Default Judgment Motion

IN THE unite STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION IN RECASE NO. 04-60600 ROY JESSE LISATH,CHAPTER 7 STEPHANIE MYLO LISATH, JUDGE HOFFMAN Debtors. SSN (LAST quatern DIGITS ONLY) 0486 SSN (LAST FOUR DIGITS ONLY) 9643 RODELL RAHMAAN,Adv. Pro. No. 05-02049 complainant, vs. ROY J. LISATH, aka ROY JESSE LISATH, Defendant. PLAINTIFFS RENEWED MOTION FOR DEFAULT creative thinkerNow play alongs the complainant, Rodell Rahmaan (hereinafter Rahmaan), by and through his nether(a) sign(a) attorney, and respectfully MOVES this Honorable flirt for the instauration of JUDGMENT BY DEFAULT against the Defendant, Roy J. Lisath, aka Roy Jesse Lisath (hereinafter Lisath), for the relief demanded in the Complaint, specifically that either thought later obtained by Rahmaan upon those consumes which are the subject matter of that true civil execution en cognomend Rodell Rahmaan v. City of Columbus, et al. designated display case occur C2-02-989, pending in the unify States District move for the Southern District of Ohio, easterly Division, be DECLARED to be excepted from discharge upon the grounds set onwards in 11 U. S. C. 523(a)(6), namely for voluntary and venomous injury. This act re red-hots a Motion for slight Judgment previously served and filed on March 15, 2005, denied without preconceived idea by this Courts Order entered March 24, 2005. Your Movant grounds this Motion upon the Memorandum more specifically set forth hereinafter. Respectfully submitted, /s/ Daniel K.Friend Daniel K. Friend(0019648) 118 East Main Street Columbus, Ohio 43215 Teleph wizard (614) 221-3355 Facsimile (614)-221-3391 netmail emailprotected net Attorney for Plaintiff MEMORANDUM I. Introduction prevail 7055 B. R. incorporates Rule 55 F. R. Civ. P. , which in turn in pertinent naval division provides (a) Entry. When a troupe against whom a judgment for affirmative relief is sought has failed to allege or otherwise defend as provided by these rules and that fact is do to appear by denunciation or otherwise, the clerk shall enter the fellowships default. (b) Judgment. Judgment by default may be entered as follows (1) By the Clerk. When the complainants title against a suspect is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the complainant and upon oath of the come due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or amateurish person. (2) By the Court.In all other cases the party entitled to a judgment by default shall apply to the cost therefor but no judgment by default shall be entered against an infant or incompetent person unless represented in the consummation by a ordinary guardian, committee, conservator, or other much(prenominal) representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the deed at law, the party (or, if appearing by representative, the partys representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application.If, in order to enable the move to enter judgment or to carry it into effect, it is indispensable to fasten on an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the butterfly may stand such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as essential by any statute of the unite States. Rahmaans Adversary Complaint was filed with the Clerk on February 1, 2005.Service of summon and a reproduction of the Complaint upon Lisath and upon his attorney Eden Renee Sarver, Esq. , was made to to each one on February 3, 2005, and proof of service thereon was filed upon the same date. More t han xx days deem elapsed since completion of said service of process. No answer or other defense, nor any motion requesting an extension of clipping to respond to Rahmaans Complaint, has yet been filed or served upon the undersigned. Lisath is in default. See Rules 7004 and 7012 B. R.Rahmaans earlier Motion for Default Judgment was denied without prejudice, and the inwardly Motion, supported by a Memorandum with attachments, provides an nice basis for granting the relief sought. II. Summary of the Facts On July 2, 2004, Lisath filed a joint petition, together with his spouse, in this Court, commencing a proceeding under Chapter 13, Title 11 U. S. C. , designated case tote up 04-60600 (hereinafter the master(prenominal) case). The main case was converted to a proceeding under Chapter 7 on November 2, 2004.At the time of the commencement of the main case Lisath was a defendant in a civil exploit pending in the unify States District Court for this territory entitled Rahmaan v. City of Columbus, designated case number 02-CV-989, together with other defendants (hereinafter the district royal salute action). The district flirt action arose originally from a re-filed civil action brought in the Franklin County, Ohio, Court of Common Pleas. The initial care commencing the initial civil action was filed on April 30, 1998.That civil action was subsequently voluntarily brush off on phratry 13, 2001, but with the right reserved to re-file at heart the applicable one-year percentage point of time (see Rule 41(A) Ohio Rules of Civil Procedure and 2305. 