Preview
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Dayton, Olio 45402
(037) 435-7500
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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, OHIO
CIVIL DIVISION
HILLARY CARLSON, *
etal,
*
Plaintiffs,
vs.
HEATHER DUNN,
Defendant.
Case No.: 07 CVH 09 1117
Judge: W. Duncan Whitney
DEEENDANT’S MEMORANDUM
CONTRA PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT.
NOW COMES Defendant, Heather Dunn, by and through the undersigned counsel, and
hereby respectfully requests this Court to deny Plaintiff's Motion for Default Judgment, filed in
this Court on February 6, 2009.
Defendant respectfully requests this Court to deny Plaintiff's Motion for Default
Judgtaent on the grounds that neither Defendant nor counsel for Defendant received notice of the
hearing and default judgment is an inappropriate remedy under the circumstances.
Memorandum in Support, setting forth in greater detail the bases for Defendant’s opposition to
A
default judgment, is attached hereto and incorporated herein
WHEREFORE, Defendant respectfully moves this Court to deny Plaintiff's Motion for
Default Judgment and proceed with trial on the merits.
UGTA AE A
FAXED ORIGINAL
Received Time Feb. 17. 2009 3:11PM No, 0157
S>
NS2/17/2889 16:10 9374357511
1S1N. Ludiow, Sie, 840]
Dayton, Onis 45402
(937) 435-7500
BAY trom ane cree
Received Time Feb, 17, 2009 3:11PM No. 0157
PE SEHK, MART £ SCHULTE. LLC
EMSATTORNEYS PAGE 3/11
Respectfully submitted,
BEHNKE, MARTIN & SCHULTE, LLC
Laura
Attomey for Defendant
131 N, Ludlow Street, Ste. 840
Dayton, Ohio 45402
Telephone: (937) 435-7500
Facsimile (937) 435-751)82/17/2889
131N. Ludlow, Ste. 646)
Dayton, Ohlo 45402
(927) 435-7600
BEHNKE, MARTINS SCHULTE, LLC
16:18 9374357511 BMSATTORNEYS PRea Sa e
MEMORANDUM IN SUPPORT
Defendant Heather Dunn respectfully requests this Court to deny Plaintiffs’ Motion for
Default Judgment on the grounds that Defendant did not receive notice of the Final Status
Conference in this matter, scheduled on February 5, 2009, at 4:00 p.m.
A Relevant Factual and Procedural History.
Plaintiffs initiated this matter by filing a Complaint against Heather Dunn in the
Delaware Municipal Court on August 8, 2007, Ms. Dunn filed a timely Answer and
Counterclaims along with a Motion to Certify Case to the Court of Common Pleas of Delaware
County, Ohio. Thereafter, the case was transferred to this Court for proceedings on the merits.
During the course of litigation, Plaintiffs’ counsel filed a Motion to Withdraw as Counsel
of Record, which was granted by this Court on April 21, 2008. Thereafter, Plaintiffs failed to
respond to Defendant’s discovery requests or requests to schedule their respective depositions.
As a result of Plaintiffs’ failure to cooperate with the informal discovery process, it became
necessary to vacate the original trial date of August 12, 2008 and permit Plaintiffs additional
time to complete discovery.
Upon Defendant’s Motion, a Status Conference was held in this matter on August 5,
2008. Plaintiffs advised this Court that new local counsel had been retained but he was unable to
attend the hearing as a result of a scheduling conflict. Plaintiffs were re-served, on the record,
with Interrogatories and Requests for Production of Documents and were ordered, at the hearing
and in a Judgment Entry dated August 6, 2008, to complete all discovery before the next Status
Conference, scheduled on December 1, 2008. It should be noted for the record that the alleged
new counsel did not enter an appearance on Plaintiffs’ behalf.
“Received [ime Feb. 17. 2009 3:11PM No. 0157PROG Basil
2/17/2009 16:10 9374357511 EMSATTORNEYS:
191 N, Ludlow, See, 840
Dayton, Ohla dg
(937)435-7500
BEHNKE, MARTIN 4 SCHULTE, LUG
Following the vacated original trial date, counsel for Heather Dunn made numerous
attempts via mail and telephone to obtain discovery responses from Plaintiffs and/or schedule a
mutually convenient time and place to take Plaintiffs’ depositions. Plaintiffs failed to respond in
the entirety.
