Enyart v. Karnes et al

Filing 169

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 9-12-12. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD E. ENYART, JR.,
Plaintiff,
vs.

Civil Action 2:09-CV-687
Judge Smith
Magistrate Judge King

FRANKLIN COUNTY, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that he
was denied due process while detained in the Franklin County Jail.

In

a Report and Recommendation issued on July 16, 2012, the United States
Magistrate Judge recommended that Defendant Daniel Waldren’s Motion to
Dismiss for Failure of Service of Process, Doc. No. 135 (“Defendant
Waldren’s Motion”) be denied.

Doc. No. 165.

This matter is now

before the Court on plaintiff’s objections, Doc. No. 167, to that
Report and Recommendation, which the Court will consider de novo.

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U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
This Court has previously detailed the lengthy procedural history
of this case.
1-5.

See, e.g., Report and Recommendation, Doc. No. 165, pp.

In recommending that Defendant Waldren’s Motion be denied

because dismissal for claimed insufficiency of service of process is
unwarranted, the Magistrate Judge noted that service of process based
on the original Complaint, and made in conformity with the Court’s

directive, see Doc. No. 13, was executed on defendant Waldren on March
31, 2010, Summons Returned Executed, Doc. No. 41.
Recommendation, p. 6-7.

Report and

Defendant Waldren filed no response to the

original Complaint. The Magistrate Judge acknowledged that the Court
had earlier, mistakenly, concluded that defendant Waldren had not been
served wtih process.

See Opinion and Order, Doc. No. 112. However,

the Magistrate Judge also declined plaintiff’s request that defendant
Waldren’s default be entered. Report and Recommendation, pp. 2, 6-7.
In that regard, the Magistrate Judge noted the ambiguous and confused
state of the docket, which was caused in no small part by plaintiff,
and concluded that the Servicemembers Civil Relief Act offers to
members of the military certain protections against default judgment.
Id. at 7 (citing 50 U.S.C. Appx. § 521).
Plaintiff objects to the Magistrate Judge’s refusal to recommend
the entry of default of defendant Waldren, asserting multiple
arguments, which the Court will address in turn.
I.

OBJECTIONS RELATING TO THE STATE OF THE DOCKET
Plaintiff first argues that the Magistrate Judge’s reliance on

“[t]he ambiguous and confused state of the docket” in denying his
request for entry of default is misplaced.

Plaintiff’s Objections to

the R & R Filed 07/16/12 (#165), Doc. 167, pp. 2-3 (“Plaintiff’s
Objections”).

Specifically, plaintiff contends that defendant

Waldren’s default and plaintiff’s first motion for entry of default
were reflected on the docket “well before there can be any reasonable
assertion that the docket was ambiguous and confused.”
(citing Doc. No. 54).

Id. at 3

Plaintiff argues that the Report and

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Recommendation “overlooked” this earlier motion for entry of default,
Doc. No. 54, and contends that entry of defendant Waldren’s default is
warranted.

Id.

Plaintiff’s argument in this regard is not well-taken.

Although

plaintiff is correct that he filed a request for entry of default,
Plaintiff’s Declaration for Entry of Default, Doc. No. 54, on August
3, 2010, that motion was specifically directed to former defendant
Franklin County,1 not to defendant Waldren.

Id. at 1.

Plaintiff’s

first request for entry of default directed to defendant Waldren was
filed on March 29, 2011.

Doc. No. 93.

By that time, as even

plaintiff appears to concede, see Plaintiff’s Objections, p. 2, the
state of the docket was indeed ambiguous and confused.

The Court is

not persuaded that the Magistrate Judge’s recommendation in this
regard was in error.
II.

OBJECTIONS RELATING TO THE SERVICEMEMBERS CIVIL RELIEF ACT
Plaintiff next argues that the Servicemembers Civil Relief Act

(“SCRA”) does not protect defendant Waldren, because this defendant
was served on March 31, 2010, but “knowingly and willfully” failed to
respond to the Complaint for over a year before he left for service on
April 14, 2011.

Plaintiff’s Objections, p. 4.

However, as discussed

supra, the ambiguous and confused state of the docket undermines
plaintiff’s assertion that defendant Waldren knowingly and willfully
refused to respond.
Moreover, the SCRA applies “to any civil action or proceeding,
including any child custody proceeding, in which the defendant does
1

The Court dismissed Franklin County as a defendant on June 8, 2011.
Opinion and Order, Doc. No. 112.

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not make an appearance.”

50 U.S.C. Appx. § 521(a).

The SCRA further

provides that “the court, before entering judgment for the plaintiff,
shall require the plaintiff to file with the court an affidavit” that
states (1) “whether or not the defendant is in military service and
showing necessary facts to support the affidavit”; or (2) “stating
that the plaintiff is unable to determine whether or not the defendant
is in military service.”

50 U.S.C. Appx. § 521(b)(1).

Here, plaintiff’s Declaration for Entry of Default, Doc. No. 93,
represents, inter alia, that “[t]he defendants are not in the military
service[.]”

His later request for the entry of defendant Waldren’s

default, consisting of one sentence tacked on at the end of his
supplemental response to the motion to dismiss, Doc. No. 161, p. 5,2
was filed well after the docket reflected that defendant Waldren had
departed for active military service. See Affidavit of Major Stephanie
Klumpp, Doc. No. 135-1.

