IN THE SUPREME COURT OF OHIO. Case No.

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1 y IN THE SUPREME COURT OF OHIO STATE ex rel. THE BANK OF NEW YORK MELLON, V. Relator, Case No. (,< f L.rr. THE HONORABLE STEVEN E. MARTIN, Judge, Hamilton County Court of Common Pleas 340 Hamilton County Courthouse 1000 Main Street Cincinnati, Ohio Original Action in Mandamus and Prohibition Respondent. COMPLAINT FOR WRIT OF MANDAMUS AND PROHIBITION John P. Gilligan ( ) Counsel of Record Daniel M. Anderson ( ) ICE MILLER LLP 250 West Street Columbus, Ohio Tel: (614) Fax: (614) John.Gilligannaicemiller.com Daniel.Anderson(a^7icemiller.com MAYER BROWN LLP Matthew D. Ingber (pro hac vice forthcoming) Michael Martinez (pro hac vice forthcoming) Christopher J. Houpt (pro hac vice forthcoming) 1675 Broadway New York, New York Tel: (212) Counselfor Relator The Bank of New York Mellon 1!;..,..=^.'y<,^ r^ ii^ ;h;'";^:i': `',^'y. ^ f.,,:is5 t 'J r.:1 F a ^,,. CO\

2 IN THE SUPREME COURT OF OHIO ST'ATE ex rel. THE BANK OF NEW YORK MELLON, Case No. Relator, V. THE HONORABLE STEVEN E. MARTIN, Respondent. Original Action in Mandamus and Prohibition RELATOR'S COMPLAINT FOR WRIT OF MANDAMUS AND PROHIBITION Now comes The Bank of New York Mellon ("BNYM"), on relation to the State of Ohio, and for its Complaint for Writ of Prohibition or Mandamus, states as follows: INTRODUCTION l. This is an original action for writ of prohibition to prevent Respondent from improperly exercising personal jurisdiction over Relator BNYM, or in the alternative for writ of mandamus to compel Respondent to dismiss a complaint filed against BNYM for lack of personal jurisdiction. JURISDICTION 2. This Court has original jurisdiction over this action pursuant to Article IV, Sections 2(B)(1)(b) and 2(B)(1)(d) of the Ohio Constitution. PARTIES 3. Relator BNYM is a bank organized under the laws of the State of New York, having its principal place of business in New York, New York. BNYM is the defendant in an action captioned The Western and Southern Life Insurance Co. et al. v. The Bank of New York Mellon, No. A , filed in the Court of Common Pleas for Hamilton County by The CO\ ,2 I

3 Western and Southern Life Insurance Company, Western-Southern Life Assurance Company, Columbus Life Insurance Company, Integrity Life Insurance Company, National Integrity Life Insurance Company, and Fort Washington Investment Advisors, Inc. (collectively "Plaintiffs" or "Western & Southern"). 4. Respondent The IIonorable Steven E. Martin is the judge for the Court of Common Pleas for Hamilton County assigned to the underlying action, and is named herein solely in his official capacity. THE LAWSUIT 5. On April 4, 2013, Western & Southern filed a complaint (the "Complaint") before the Court of Common Pleas. The Complaint is attached as Exhibit 1 to the Affidavit of Christopher J. Houpt. 6. Western & Southern allege that they are Certificateholders in 31 mortgage securitization trusts (the "Trusts") administered by BNYM as Trustee. Houpt Aff. Ex The Trusts are governed by contracts, the Pooling and Servicing Agreements ("PSAs"), which Plaintiffs attached as Exhibit C to their Complaint.' Id. 6. The Trusts hold pools of residential mortgage loans. E.g., id. 3, A party identified in the PSAs as the Master Servicer (then Countrywide, now Bank of America)2 collects loan payments from borrowers, making monthly payments to BNYM for distribution to investors. See PSA 3.01, BNYM distributes proceeds on the securities 1 The PSA, which is governed by New York law, is alleged to be representative of those governing the other trusts. Houpt Af.f. Ex. 1 T 6. Cites in this Complaint to "PSA" are to Exhibit C to Exhibit 1 to the Houpt Affidavit. 2 Currently, the Master Servicer is Bank of America, N.A. It previously was BAC Home Loans Servicing LP, which was formerly called Countrywide Home Loans Servicing LP. These entities are together referred to as "Countrywide Servicing." Together with the Seller, they are "Countrywide." Co\

