United States District Court, N.D. Ohio, Western Division
Joseph W. Finfrock, Plaintiff
Ohio Department of Rehabilitation & Corrections, et al., Defendants
Jeffrey J. Helmick United States District Judge.
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).
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).
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).
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.
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.
Plaintiff's Motion for Default Judgment
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 (3d ed. 2017).
(Emphasis added). See also Tarbell v. Jacobs, 856
F.Supp. 101, 104 (N.D.N.Y. 1994).
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).
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
(B) 21 days after being served with the
summons for an initial pleading on file at the time of
(C) 7 days after the notice of removal 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[b] (3d ed 2017).
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