On July 11, 2014 a
Motion-Secondary
was filed
involving a dispute between
Carter, James,
and
Johnson, Kaye,
for MONEY COMPLAINT
in the District Court of Wayne County.
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Filed on 03/12/2015 at 03:49 PM in Wayne County, Ohio
IN THE WAYNE COUNTY MUNICIPAL COURT
WOOSTER, OHIO
JAMES P. CARTER ) Case No. 2014-CV-F-1171
Plaintiff ) Judge VanSickle
Vv. )
REPLY TO PLAINTIFF’S MOTION
KAYE J. JOHNSON ) IN OPPOSITION AKA OBJECTIONS
TO THE MAGISTRATE’S PROPOSED
Defendant ) DECISION
For the reasons set forth in the attached memorandum, Defendant Kaye Johnson, by and
through counsel David M. Todaro, respectfully requests that this Court reject the Plaintiff's
Motion in Opposition (to be construed as objections to the Magistrate’s proposed decision) and
adopt the Magistrate’s order as written.
FULLY SUBMITTED,
id M. Todaro, Esq.
126 North Walnut St.
Wooster, Ohio 44691
Phone: (330) 262-2911
Fax: (330) 264-2977
Email: davidmtodaro@aol.com
Counsel for Defendant Kaye JohnsonFiled on 03/12/2015 at 03:49 PM in Wayne County, Ohio
MEMORANDUM IN SUPPORT
As this Court is aware, Ohio Rule of Civil Procedure 53 provides the parties with an
opportunity to file a written objection to a magistrate’s decision provided that it is done within
“fourteen days of the filing of the decision”. Still, while Defendant does not dispute the
timeliness of Plaintiff's motion, what Defendant does dispute, and which is evident, is that
Plaintiff's motion does not actually comply with Rule 53(D)(3)(b)(ii).
Ohio Rule of Civil Procedure 53(D)(3)(b)ii) provides that “an objection to a magistrate’s
decision shall be specific and state with particularity all grounds for objection”. This means that
the Plaintiff must point to specific statements (facilitated by the usage of a transcript) by the
Magistrate that he believes to be in direct contradiction to the evidence presented or a general
misreading of the law. Nevertheless, despite the requirements of Rule 53, at no point throughout
his objection, does the Plaintiff reference any finding of fact which, based upon the evidence
presented at trial, the magistrate was incorrect in applying. The Plaintiff fails to do this, and, in
the alternative, fails to point to any misapplication of law to the facts presented. Rather, what the
Plaintiff instead attempts to do is to re-litigate issues decided months prior to the trial, such as the
granting of Defendant’s Motion for Default Judgment.
If the Plaintiff believed it was error for the Magistrate to grant the Defendant’s Motion
for Default Judgment as he claims, it was his duty to file an objection to the adoption of that
specific order, not wait until trial. What is more though, despite claims that it was error on the
part of the Magistrate to grant such motions. a cursory inspection of the Court’s docket indicates
that in reality there was never any proposed order issued by the Magistrate, that the issue was
decided solely by Judge VanSickle.
Throughout what is largely a non-sensical motion, the one issue that is readily apparent is
that Plaintiff fails to realize a Rule 53 objection is not an excuse nor a means by which to attempt
to re-litigate issues that may have emerged earlier in the case. The Plaintiff had his day in Court,Filed on 03/12/2015 at 03:49 PM in Wayne County, Ohio
the issues were decided, and now, because he is unhappy with how the proceedings progressed
he thinks it is appropriate to bring up things that occurred more than six months ago, however
that is simply not the case.
Plaintiff can point to no error that occurred during the trial that would prohibit the
adoption of the Magistrate's order, and what he does claim as error through the process is wholly
without merit. As a result, the Magistrate ‘s Proposed Decision should be adopted as written and
made an order of the Court.
RESPECTFULLY SUBMITTED,
TT =
David M. Todaro, Esq.
126 North Walnut St.
Wooster, Ohio 44691
Phone: (330) 262-2911
Fax: (330) 264-2977
Email: davidmtodaro@aol.com
Counsel for Defendant Kaye Johnson
PROOF OF SERVICE
A copy of the foregoing Reply was served on the Plaintiff James Carter via regular US
Mail at 4157 Maidstone Lane, Medina, Ohio 44256 this 12" day of March, 2015.
