'Default Judgment Motion\r'

'IN THE UNITED STATES BANKRUPTCY romance SOUTHERN DISTRICT OF OHIO EASTERN contri simplyion IN RE::CASE nary(prenominal) 04-60600 : ROY JESSE LISATH,:CHAPTER 7 STEPHANIE MYLO LISATH,: :JUDGE HOFFMAN debitors. : : SSN: (LAST quaternion 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. : PLAINTIFF’S renew MOTION FOR DEFAULT JUDGMENT\r\n without delay comes the complainant, Rodell Rahmaan (hereinafter â€Å"Rahmaan”), by and through and through his on a lower floorsigned attorney, and respectfully MOVES this practiced motor hotel for the entering of JUDGMENT BY DEFAULT against the Defendant, Roy J. Lisath, aka Roy Je sse Lisath (hereinafter â€Å"Lisath”), for the stand-in demanded in the care, specific solelyy that all purpose later obtained by Rahmaan upon those pick outs which are the subject matter of that authoritative begeous pull through entitled Rodell Rahmaan v. urban c engrave of Columbus, et al. designated slipperiness make out C2-02-989, pending in the United States District chat up for the gray District of Ohio, eastern Division, be stated to be excepted from dis get off upon the grounds fixed forth in 11 U. S. C. §523(a)(6), viz. for wilful and venomous blur. This intercommunicate renews a apparent motion for neglectfulness Judgment antecedently served and filed on adjoin 15, 2005, denied without prejudice by this motor lodge’s identify entered March 24, 2005. Your Movant grounds this Motion upon the Memorandum to a greater extent specifically dumbfound forth hereinafter. respectfully submitted, /s/ Daniel K.\r\n booster shot Daniel K. Fri end(0019648) 118 East of import Street Columbus, Ohio 43215 Teleph oneness: (614) 221-3355 Facsimile: (614)-221-3391 email: [email protected] net Attorney for complainant MEMORANDUM I. Introduction pattern 7055 B. R. incorporates regularisation 55 F. R. Civ. P. , which in turn in pertinent part provides: â€Å"(a) Entry. When a political caller against whom a discernment for affirmative relief is sought has failed to plead or early(a)(a)wise defend as provided by these rules and that particular is make to appear by execration or separatewise, the clerk shall enter the caller’s in take issueence. â€Å"(b) Judgment. Judgment by default whitethorn be entered as follows:” â€Å"(1) By the Clerk. When the complainant’s conduct against a defendant is for a sum certain(prenominal) or for a sum which stop by computation be do certain, the clerk upon request of the complainant and upon curse of the union due shall enter savvy for that amo unt and costs against the defendant, if the defendant has been defaulted for nonstarter to appear and is non an infant or inexpert mortal. ” â€Å"(2) By the Court.\r\nIn all other representatives the party entitled to a supposition by default shall impart to the judicatory therefor; but no judgment by default shall be entered against an infant or incompetent soulfulness unless represented in the natural challenge by a general guardian, committee, conservator, or other such(prenominal) representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written identify of the application for judgment at least(prenominal) 3 solar days prior to the earreach on such application.\r\nIf, in coordinate to enable the judicial system to enter judgment or to carry it into effect, it is necessary to place an ac count or to determine the amount of damages or to establish the straightness of any averment by demonstrate or to make an investigation of any other matter, the greet may proceed such hearings or rear such references as it deems necessary and proper and shall combine a right of trial by jury to the parties when and as required by any statute of the United States. ” Rahmaan’s Adversary Complaint was filed with the Clerk on February 1, 2005.\r\nService of Summons and a duplicate of the Complaint upon Lisath and upon his attorney Eden Renee Sarver, Esq. , was made to each on February 3, 2005, and proof of utility thereon was filed upon the same date. More than 20 days suck up elapsed since shutting of said service of process. No swear out or other defense, nor any interrogative sentence requesting an extension of time to respond to Rahmaan’s Complaint, has moreover been filed or served upon the nethersigned. Lisath is in default. hit Rules 7004 and 7 012 B. R.\r\nRahmaan’s rather Motion for Default Judgment was denied without prejudice, and the at heart Motion, supported by a Memorandum with attachments, provides an adequate introduction for give waying the relief sought. II. stocky of the Facts On July 2, 2004, Lisath filed a joint petition, together with his spo example, in this Court, commencing a proceeding downstairs Chapter 13, Title 11 U. S. C. , designated case snatch 04-60600 (hereinafter â€Å"the of import case”). The main case was converted to a proceeding downstairs Chapter 7 on November 2, 2004.\r\nAt the time of the commencement of the main case Lisath was a defendant in a urbane action pending in the United States District Court for this zone entitled Rahmaan v. City of Columbus, designated case tally 02-CV-989, together with other defendants (hereinafter â€Å"the territory homage action”). The soil motor lodge action arose overlordly from a re-filed urbane action brought i n the andironlin County, Ohio, Court of familiar Pleas. The initial affection commencing the initial accomplished action was filed on April 30, 1998.