As a result of Plaintiffs’ lack of cooperation, counsel for Heather Dunn served Plaintiffs
with notices to take their tespective depositions on October 1, 2008 at counsel’s office. Plaintiffs
failed to communicate with defense counsel regarding the deposition schedule, failed to request a
Protective Order as required by Civ. R. 37(D), and failed to appeat at deposition. Plaintiff
Hillary Carlson called fifteen (15) minutes after the depositions were scheduled to begin to let
counsel know that Plaintiffs would not be attending. Plaintiff further advised defense counsel
that Plaintiffs had retained new counsel and were in the process of drafting a settlement proposal
for Heather Dunn’s consideration. Once again, no counsel entered an appearance on behalf of
Plaintiffs and no settlement proposal or other communication was received from Plaintiffs.
Due in part to the complete inability to obtain any discovery responses from Plaintiffs or
their appearance at deposition, Defendant served Plaintiffs with Requests for Admission on
October 17, 2008. Plaintiffs were also served with a second Notice of Deposition to be held on
November 20, 2008. Plaintiffs waited until two (2) days prior to their second deposition date to
retain their present counsel to represent them in this matter, The day prior to deposition,
Plaintiffs’ newly retained counsel advised counsel for the defense that Plaintiffs would not be
appearing for deposition due to a scheduling conflict on his part. The court reporter retained by
Defendant was gracious enough to allow cancellation of Plaintiffs depositions on such short
notice without charging an additional fee. Counsel for Heather Dunn made several attempts to
reschedule Plaintiff's depositions prior to the December 1, 2008 extended discovery cutoff date,
meceived Time Feb. 17. 2009 3:11PM Wo, 0157reve eek
02/17/2809 16:18 9374357511 EMSATTORNEYS
= even offering to hold them over the Thanksgiving holiday weckend. However, counsel was
informed that Plaintiffs’ counsel had no available time to reschedule the depositions at issue.
In the meantime, on November 18, 2008, Plaintiffs faxed their responses to Defendant’s
- Requests for Admissions. At such time, Plaintiffs responses were already three (3) days late. In
£ addition, the responses failed to comply with the requirements of Rule 36(A)(1), contained
. improper objections, and appeared somewhat disingenuous. Plaintiffs did not provide any
responses to Interrogatorics or Requests for Production of Documents prior to the December 1,
2008 hearing.
During the December 1, 2008 Status Conference, counsel for Heather Dunn advised this
Court of Plaintiffs’ continuing failures to cooperate with the informal discovery process,
including the failure to attend or reschedule Plaintiffs’ depositions, the complete lack of
responses to Interrogatories an Document Requests, and Plaintiff's insufficient Admissions
responses. Counsel for Heather Dunn further advised this Court that the defense intended to
request sanctions as a result of Plaintiffs’ repeated discovery abuses, the severity of which would
be dependent on whether Plaintiffs would be willing to waive a jury trial and proceed with a
bench trial. This Court agreed on the record that more severe sanctions may be appropriate in
the event of a jury trial. However, since Plaintiffs were not present at the hearing, no agreement
was reached on whether a jury or bench trial would be held and dates were set for both.
Plaintiffs were ordered to complete their responses to Interrogatories and Requests for
Production of Documents prior to the end of the day.
Plaintiffs did provide counsel for Heather Dunn with partial responses to Interrogatories
and Requests for Production of Documents late on December 1, 2008. However, Plaintiffs’
responses were incomplete and often indicated that later supplementation would be necessary.
131 N. Ludlow, Ste. 240]
‘Dayton, Chia 45402
(937) 435-7500
Received Time Feb. 17, 2009 3:11PM Wo, 0157pouangnes
AMO LL the
Sah
f
‘1SN, Ludlow, Ste. R40}
02/17/2889 16:18 9374357511 EMSATTORNEYS: PAGE Offad
Dayton, Chio 45402
(937) 435-7500
FAY 08m 9p 904
Received Lime Feb. 17. 2009 3:11PM No. 0157
BEHNKE, MARTIN & SCHULTE, LLC
To date, Plaintiffs have not supplemented any of their discovery responses and have not advised
the defense whether they intend to proceed with a jury trial or bench trial on the merits. As a
result, the Defendant has been unable to adequately prepare for trial, file appropriate motions
with this Court, subpoena witnesses or advise potential witnesses regarding the date(s) they will
be called to testify.