Z M. Todaro, Esq. (0075851)
126 North Walnut St.
Wooster, Ohio 44691
Phone: (330) 262-2911
Fax: (330) 264-2977
Email: davidmtodaro@aol.com
Counsel for Defendant Kaye Johnson
Document Filed Date
March 12, 2015
Case Filing Date
July 11, 2014
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Filed on 03/12/2015 at 03:49 PM in Wayne County, Ohio IN THE WAYNE COUNTY MUNICIPAL COURT WOOSTER, OHIO JAMES P. CARTER ) Case No. 2014-CV-F-1171 Plaintiff ) Judge VanSickle Vv. ) REPLY TO PLAINTIFF’S MOTION KAYE J. JOHNSON ) IN OPPOSITION AKA OBJECTIONS TO THE MAGISTRATE’S PROPOSED Defendant ) DECISION For the reasons set forth in the attached memorandum, Defendant Kaye Johnson, by and through counsel David M. Todaro, respectfully requests that this Court reject the Plaintiff's Motion in Opposition (to be construed as objections to the Magistrate’s proposed decision) and adopt the Magistrate’s order as written. FULLY SUBMITTED, id M. Todaro, Esq. 126 North Walnut St. Wooster, Ohio 44691 Phone: (330) 262-2911 Fax: (330) 264-2977 Email: davidmtodaro@aol.com Counsel for Defendant Kaye JohnsonFiled on 03/12/2015 at 03:49 PM in Wayne County, Ohio MEMORANDUM IN SUPPORT As this Court is aware, Ohio Rule of Civil Procedure 53 provides the parties with an opportunity to file a written objection to a magistrate’s decision provided that it is done within “fourteen days of the filing of the decision”. Still, while Defendant does not dispute the timeliness of Plaintiff's motion, what Defendant does dispute, and which is evident, is that Plaintiff's motion does not actually comply with Rule 53(D)(3)(b)(ii). Ohio Rule of Civil Procedure 53(D)(3)(b)ii) provides that “an objection to a magistrate’s decision shall be specific and state with particularity all grounds for objection”. This means that the Plaintiff must point to specific statements (facilitated by the usage of a transcript) by the Magistrate that he believes to be in direct contradiction to the evidence presented or a general misreading of the law. Nevertheless, despite the requirements of Rule 53, at no point throughout his objection, does the Plaintiff reference any finding of fact which, based upon the evidence presented at trial, the magistrate was incorrect in applying. The Plaintiff fails to do this, and, in the alternative, fails to point to any misapplication of law to the facts presented. Rather, what the Plaintiff instead attempts to do is to re-litigate issues decided months prior to the trial, such as the granting of Defendant’s Motion for Default Judgment. If the Plaintiff believed it was error for the Magistrate to grant the Defendant’s Motion for Default Judgment as he claims, it was his duty to file an objection to the adoption of that specific order, not wait until trial. What is more though, despite claims that it was error on the part of the Magistrate to grant such motions. a cursory inspection of the Court’s docket indicates that in reality there was never any proposed order issued by the Magistrate, that the issue was decided solely by Judge VanSickle. Throughout what is largely a non-sensical motion, the one issue that is readily apparent is that Plaintiff fails to realize a Rule 53 objection is not an excuse nor a means by which to attempt to re-litigate issues that may have emerged earlier in the case. The Plaintiff had his day in Court,Filed on 03/12/2015 at 03:49 PM in Wayne County, Ohio the issues were decided, and now, because he is unhappy with how the proceedings progressed he thinks it is appropriate to bring up things that occurred more than six months ago, however that is simply not the case. Plaintiff can point to no error that occurred during the trial that would prohibit the adoption of the Magistrate's order, and what he does claim as error through the process is wholly without merit. As a result, the Magistrate ‘s Proposed Decision should be adopted as written and made an order of the Court. RESPECTFULLY SUBMITTED, TT = David M. Todaro, Esq. 126 North Walnut St. Wooster, Ohio 44691 Phone: (330) 262-2911 Fax: (330) 264-2977 Email: davidmtodaro@aol.com Counsel for Defendant Kaye Johnson PROOF OF SERVICE A copy of the foregoing Reply was served on the Plaintiff James Carter via regular US Mail at 4157 Maidstone Lane, Medina, Ohio 44256 this 12" day of March, 2015. Z M. Todaro, Esq. (0075851) 126 North Walnut St. Wooster, Ohio 44691 Phone: (330) 262-2911 Fax: (330) 264-2977 Email: davidmtodaro@aol.com Counsel for Defendant Kaye Johnson