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Finfrock v. Ohio Department of Rehabilitation & Corrections

United States District Court, N.D. Ohio, Western Division

May 7, 2018

Joseph W. Finfrock, Plaintiff
v.
Ohio Department of Rehabilitation & Corrections, et al., Defendants

          MEMORANDUM OPINION

          Jeffrey J. Helmick United States District Judge.

         I. Background

         Pro se Plaintiff Joseph W. Finfrock was an inmate at the North Central Correctional Complex in Marion, Ohio, beginning in March 2015. In March of 2017, Finfrock filed a complaint in the Franklin County Court of Common Pleas against the Ohio Department of Rehabilitation and Correction, Director Gary C. Mohr, Neil Turner, Warden, and Becky Joyce, Deputy Warden. (Doc. No. 1-1).

         Defendants Turner and Joyce removed this action to the United States District Court for the Southern District of Ohio on June 5, 2017, within thirty days after receiving the complaint. (Doc. No. 1). Turner and Joyce also filed their answer to the complaint on June 12, 2017. (Doc. No. 3).

         On June 15, 2017, this case was transferred to the present forum as the Magistrate Judge properly determined the North Central Correctional Complex was located in Marion County, Ohio, which is within the jurisdiction of the Northern District of Ohio. (Doc. No. 5). Defendants Mohr and the Ohio Department of Correction filed their answer to the complaint on June 22, 2017. (Doc. No. 8).

         Finfrock's initial complaint alleges discrimination and retaliation in violation of the American with Disabilities Act, 42 U.S.C. §§ 12101-12213, as well as the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to 797.

         This matter is now before me on multiple motions by all of the parties. As all of the issues have been briefed and response time has passed, I turn to address the motions.

         II. Plaintiff's Motion for Default Judgment

         Under Fed.R.Civ.P. 55, default is a two-step process with the entry of default as the first procedural step. Shepard Claims Service Inc. v. William Darrah & Assoc., 796 F.2d 190, 193 (6th Cir. 1986). Rule 55(a) permits a clerk to enter default against a party who has failed to plead or otherwise defend. Default is entered by the clerk of the court upon application of a party who seeks to enforce the default provisions. 10 James Wm. Moore, Moore's Federal Practice § 55.01[1] (3d ed. 2017). (Emphasis added). See also Tarbell v. Jacobs, 856 F.Supp. 101, 104 (N.D.N.Y. 1994).

         The rule also requires that the default must be “made to appear by affidavit or otherwise.” While the entry of default is a procedural formality, it is nevertheless a prerequisite to the issuance of a default judgment. United States v. Di Mucci, 879 F.2d 1488, 1490 (7th Cir. 1989); Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1530 (11th Cir.), cert. denied, 474 U.S. 995 (1985).

         Once an action is removed from state to federal court, the Federal Rules of Civil Procedure govern procedure. Where a defendant has not filed an answer in state court before the removal, their answer time is governed by Fed.R.Civ.P. 81(c)(2):

Further Pleading. After removal, repleading is unnecessary unless the court orders it. A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest of these periods:
(A) 21 days after receiving-through service or otherwise-a copy of the initial pleading stating the claim for relief;
(B) 21 days after being served with the summons for an initial pleading on file at the time of service; or
(C) 7 days after the notice of removal is filed.

         It is understood that “[t]he purpose of these strict time requirements is to ensure that answers are filed quickly in removed actions.” 14 Moore's Federal Practice, § 81.04[4][b] (3d ed 2017).

         The docket reflects Defendants Turner and Joyce filed their answer exactly seven days after the case was removed to federal court in compliance with Fed.R.Civ.P. 81(c)(2)(C). In contrast, Defendants Mohr and the ODRC did not file their answer until June 22nd, some seventeen days after ...


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