19 O. R. C. ). A new civil action was commenced by re-filing a Complaint upon the same declares and brought in the same court on September 9, 2002. This re-filed action was subsequently out array to District Court on October 4, 2002 (see copy of Notice of Removal with annexed copy of Summons and Complaint connect hereto as Exhibit A).The district court action has not yet gone to trial, and Rahmaan was a scheduled creditor in the main case, although reflected upon Lisaths and his wifes register F with no description as to his assume, except notice nevertheless. Rahmaan holds an unliquidated convey for the overweening use of index out by Lisath and two other co-defendants in the district court action. All other claims Rahmaan has had heretofore against Lisath have been dismissed by Summary Judgment tending(p) in the district court action (see copy of thought process and Order in the district court action attached hereto as Exhibit B).The effective facts underlying Lisaths claim are summarized by the Court in the district court actions suasion and Order, as follows Plaintiff Rodell Rahmaan brings various claims against the urban center of Columbus, Ohio, and several of its police ships officers, arising out of incidents which occurred at his firm on April 27, 1997, and April 30, 1997. Plaintiff has been engaged in a dispute with his neighbor, pack Casey, for a period of time prior to the events in question. Casey had called the police quetch of trumpet-like music coming from Plaintiffs residence on several occasions.Plaintiff perceived this as harassment. On Sunday morning, April 27, 1997, incumbent Olander put was dispatched on a disturbance call to Caseys residence. Upon arrival, he observed Casey standing on his porch engaged in a cheering match with complainant, who was in the second story window of his home crossways the street. Casey reported that plaintiff was panicening him. Plaintiff admits that he did initiate a loud conversation with Casey from his bedroom window, that both of them were using profanity and that his spoken communication to Casey may have been perceived as a veiled threat. Plaintiffs deposition, pp. 7-79, Exh. B to Defendants Motion for Summary Judgment. According to military officer park, plaintiff refused to end the disturbance, whereupon Officer Parks advised plaintiff that he was placing him under apprehe nd and asked him to come out of his home to be taken into custody. fleck Officer Parks was disquisition with Casey, he observed a schoolgirlish fair sex walk a large Rottweiler wiener from behind plaintiffs residence and enter the front door. While Parks was speaking to plaintiff at his front door asking him to come outside, the woman was standing behind him with the dog, and she stated, Youre not arresting my daddy. Plaintiff refused to come outside, whereupon Parks called for assistance. Sgt. Jerome Barton and several other officers responded to Parks call. Sgt. Barton advised plaintiff that he was being aerated with bare-knuckled conduct and that he had an outstanding transaction warrant. Barton requested that plaintiff come outside, but plaintiff continued to refuse. Sgt. Barton truism the dog while he was speaking to the plaintiff. Sgt. Barton did not take the plaintiff into custody. Instead, he instructed him to take address of both warrants at the courthouse. Plaint iff concur to do so. Sgt.Barton instructed his officers to depart, believing that peace had been restored. Plaintiff has a somewhat varied version of his conversation with Sgt. Barton. According to plaintiff, it was his understanding that the sergeant and his officers agreed to depart in return for plaintiffs agreement to take care of his outstanding traffic warrant, and he was unaware that he was being charged with rough-and-tumble conduct. After departing the premises, Officer Parks proceeded to the Municipal Court of Franklin County, Ohio, where he filed a complaint charging plaintiff with bare-knuckled conduct, and a warrant was issued for his arrest.The disorderly conduct charge was assigned case number 10608-97. Officer Parks alike filed a temporary situation information report for plaintiffs residence address with the police dispatcher, which stated Large Rottweiler at this location and the resident will have dog attack officers. Also, valued person there by name of Ro dell Rahmaan. M. B. , 44 YOA for disorderly. On April 30, 1997, plaintiff drove his wife to the Franklin County Municipal Court and instructed her to go inside and take care of his outstanding traffic charge.She did so, and upon returning to his car, she advised him that the clerks office had informed her that there was an outstanding warrant against him for disorderly conduct and that he