Throughout the course of this litigation, Plaintiffs have repeatedly failed to cooperate
with informal discovery and meet deadlines imposed under the Ohio Civil Rules and the Orders
of this Court. On the other hand, contrary to the claims made by Plaintiffs in their Motion for
DefauJt Judgment, the defense has not missed a single hearing or other deadline imposed by this
Court other than the February 5, 2009 status conference at issue.
B. Defendant’s Absence at the Final Status Conference Should be Excused Due to Lack
of Notice.
Plaintiff's Motion for Default Judgment should be denied due to the fact that neither
Defendant Heather Dunn nor counsel for Defendant received notice of the hearing. See,
Affidavit of Attorney Laura J. Martin, attached hereto. Counsel and Heather Dunn were both
present at the December 1, 2008 Status Conference. At such hearing, trial dates were selected,
but no further pretrial hearings or status conferences were scheduled. Based upon this Court’s
online docketing system records, it appears that this Court issued a Magistrate’s Order on
December 2, 2008 in which the February 5, 2009 Status Conference was scheduled. Neither
Defendant nor counsel for Defendant received a copy of the Magistrate’s Order or were
otherwise aware of the Status Conference at issue. See, Affidavit of Laura J. Martin.
Defendant’s absence at the February 5, 2008 Status Conference was due cntirely to the
lack of notice or other awareness of the hearing date and time. The defense is most eager to2/17/2889
t
LOIN. Ludiow, Ste, 840)
Dayton, Ole 45402
(097) 438-7500
Ay ron AyR9RN
BEHNKE, MARTIN & SCHULTE, LLC
16:18 9374357511 BMSATTORNEYS Peon wo/il
resolve the remaining trial date and discovery sanction issues and would have welcomed the
opportunity to resolve these and any other lingering issues at the missed status conference.
Because the Defendant’s absence was due to Jack of notice and not willfulness or gross neglect
on the part of the defense, default judgment is an inappropriately harsh sanction. Therefore,
Plaintiffs’ Motion for Default Judgment should be denied.
Cc. Default Judgment is not an Appropriate Sanction for Defendant’s Absence at the
Final Status Conference.
In addition to being an excessively harsh sanction under the circumstances, default
judgment is not an appropriate remedy for failing to attend a status conference, Default
judgment is a clearly defined concept under the Obio Civil Rules. Ohio Valley Radiology Assoc.,
Inc. v. Ohio Valley Hospital Assoc. (1986), 28 Ohio St.3d 118, 121, 502 N.E.2d 599, 602. “A
default judgment is a judgment entered against a defendant who has failed to timely plead in
response to an affirmative pleading.” Jd.; Ohio Civ. R. 55(A). According to the Ohio Supreme
Court, a default judgment is proper “only when the party against whom a claim is sought fails to
contest the opposing party’s allegations by either pleading or ‘otherwise defend[ing]’”. Ohio
Valley Radiology Assoc., 28 Ohio St.3d at 121.
In the present action, Defendant Heather Dunn not only filed an Answer, but actively
participated throughout the course of litigation and attended all hearings prior to the hearing at
issue. Thus, default judgment is not an appropriate remedy for Defendant’s absence at the
February 5, 2009 Final Status Conference.
D. Conclusion.
For the foregoing reasons, Defendant Heather Dunn respectfully requests this Court to
deny Plaintiffs’ Motion for Default Judgment. Defendant’s absence at the Final Status
“Wecelved Lime Feb. 17. 2009 3:11PM No. 015782/17/2803 16:18 9374357511 BMSATTORNEYS: PAGE Yar ae
a Conference was due entitely to the lack of notice of the hearing date and time and should be
excused.
Respectfully submitted,
BEHNKE, MARTIN & SCHULTE, LLC
LauraX
Attorney for Defendant
131N. Ludlow Street, Ste. 840
Dayton, Ohio 45402
Telephone: (937) 435-7500
Facsimile (937) 435-7511
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the foregoing was served upon Robert
M. Owens, Attomey for Plaintiffs, 46 North Sandusky Street, Ste. 202, via facsimile and regular
USS. mail, postage prepaid, on the 17" day of February, 2009.
