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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, OHIO
HILLARY CARLSON, et al.
Plaintiff, ot a
ay ao s B &
-vs- YA CaseNo.o7CVHog117 ee Bs
oF 2 2
HEATHER DUNN, eS & 2s
Sc oO For
RE -w~ OEP
Defendant. S = SEZ
5 f° =8
@2 om
= 3
JUDGMENT ENTRY
This matter came on for consideration of Plaintiff's Motion For a Default
Judgment against Defendant Heather Dunn as well as Defendant's Motion For
Telephone Conference.
Plaintiff requests a default judgment because Defendant and her counsel failed to
appear at a Status Conference on February 5, 2009. The Court has reviewed the
arguments of both counsel and notes the following: (1) there have been four hearings
before the court in this matter during which Defendant and her counsel appeared for
three (i.e. January 14, 2008, August 5, 2008 and November 26, 2008), (2) Plaintiff
themselves failed to appear at the November 26, 2008 hearing, (3) although the status
conference was not scheduled on the record with counsel during the November 26,
2008 status conference, it was scheduled, in writing, within the magistrate’s order dated
December 2, 2008. Said Magistrate’s Order was mailed to the same address that all
prior court documents have been mailed. Therefore, Defendant and her counsel were
provided a sixty-four day written notice of the hearing that they “missed.
AT ae
soenNonetheless, the hearing on February 5, 2009 was a “Final Status Conference”.
Local Rule 25.02 provides that: “Failure to be prepared may result in dismissal of the
case for want of prosecution, a default judgment, or other sanctions as the trial judge
deems appropriate.” The perm “penalty default” has been used to refer to an
involuntary dismissal under Civil Rule 41(B) or a default judgment under Civil Rule
37(B)(2)(c) or 37(D). Neither of which apply to these facts. A “penalty default” may also
be imposed pursuant to local rules, i.e. Civil Rule 83. However, in DeHart v. Aetna Life
Ins, Co., 69 Ohio St.2d 189, 431 N.E.2d 644 (1982), the Supreme Court noted that local
rules “are needed in order to achieve the prompt and efficient dispatch of justice. This is
a two-pronged objective-the local rules must encourage promptness and efficiency, on
the one hand, and fairness and justice on the other. Fairness and justice are best served
when a court disposes of a case on the merits. Only a flagrant, substantial disregard for
the court rules can justify a dismissal on procedural grounds”. Considering that
Plaintiffs themselves have also failed to appear for a hearing in this matter, Plaintiffs’
Motion For Default Judgment is hereby DENIED.
Defendant requested a Status Conference to determine if this matter was
proceeding to jury trial or bench trial. This Court previously scheduled such a hearing,
to wit: “This matter shall be scheduled for a Final Status Conference on February 5,
2009 at 4:00 p.m. for purposes of determining whether this matter will be heard by a
jury or by the bench.” However, Defendant and her counsel failed to attend this
hearing.
Pursuant to Civil Rule 38, a jury demand shall be in writing and shall be made at
any time after the commencement of the action but not later that fourteen days after
service of the last pleading. Defendant timely demanded a jury in her Answer andae
Counterclaim. Plaintiff has not demanded a jury trial in accordance with the civil rules
and therefore has effectively waived a jury in this case.
Pursuant to the Magistrate’s Order dated December 2, 2008, this matter was
scheduled for Jury Trial on March 26, 2009 and for a Bench Trial on March 16, 2009.
Local Rule 25.04 states as follows: “If a party is seeking a jury trial in a civil case,
the party shall submit a $500 jury deposit to the clerk of courts at least 60 days prior to
the scheduled trial date.... Failure to make the jury deposit will be deemed as a waiver of
the jury.”
Defendant Heather Dunn has failed to make the required jury deposit. Therefore,
she has waived a jury in this matter. See Walters v. Griffith, 38 Ohio St.2d 132 (1974).
The Jury Trial scheduled for March 26, 2009 is hereby VACATED. This case shall
proceed toa BENCH TRIAL, as previously scheduled, on March 16, 2009 at 9:00
a.m.
Defendant's Motion For Telephone Status Conference is hereby DENIED.
Dated: March 9, 2009.
