United States District Court, S.D. Ohio, Eastern Division
RUTH A. HUNTER, et al, Plaintiffs,
RHINO SHIELD, et al, Defendants.
Elizabeth Preston Deavers Magistrate Judge
OPINION & ORDER
EDMUND. SARGUS, JR. UNITED STATES DISTRICT JUDGE.
pending before the Court is Plaintiffs Mark D. Hunter's,
as Executor of the Estate of David G. Hunter, and Ruth A.
Hunter's (collectively "Plaintiffs") Motion for
Default Judgment against John D. Robertson. (ECF No. 107).
For the reasons stated herein, Plaintiffs' Motion is
DENIED without PREJUDICE to RENEWAL.
commenced this action on September 21, 2018, through the
filing of a seven-count Complaint. (See ECF No. 1).
On November 8, 2018 Plaintiffs filed an eight-count Amended
Complaint seeking relief from 10 named defendants.
(See ECF No. 18). Plaintiffs assert claims for: 1)
violations of the Ohio Consumer Sales Practices Act (Am.
Compl. ¶¶ 187-194); 2) "Negligent and/or
Intentional Misrepresentation" (Id.
¶¶ 195-201); 3) Breach of Contract (Id.
¶¶ 203-211); 4) Violations of the Ohio Home Sales
Solicitation Act (Id. ¶¶ 212-216); 5)
Breach of Express and Implied Warranties and Violations of
the Magnuson Moss Warranty Act (Id. ¶¶
217-230); 6) Civil Conspiracy (Id. ¶¶
231-236); 7) "Declaratory Judgment that Defendants are
Vicarious Liability [sic] As Agents, Agents by Estoppel,
Apparent Authority, and as a Joint Venture"
(Id. ¶¶ 237-244); and 8) Alter Ego
Liability (Id. ¶ 245-247).
first attempted to serve Defendant John D. Robertson
("Robertson") with a copy of the Amended Complaint
by way of certified mail. The Summons, however, was returned
as unexecuted on December 4, 2018. (See ECF No. 34).
On January 10, 2019, Plaintiffs moved to serve Robertson by
publication, and the Court granted that motion on February
26, 2019. (See ECF Nos. 48 & 56). Plaintiffs
submitted the proposed public notice to the Court on March 4,
2019. (ECF No. 57). And on March 4, 2019, the Court granted
Plaintiffs' request to effect service with the proposed
publication. (ECF No. 58). On April 18, 2019, Plaintiffs
filed the affidavit of Cindy A. Shillingburg on behalf of the
Daily Reporter to demonstrate that they had complied with the
Court's previous Order and that they had published the
notice in the Daily Reporter once per week for a period of
six consecutive weeks. (See ECF Nos. 64 & 64-1).
At that time, Robertson had failed to plead or otherwise
appear in this matter.
filed their first Motion for Default Judgment against
Robertson on May 14, 2019. (ECF No. 68). However, the Court
denied Plaintiffs' motion without prejudice because
Plaintiffs failed to first apply for entry of default with
the Clerk, which is a necessary prerequisite to a Court's
entry of default judgment pursuant to Federal Rule of Civil
Procedure 55. (ECF No. 94 at 3). Plaintiffs subsequently
filed an Application for Entry of Default against Robertson
on September 30, 2019. (ECF No. 95). The Clerk entered
default against Robertson that same day. (ECF No. 96). And on
October 18, 2019, Plaintiffs moved again for default judgment
against Robertson. (ECF No. 107).
has not responded to the Motion for Default Judgment
currently before this Court.
the present procedural posture of this case, Plaintiffs'
Motion for Default Judgment falls within the rule set forth
in Frow v. De La Vega, 82 U.S. 552 (1872), which the
Sixth Circuit summarizes in Kimberly v. Coastline Coal
Corp., No. 87-6199, 1988 WL 93305 (6th Cir. Sept. 9,
1988) (per curiam). In Kimberly v. Coastline
Coal Corp., the Sixth Circuit explains:
When a default is entered against one defendant in a
multi-defendant case, the preferred practice is for the court
to withhold granting a default judgment until the trial of
the action on the merits against the remaining defendants. If
plaintiff loses on the merits, the complaint should then be
dismissed against both defaulting and non-defaulting
Id. at *3 (citing Exquisite Form Industries,
Inc. v. Exquisite Fabrics of London, 378 F.Supp. 403,
416 (1974) (footnote omitted)). Notably, the
Kimberly court also cautions that "[t]he
Frow rule is a narrow one, however, and applies in
general when the liability of the defendants is joint."
Kimberly, 1988 WL 93305, at *3. As this Court has
pointed out, the purpose of the Frow rule is
"to avoid inconsistent judgments in a case where
liability of the defendants is alleged to be joint or joint
and several." Sharp (Oakwood Estates), Inc. v.
National Condo & Apartment Ins. Group, et.al,
12-cv-783, 2013 WL 12130355, at *l (S.D. Ohio March 19,
2013); see generally Charnock v. Anderson,
14-cv-472, 2015 WL 12683414 (S.D. Ohio July 1, 2015).
instant matter is a multi-defendant action that has not been
resolved on the merits. Plaintiffs' Amended Complaint
also alleges that the liability of Robertson for the alleged
damages isjoint and several. (ECFNo. 18 at 71). Therefore, the
Court concludes that the Frow rule applies in this case.
Consequently, it would be premature and ...