Attomey for Defendant
8
ime Feb. 17, 2009 3:11PM No. 0157
131 N. Ludlow, Ste. 40)
Dayton, Olio 45402
(937) 485-7809
Agere son aes
Received
3
i
i
1FAGE 40/4ii
02/17/2009 16:18 9374357511 BMSATTORNEYS
oo @ @
STATE OF OHIO )
) $.S.:
COUNTY OF MONTGOMERY)
AFFIDAVIT
5 NOW COMES, Affiant, Laura J. Martin, of 131 N. Ludlow Street, Ste. 840, Dayton,
; Ohio 45402, being first duly cautioned and sworn, and deposes and states as follows:
t
* (1) That I am an attorney licensed to practice law in the State of Ohio, Ohio Supreme
Court Registration No. 0076590;
(2) ‘That lam the attomey of record for Defendant, Heather Dunn, in Case No. 2007
CVH 09 1117, before the Court of Common Pleas of Delaware County, Ohio;
(3) That a hearing was held in this matter on December 1, 2008 and I was present as
such hearing;
(4) That during the December 1, 2008 hearing referenced above, no further hearing or
status conference was scheduled at that time;
(5) That upon review of this Court’s online docketing systema, it appears this Court
issued and filed a Magistrate’s Order on December 2, 2008;
(6) That I did not receive a copy of the Magistrate’s Order;
(7) That, upon information, record and belief, Defendant, Heather Dunn, was not
served and did not in fact receive a copy of the Magistrate’s Order;
(8) That I was not aware that a Final Status Conference had been scheduled for
February 5, 2009, at 4:00 p.m., until after the fact;
(9) That I first became aware of the February 5S, 2009 Final Status Conference on
February 11, 2009 when a copy of Plaintiffs’ Motion for Default Judgment and
this Court’s Judgment Entry Scheduling Hearing were received in the mail;
(10) That had I been aware of the date and time of the Final Status Conference at issue,
the Defendant and I would have been present; and
(11) That contrary to the claim set forth in Plaintiffs’ Motion for Default Judgment, the
defense has not failed to attend any other hearing scheduled by this Court.
Further affiant sayeth naught.
Received Time Feb. 17. 2009 3:41PM No. 015702/17/2003 16:10 9374357511 BMSATTORNEYS PAGE
2 The foregoing Affidavit was Sworn and Subscribed to in e
? J. Martin, this 17" day of February, 2009, my presence By the seid Laura
. /
iooy le Sas dno hale
of Oka
fo Epa Dae, Sacton ta7g OEE? Public (!
Received Time Feb. 17, 2009 3:11PM No. 0157
Preview
2/17/2809 16:18 9374357511 BMSATTORNEYS JAIN, Lucien, Ste, 840 Dayton, Olio 45402 (037) 435-7500 FAX OT ARTE BEWUXE, MARTON & SCHULTE, LLC real ee kk Ss ne, e Ss é 2B A = m é oF oa _, = ca > = Be oT mes BE zw 0Sz Co = so Rec ~ ¢Y “eS oe of oO Ww az QO Hn 5 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, OHIO CIVIL DIVISION HILLARY CARLSON, * etal, * Plaintiffs, vs. HEATHER DUNN, Defendant. Case No.: 07 CVH 09 1117 Judge: W. Duncan Whitney DEEENDANT’S MEMORANDUM CONTRA PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT. NOW COMES Defendant, Heather Dunn, by and through the undersigned counsel, and hereby respectfully requests this Court to deny Plaintiff's Motion for Default Judgment, filed in this Court on February 6, 2009. Defendant respectfully requests this Court to deny Plaintiff's Motion for Default Judgtaent on the grounds that neither Defendant nor counsel for Defendant received notice of the hearing and default judgment is an inappropriate remedy under the circumstances. Memorandum in Support, setting forth in greater detail the bases for Defendant’s opposition to A default judgment, is attached hereto and incorporated herein WHEREFORE, Defendant respectfully moves this Court to deny Plaintiff's Motion for Default Judgment and proceed with trial on the merits. UGTA AE A FAXED ORIGINAL Received Time Feb. 17. 2009 3:11PM No, 0157 S> NS2/17/2889 16:10 9374357511 1S1N. Ludiow, Sie, 840] Dayton, Onis 45402 (937) 435-7500 BAY trom ane cree Received Time Feb, 17, 2009 3:11PM No. 0157 PE SEHK, MART £ SCHULTE. LLC EMSATTORNEYS PAGE 3/11 Respectfully submitted, BEHNKE, MARTIN & SCHULTE, LLC Laura Attomey for Defendant 131 N, Ludlow Street, Ste. 840 Dayton, Ohio 45402 Telephone: (937) 435-7500 Facsimile (937) 435-751)82/17/2889 131N. Ludlow, Ste. 646) Dayton, Ohlo 45402 (927) 435-7600 BEHNKE, MARTINS SCHULTE, LLC 16:18 9374357511 BMSATTORNEYS PRea Sa e MEMORANDUM IN SUPPORT Defendant Heather Dunn respectfully requests this Court to deny Plaintiffs’ Motion for Default Judgment on the grounds that Defendant did not receive