should report voluntarily in order to avoid arrest. allegedly believing that a mistake had been made, plaintiff decided instead to go home and watch a basketball game on television. later(prenominal) that afternoon, Officers Jackson Rennie and Kyle McKeon were dispatched to plaintiffs residence on a loud music complaint.These officers were also told by the dispatcher that the resident had warrants for his arrest, and they were advised of the mental ability of Officer Parks temporary situation information report concerning the dog. Officers Roy Lisath and Joseph Murray perceive the dispatch and d ecided that they also would respond. Officers Lisath and Rennie went to the front door of plantiffs residence and knocked. Plaintiff answered the door and the officers advised him that they had been dispatched on a noise complaint and that they had a warrant for his arrest.They asked him to come outside and be arrested. The officers claim that plaintiff refused to be arrested, resisted arrest, and ordered his dog to attack them. Officer Lisath drew his side arm and fired at the dog. Officer Rennie fired one shot from a shotgun, killing the dog. According to the officers, plaintiff continued to resist arrest and was maced. He was taken into custody and charged with resisting arrest. Plaintiff denies that he resisted arrest, denies that he ordered his dog to attack the officers and denies that his dog did attack the officers.Plaintiff claims that he was transported from the horizon of his arrest to a police substation, where he was allegedly subjected to prolonged physical intimida tion by the defendants and other officers while he was handcuffed to a bench. Plaintiff was charged with resisting arrest in the Franklin County Municipal Court in case number 10938-97. The complaint, signed by Officer Lisath, states On or about the 30th day of April, 1997, Rodell Rahmaan did by persuasiveness resist the observant arrest of himself, to wit Rodell K.Rahmaan in the following manner, to wit pushed officers back with an exculpated hand, pulled arms back, attempted to close a door on officers, called for his dog which did attack officers. On January 26, 1998, plaintiff, represented by counsel, appeared for trial on the disorderly conduct charge, case number 10608-97, and the resisting arrest charge, case number 10938-97. At that time, plaintiff entered into a plea agreement, wherein the prosecutor agreed to amend the profanity in case number 10938-97, reducing the charge from resisting arrest to disorderly conduct.Plaintiff agreed to plead guilty to the amend affidav it, and the prosecution agreed, as part of the bargain, to dismiss the original disorderly conduct charge, case number 10608-97. Plaintiff entered a no contest plea to the amended affidavit in case number 10938-97, was found guilty and sentenced to a o.k. of $100 and costs, suspended for time served. A dismissal entry was filed in case number 10608-97, with the following notation These charges are dismissed at the request of P. A. for plea in 97/10938. The dismissal entry was signed by the sentencing judge.On April 30, 1998, plaintiff commenced an action against the city of Columbus and Officer Parks, Lisath, Rennie, Barton, Murray and McKeon, in the Common Pleas Court of Franklin County, Ohio, asserting claims of specious arrest false imprisonment assault bitchy prosecution deprivation of unspecified innate and statutory rights deprivation of rights secured by the Fourth, Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States, wrongful destruction of pr operty, knowledgeable infliction of emotional distress, and damage to reputation.On July 26, 2000, the common pleas court granted defendants motion for compendium judgment, finding that only plaintiffs fourth amendment profligate military force claim remained for trial. Defendants claim that plaintiff had previously voluntarily dismissed all of his state lawfulness claims with the exception of his claim for intentional infliction of emotional distress. Thereafter, plaintiff voluntarily dismissed his complaint on September 13, 2001, and filed the present action in the Common Pleas Court of Franklin County, Ohio, on September 9, 2002.The action was removed to this court on October 4, 2002. (the district court action Opinion and Order pages 1 through 5) The district court action Opinion and Order farther went on to analyze the Motion for Summary Judgment of Defendants, and concluded as follows Conclusion In accordance with the foregoing, defendants motion for summary judgment is granted in part and denied in part. The individual defendants are granted summary judgment on plaintiffs First through Tenth Cause of Action. The city is granted summary judgment on the Twelfth Cause of Action.Defendants Rennie, Parks and Barton are granted summary judgment on plaintiffs Eleventh Cause of Action. Defendants Lisath, Murray and McKeon are