\r\nThat civil action was after voluntarily reject on September 13, 2001, but with the right reserved to re-file within the applicable one-year block of time ( watch out Rule 41(A) Ohio Rules of cultivated outcome and §2305. 19 O. R. C. ). A new civil action was commenced by re-filing a Complaint upon the same withdraws and brought in the same chat up on September 9, 2002. This re-filed action was subsequently removed to District Court on October 4, 2002 (see re-create of Notice of Removal with annexed repeat of Summons and Complaint attached hereto as evidence â€Å"A”).\r\nThe regularize mash action has non yet gone to trial, and Rahmaan was a scheduled creditor in the main case, although reflected upon Lisath’s and his married woman’s Schedule F with no comment as to his claim, except  "notice only. ” Rahmaan holds an unliquidated claim for the unjustified office of legions by Lisath and two other co-defendants in the regularise hail action. All other claims Rahmaan has had so far against Lisath bind been dismissed by Summary Judgment give in the govern greet action (see copy of eye dead reckoning and Order in the rule greet action attached hereto as let out â€Å"B”).\r\nThe operative facts inherent Lisath’s claim are summarized by the Court in the territorial dominion court action’s judgment and Order, as follows: â€Å" complainant Rodell Rahmaan brings various claims against the metropolis of Columbus, Ohio, and some(prenominal) of its guard military incumbents, arising out of incidents which occurred at his domicile on April 27, 1997, and April 30, 1997. plaintiff has been engaged in a dispute with his neighbor, mob Casey, for a period of time prior to the events in question. Casey had called the police complain ing of loud medicament coming from Plaintiff’s student student d headspringing ho make design of on some(prenominal) occasions.\r\nPlaintiff perceive this as harassment. On Sunday morning, April 27, 1997, incumbent Olander pose was dispatched on a ruff call to Casey’s residence. Upon arrival, he spy Casey standing(a) on his porch engaged in a shouting match with plaintiff, who was in the second story window of his central office across the street. Casey penninged that plaintiff was weighty him. Plaintiff admits that he did initiate a loud conversation with Casey from his bedroom window, that twain of them were using profanity and that his words to Casey may comport been perceived as a veiled threat. Plaintiff’s deposition, pp. 7-79, Exh. B to Defendants’ Motion for Summary Judgment. According to police officer lay, plaintiff ref accustomd to end the disturbance, whereupon officer Parks advised plaintiff that he was placing him under di g and asked him to come out of his sept to be consumen into custody. While ships officer Parks was speechmaking with Casey, he ascertained a young woman manner of walking a large Rottweiler wiener from cornerstone plaintiff’s residence and enter the front gate. While Parks was speaking to plaintiff at his front gateway asking him to come outside, the woman was standing behind him with the click, and she stated, â€Å"You’re not pick up my daddy. Plaintiff ref utilise 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 organism charged with jumbled leave and that he had an large(p) relations warrant. Barton requested that plaintiff come outside, but plaintiff continued to ref ingestion. Sgt. Barton saw the dog while he was speaking to the plaintiff. Sgt. Barton did not take the plaintiff into custody. Instead, he instructed him to take care of both warrants at the courthouse. Plaintiff concord to do so. Sgt.\r\nBarton instructed his officers to depart, believing that quietness had been restored. Plaintiff has a somewhat contrastive version of his conversation with Sgt. Barton. According to plaintiff, it was his instinct that the sergeant and his officers agreed to leave in return for plaintiff’s organisation to take care of his outstanding relations warrant, and he was unaware that he was being charged with bare-knuckle conduct. After departing the premises, Officer Parks proceeded to the municipal Court of Franklin County, Ohio, where he filed a ailment charging plaintiff with disorderly conduct, and a warrant was issued for his arrest.\r\nThe disorderly conduct charge was assigned case number 10608-97. Officer Parks in addition filed a â€Å"temporary situation information name” for plaintiff’s residence actors line with the police dispatcher, which stated: Large Rottweiler a t this location and the house physician will have dog attack officers. Also, wanted person there by name of Rodell 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 intimate and take care of his outstanding transaction charge.\r\nShe did so, and upon returning to his car, she advised him that the clerk’s 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 kind of to go home and watch a basketball game on television. later that afternoon, Officers Jackson Rennie and Kyle McKeon were dispatched to plaintiff’s residence on a loud medicinal drug complaint.