Default Judgment Motion

IN THE UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION IN RE::CASE NO. 04-60600 : ROY JESSE LISATH,:CHAPTER 7 STEPHANIE MYLO LISATH,: :JUDGE HOFFMAN Debtors. : : SSN: (LAST FOUR DIGITS ONLY) 0486: SSN: (LAST FOUR DIGITS ONLY) 9643: —————————————————————————————————— RODELL RAHMAAN,:Adv. Pro. No. 05-02049 Plaintiff,: vs. : ROY J. LISATH, aka ROY JESSE LISATH,: Defendant. : PLAINTIFF’S RENEWED MOTION FOR DEFAULT JUDGMENT Now comes the Plaintiff, Rodell Rahmaan (hereinafter â€Å"Rahmaan†), by and through his undersigned attorney, and respectfully MOVES this Honorable Court for the entry of JUDGMENT BY DEFAULT against the Defendant, Roy J. Lisath, aka Roy Jesse Lisath (hereinafter â€Å"Lisath†), for the relief demanded in the Complaint, specifically that any judgment later obtained by Rahmaan upon those claims which are the subject matter of that certain civil action entitled Rodell Rahmaan v. City of Columbus, et al. designated case number C2-02-989, pending in the United States District Court for the Southern District of Ohio, Eastern Division, be DECLARED to be excepted from discharge upon the grounds set forth in 11 U. S. C.  §523(a)(6), namely for willful and malicious injury. This Motion renews a Motion for Default Judgment previously served and filed on March 15, 2005, denied without prejudice by this Court’s 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 Telephone: (614) 221-3355 Facsimile: (614)-221-3391 Email: [email  protected] net Attorney for Plaintiff MEMORANDUM I. Introduction Rule 7055 B. R. incorporates Rule 55 F. R. Civ. P. , which in turn in pertinent part provides: â€Å"(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default. â€Å"(b) Judgment. Judgment by default may be entered as follows:† â€Å"(1) By the Clerk. When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to ap pear and is not an infant or incompetent person. † â€Å"(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such 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 notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take 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 court may conduct 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 required by any statute of the United States. † Rahmaan’s Adversary Complaint was filed with the Clerk on February 1, 2005. Service of Summons and a copy of the Complaint upon Lisath and upon his attorney Eden Renee Sarver, Esq. , was made to each on February 3, 2005, and proof of service thereon was filed upon the same date. More than twenty days have elapsed since completion of said service of process. No answer or other defense, nor any motion requesting an extension of time to respond to Rahmaan’s Complaint, has yet been filed or served upon the undersigned. Lisath is in default. See Rules 7004 and 7012 B. R. Rahmaan’s earlier Motion for Default Judgment was denied without prejudice, and the within Motion, supported by a Memorandum with attachments, provides an adequate 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 number 04-60600 (hereinafter â€Å"the main 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 action pending in the United States District Court for this district entitled Rahmaan v. City of Columbus, designated case number 02-CV-989, together with other defendants (hereinafter â€Å"the district court action†). The district court action arose originally from a re-filed civil action brought in the Franklin County, Ohio, Court of Common Pleas. The initial complaint commencing the initial civil action was filed on April 30, 1998. That civil action was subsequently voluntarily dismissed on September 13, 2001, but with the right reserved to re-file within the applicable one-year period 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 claims and brought in the same court on September 9, 2002. This re-filed action was subsequently removed to District Court on October 4, 2002 (see copy of Notice of Removal with annexed copy of Summons and Complaint attached hereto as Exhibit â€Å"A†). The district court action has not yet gone to trial, and Rahmaan was a scheduled creditor in the main case, although reflected upon Lisath’s and his wife’s Schedule F with no description as to his claim, except â€Å"notice only. † Rahmaan holds an unliquidated claim for the excessive use of force 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 granted in the district court action (see copy of Opinion and Order in the district court action attached hereto as Exhibit â€Å"B†). The operative facts underlying Lisath’s claim are summarized by the Court in the district court action’s Opinion and Order, as follows: â€Å"Plaintiff Rodell Rahmaan brings various claims against the city of Columbus, Ohio, and several of its police officers, arising out of incidents which occurred at his home on April 27, 1997, and April 30, 1997. Plaintiff has been engaged in a dispute with his neighbor, James Casey, for a period of time prior to the events in question. Casey had called the police complaining of loud music coming from Plaintiff’s residence on several occasions. Plaintiff perceived this as harassment. On Sunday morning, April 27, 1997, Officer Olander Parks was dispatched on a disturbance call to Casey’s residence. Upon arrival, he observed Casey standing on his porch engaged in a shouting match with plaintiff, who was in the second story window of his home across the street. Casey reported that plaintiff was threatening 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 words to Casey may have been perceived as a veiled threat. Plaintiff’s deposition, pp. 7-79, Exh. B to Defendants’ Motion for Summary Judgment. According to Officer Parks, plaintiff refused to end the disturbance, whereupon Officer Parks advised plaintiff that he was placing him under arrest and asked him to come out of his home to be taken into custody. While Officer Parks was speaking with Casey, he observed a young woman walk a large Rottweiler dog from behind plaintiff’s 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, â€Å"You’re 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 charged with disorderly conduct and that he had an outstanding traffic warrant. Barton requested that plaintiff come outside, but plaintiff continued to refuse. 