notice of the Final Status Conference in this matter, scheduled on February 5, 2009, at 4:00 p.m. A Relevant Factual and Procedural History. Plaintiffs initiated this matter by filing a Complaint against Heather Dunn in the Delaware Municipal Court on August 8, 2007, Ms. Dunn filed a timely Answer and Counterclaims along with a Motion to Certify Case to the Court of Common Pleas of Delaware County, Ohio. Thereafter, the case was transferred to this Court for proceedings on the merits. During the course of litigation, Plaintiffs’ counsel filed a Motion to Withdraw as Counsel of Record, which was granted by this Court on April 21, 2008. Thereafter, Plaintiffs failed to respond to Defendant’s discovery requests or requests to schedule their respective depositions. As a result of Plaintiffs’ failure to cooperate with the informal discovery process, it became necessary to vacate the original trial date of August 12, 2008 and permit Plaintiffs additional time to complete discovery. Upon Defendant’s Motion, a Status Conference was held in this matter on August 5, 2008. Plaintiffs advised this Court that new local counsel had been retained but he was unable to attend the hearing as a result of a scheduling conflict. Plaintiffs were re-served, on the record, with Interrogatories and Requests for Production of Documents and were ordered, at the hearing and in a Judgment Entry dated August 6, 2008, to complete all discovery before the next Status Conference, scheduled on December 1, 2008. It should be noted for the record that the alleged new counsel did not enter an appearance on Plaintiffs’ behalf. “Received [ime Feb. 17. 2009 3:11PM No. 0157PROG Basil 2/17/2009 16:10 9374357511 EMSATTORNEYS: 191 N, Ludlow, See, 840 Dayton, Ohla dg (937)435-7500 BEHNKE, MARTIN 4 SCHULTE, LUG Following the vacated original trial date, counsel for Heather Dunn made numerous attempts via mail and telephone to obtain discovery responses from Plaintiffs and/or schedule a mutually convenient time and place to take Plaintiffs’ depositions. Plaintiffs failed to respond in the entirety. As a result of Plaintiffs’ lack of cooperation, counsel for Heather Dunn served Plaintiffs with notices to take their tespective depositions on October 1, 2008 at counsel’s office. Plaintiffs failed to communicate with defense counsel regarding the deposition schedule, failed to request a Protective Order as required by Civ. R. 37(D), and failed to appeat at deposition. Plaintiff Hillary Carlson called fifteen (15) minutes after the depositions were scheduled to begin to let counsel know that Plaintiffs would not be attending. Plaintiff further advised defense counsel that Plaintiffs had retained new counsel and were in the process of drafting a settlement proposal for Heather Dunn’s consideration. Once again, no counsel entered an appearance on behalf of Plaintiffs and no settlement proposal or other communication was received from Plaintiffs. Due in part to the complete inability to obtain any discovery responses from Plaintiffs or their appearance at deposition, Defendant served Plaintiffs with Requests for Admission on October 17, 2008. Plaintiffs were also served with a second Notice of Deposition to be held on November 20, 2008. Plaintiffs waited until two (2) days prior to their second deposition date to retain their present counsel to represent them in this matter, The day prior to deposition, Plaintiffs’ newly retained counsel advised counsel for the defense that Plaintiffs would not be appearing for deposition due to a scheduling conflict on his part. The court reporter retained by Defendant was gracious enough to allow cancellation of Plaintiffs depositions on such short notice without charging an additional fee. Counsel for Heather Dunn made several attempts to reschedule Plaintiff's depositions prior to the December 1, 2008 extended discovery cutoff date, meceived Time Feb. 17. 