Ni, thpu
“ W. DUNCAN WHITNEY JUDGE
The Clerk of thjs Court is hereby Ordered to serve a copy of this Judgment Entry upon the
following by gular Mail, o Mailbox at the Delaware County Courthouse, o Facsimile transmission
ROBERT M. OWENS, 46 North Sandusky Street, Suite 202, Delaware, Ohio 43015
LAURA J MARTIN, 131 N. Ludlow Street, Suite 840, Dayton, Ohio 45402
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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, OHIO HILLARY CARLSON, et al. Plaintiff, ot a ay ao s B & -vs- YA CaseNo.o7CVHog117 ee Bs oF 2 2 HEATHER DUNN, eS & 2s Sc oO For RE -w~ OEP Defendant. S = SEZ 5 f° =8 @2 om = 3 JUDGMENT ENTRY This matter came on for consideration of Plaintiff's Motion For a Default Judgment against Defendant Heather Dunn as well as Defendant's Motion For Telephone Conference. Plaintiff requests a default judgment because Defendant and her counsel failed to appear at a Status Conference on February 5, 2009. The Court has reviewed the arguments of both counsel and notes the following: (1) there have been four hearings before the court in this matter during which Defendant and her counsel appeared for three (i.e. January 14, 2008, August 5, 2008 and November 26, 2008), (2) Plaintiff themselves failed to appear at the November 26, 2008 hearing, (3) although the status conference was not scheduled on the record with counsel during the November 26, 2008 status conference, it was scheduled, in writing, within the magistrate’s order dated December 2, 2008. Said Magistrate’s Order was mailed to the same address that all prior court documents have been mailed. Therefore, Defendant and her counsel were provided a sixty-four day written notice of the hearing that they “missed. AT ae soenNonetheless, the hearing on February 5, 2009 was a “Final Status Conference”. Local Rule 25.02 provides that: “Failure to be prepared may result in dismissal of the case for want of prosecution, a default judgment, or other sanctions as the trial judge deems appropriate.” The perm “penalty default” has been used to refer to an involuntary dismissal under Civil Rule 41(B) or a default judgment under Civil Rule 37(B)(2)(c) or 37(D). Neither of which apply to these facts. A “penalty default” may also be imposed pursuant to local rules, i.e. Civil Rule 83. However, in DeHart v. Aetna Life Ins, Co., 69 Ohio St.2d 189, 431 N.E.2d 644 (1982), the Supreme Court noted that local rules “are needed in order to achieve the prompt and efficient dispatch of justice. This is a two-pronged objective-the local rules must encourage promptness and efficiency, on the one hand, and fairness and justice on the other. Fairness and justice are best served when a court disposes of a case on the merits. Only a flagrant, substantial disregard for the court rules can justify a dismissal on procedural grounds”. Considering that Plaintiffs themselves have also failed to appear for a hearing in this matter, Plaintiffs’ Motion For Default Judgment is hereby DENIED. Defendant requested a Status Conference to determine if this matter was proceeding to jury trial or bench trial. This Court previously scheduled such a hearing, to wit: “This matter shall be scheduled for a Final Status Conference on February 5, 2009 at 4:00 p.m. for purposes of determining whether this matter will be heard by a jury or by the bench.” However, Defendant and her counsel failed to attend this hearing. Pursuant to Civil Rule 38, a jury demand shall be in writing and shall be made at any time after the commencement of the action but not later that fourteen days after service of the last pleading. Defendant timely demanded a jury in her Answer andae Counterclaim. Plaintiff has not demanded a jury trial in accordance with the civil rules and therefore has effectively waived a jury in this case. Pursuant to the Magistrate’s Order dated December 2, 2008, this matter was scheduled for Jury Trial on March 26, 2009 and for a Bench Trial on March 16, 2009. Local Rule 25.04 states as follows: “If a party is seeking a jury trial in a civil case, the party shall submit a $500 jury deposit to the clerk of courts at least 60 days prior to the scheduled trial date.... Failure to make the jury deposit will be deemed as a waiver of the jury.” Defendant Heather Dunn has failed to make the required jury deposit. Therefore, she has waived a jury in this matter. See Walters v. Griffith, 38 Ohio St.2d 132 (1974). The Jury Trial scheduled for March 26, 2009 is hereby VACATED. This case shall proceed toa BENCH TRIAL, as previously scheduled, on March 16, 2009 at 9:00 a.m. Defendant's Motion For Telephone Status Conference is hereby DENIED. Dated: March 9, 2009. Ni, thpu “ W. DUNCAN WHITNEY JUDGE The Clerk of thjs Court is hereby Ordered to serve a copy of this Judgment Entry upon the following by gular Mail, o Mailbox at the Delaware County Courthouse, o Facsimile transmission ROBERT M. OWENS, 46 North Sandusky Street, Suite 202, Delaware, Ohio 43015 LAURA J MARTIN, 131 N. Ludlow Street, Suite 840, Dayton, Ohio 45402