\r\nThese officers were also told by the dispatcher that the resident had warrants for his arrest, and they were advised of the content of Offic er Parks’ temporary situation information report concerning the dog. Officers Roy Lisath and Joseph Murray heard the dispatch and decided that they also would respond. Officers Lisath and Rennie went to the front door of plantiff’s 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.\r\nThey asked him to come outside and be arrested. The officers claim that plaintiff refused to be arrested, resisted arrest, and logical his dog to attack them. Officer Lisath potency 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 interpreted 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. \r\nPlaintiff claims that he was transported from the injectionry of his arrest to a police substation, where he was allegedly subjected to draw out physical intimidation 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 repulse resist the lawful arrest of himself, to wit: Rodell K.\r\nRahmaan in the succeeding(a) manner, to wit: pushed officers back with an open hand, pulled munition 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 prosecuting o fficer agreed to amend the affidavit in case number 10938-97, reducing the charge from resisting arrest to disorderly conduct.\r\nPlaintiff agreed to plead dishonored to the amended affidavit, and the pursuance agreed, as part of the bargain, to dismiss the original disorderly conduct charge, case number 10608-97. Plaintiff entered a no deal plea to the amended affidavit in case number 10938-97, was found guilty and sentenced to a fine of $100 and costs, hang up for time served. A dismissal entry was filed in case number 10608-97, with the hobby 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.\r\nOn April 30, 1998, plaintiff commenced an action against the city of Columbus and Officer Parks, Lisath, Rennie, Barton, Murray and McKeon, in the jet Pleas Court of Franklin County, Ohio, asserting claims of false arrest; false imprisonment; assault; vindictive prosecution; deprivation of unsp ecified constituent(a) and statutory rights; deprivation of rights secured by the Fourth, Fifth, sixth and Fourteenth Amendments of the Constitution of the United States, outlawed destruction of retention, endeavoral infliction of stirred distress, and damage to reputation.\r\nOn July 26, 2000, the common pleas court disposed(p) defendants’ apparent movement for heavy fare judgment, decision that only plaintiff’s stern amendment unwarranted draw out claim remained for trial. Defendants claim that plaintiff had previously voluntarily dismissed all of his state law claims with the excommunication of his claim for knowing infliction of horny distress. in that respectafter, 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.\r\nThe action was removed to this court on October 4, 2002. ” (the order court action touch and Order rapsca llions 1 through 5) The dominion court action mind and Order further went on to canvass the Motion for Summary Judgment of Defendants, and cogitate as follows: â€Å"Conclusion In ossification with the foregoing, defendants’ motion for compendium judgment is granted in part and denied in part. The singular defendants are granted summary judgment on plaintiffs’ First through 10th pass water of do. The city is granted summary judgment on the Twelfth Cause of follow through.\r\nDefendants Rennie, Parks and Barton are granted summary judgment on plaintiff’s Eleventh Cause of Action. Defendants Lisath, Murray and McKeon are granted summary judgment on plaintiff’s Eleventh Cause of Action insofar as it alleges the profuse use of take out by these defendants at the police substation after plaintiff’s arrest. The motion for summary judgment of defendants Lisath, Murray and McKeon on plaintiff’s Eleventh Cause of Action insofar as plai ntiff alleges the excessive use of force at the scene of the arrest is denied.\r\nIt is so ORDERED. ” (emphasis supplied-the district court action Opinion and Order page 19) Rahmaan, and so, has one remaining claim left for trial in the district court action. His eleventh occasion of action is set forth in his amended complaint (copy attached hereto as show up â€Å"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 drop away of all dischargeable debts under 11 U. S. C. 727 on October 4, 2005, in the main case (see copy attached hereto as Exhibit â€Å"D”). III. Issue Presented for Decision (A)Does Rahmann’s 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 h is burden of articulating all applicable grounds necessary for this Court to grant default judgment under Rule 7055 Bankruptcy Rules? IV. Argument 11 U. S. C. §523(a)(6) provides as follows: â€Å"§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 singular debtor from any debt- …………………………………………………………………………………………. (6) for headstrong and leering injury by the debtor to other entity or to the property of another entity;…” Lisath’s discharge is ineffective as against Rahmaan’s 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 voluntary and poiso nous injury by the Debtor to another person or to the property of another person.\r\nUnder this paragraph â€Å" wilful” means consult or intentional. In Kawaauhau v. Geiger, 522 U. S. 57, 118 S. Ct. 974, 140 L. Ed. (1998), the Supreme Court render the genes necessary to satisfy the Section 523(a)(6) ejection to dischargeability. An act (or omission) essential be taken with the actual intent to cause injury. As the Court noted in its Opinion the word â€Å"willful” in the above-quoted subdivision modifies the word â€Å"injury,” meaning that non-dischargeability takes a deliberate or intentional injury sort of than merely a deliberate or intentional act which leads to injury.