Ruff-El v. Nicholas Financial Inc. et al

Filing 52

ORDER granting 23 Motion for Jury Trial; granting 26 Motion to Quash Supboena; granting 28 Motion for Judgment on the Pleadings w/respect to plaintiff's claims under 42 USC §1985 and 18 USC §§2242 & 1652 and denying 31 Motion for Default Judgment. Plaintiff's response re 50 Motion for Temporary Restraining Order due w/in seven (7) days of the date of this order. Signed by Magistrate Judge Terence P Kemp on 3/14/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gerry Ruff-El,

:

Plaintiff,

:

v.

:
:

Nicholas Financial, Inc.,
et al.,
Defendants.

Case No. 2:11-cv-618
Magistrate Judge Kemp

:
ORDER

This case is before the Court to consider various motions
filed by plaintiff Gerry Ruff-El and the defendants remaining in
this case following the Court’s order of January 26, 2012,
granting the motion to dismiss filed by Nicholas Financial, Inc.,
Peter L. Vosotas, and Todd Stonewall (the Nicholas defendants).
The motions filed by Mr. Ruff-El include a motion for a jury
trial (#23) and a motion for default judgment (#31).

The

remaining defendants have filed a motion for partial judgment on
the pleadings (#28).

Also pending before the Court is a motion

to quash plaintiff’s subpoena filed by counsel for both the
Nicholas defendants and the remaining defendants.

These motions

either have been fully briefed or the time for doing so has
passed.

As set forth below, the motions for a jury trial, for

partial judgment on the pleadings, and to quash plaintiff’s
subpoena (#23, #26, and #28) will be granted.

The motion for

default judgment (#31) will be denied.
I.

Background

The facts of this case were set forth in the Court’s
previous opinion and order.

Briefly, for purposes of the current

motions, Mr. Ruff-El filed this action as a result of the seizure
of some of his property by alleged agents of Nicholas Financial.

In addition to the original Nicholas defendants, Mr. Ruff-El
named as defendants the Columbus Police Department and several
police officers including Chief of Police Walter L. Distelweig,
Travis D. Fisher, Joshua S. Daugherty, Lisa M. Ickes, Austin C.
Summers, Matt E. Harris, Larry E. Ferguson, and John A. Sullivan
(the City or remaining defendants).

The individual City

defendants have been named in both their “official and personal”
capacities and are alleged to have unlawfully arrested Mr. RuffEl in connection with the seizure of his property.
II.

Mr. Ruff-El’s motion for a jury trial

Turning first to Mr. Ruff-El’s motion for a jury trial,
pursuant to Fed.R.Civ.P. 38, “a party may demand a jury trial by
... serving the other parties with a written demand - which may
be included in a pleading....” Fed.R.Civ.P. 38(b)(1).

“‘A

district court has broad discretion in ruling on a Rule 39(b)
motion.’” Moody v. Pepsi-Cola Metro. Bottling Co., Inc., 915 F.2d
201, 207 (6th Cir. 1990) quoting Kitchen v. Chippewa Valley Sch.,
825 F.2d 1004, 1013 (6th Cir. 1987).

However, “the court's

discretion should be exercised in favor of granting a jury trial
where there are no compelling reasons to the contrary.” Id.
citing Kitchen, 825 F.2d at 1013.

As explained by the court in

Bedwell v. U.S. Bank Nat. Ass'n, 2009 WL 3823294, *1 (W.D. Mich.
November 13, 2009), several factors have been identified as being
relevant to the court's exercise of its discretion including:
(1) whether the case involves issues which are
best tried to a jury; (2) whether granting the motion
would result in a disruption of the court's schedule or
that of the adverse party; (3) the degree of prejudice
to the adverse party; (4) the length of the delay in
having requested a jury trial; and (5) the reason for
the movant's tardiness in requesting a jury trial.
Id. quoting Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.
1983).

The Sixth Circuit has indicated that the nonmovant's

-2-

failure to demonstrate any prejudice may be sufficient on its own
to justify granting a delayed motion for a jury trial.

Id.

citing Moody, 915 F.2d at 207-08.
Here, to the extent that Mr. Ruff-El simply is asserting a
jury demand, the motion is unopposed and the Court will note this
demand.

Mr. Ruff-El will be afforded a jury trial if and when

this case reaches that stage of the proceedings.

See Russell v.

Tribley, 2011 WL 4387589, *12 (E.D. Mich. August 10, 2011)
(citing cases).

The Court will direct the clerk to designate the

action as a jury action on the docket in accordance with Rule 39.
Id.; see also Fed. R. Civ. P. 39(a) (“When a jury trial has been
demanded under Rule 38, the action must be designated on the
docket as a jury action.”).
To the extent Mr. Ruff-El could be construed as requesting
that the Court immediately schedule the case for a jury trial,
however, such a request will be denied.