granted summary judgment on plaintiffs Eleventh Cause of Action insofar as it alleges the undue use of force by these defendants at the police substation after plaintiffs arrest. The motion for summary judgment of defendants Lisath, Murray and McKeon on plaintiffs Eleventh Cause of Action insofar as plaintiff alleges the excessive use of force at the scene of the arrest is denied.It is so ORDERED. (emphasis supplied-the district court action Opinion and Order page 19) Rahmaan, therefore, has one remaining claim left for trial in the district court action. His eleventh cause of action is set forth in his amended complaint (copy atta ched hereto as Exhibit C), and includes within his claims for deprivation of civil rights under 42 U. S. C. 1983 and 1985 the excessive use of force claim. Lisath and his spouse were issued a discharge of all dischargeable debts under 11 U. S. C. 727 on October 4, 2005, in the main case (see copy attached hereto as Exhibit D). III. Issue Presented for Decision (A)Does Rahmanns remaining claim in the district court action for excessive use of force, if Rahmaan prevails at trial, constitute a claim or debt which is excepted from discharge under 11 U. S. C. 523(a)(6)? (B)Has Rahmaan satisfied his burden of articulating all applicable grounds necessary for this Court to grant default judgment under Rule 7055 Bankruptcy Rules? IV. air 11 U. S. C. 523(a)(6) provides as follows 523. Exceptions to discharge. a)A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt- . (6) for headstrong and vixenish injury by t he debtor to other entity or to the property of another entity Lisaths discharge is ineffective as against Rahmaans remaining claim for excessive use of force in the district court action for the reasons more fully set forth hereinafter. First, the above cited paragraph excepts debts for willful and malicious injury by the Debtor to another person or to the property of another person.Under this paragraph willful means thrifty or intentional. In Kawaauhau v. Geiger, 522 U. S. 57, 118 S. Ct. 974, 140 L. Ed. (1998), the Supreme Court articulated the elements necessary to fulfill the Section 523(a)(6) exception to dischargeability. An act (or omission) must be taken with the actual intent to cause injury. As the Court noted in its Opinion the word willful in the above-quoted subsection modifies the word injury, core that non-dischargeability takes a deliberate or intentional injury rather than still a deliberate or intentional act which leads to injury.In In re Markowitz, 190 F. 3d 455 (6th Cir. , 1999), the Court had occasion to apply the Geiger warning, and specifically held that the earlier standard set forth in Perkins v. Scharffe, 817 F. 2d 392 (6 Cir. , 1987), was overruled. The Perkins case had held that willful and malicious injury will occur when one intends the act, regardless of whether he intends the consequences. This test for the non-dischargeability exception for willful and malicious injury under 11 U. S. C. 523(a)(6) similar to the defense of qualified exemption that was raised in the district court action.Generally, qualified immunity protects a police officer from being sued for his discretionary actions as long as the officer incomplete knewn or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights. . . .affected, or. . . . took action with the malicious intention to cause a deprivation of a constitutional right. . . . . Robinson v. Bibb 840 F. 2d 349, 350 (6th Cir. , 1988) quoting Wood v. Strickland, 420 U. S. 308. , 322 95 S. Ct. 992, 1001, 43 L. Ed. 2d (1975).As the district court found, Rahmaans claims for excessive force were that the defendants continued to apply excessive force even after he Rahmaan was completely balmy. (the district court action Opinion and Order page 16). The district court action Opinion and Order went on to summarize that defendants were not entitled to qualified immunity on plaintiffs claims of excessive force at the scene of the arrest under Section 1983 because it is well settled that the use of excessive force is a violation of the Fourth Amendment (the district court action Opinion andOrder page 16). Accordingly, by its very nature, the excessive force claim of Rahmaan means that if Rahmaan prevails at trial he will have had to upgrade by a preponderance that Lisath took action knowing that his action would violate Rahmaans constitutionally protected Forth Amendment rights or with the maliciou s intention to cause a deprivation of a constitutional right, Rahmaans contention that Lisath continued to apply force after Rahmaan was completely subdued compels the conclusion that such conduct was deliberate, intentional and malicious, if proven.Certainly, it could neither have been besides negligent or reckless. Similarly, in Walton v. City of Southfield, 995 F. 2d 1331 (6th Cir. , 1993), the court, inter alia, held that the self-abnegation of