Wright v. MacConnell
REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF FROM JUDGMENT - re 63 MOTION to Set Aside Default filed by Rion MacConnell Objections to R&R due by 5/5/2017. Signed by Magistrate Judge Michael R. Merz on 4/20/2017. (srb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:15-cv-211
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF
This case is before the Court on Defendant’s Motion to Set Aside Default Judgment
under Rule 60(b)(ECF No. 63). Plaintiff opposes the Motion (ECF No. 66) and the time within
which Defendant could have filed a reply memorandum in support under S. D. Ohio Civ. R. 7.2
has expired and no reply has been filed.
Defendant submits no argument in support of his Motion, but relies on his attached
Affidavit in which he ave3rs that he was “never served by the Plaintiff or knew of any lawsuit
against me.” (ECF No. 63-1, PageID 350). He continues that he has been out of the area for
over six months and that “the person(s) responsible for picking up my mail did not and will not
sign for any registered mail nor was I in contact with them.” Id. Defendant claims he was in
“rehab in Boynton Beach FL, for two ninety day periods.” Id. Defendant claims he has a
meritorious defense, which he does not state, and that Plaintiff’s suit is frivolous. Id.
Plaintiff opposes the Motion, noting Defendant’s efforts to avoid service of process (ECF
No. 66). He also notes Defendant provides no corroboration of his rehab in Florida.
Fed. R. Civ. P. 60(b) provides for relief from a final judgment on the following bases:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Without saying so explicitly, Defendant is arguing the default judgment is void for lack
of personal jurisdiction over him. When this case was initially filed, the Magistrate Judge
questioned whether there this Court had subject matter jurisdiction of the claim, but eventually
found there was diversity of citizenship (West Virginia for Plaintiff, Ohio for Defendant) and
that the amount in controversy, given a colorable punitive damages claim, satisfied the amount of
controversy requirement (Order, ECF No. 6). The Court ordered issuance of process and found
service by the Marshall was appropriate because Plaintiff was proceeding in forma pauperis. Id.
On July 27, 2015, a Summons issued to Defendant, directed to 7655 Katy Drive and 554
Brightwood Avenue in Dayton, Ohio (ECF No. 7). The Marshal returned the service unexecuted
but indicated the Marshal’s Service had talked to Defendant who indicated he was out of state
but would connect with the Marshal on July 31, 2015, but failed to do so. Id. Service was
reissued September 16, 2015, but returned unexecuted with the notation that Defendant was
“deceased.” (ECF No. 11). However, the Court concluded Defendant had in fact signed for the
service but then wrote deceased on the return card. Because death records for Montgomery
County did not show Rion McConnell was dead, the Court concluded the endorsement was
fraudulent and that service was complete on September 24, 2015 (ECF No. 16). Because
Defendant had not responded to the Complaint and the requisite amount of time had passed, the
Magistrate Judge ordered the Clerk to enter Defendant’s default. Id.
Based on those findings, the Magistrate Judge concludes this Court properly acquired
personal jurisdiction of the Defendant. It is therefore respectfully recommended that the Motion
for Relief from Judgment be DENIED.
April 20, 2017.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
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