State Ex Rel. Buoscio v. Russo, Unpublished Decision (7-29-1999)

PETITION FOR WRIT OF MANDAMUS JOURNAL ENTRY AND OPINION Samuel L. Buoscio, relator, is seeking a writ of mandamus to compel respondent, Judge Nancy Russo, to set aside all orders in C.P. Case No. CV-343129, to order the clerk of court to serve relator with a copy of defendant's motion for summary judgment filed in C.P. Case No. CV-343129, to set a date to allow relator to respond to the summary judgment motion, or to step down from C.P. Case No. CV-343129 and assign the case to another judge. Respondent moved to dismiss the complaint on the grounds that relator failed to provide the required affidavit in support of his action and that the complaint fails to state a claim for which relief in mandamus is warranted. For these reasons, we grant respondent's motion.

Local App.R. 45, which governs the filing of original actions in this court, requires that all complaints in original actions be supported by an affidavit of the relator specifying the details of the claim. Loc.App.R. 45 (B) (1) (a). Relator failed to provide such an affidavit, even after the deficiency was noted in respondent's motion to dismiss. The failure to support a complaint with the required affidavit is grounds for dismissal.Id.; State ex rel. Smith v. Fitzsimmons (Dec. 3, 1998), Cuyahoga App. No. 75525, unreported.

In addition, relator has failed to allege the existence of any duty of respondent requiring her to perform the requested acts. A complaint in mandamus that fails to set forth a duty of the respondent to perform the act requested fails to state a claim for relief in mandamus. State ex rel. Drake v. Fuerst (May 6, 1999), Cuyahoga App. No. 76022, unreported; State ex rel. Sharifv. McDonnell (Aug. 21, 1997), Cuyahoga App. No. 72705, unreported.

Accordingly, respondent's motion to dismiss is granted. Costs to relator.

ANN DYKE, J., CONCURS.

____________________________________ JAMES M. PORTER ADMINISTRATIVE JUDGE