Cotton et al v. Cincinnati City of et al
Filing
17
OPINION AND ORDER denying 16 Motion for Default Judgment against Equipment Maintenance, Inc. & EMR Limited Ltd. The Court DISMISSES this matter from the docket. Signed by Judge S Arthur Spiegel on 12/22/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
STATE OF OHIO, ex rel.,
ALFORD COTTON, et al.,
Plaintiffs,
v.
CITY OF CINCINNATI,
et al.,
Defendants.
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:
:
:
:
:
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:
NO:
1:11-CV-00389
OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion for
Entry of Default Judgment Against Defendants Equipment Maintenance,
Inc., and EMR Unlimited, Ltd. (doc. 16). For the reasons indicated
herein, the Court DENIES Plaintiffs’ Motion.
This case involves Plaintiffs’ Complaint that the City of
Cincinnati and its agents improperly destroyed their property at
1673 Westwood in Cincinnati (doc. 2).
On November 4, 2001, the
Court issued an Order taking judicial notice of public documents
establishing that the property was a public nuisance and finding
that the City of Cincinnati was completely justified in taking
action to destroy the building on such property (doc. 14).
Plaintiffs now move for entry of default judgment against
the Defendant contractors who allegedly carried out the destruction
of Plaintiffs’ property on behalf of the City (doc. 16). According
to Plaintiffs, because the contractors were served in state court,
and failed to ever file an answer, Plaintiffs should be entitled to
entry of a default judgment against the contractors.
The Court does not find Plaintiffs’ motion well-taken.
The Court’s previous Order established that the City was justified
in eliminating a public nuisance, that was in fact, “a mess
[Plaintiffs] allowed to get out of control” (doc. 14).
The
contractors in this case were merely acting as authorized agents on
behalf of the City when they entered the property and remedied the
problem.
“An agent is privileged to do what otherwise would
constitute a tort if his principal is privileged to have an agent
do it and has authorized the agent to do it.” RESTATEMENT (SECOND)
OF AGENCY, §345 (1958).
The Court concludes that it would be a waste of judicial
resources to allow this matter to proceed, as it is clear even if
the Defendant contractors failed to file any Answer, it is equally
clear
that
Plaintiffs’
there
claims
is
no
merit
against
the
to
any
claim
remaining
against
Defendants
them.
are
not
plausible under Ashcraft v. Iqbal, 129 S.Ct. 1937, 1947 (2009).
The Court notes that the Sixth Circuit has held that a district
court “has the inherent power to manage its docket” so long as the
management
is
in
“harmony
with
the
Federal
Rules
Procedure.
In re NLO, 5 F.3d 154, 157 (6th Cir. 1993), See also,
In re Prevot, 59 F.3d 556, 566 (6th Cir. 1995).
of
Civil
The Court’s
dismissal of these Defendants is thus in accordance with Fed. R.
Civ. P. (f)(1), which allows the Court to strike immaterial matters
from the pleadings.
Accordingly, the Court DENIES Plaintiffs’ Motion for
2
Entry of Default Judgment Against Defendants Equipment Maintenance,
Inc., and EMR Unlimited, Ltd. (doc. 16), and DISMISSES this matter
from the docket.
SO ORDERED.
Dated: December 22, 2011
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
3
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