4 that Western & Southern holds to a New York securities depository, for distribution to its participant banks and then ultimately to certificateholders. See id. 5.02(e). 8. Plaintiffs allege that BNYM failed to hold and review certain documents underlying each mortgage loan. Houpt Affi. Ex Plaintiffs further allege that BNYM had a duty to provide notice of defaults, failed to exercise due care, failed to avoid conflicts of interest, and failed to provide accurate certifications and remittance reports, Id. T The Complaint asserts several causes of action: violations of the Trust Indenture Act of 1939, 15 U.S.C. 77aaa et seq. ("TIA") (Counts 1& 2);3 breach of contract (Count 4); breach of fiduciary duty (Count 5); negligence and gross negligence (Count 6); and negligent misrepresentation (Count 7), 9. While Plaintiffs allege that BNYM violated various contractual and other duties related to mortgage securitizations, they do not contend that any of this conduct occurred in Ohio. Indeed, they admit-by attaching the PSA to their Complaint-that BNYM was expected to maintain mortgage documents "in the State of California." PSA 2.02(a), Aside from document custody, BNYM acts as trustee for these securitizations solely in New York. 10. BNYM moved to dismiss or stay the case for fonum non conveniens, and. in the alternative to dismiss the Complaint on the merits. In November 2013, Respondent overruled BNYM's motion to dismiss or stay for forum non conveniens. BNYM filed its answer on January 20, THE SUPREME COURT'S DECISIONS 11. The United States Supreme Court decided Daimler AG v. Bauman, - U.S. -, 134 S. Ct. 746 (2014), on January 14, In that case, the Court substantially narrowed the circumstances in which a court may exercise general personal jurisdiction over an out-of-state corporation. 3 Count III, for breach of New York's Streit Act, was withdrativm by stipulation. CO\

5 12. Prior to Daimler, this Court and other federal courts applying Ohio law had concluded that general personal jurisdiction was available whenever a plaintiff had "continuous and systetnatic" contacts with Ohio. See, e.g., U.S. Sprint Comm'ns Co. Ltd. P'ship v. Mr. K's Foods, Inc., 68 Ohio St.3d 181, 186, 624 N.E.2d 1048 (1994); Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, 46; Shea v. Bonutti Research, Inc., S.D. Ohio No. 2:10-CV-615, 2011 WL 53473, at 13 (Jan. 7, 2011). 13. Daimler explicitly rejected that standard. After Daimler, general jurisdiction exists only when a defendant's contacts with the forum state are so "continuous and systematic as to render [it] essentially at home" there. Daimler, 134 S.Ct. at 761. "With respect to a coiporation, the place of incorporation and principal place of business are `paradig[m]... bases for general jurisdiction."' Id. at In addition, on February 25, 2014, the Court decided Walden V. Fiore, - U.S. -, 134 S. Ct (2014), in which it foreclosed the argument that specific personal jurisdiction is available where a party outside a state engaged in intentional wrongful conduct with knowledge that a party in the state would be injured. 15. As the Court explained in Walden, "the relationship must arise out of contacts that the `defendant himselfcreates with the forum state"; it is improper to "sa.tisfy the defendantfocused `minimum contacts' inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State." Id. at THE MOTION TO DISMISS 16. On March 27, 2014, BNYM filed a motion to dismiss before Respondent, explaining that Daimler and Walden fundamentally alter-and significantly reduce-the jurisdiction that Ohio courts may exercise over out-of-state corporations. BNYM explained that, CO\

6 because of Daimler and Walden, BNYM is no longer subject to personal jurisdiction in Ohio for the claims in the Complaint. The motion is attached as Exhibit 2 to the Houpt Affidavit. 17. On April 23, 2014, Western & Southern filed its opposition to BNYM's motion. The opposition is attached as Exhibit 3 to the Houpt Affidavit. 18. On May 19, 2014, BNYM filed its reply, which is attached as Exhibit 4 to the Houpt Affidavit. 19. In its motion and reply, BNYM explained that, while it was subject to general jurisdiction in Ohio before Daimler-because, for example, it maintains offices in this Stategeneral jurisdiction is no longer available in light of that decision. According to the Complaint filed by Western & Southern, BNYM does not have its principal place of business in Ohio, and it is organized under the laws of New York. Houpt Aff. Ex Thus, under Daimler, Ohio courts lack general jurisdiction over BNYM. 20. With respect to specific jurisdiction, Western & Southern's Complaint alleges only an injury in Ohio. It does not allege that BNYM did anything in or directed at Ohio that gave rise to the Complaint. 21. Nor could it: BNYM does not conduct any activity relating to the trusts in this case in the State of Ohio. 22. BNYM, as trustee, administers the securitization trusts at issue in this case out of an office in the State of New York. And for the trusts on which BNYM is document custodian, it maintains mortgage files at a facility in Cypress, California. 23. Moreover, because almost all of the securities (and all held by Western & Southern) are held in a securities depository in New York, and payments are made through that Co\