The parties have not

conducted any discovery, and, as noted by the Court in its
previous order, some of the defendants have not been served.
Consequently, any request for a jury trial at this point would be
premature.

Russell, 2011 WL 4387589, *12.

Similarly, to the extent Mr. Ruff-El may be suggesting that
he has a right to a jury trial regardless of any conclusion by
the Court that his claims fail on the merits or are otherwise
subject to dismissal, such an argument would not succeed.

Rule

38 merely preserves “[t]he right of trial by jury as declared by
the Seventh Amendment to the Constitution—or as provided by
federal statute[.]” Fed. R. Civ. P. 38(a).

Dismissal for failure

to state a claim under Rule 12(b)(6) does not deprive a litigant
of his Seventh Amendment right to a jury trial.

Russell, 2011 WL

4387589, *12.
III.

Motion for Partial Judgment on the Pleadings

In their motion for partial judgment on the pleadings, the
-3-

City defendants assert that, for the reasons set forth in the
Court’s previous order, they are entitled to dismissal of Mr.
Ruff-El’s claims under 42 U.S.C. §1985, and 18 U.S.C. §242 and
§1652.

In response, Mr. Ruff-El, apparently believing that the

City defendants are seeking summary judgment, contends that their
motion is premature because discovery has not been completed.
Mr. Ruff-El also asserts that the City of Columbus is a private
corporation.

In reply, the City defendants note Mr. Ruff-El’s

mistaken belief that they had filed a motion for summary
judgment.

Further, they argue that Mr. Ruff-El’s new allegation

that the City is a corporation is incorrect and has no bearing on
his claims under 42 U.S.C. §1985, 18 U.S.C. §242, or 18 U.S.C.
§1652.
A motion for judgment on the pleadings filed under
Fed.R.Civ.P. 12(c) attacks the sufficiency of the pleadings and
is evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.
1979).

In ruling upon such motion, the Court must accept as true

all well- pleaded material allegations of the pleadings of the
opposing party, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.

Southern

Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479
F.2d 478, 480 (6th Cir. 1973).

The same rules which apply to

judging the sufficiency of the pleadings apply to a Rule 12(c)
motion as to a motion filed under Rule 12(b)(6); that is, the
Court must separate factual allegations from legal conclusions,
and may consider as true only those factual allegations which
meet a threshold test for plausibility.

See,e.g., Tucker v.

Middleburg-Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing,
inter alia, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
It is with these standards in mind that the motion for judgment
on the pleadings must be decided.
-4-

In its previous order, the Court construed Mr. Ruff-El’s 42
U.S.C. §1985 claim as arising under subsection (3).

Noting that

a claim under §1985(3) must be based on some racial or classbased animus, see Griffin v. Breckenridge, 403 U.S. 88, 102
(1971), and that Mr. Ruff-El had made no such allegations in his
complaint, the Court granted the motion to dismiss as to this
claim.

Additionally, the Court held that no private right of

action exists with respect to claims under 18 U.S.C. §§242 or
1652.

For the same reasons set out at length in the Court’s

previous order granting the motion to dismiss, the motion for
judgment on the pleadings will be granted as to these specific
claims against the City defendants.
IV.

Plaintiff’s Motion for Default Judgment

Mr. Ruff-El also has filed a motion captioned as “Request
for Default Judgment AFFIDAVID IN SUPPORT FOR DEFAULT JUDGMENT.”
In this filing, Mr. Ruff-El asserts that the City defendants have
failed to plead or otherwise defend as required by Fed.R.Civ.P.
55(a).

The City defendants have responded noting that Mr. Ruff-

El’s motion is unclear as to whether he is seeking an entry of
default or a default judgment.

Regardless, however, they assert

that he is entitled to neither because they have filed an answer
and actively defended this case.
In order for Mr. Ruff-El to obtain a judgment by default, he
must first request a Clerk’s entry of default pursuant to
Fed.R.Civ.P. 55(a).

A default judgment is governed by

Fed.R.Civ.P. 55(b).

A default judgment cannot be entered unless

a default has previously been entered by the clerk under Rule
55(a).

However, a default cannot be entered unless a party has

failed to plead or otherwise defend.

Fed.R.Civ.P. 55(a).

Here,

there is no question that the City defendants have appeared, have
timely filed an answer, and are actively litigating this case.
Consequently, they are not in default and Mr. Ruff-El’s motion
-5-

will be denied.

See Fed.R.Civ.P. 55(a).
V.

The Motion to Quash

The final motion currently ripe for the Court’s
consideration is a motion to quash the subpoena issued to defense
counsel John R. Wirthlin and Andrew D.M. Miller.

Through this

subpoena issued January 6, 2012, Mr. Ruff-El seeks “a certified
copy of their oath’s of Office, License to practice law and the
Delegation of authority order of who issued their license to
practice Law.”