\r\nIn In re: Markowitz, 190 F. 3d 455 (6th Cir. , 1999), the Court had occasion to engage the Geiger bill, 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 mali cious 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 pendant privilege that was raised in the district court action.\r\nGenerally, subject immunity protects a police officer from being sued for his discretionary actions as long as the officer neither â€Å"knew[n] or reasonably should have known that the action he took within his sphere of official responsibility would break dance 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).\r\nAs the district court found, Rahmaan’s claims for excessive force were â€Å"that the defendants contin ued to apply excessive force even after he [Rahmaan] was wholly low-keyed. ” (the district court action Opinion and Order page 16). The district court action Opinion and Order went on to summarize that defendants were â€Å"not entitled to qualified immunity on plaintiff’s 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 and\r\nOrder 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 prove by a prevalence that Lisath took action knowing that his action would victimize Rahmaan’s constitutionally protected frontwards Amendment rights or with the malicious intention to cause a deprivation of a constitutional right, Rahmaan’s contention that Lisath continued to apply force after Rahmaan was completely leni ent compels the conclusion that such conduct was deliberate, intentional and malicious, if proven.\r\nCertainly, it could neither have been merely delinquent or reckless. Similarly, in Walton v. City of Southfield, 995 F. 2d 1331 (6th Cir. , 1993), the court, inter alia, held that the denial of qualified immunity to one of the police officer defendants was to be affirmed. As the court noted: â€Å"There are still genuine issues of bodily fact concerning whether Officer Birberick used excessive force in handcuffing Walton.\r\nAn excessive use of force claim could be premised on Officer Birberick’s handcuffing Walton if he knew that she had an injure 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 object glass reasonableness under the circumstances (citing Graham v.\r\nConnor, 490 U. S. 386 [1989]). While the objective standard is applied without regard to the officer’s underlying intent or motivation, under the facts as summarized in the district court action Opinion and Order, it is impregnable to imagine that Lisath and his fellow defendants could have used excessive force once Rahmaan was subdued in any manner other than intentionally, willfully and maliciously, assuming that Rahmaan is successful in meeting his evidentiary burden at trial. A review of other authorities does not compel a diametrical conclusion.\r\nIn Steier v. Best (In re: Best), 109 Fed. Appx. 1. 2004 W. L. 1544066 (6th Cir. , 2004-unreported, see copy attached as Exhibit â€Å"E”), the Court summarized the kinds of debts or claims which by their very nature satisfy the willful and malicious injury standard of the 11 U. S. C. §523(a)(6) exception: â€Å"intentional infliction of aflame distress, malicious prosecution, conversion, assault, false arrest, intentional liable, and by design vandalizing the creditor’s premises. ” , Id. at. 4.\r\nThe Court went on to hash out 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 debtor’s actions must be determined to be the cause of the creditor’s injury and that the injury must invade the creditor’s wakeless 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.\r\nBy their very nature, if Rahmaan prevails, he will have met both element described in the willful and malicious injury test. In Kennedy v. Mustaine, 249 F. 3d 576 (6th Cir. , 2001), the Court affirmed the bankruptcy court and the district court which had found a calumniation c laim to be non-dischargeable under 11 U. S. C. §523(a)(6) and applied principals of issue preclusion to stop 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.\r\nIt is respectfully submitted, therefore, that Rahmaan has supply 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.\r\nLife Insurance Co. of North Am. , 980 F. 2d 56 (2nd Cir. , 1990), cert. denied, 499 U. S. 929 (1991) or Kring v. Citibank (I n Re: Kring), 208 B. R. 73 (B’cy. S. D. Cal. , 1997). Annexed hereto as Exhibit â€Å"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 succor Act of 2003, amending and restating, the Solders’ and Sailors’ Civil Relief Act of 1940 (50 U.\r\nS. 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 redevelopment I hereby certify that sure and accurate copies of the foregoing Renewed Motion for Default Judgment were mailed by ordinary U. S. Mail, postage prepaid, to the undermentioned parties in interest at the addresses shown immediately following on _________________: William B.\r\nLogan, Jr. , Esq. 50 western hemisphere Broad Street , Suite 1200 Columbus, Ohio 43215 U. S. Trustee one hundred seventy North High Street, #200 Columbus, Ohio 43215 Frank M. Pees, Chapter 13 Trustee 130 East Wilson Bridge 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\r\n'