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Musto v. Zaro

United States District Court, S.D. Ohio, Eastern Division

June 21, 2019

DAVE MUSTO, et al., Plaintiffs,
PAULA ZARO, Defendant.

          Deavers, Chief Magistrate Judge



         This matter is before the Court for consideration of Defendant Paula Zaro's May 21, 2019 objections to the May 7, 2019 Report and Recommendation of Chief Magistrate Judge Deavers (ECF No. 82), to whom this case was referred pursuant to 28 U.S.C. § 636(b), recommending that default judgment be entered against her in an amount determined following a damages hearing held pursuant to Fed.R.Civ.P. 55(b)(2)(B). (ECF No. 80.) For the reasons set forth below, the Court OVERRULES Defendant's objections (ECF No. 82), and ADOPTS in part and MODIFIES in part the Report and Recommendation issued by Chief Magistrate Judge Deavers (ECF No. 80), as amended by the Nunc Pro Tunc Report and Recommendation (ECF No. 81).

         I. Background

         This case has a lengthy procedural history involving Defendant's champion purebred Cane Corso, referred to throughout this litigation as either “Pepe” or “Pepone, ”[1] and the day he went missing at a Louisville, Kentucky dog show. Plaintiffs entered Pepe in the Louisville show per the parties' agreement for the Plaintiffs to exclusively handle and campaign Pepe in exchange for breeding rights. (ECF No. 9 at 171.) During the show, Plaintiffs briefly left Pepe in his crate to await his next turn. (Id. at 172.) Unbeknownst to the Plaintiffs, their actions were being closely monitored by Defendant. (Id.) When Mr. Musto returned for Pepe, he was gone. (Id.; Compl. ¶ 12, ECF No. 2 at 52.)

         Police soon radioed that the driver of a blue minivan had broken through a barricaded back exit. (ECF No. 9-2 at 207.) The blue minivan belonged to Pepe's owner, Defendant Paula Zaro. Defendant later texted the Plaintiffs stating, “I'm just sending you this as a courtesy. I have my dog Pepe.” (Ex. K, ECF No. 9-13.) Defendant refused to return Pepe or otherwise perform her obligations under the parties' agreement. (Compl. ¶ 12.)

         Defendant's actions and her subsequent statements concerning Pepe's alleged “poor condition” prompted Plaintiffs' claims for: 1) breach of contract, 2) unjust enrichment/quantum meruit/quantum valebant, 3) specific performance, 4) intentional infliction of emotional distress, 5) fraudulent inducement, 6) promissory estoppel, 7) injunctive relief, 8) declaratory judgment, 9) defamation, 10) violation of the Ohio Deceptive Trade Practices Act, 11) false light, 12) tortious interference with business relationships, and the resulting compensatory and punitive damages and attorney's fees. (Compl.)

         After Defendant, proceeding without the assistance of counsel since August 28, 2018, failed to file an answer, Plaintiffs filed for an entry of default (ECF No. 68), which the Clerk entered on January 30, 2019 (ECF No. 70). Plaintiffs then moved this Court for default judgment. (ECF No. 70.) On March 18, 2019, the Court adopted the Report and Recommendation issued by Chief Magistrate Judge Deavers recommending that Plaintiffs' Motion for Default Judgment Against Defendant Paula Zaro be granted (ECF No. 72) and granted Plaintiffs' motion. (ECF No. 73.) The Court once again referred this case to Chief Magistrate Judge Deavers, pursuant to 28 U.S.C. § 636(b), to conduct a damages hearing. (Id.)

         In accordance with the Court's Order, a damages hearing was set for May 2, 2019. (ECF No. 75.) Chief Magistrate Judge Deavers conducted an evidentiary hearing on May 2, 2019 and briefly reconvened the hearing on May 3, 2019 for the limited purpose of admitting Plaintiffs' exhibits into evidence. At the May 2, 2019 hearing, the Plaintiffs requested compensatory damages for out of pocket expenses, loss of breeding rights, for their defamation/false light/Ohio Deceptive Trade Practices Act/tortious interference claims, punitive damages, and attorney's fees and costs. While Plaintiffs and their counsel appeared at the hearings, Defendant failed to appear or otherwise submit evidence.

         On May 7, 2019, Chief Magistrate Judge Deavers issued an initial Report and Recommendation addressing Plaintiffs' damages claims and recommending that default judgment in the amount of $168, 074.12 be entered against Defendant. (ECF No. 80.) Due to a scrivener's error in the damages amount, a Nunc Pro Tunc Report and Recommendation was issued on May 8, 2019 recommending that the Court enter default judgment against Defendant in the total amount of $208, 074.12 based on the following calculations:

Out of Pocket Costs $8, 388.50
Breeding Rights Damages $120, 000.00
Defamation, false light, Ohio Deceptive Trade $10, 000.00
Practices Act, tortious interference Punitive Damages $50, 000.00
Attorney's Fees and Costs $19, 685.62
TOTAL:$208, 074.12

(ECF No. 81.)

         Defendant filed her objections to Chief Magistrate Judge Deavers's Report and Recommendation on May 21, 2018. (ECF No. 82.) Plaintiffs filed their response to Defendant's objections on June 4, 2019. (ECF No. 84.)

         II. Standard of Review

         If a party objects within the allotted time to a report and recommendation, the Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b). “Overly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). Upon review, the Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). As required by 28 U.S.C. § 636(b)(1)(C), the Court will make a de novo review of those portions of the Report and Recommendation to which Defendant specifically objects.

         III. Discussion

         A. Default Judgment

         Defendant timely filed her objections. The first objection she raises concerns the entry of default judgment against her. (ECF No. 82 at 446.) Specifically, Defendant states, “I did not understand ...

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