Nevertheless, plaintiff’s conclusory request

for default is defective because, inter alia, it does not state under
oath whether defendant Waldren is in military service, nor does it
state that plaintiff is unable to determine whether defendant Waldren
is in military service.

See 50 U.S.C. Appx. § 521(b)(1); Merrill v.

Beard, No. 5:05CV768, 2007 U.S. Dist. LEXIS 9210, at *7 (N.D. Ohio
Feb. 7, 2007) (“The affidavit is a prerequisite before default
judgment may be awarded.”) (citing Owensby v. City of Cincinnati, 385
F. Supp. 2d 626 (S.D. Ohio 2005)).

The Court therefore concludes that

entry of defendant Waldren’s default is unwarranted and inconsistent

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Plaintiff is reminded that motions or requests for particular relief
should be filed separately rather than buried in briefs responding to other
motions. It is by the filing of a separate motion that the motion is brought
to the Court’s attention and eliminates confusion during the briefing period.

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with the provisions of the SCRA.

Cf. United Coin Meter Co. v.

Seaboard C. Railroad, 705 F.2d 839, 845 (6th Cir. 1983)(“Judgment by
default is a drastic step which should be resorted to only in the most
extreme cases.”); Frank Betz Assocs. v. J.O. Clark Constr., LLC, No.
3:08-0159, 2009 U.S. Dist. LEXIS 78829 (M.D. Tenn. Aug. 31, 2009)
(declining request to enter default where plaintiff had not filed the
required SCRA affidavit and where defendant eventually filed an answer
beyond the time period permitted by the Federal Rules of Civil
Procedure).
III. REMAINING OBJECTIONS
Plaintiff also contends that default judgment “is part of usual
litigation practice under Fed. R. Civ. P. 55" and argues that this
Court “should not interpret the PLRA exhaustion requirement to depart
from the usual practices under the Federal Rules of Civil Procedure of
accepted litigation practice[.]”

Plaintiff’s Objections, p. 4 (citing

Jones v. Bock, 549 U.S. 199, 212-13, 221-24 (2007)). This objection
is, again, without merit.

As noted supra, default judgment is a

drastic measure that courts impose only in a narrow category of cases.
United Coin Meter Co., 705 F.2d at 845.

Here, the Court is not

persuaded that plaintiff’s defective request for entry of default
and/or default judgment based on an ambiguous and confused docket
falls within that category.

Accordingly, refusing to grant default

under these circumstances is in accordance with, rather than a
departure from, circuit precedent.

Moreover, plaintiff’s reliance on

Jones does not justify the entry of default or default judgment
against defendant Waldren.

See Jones, 549 U.S. at 212-13 (explaining

that “courts should generally not depart from the usual practice under
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the Federal Rules on the basis of perceived policy concerns” in the
context of rejecting requirements that inmate plaintiffs plead and
demonstrate exhaustion in their complaints),

221-24 (rejecting policy

arguments that 42 U.S.C. § 1997e(a) contains a total exhaustion rule).
Plaintiff goes on to argue that “contempt damages. . . although
unconventional, are certainly in accordance with the Federal Rules,
accepted litigation practice and the PLRA.”

Plaintiff’s Objections,

pp. 4-5 (citing Widmer-Baum v. Chandler-Halford, 162 F.R.D. 545, 55359 (S.D. Iowa 1995); Benny v. Pipes, 799 F.2d 489, 494 (9th Cir.
1986); Davis v. Musler, 713 F.2d 907, 915 (2d Cir. 1983)).

Based on

the record discussed supra, however, the Court cannot conclude that
defendant Waldren willfully disregarded or disobeyed an order of this
Court.

To that end, plaintiff’s reliance on his cited cases is

inapposite.

See Widmer-Baum, 162 F.R.D. 545 (denying motion to vacate

default judgment and finding “culpable disregard for court-ordered
deadlines” where, inter alia, defense counsel failed to file an answer
to the complaint even when counsel knew of the answer deadline and
where defendants “casually ignored the deadlines” when they failed to
respond to plaintiff’s motion for default judgment); Benny, 799 F.2d
489 (affirming entry of default judgment against prison guards where,
inter alia, defendant guards intentionally threw out the papers after
being

personally served by plaintiff; defendant guards requested and

received an extension of time to file an answer, but nevertheless
failed to file an answer); Davis, 713 F.2d 907 (vacating order of
default judgment and remanding for evidentiary hearing where the
record was unclear as to whether defendants’ failure to respond was
willful).
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In short, the Court concludes that plaintiff’s objections to the
Report and Recommendation are without merit.
Plaintiff’s Objections, Doc. No. 167, is therefore DENIED.

The

Report and Recommendation, Doc. No. 165, is hereby ADOPTED and
AFFIRMED.

Defendant Dan Waldren’s Motion to Dismiss for Failure of

Service of Process, Doc. No. 135, is DENIED.

Plaintiff’s request for

entry of defendant Waldren’s default, Doc. No. 161, is likewise
DENIED.

s/George C. Smith
George C. Smith, Judge
United States District Court

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