second category are the insurance indemnification cases. See Broz, supra; Monahan, supra; Bauer v. Huntington National Bank (Dist. 10, 2000), No. 99AP-347; Altvater v. Claycraft Company (Dist. 10, 2000), No. 00AP-156; Cincinnati Insurance Co. v. Nickles Bakery (Dist. 2, 2003), 2003-Ohio-47. In the third category are cases in which convictions for traffic accidents are used to establish tort liability. See Cashelmara, supra; Balboa, supra; Bentley v. Grange Mut. Cas. Ins. Co. (Dist 10, 1997), 119 Ohio App.3d 93; Young, supra. Finally, in the last category are cases in which further proceedings, such as taking away an architectural license, rely upon a preceeding civil case in which the person admitted to certain facts, or those facts were determined by a full jury trial. See Blackwell, supra; Frank, supra; Nye, supra.

It should be noted that the instant case, in which facts were applied in a declaratory judgment determination of the law (not a contract), and by summary judgment, is not among the list of those few exceptions.


The Library is asking this Court to create a whole new exception to the mutuality requirement of collateral estoppel. Furthermore, to do so, they are asking this Court to ignore the caveats of the Ohio Supreme Court, and the exception that they are asking for does not meet the requirements of the test for such an exception.

The burden for proving that an exception to mutuality should be made rests upon the Library. They have not met this burden, for either the issue of personal liberty or in regards to the issue of the authority of the Library.

Regarding personal liberty, the previous lawsuits addressed that issue only under the U.S. Constitution, using the rational basis test. The instant lawsuit asks this Court to examine whether the Ohio Constitution, which provides greater protections than the U.S. Constitution regarding personal liberty, allows the shoe rule. It is not identical to the issue in the previous lawsuits, and thus fails point 4 of of the Monahan test. The differences between the U.S. Constitution and the Ohio Constitution in this regard were discussed in Neinast’s Motion for Summary Judgment, pp. 18-21, but of most importance is the fact that the Ohio Constitution uses a different test: “To be a valid police regulation it must have a clear and substantial relation to a proper object of the police power, and must not be arbitrary, discriminatory, capricious or unreasonable and must bear real and substantial relation to the subject sought to be obtained, namely, the health, safety, morals, or general welfare of the public.” Fifth Urban, Inc. v. Bd. of Bldg. Standards (8th Dist. 1974), 40 Ohio App.2d 389, 397. To be valid, such regulations must be shown to “caus[e] harm to others,” Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 46, and one can manage one’s affairs as one wishes “so long as he does not violate the rights of others or of the public,” Weinfeld v. Welling (5th Dist. 2005), 2005-Ohio-4721, ¶42. The relationship of the shoe rule to these principles has never been determined by any court. Thus, this portion of the instant lawsuit should not be dismissed.

Regarding whether R.C. §3375.40(H) conveys upon the Fairfield County Library the authority to create its shoe rule, the issue of tort liability and its relation to the Library’s statutory immunity has never been addressed by any court. So this issue also fails point 4 of the Monahan test. In addition, we have in the instant case the specifics of the Library’s insurance policy which does not have a barefoot exclusion in it (Answers to Interrogatories Exhibit 2). This is also an issue that was not addressed in any previous lawsuit.

Finally, we are left with the issue of hazards to bare feet, the other justification that the Sixth Circuit used and which the state courts used to justify the shoe rule. Here, the caveats of Goodson are of importance. It has already been described how the determinations of the Sixth Circuit were not based on any actual evidence, but mere speculation. Those supposed “facts” were not determined in a full jury trial, but merely by summary judgment, similar to the directed verdict that the Ohio Supreme Court disapproved of in Broz. Furthermore, even if one accepts the erroneous factual determination from the Sixth Circuit, all one can read from it is that CML contains hazards on its floors, and that those particular hazards justified the creation of CML’s shoe rule. That says nothing about whether such hazards are on the floors of the Fairfield County District Library that would justify their shoe rule. And, in fact, as detailed in Neinast’s Motion for Summary Judgment, p. 10, the Library’s floors are perfectly safe. Not only have they admitted that they know of no hazards (Answers to Interrogatories ¶¶9-11), they even allow children to sit upon their floors (“Children, families learn about animals at main library,” Lancaster Eagle-Gazette, June 29, 2009. See second attachment.) A restriction that might be proper for a crowded city library is not necessarily proper for a less-crowded, well-maintained library like the Fairfield County District Library. The Library wants to maintain its shoe rule based upon “decorum” and as a dress code. The issue of whether a shoe rule is justified under R.C. §3375.40(H) as part of the proper operation and management of a library merely to satisfy some person’s feeling of decorum is an issue that has not been decided by any court. The instant lawsuit should not be dismissed on those grounds, either.

Finally, this lawsuit is not like any of the other exceptions to the mutuality requirement. It is a declaratory judgment lawsuit asking about an interpretation of state law. All of the other lawsuits involving a declaratory judgment were in regards to a specific contract between specific parties. Once those details had been determined, there really was not anything else to be determined. But when it comes to interpretation of state law, each Appeals District may come up with its own decision and make its own precedent (until the Supreme Court steps in to resolve any differences). Dismissing this case will not lead to finality. If it is dismissed, any other person with an interest in using the Fairfield County District Library barefooted (and Neinast knows quite a few) could (and may) file their own declaratory judgment lawsuit and not be subject to collateral estoppel. What provides the finality is precedent (for instance, it would make no sense for any other person to re-litigate the CML lawsuit since the 10th District precedent prevents that). Until this District has made a decision and set the local precedent, there really cannot be the sort of finality that one gets in the other sorts of cases for which the mutuality exception has been applied, when there really are only two (or a few) potential parties involved in a contract or criminal matter. Thus, the Goodson Court’s fears of a lack of savings would be realized if this lawsuit were dismissed, only to have another person wishing to use the Library barefooted file a new one. There is no framework of sound public policy supporting a mutuality exception in this sort of case.


For these reasons, the Library’s Motion for Dismissal must be denied.

  Respectfully submitted,
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601


I hereby certify that a copy of the foregoing Memo Contra was served, by hand delivery to his office, upon Mr. Roy E. Hart, Assistant Prosecuting Attorney, Attorney for Defendants, 201 South Broad Street – Suite 400, Lancaster, OH, 43130, this 12th day of November, 2009.

Robert A. Neinast
Plaintiff, pro se


1. R.C. §121.22(H): “A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body.” [Back]

2. Neinast just returned from particpating, barefoot, in the “Walk with the Ancients,” a retracing of the possible Great Hopewell Road. This was a 70-mile walk over 7 days from Chillicothe to Newark. See See “In Ancient Footsteps,” The Columbus Dispatch, October 16, 2009, p. B1. Thank goodness the route did not lead through any libraries, or, if the Sixth Circuit Court is to be believed, he would have been in real danger. [Back]

3. This is an obvious typo on the part of the Court. It refers specifically to the Customer Code of Conduct adopted by the CML Board of Trustees and containing the officially adopted shoe rule. [Back]

4. Note that the General Assembly superceded this ruling by enacting new division (C) of section 2721.02, new division (B) of section 2721.12, and division (C) of new section 3929.06 of the Revised Code. These changes affect only such tort actions. See also Cincinnati Insurance Co. v. Nickles Bakery (Dist. 2, 2003), 2003-Ohio-47, which the Court of Appeals distinguished from the new statutory changes and did not relax mutuality. [Back]