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Filed on 12/11/2014 at 10:41 AM in Wayne County, Ohio
IN THE WAYNE COUNTY MUNICIPAL COURT
WOOSTER, OHIO
JAMES P. CARTER ) Case No, 2014-CV-F-1171
Plaintiff ) Judge VanSickle
v. )
KAYE J. JOHNSON ) DEFENDANT’S REPLY TO
PLAENTIFF’S MOTION
Defendant ) IN OPPOSITION
For the reasons set forth in the attached memorandum, Defendant Kaye Johnson, by and
through counsel Attorney David M. Todaro, once again respectfully requests that this Court
grant the party’s Motion for Summary Judgment.
RESPECTFULLY SUBMITTED,
——David Wf. 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 12/11/2014 at 10:41 AM in Wayne County, Ohio
MEMORANDUM IN SUPPORT
While the Plaintiff was provided with fourteen (14) days, per this Court’s entry on
November 21%, in which to respond to Defendant’s Motion, Plaintiff has instead utilized this
time to generate a response which attempts to cloud the issue by arguing matters of timing. Not
only that, but in doing so the Plaintiff also tries to make use of an improper motion.
Nevertheless, while Plaintiff's motion lacks any semblance of argument towards the merits of
this case, defense counsel, as a matter of course, still feels it necessary to reassert his own
position, while at the same time presenting the Court with the Plaintiff's pattern of neglect.
As defense counsel has previously established in his Motion for Summary Judgment,
Ohio Rule of Civil Procedure 36(a)(1) provides that when presented with a Request for
Admission, the matter shall be deemed admitted unless “within a period designated in the
request, not less than twenty-eight days after service of the request or within such shorter or
longer time as the court may allow, the party to whom the request is directed serves upon the
party requesting the admission a written answer or objection addressed to the matter, signed by
the party or by the party’s attorney”. In the case at hand:
1, Plaintiff was sent Defendant’s Requests for Admission via certified mail on October 6".
2. For unknown reasons however, Plaintiff did not receive said documents until October
14" (as confirmed by USPS tracking).
3. Still, with this delivery date as a starting point, that would put the twenty-eight (28) day
mark at November 11", nevertheless, the Plaintiff failed to respond.
This means that as of November 12", Plaintiff legally admitted that the apartment Ms. Johnson
occupied was re-rented thus making summary judgment proper. Even with the deadline having
already passed however, the Plaintiff was still given, as a matter of courtesy, additional time toFiled on 12/11/2014 at 10:41 AM in Wayne County, Ohio
generate a response. After an additional eight (8) days had elapsed, defense counsel, in needing
to protect the rights of his client, filed a Motion for Summary Judgment. This motion was timely
filed at the nine (9) day mark of the Court’s fifteen (15) day period of leave, and was therefore
proper, despite Plaintiff's claims to the contrary.
The Plaintiff's failure to respond to Defendant's Requests for Discovery was not a matter
of oversight by the Plaintiff in miscalculating the number of days left for him to file his response
timely. Rather, it is a reflection of a pattern of neglect on his part, in trying to delay the final
resolution of a claim he himself brought. Throughout this case, Plaintiff has failed to prosecute
his case in the following ways:
1. Plaintiff failed to respond to Defendant’s counterclaim within twenty-eight (28) days;
2. Plaintiff failed to present the Court with a Motion in Opposition to Defendant’s Motion
for Default Judgment;
3. Plaintiff failed to acknowledge the receipt of Defendant’s discovery responses, requiring
Defendant to send copies to him on four (4) separate occasions, and;
4. Plaintiff failed to present a meaningful response to Defendant’s Motion for Summary
Judgment within fourteen (14) days.
This is all in addition to the Plaintiff's failure to respond to Defendant’s Requests for Admission,
Interrogatories, and Requests for Production of Documents, which as of the time of this writing
are now thirty (30) days past due.