7 depository, BNYM does not even have a way of identifying registered holders. There were no registered holders in Ohio for any of these securities. 24. BNYM employees do not participate in collections, foreclosures, or loan modifications in Ohio. 25. In its opposition to BNYM's motion to dismiss, Western & Southern relied on a number of references to the Ohio contacts of affiliates of BNYM, such as The Bank of New York Mellon Trust Company, N.A. Those affiliates are not parties to the Complaint, and Western & Southern made no effort to show that the corporate veil should be pierced for jurisdictional purposes. THE HEARING AND DECISION 26. Respondent held a hearing on BNYM's motion to dismiss on May 21, At the hearing, counsel for Relator BNYM presented oral argument to Respondent in support of its motion to dismiss, and counsel for Western & Southern presented oral argument in opposition. 27. Respondent denied and overruled BNYM's motion on May 30, 2014, in a letter to counsel attached as Exhibit 5 to the Houpt Affidavit. Respondent overruled the motion because: there is no legal basis for the Motion. As the plaintiff sets forth the defendant has quite extensive contacts in Ohio. It is these contacts in Ohio that make jurisdiction possible in this Court. There are more reasons in the plaintiff's brief that support overruling the Motion that do not need to be repeated here. 28. Respondent also stated that Daanaler and Walden "decide[d] specific factual and legal issues before the U.S. Supreme Court," and each case was "interpreting precedent not making new law." Houpt Aff. Ex. 5. Although Respondent acknowledged that a party need not "show that new cases overrule old cases" in order to take advantage of them, because cases can be "significant departures from precedent even though the issuing court will say otherwise," the Co\

8 court erroneously concluded that Daimler and Walden were "merely extensions of precedent" and Relator therefore "waived it[s] right to make this motion." Id. FIRST CLAIM FOR RELIEF (Writ of Prohibition) 29. Relator incorporates the allegations in paragraphs 1 through 28 as if set forth fully herein. 30. In conducting a hearing and rendering a decision on Relator's motion, Respondent has exercised judicial power. 31. Respondent's action in exercising personal jurisdiction over Relator was in clear disregard of the applicable law. 32. Relator has no adequate remedy at law to correct Respondent's unauthorized action in exercising personal jurisdiction over Relator. SECOND CLAIM FOR RELIEF (Writ of Mandamus) 33. Relator incorporates the allegations in paragraphs 1 through 37 as if set forth fully herein. 34. Respondent has a clear legal duty to dismiss the Complaint for lack of personal jurisdiction over Relator. 35. Relator has a clear legal right to dismissal of the Complaint in Ohio because due process does not authorize Respondent to exercise personal jurisdiction over it. 36. Relator has no adequate remedy at law. WHEREFORE, Relator prays for judgment against Respondent and that the Court: A. Adjudge, decree and declare the rights and other legal relations of the parties to the subject matter in controversy in order that such declarations shall have the CO\

9 force and effect of final judgment and that the Court retain jurisdiction of this matter for the purpose of enforcing the Court's orders; B. Issue a Peremptory Writ of Prohibition or Mandamus barring Respondent from exercising jurisdiction over Relator with respect to the Complaint, or directing Respondent to dismiss the Complaint against Relator; C. In the alternative, issue an Alternative Writ of Prohibition or Mandamus directing Respondent to show cause why a Writ of Prohibition or Mandamus should not issue, and establish a briefing schedule; D. Award Relator its costs and expenses incurred in bringing this action, including its reasonable attorneys fees; and E. Grant such other and further relief as the Court deems equitable, just and proper CO\

10 F ^(r 4 Jol P. Gilligan ( U C unsel of Record Daniel M. Anderson ( ) ICE MILLER LLP 250 West Street Columbus, Ohio Tel: (614) Fax: (614) John. Gilliman(Ocemiller. com Daniel..Anderson(cilicemiller.com Matthew D. Ingber (pro hac vice forthcoming) Michael Martinez (pro hac vice forthcoming) Christopher Houpt (pro hac vice forthcoming) MAYER BROWN LLP 1675 Broadway New York, New York Tel: (212) C'ounsel for Relator The Bank of New York Mellon CO\

Knights of Columbus v Bank of N.Y. Mellon 2015 NY Slip Op 31362(U) July 10, 2015 Supreme Court, New York County Docket Number: /2011 Judge:

Knights of Columbus v Bank of N.Y. Mellon 2015 NY Slip Op 31362(U) July 10, 2015 Supreme Court, New York County Docket Number: 651442/2011 Judge: Saliann Scarpulla Cases posted with a "30000" identifier,