qualified immunity to one of the police officer defendants was to be affirmed. As the court noted There are still genuine issues of temporal fact concerning whether Officer Birberick used excessive force in handcuffing Walton.An excessive use of force claim could be premised on Officer Birbericks handcuffing Walton if he knew that she had an injured arm and if he believed that she posed no threat to him. (Walton 1331, ________) In Adams v. Metiva, 31 F. 3d 375 (6th Cir. , 1994), the court had occasion to analyze a similar excessive use of force claim. The court noted that excessive force claims should be considered under the Fourth Amendment standard which is one of purpose reasonableness under the circumstances (citing Graham v.Connor, 490 U. S. 386 1989). While the objective standard is applied without regard to the officers underlying intent or motivation, under the facts as summarized in the district court action Opinion and Order, it is hard to imagine that Lisath and his fellow defendants could have used excessive force once Rahmaan was subdued in any manner other than intentionally, wilfully and maliciously, assuming that Rahmaan is successful in meeting his evidentiary burden at trial. A review of other authorities does not compel a different conclusion.In Steier v. Best (In re Best), 109 Fed. Appx. 1. 2004 W. L. 1544066 (6th Cir. , 2004-unreported, see copy attached as Exhibit E), the Court summarized the kinds of debts or claims which by their very nature satisfy the willful and malicious injury standa rd of the 11 U. S. C. 523(a)(6) exception intentional infliction of emotional distress, malicious prosecution, conversion, assault, false arrest, intentional liable, and deliberately vandalizing the creditors premises. , Id. at. 4.The Court went on to discuss other kinds of claims that also meet this standard, noting that the creditor must prove that loss was caused by willful and malicious conduct of the debtor, that the debtors actions must be determined to be the cause of the creditors injury and that the injury must invade the creditors legal rights. Id. at 4-5. These tests do not differ from what Rahmaan must prove to meet his evidentiary burden in the district court action to prevail upon his excessive use of force claim.By their very nature, if Rahmaan prevails, he will have met every element described in the willful and malicious injury test. In Kennedy v. Mustaine, 249 F. 3d 576 (6th Cir. , 2001), the Court affirmed the loser court and the district court which had found a calumniation claim to be non-dischargeable under 11 U. S. C. 523(a)(6) and applied principals of issue preclusion to hold re-litigation of whether the statements made by the debtor were defamatory, since under Michigan law they were deemed defamation per se, and therefore conclusively presumed to be harmful.It is respectfully submitted, therefore, that Rahmaan has articulated sufficient facts and provided an adequate basis by submitting the attached exhibits to show that if he prevails in the district court action on his excessive use of force claim, he will have articulated every element necessary to satisfy the 11 U. S. C. 523(a)(6) exception by a preponderance of the evidence. See Grogan v. Garner, 498 U. S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991). Accordingly, the foregoing Motion does not suffer from the defects similar to those discussed in Cripps v. disembodied spirit Insurance Co. of North Am. , 980 F. 2d 56 (2nd Cir. , 1990), cert. denied, 499 U. S. 929 (1991) or K ring v. Citibank (In Re Kring), 208 B. R. 73 (Bcy. S. D. Cal. , 1997). Annexed hereto as Exhibit F and made a part hereof is the Affidavit of John A. Yaklevich, establishing that Lisath is not an incompetent person or an infant, and also not in the military service, all as required by B. R. 7055 and by the Servicemembers Civil hiatus Act of 2003, amending and restating, the Solders and Sailors Civil Relief Act of 1940 (50 U.S. C. App. 501, et seq. ). The Motion should be granted and judgment entered accordingly. Respectfully submitted, /s/ Daniel K. Friend Daniel K. Friend(0019648) Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that true and accurate copies of the foregoing Renewed Motion for Default Judgment were mailed by ordinary U. S. Mail, postage prepaid, to the following parties in interest at the addresses shown immediately following on _________________ William B.Logan, Jr. , Esq. 50 West Broad Street, Suite 1200 Columbus, Ohio 43215 U. S. Trustee 170 Nort h exalted Street, 200 Columbus, Ohio 43215 Frank M. Pees, Chapter 13 Trustee 130 East Wilson duo Rd. , 200 Worthington, Ohio 43085 Roy J. Lisath, aka Roy Jesse Lisath 2065 Penhook Avenue Lewis Center, Ohio 43035 James E. Nobile, Esq. Nobile, Needleman & Thompson, LLC 4511 Cemetery Road, Suite B Hilliard, Ohio 43026 /s/ Daniel K. Friend Daniel K. Friend(0019648) Attorney for Plaintiff