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 agreed to do so. Sgt. Barton instructed his officers to depart, believing that peace had been restored. Plaintiff has a somewhat different version of his conversation with Sgt. Barton. According to plaintiff, it was his understanding that the sergeant and his officers agreed to leave in return for plaintiff’s agreement to take care of his outstanding traffic warrant, and he was unaware that he was being charged with disorderly conduct. After departing the premises, Officer Parks proceeded to the Municipal Court of Franklin County, Ohio, where he filed a complaint charging plaintiff with disorderly conduct, and a warrant was issued for his arrest. The disorderly conduct charge was assigned case number 10608-97. Officer Parks also filed a â€Å"temporary situation information report† for plaintiff’s residence address with the police dispatcher, which stated: Large Rottweiler at this location and the resident 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 inside and take care of his outstanding traffic charge. She 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 instead 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 music complaint. These officers were also told by the dispatcher that the resident had warrants for his arrest, and they were advised of the content of Officer 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. 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 scene of his arrest to a police substation, where he was allegedly subjected to protracted 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 force resist the lawful arrest of himself, to wit: Rodell K. Rahmaan in the following manner, to wit: pushed officers back with an open 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 affidavit in case number 10938-97, reducing the charge from resisting arrest to disorderly conduct. Plaintiff agreed to plead guilty to the amended affidavit, 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 fine 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 false arrest; false imprisonment; assault; malicious prosecution; deprivation of unspecified constitutional 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 property, intentional infliction of emotional distress, and damage to reputation. On July 26, 2000, the common pleas court granted defendants’ motion for summary judgment, finding that only plaintiff’s fourth amendment excessive force claim remained for trial. Defendants claim that plaintiff had previously voluntarily dismissed all of his state law 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 further went on to analyze the Motion for Summary Judgment of Defendants, and concluded as follows: â€Å"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 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 excessive use of force 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 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 attached hereto as Exhibit â€Å"C†), and includes within his claims for deprivation of civil rights under 42 U. S. C.  §Ã‚ §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 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 his burden of articulating all applicable grounds necessary for this Court to grant defau lt 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 individual debtor from any debt- †¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦Ã¢â‚¬ ¦. (6) for willful and malicious injury by the debtor to another entity or to the property of another entity;†¦Ã¢â‚¬  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 willful and malicious injury by the Debtor to another person or to the property of another person. Under this paragraph â€Å"willful† means deliberate 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 satisfy 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 â€Å"willful† in the above-quoted subsection modifies the word â€Å"injury,† meaning that non-dischargeability takes a deliberate or intentional injury rather than merely 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 standard, 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 immunity 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 neither â€Å"knew[n] 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, Rahmaan’s claims for excessive force were â€Å"that the defendants continued to apply excessive force even after he [Rahmaan] was completely subdued. † (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 Order 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 preponderance that Lisath took action knowing that his action would violate Rahmaan’s constitutionally protected Forth 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 subdued compels the conclusion that such conduct was deliberate, intentional and malicious, if proven. Certainly, it could neither have been merely negligent 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 material fact concerning whether Officer Birberick used excessive force in handcuffing Walton. An excessive use of force claim could be premised on Officer Birberick’s 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 objective reasonableness under the circumstances (citing Graham v. Connor, 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 hard 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 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 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 emotional distress, malicious prosecution, conversion, assault, false arrest, intentional liable, and deliberately vandalizing the creditor’s 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 debtor’s actions must be determined to be the cause of the creditor’s injury and that the injury must invade the creditor’s 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 bankruptcy court and the district court which had found a defamation claim to be non-dischargeable under 11 U. S. C.  §523(a)(6) and applied principals of issue preclusion to prevent 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. Life Insurance Co. of North Am. , 980 F. 2d 56 (2nd Cir. , 1990), cert. denied, 499 U. S. 929 (1991) or Kring v. Citibank (In 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 Relief 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 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