Plaintiff has failed to respond to the requests for admissions and in failing to abide by the
Rules of Civil Procedure has again, admitted that the apartment the Defendant occupied was re-
rented in a matter of days. Plaintiff's response to Defendant’s Motion for Summary Judgment
lacks any merit and his request for continuance lacks justification. As a result, Defendant would
request that the Motion for Summary Judgment be granted and that this case be deemed closed.Filed on 12/11/2014 at 10:41 AM in Wayne County, Ohio
RESPECTFULLY SUBMI
mead 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, OH 44256 this 11" day of December, 2014.
avid 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
Preview
Filed on 12/11/2014 at 10:41 AM in Wayne County, Ohio IN THE WAYNE COUNTY MUNICIPAL COURT WOOSTER, OHIO JAMES P. CARTER ) Case No, 2014-CV-F-1171 Plaintiff ) Judge VanSickle v. ) KAYE J. JOHNSON ) DEFENDANT’S REPLY TO PLAENTIFF’S MOTION Defendant ) IN OPPOSITION For the reasons set forth in the attached memorandum, Defendant Kaye Johnson, by and through counsel Attorney David M. Todaro, once again respectfully requests that this Court grant the party’s Motion for Summary Judgment. RESPECTFULLY SUBMITTED, ——David Wf. 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 12/11/2014 at 10:41 AM in Wayne County, Ohio MEMORANDUM IN SUPPORT While the Plaintiff was provided with fourteen (14) days, per this Court’s entry on November 21%, in which to respond to Defendant’s Motion, Plaintiff has instead utilized this time to generate a response which attempts to cloud the issue by arguing matters of timing. Not only that, but in doing so the Plaintiff also tries to make use of an improper motion. Nevertheless, while Plaintiff's motion lacks any semblance of argument towards the merits of this case, defense counsel, as a matter of course, still feels it necessary to reassert his own position, while at the same time presenting the Court with the Plaintiff's pattern of neglect. As defense counsel has previously established in his Motion for Summary Judgment, Ohio Rule of Civil Procedure 36(a)(1) provides that when presented with a Request for Admission, the matter shall be deemed admitted unless “within a period designated in the request, not less than twenty-eight days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney”. In the case at hand: 1, Plaintiff was sent Defendant’s Requests for Admission via certified mail on October 6". 2. For unknown reasons however, Plaintiff did not receive said documents until October 14" (as confirmed by USPS tracking). 3. Still, with this delivery date as a starting point, that would put the twenty-eight (28) day mark at November 11", nevertheless, the Plaintiff failed to respond. This means that as of November 12", Plaintiff legally admitted that the apartment Ms. Johnson occupied was re-rented thus making summary judgment proper. Even with the deadline having already passed however, the Plaintiff was still given, as a matter of courtesy, additional time toFiled on 12/11/2014 at 10:41 AM in Wayne County, Ohio generate a response. After an additional eight (8) days had elapsed, defense counsel, in needing to protect the rights of his client, filed a Motion for Summary Judgment. This motion was timely filed at the nine (9) day mark of the Court’s fifteen (15) day period of leave, and was therefore proper, despite Plaintiff's claims to the contrary. The Plaintiff's failure to respond to Defendant's Requests for Discovery was not a matter of oversight by the Plaintiff in miscalculating the number of days left for him to file his response timely. Rather, it is a reflection of a pattern of neglect on his part, in trying to delay the final resolution of a claim he himself brought. Throughout this case, Plaintiff has failed to prosecute his case in the following ways: 1. Plaintiff failed to respond to Defendant’s counterclaim within twenty-eight (28) days; 2. Plaintiff failed to present the Court with a Motion in Opposition to Defendant’s Motion for Default Judgment; 3. Plaintiff failed to acknowledge the receipt of Defendant’s discovery responses, requiring Defendant to send copies to him on four (4) separate occasions, and; 4. Plaintiff failed to present a meaningful response to Defendant’s Motion for Summary Judgment within fourteen (14) days. This is all in addition to the Plaintiff's failure to respond to Defendant’s Requests for Admission, Interrogatories, and Requests for Production of Documents, which as of the time of this writing are now thirty (30) days past due. Plaintiff has failed to respond to the requests for admissions and in failing to abide by the Rules of Civil Procedure has again, admitted that the apartment the Defendant occupied was re- rented in a matter of days. Plaintiff's response to Defendant’s Motion for Summary Judgment lacks any merit and his request for continuance lacks justification. As a result, Defendant would request that the Motion for Summary Judgment be granted and that this case be deemed closed.Filed on 12/11/2014 at 10:41 AM in Wayne County, Ohio RESPECTFULLY SUBMI mead 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, OH 44256 this 11" day of December, 2014. avid 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