Counsel have moved to quash the subpoena on

grounds that it subjects them to an undue burden under
Fed.R.Civ.P. 45a(c)(3)(A)(iv) and fails to satisfy the criteria
set forth in Shelton v. American Motors, 805 F.2d 1323, 1327 (8th
Cir. 1986) and adopted by the Sixth Circuit in Nationwide Mutual
Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002), for
obtaining discovery from an opposing party’s trial counsel.

Mr.

Ruff-El did not file a timely response to this motion but
instead, on February 14, 2012, filed the proof of service
relating to the subpoena.

Attorney Miller construed Mr. Ruff-

El’s filing as a response and filed a reply.

The gist of this

reply is that service of the subpoena is not in dispute and the
Mr. Ruff-El’s filing did not cure the substantive defects in the
subpoena.
To the extent that Mr. Ruff-El’s re-filing of the subpoena
can be considered a response to the motion to quash, the general
principles involving the proper scope of discovery are well
known.

The Federal Rules of Civil Procedure authorize extremely

broad discovery.

United States v. Leggett & Platt, Inc., 542

F.2d 655 (6th Cir. 1976), cert. denied 430 U.S. 945 (1977).
Therefore, Fed.R.Civ.P. 26 is to be liberally construed in favor
of allowing discovery.

Dunn v. Midwestern Indemnity, 88 F.R.D.

191 (S.D. Ohio 1980).

Any matter that is relevant, in the sense

that it reasonably may lead to the discovery of admissible
-6-

evidence, and is not privileged, can be discovered.

The concept

of relevance during discovery is necessarily broader than at
trial, Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499 (6th Cir.
1970), and "[a] court is not permitted to preclude the discovery
of arguably relevant information solely because if the
information were introduced at trial, it would be 'speculative'
at best."

Coleman v. American Red Cross, 23 F.3d 1091, 1097 (6th

Cir. 1994).
Information subject to disclosure during discovery need
not relate directly to the merits of the claims or defenses
of the parties.

Rather, it may also relate to any of the

myriad of fact-oriented issues that arise in connection with
the litigation.
340 (1978).

Oppenheimer Fund, Inc. v. Sanders, 437 U.S.

On the other hand, the Court has the duty to

deny discovery directed to matters not legitimately within
the scope of Rule 26, and to use its broad discretionary
power to protect a party or person from harassment or
oppression that may result even from a facially appropriate
discovery request.
(1979).

See Herbert v. Lando, 44l U.S. 153

Additionally, the Court has discretion to limit or even

preclude discovery which meets the general standard of relevance
found in Rule 26(b)(1) if the discovery is unreasonably
duplicative, or the burden of providing discovery outweighs the
benefits, taking into account factors such as the importance of
the requested discovery to the central issues in the case, the
amount in controversy, and the parties’ resources.
Fed.R.Civ.P. 26(b)(2).

See

Finally, the Court notes that the scope

of permissible discovery which can be conducted without leave of
court has been narrowed somewhat by the December 1, 2000
amendments to the Federal Rules.

Rule 26(b) now permits

discovery to be had without leave of court if that discovery “is
relevant to the claim or defense of any party ....”
-7-

Upon a

showing of good cause, however, the Court may permit broader
discovery of matters “relevant to the subject matter involved in
the action.”

Id.

Under very narrow circumstances, a court may permit
discovery from opposing counsel.

Such discovery “is ‘limited to

where the party seeking to take the deposition has shown that (1)
no other means exist to obtain the information ...; (2) the
information sought is relevant and nonprivileged; and (3) the
information is crucial to the preparation of the case.’”
Nationwide, 278 F.3d at 628 quoting Shelton, 805 F.2d at 1327.
As defense counsel has pointed out, Mr. Ruff-El cannot meet
any of the above criteria.

Mr. Ruff-El has other means to obtain

the information he seeks and he has failed to demonstrate how
evidence of counsels’ license to practice law is either remotely
relevant to, or crucial to his preparation of, this case.

Nor

can the Court perceive how such information obtained from counsel
authorized to practice law before this Court would assist Mr.
Ruff-El in pursuing his claims in this case.

Consequently, the

motion to quash will be granted.
VI.

Remaining Issues

The Court notes that on March 5, 2012, Mr. Ruff-El filed
what appears to be a motion for a temporary restraining order.
Defendants shall file a response to this motion within seven days
of the date of this order.
VII.

Conclusion

Based on the foregoing, the motion for a jury trial (#23) is
granted as explained above.

Further, the motion to quash

plaintiff’s subpoena (#26) is granted.

The motion for partial

judgment on the pleadings (#28) is granted with respect to
plaintiff’s claims under 42 U.S.C. §1985 and 18 U.S.C. §§242 and
1652.

The motion for default judgment (#31) is denied.

The

Clerk shall designate this action as a jury action on the docket.
-8-

Defendants’ response to the motion for a temporary restraining
order shall be filed within seven days of the date of this order.
/s/ Terence P. Kemp
United States Magistrate Judge

-9-