2009 3:11PM Wo, 0157reve eek 02/17/2809 16:18 9374357511 EMSATTORNEYS = even offering to hold them over the Thanksgiving holiday weckend. However, counsel was informed that Plaintiffs’ counsel had no available time to reschedule the depositions at issue. In the meantime, on November 18, 2008, Plaintiffs faxed their responses to Defendant’s - Requests for Admissions. At such time, Plaintiffs responses were already three (3) days late. In £ addition, the responses failed to comply with the requirements of Rule 36(A)(1), contained . improper objections, and appeared somewhat disingenuous. Plaintiffs did not provide any responses to Interrogatorics or Requests for Production of Documents prior to the December 1, 2008 hearing. During the December 1, 2008 Status Conference, counsel for Heather Dunn advised this Court of Plaintiffs’ continuing failures to cooperate with the informal discovery process, including the failure to attend or reschedule Plaintiffs’ depositions, the complete lack of responses to Interrogatories an Document Requests, and Plaintiff's insufficient Admissions responses. Counsel for Heather Dunn further advised this Court that the defense intended to request sanctions as a result of Plaintiffs’ repeated discovery abuses, the severity of which would be dependent on whether Plaintiffs would be willing to waive a jury trial and proceed with a bench trial. This Court agreed on the record that more severe sanctions may be appropriate in the event of a jury trial. However, since Plaintiffs were not present at the hearing, no agreement was reached on whether a jury or bench trial would be held and dates were set for both. Plaintiffs were ordered to complete their responses to Interrogatories and Requests for Production of Documents prior to the end of the day. Plaintiffs did provide counsel for Heather Dunn with partial responses to Interrogatories and Requests for Production of Documents late on December 1, 2008. However, Plaintiffs’ responses were incomplete and often indicated that later supplementation would be necessary. 131 N. Ludlow, Ste. 240] ‘Dayton, Chia 45402 (937) 435-7500 Received Time Feb. 17, 2009 3:11PM Wo, 0157pouangnes AMO LL the Sah f ‘1SN, Ludlow, Ste. R40} 02/17/2889 16:18 9374357511 EMSATTORNEYS: PAGE Offad Dayton, Chio 45402 (937) 435-7500 FAY 08m 9p 904 Received Lime Feb. 17. 2009 3:11PM No. 0157 BEHNKE, MARTIN & SCHULTE, LLC To date, Plaintiffs have not supplemented any of their discovery responses and have not advised the defense whether they intend to proceed with a jury trial or bench trial on the merits. As a result, the Defendant has been unable to adequately prepare for trial, file appropriate motions with this Court, subpoena witnesses or advise potential witnesses regarding the date(s) they will be called to testify. Throughout the course of this litigation, Plaintiffs have repeatedly failed to cooperate with informal discovery and meet deadlines imposed under the Ohio Civil Rules and the Orders of this Court. On the other hand, contrary to the claims made by Plaintiffs in their Motion for DefauJt Judgment, the defense has not missed a single hearing or other deadline imposed by this Court other than the February 5, 2009 status conference at issue. B. Defendant’s Absence at the Final Status Conference Should be Excused Due to Lack of Notice. Plaintiff's Motion for Default Judgment should be denied due to the fact that neither Defendant Heather Dunn nor counsel for Defendant received notice of the hearing. See, Affidavit of Attorney Laura J. Martin, attached hereto. Counsel and Heather Dunn were both present at the December 1, 2008 Status Conference. At such hearing, trial dates were selected, but no further pretrial hearings or status conferences were scheduled. Based upon this Court’s online docketing system records, it appears that this Court issued a Magistrate’s Order on December 2, 2008 in which the February 5, 2009 Status Conference was scheduled. Neither Defendant nor counsel for Defendant received a copy of the Magistrate’s Order or were otherwise aware of the Status Conference at issue. See, Affidavit of Laura J. Martin. Defendant’s absence at the February 5, 2008 Status Conference was due cntirely to the lack of notice or other awareness of the hearing date and time. The defense is most eager to2/17/2889 t LOIN. Ludiow, Ste, 840) Dayton, Ole 45402 (097) 438-7500 Ay ron AyR9RN BEHNKE, MARTIN & SCHULTE, LLC 16:18 9374357511 BMSATTORNEYS Peon wo/il resolve the remaining trial date and discovery sanction issues and would have welcomed the opportunity to resolve these and any other lingering issues at the missed status conference. Because the Defendant’s absence was due to Jack of notice and not willfulness or gross neglect on the part of the defense, default judgment is an inappropriately harsh sanction. Therefore, Plaintiffs’ Motion for Default Judgment should be denied. Cc. Default Judgment is not an Appropriate Sanction for Defendant’s Absence at the Final Status Conference. In addition to being an excessively harsh sanction under the circumstances, default judgment is not an appropriate remedy for failing to attend a status conference, Default judgment is a clearly defined concept under the Obio Civil Rules. Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hospital Assoc. (1986), 28 Ohio St.3d 118, 121, 502 N.E.2d 599, 602. “A default judgment is a judgment entered against a defendant who has failed to timely plead in response to an affirmative pleading.” Jd.; Ohio Civ. R. 55(A). According to the Ohio Supreme Court, a default judgment is proper “only when the party against whom a claim is sought fails to contest the opposing party’s allegations by either pleading or ‘otherwise defend[ing]’”. Ohio Valley Radiology Assoc., 28 Ohio St.3d at 121. In the present action, Defendant Heather Dunn not only filed an Answer, but actively participated throughout the course of litigation and attended all hearings prior to the hearing at issue. Thus, default judgment is not an appropriate remedy for Defendant’s absence at the February 5, 2009 Final Status Conference. D. Conclusion. For the foregoing reasons, Defendant Heather Dunn respectfully requests this Court to deny Plaintiffs’ Motion for Default Judgment. Defendant’s absence at the Final Status “Wecelved Lime Feb. 17. 2009 3:11PM No. 015782/17/2803 16:18 9374357511 BMSATTORNEYS: PAGE Yar ae a Conference was due entitely to the lack of notice of the hearing date and time and should be excused. Respectfully submitted, BEHNKE, MARTIN & SCHULTE, LLC LauraX Attorney for Defendant 131N. Ludlow Street, Ste. 840 Dayton, Ohio 45402 Telephone: (937) 435-7500 Facsimile (937) 435-7511 CERTIFICATE OF SERVICE The undersigned does hereby certify that a copy of the foregoing was served upon Robert M. Owens, Attomey for Plaintiffs, 46 North Sandusky Street, Ste. 202, via facsimile and regular USS. mail, postage prepaid, on the 17" day of February, 2009. Attomey for Defendant 8 ime Feb. 17, 2009 3:11PM No. 0157 131 N. Ludlow, Ste. 40) Dayton, Olio 45402 (937) 485-7809 Agere son aes Received 3 i i 1FAGE 40/4ii 02/17/2009 16:18 9374357511 BMSATTORNEYS oo @ @ STATE OF OHIO ) ) $.S.: COUNTY OF MONTGOMERY) AFFIDAVIT 5 NOW COMES, Affiant, Laura J. Martin, of 131 N. Ludlow Street, Ste. 840, Dayton, ; Ohio 45402, being first duly cautioned and sworn, and deposes and states as follows: t * (1) That I am an attorney licensed to practice law in the State of Ohio, Ohio Supreme Court Registration No. 0076590; (2) ‘That lam the attomey of record for Defendant, Heather Dunn, in Case No. 2007 CVH 09 1117, before the Court of Common Pleas of Delaware County, Ohio; (3) That a hearing was held in this matter on December 1, 2008 and I was present as such hearing; (4) That during the December 1, 2008 hearing referenced above, no further hearing or status conference was scheduled at that time; (5) That upon review of this Court’s online docketing systema, it appears this Court issued and filed a Magistrate’s Order on December 2, 2008; (6) That I did not receive a copy of the Magistrate’s Order; (7) That, upon information, record and belief, Defendant, Heather Dunn, was not served and did not in fact receive a copy of the Magistrate’s Order; (8) That I was not aware that a Final Status Conference had been scheduled for February 5, 2009, at 4:00 p.m., until after the fact; (9) That I first became aware of the February 5S, 2009 Final Status Conference on February 11, 2009 when a copy of Plaintiffs’ Motion for Default Judgment and this Court’s Judgment Entry Scheduling Hearing were received in the mail; (10) That had I been aware of the date and time of the Final Status Conference at issue, the Defendant and I would have been present; and (11) That contrary to the claim set forth in Plaintiffs’ Motion for Default Judgment, the defense has not failed to attend any other hearing scheduled by this Court. Further affiant sayeth naught. Received Time Feb. 17. 2009 3:41PM No. 015702/17/2003 16:10 9374357511 BMSATTORNEYS PAGE 2 The foregoing Affidavit was Sworn and Subscribed to in e ? J. Martin, this 17" day of February, 2009, my presence By the seid Laura . / iooy le Sas dno hale of Oka fo Epa Dae, Sacton ta7g OEE? Public (! Received Time Feb. 17, 2009 3:11PM No. 0157