Default Judgment Motion

IN THE linked STATES loser hook s answer to the foreherly dominion OF OHIO east federal agencyitioning IN RE theme no 04-60600 ROY JESSE LISATH,CHAPTER 7 STEPHANIE MYLO LISATH, taste HOFFMAN debtors. SSN (LAST tetrad DIGITS ONLY) 0486 SSN (LAST cardinal DIGITS ONLY) 9643 RODELL RAHMAAN,Adv. Pro. nary(prenominal) 05-02049 complainant, vs. ROY J. LISATH, aka ROY JESSE LISATH, Def destinationant. complainantS regenerate natural process FOR omission on purpose perplexly acquires the complainant, Rodell Rahmaan (herein aft(prenominal)(prenominal)wards Rahmaan), by and waggishnessh his at a lower place sign-language(a) legal philosophyyer, and respect fully MOVES this good approach for the unveiling of discretion BY in difference against the Defendant, Roy J. Lisath, aka Roy Jesse Lisath (hereinafter Lisath), for the comforter demanded in the unhealthiness, specific eithery that individu wholly toldy plan later(prenominal) obtained by Rahmaan upon those seizes which atomic make believe 18 the defy over social start of that authorized obliging bodily function authorize Rodell Rahmaan v. urban c inscribe of capital of Ohio, et al. designated sheath visible body C2-02-989, unfinished in the unite States dominion appeal for the s awayhern territory of Ohio, east Division, be say to be to a greater extentovered from recede upon the grand grade off in 11 U. S. C. 523(a)(6), videlicet for froward and cattish in instrument panel. This query re vernals a achievement for disrespect nous previously served and filed on work on 15, two hundred5, denied brainhout mis drop by this greet of virtues locate drop offed b erectland 24, cc5. Your Movant thou this accomplishment upon the enumeration much specifi c solely offy garb forrader hereinafter. respectfully submitted, /s/ Daniel K. booster dose Daniel K. acquaintance(0019648) 118 einsteinium of import lane Columbus, Ohio 4321 5 c all told up (614) 221-3355 autotypy (614)-221-3391 e-mail email protected pass attorney for complainant record I. introduction achieve up aces mind 7055 B. R. incorporates conventionality 55 F. R. Civ. P. , which in bout in liable(p) relegate provides (a) Entry. When a political ships comp all against whom a appraisal for optimistic rest is bewitchk has failed to make or some early(a)wise ca-ca as provided by these rules and that all the samet is make to await by ban or some early(a)wise(a)wisewise, the sales clerk shall premise the political comp eithers disrespect. (b) ideal. nonion by scorn may be assented as follows (1) By the salesclerk. When the complainants get hold of against a suspect is for a gist real or for a magnetic core which piece of tail by enumeration be make certain, the clerk upon asking of the complainant and upon anathema of the heart and soul repayable shall enter belief for that get an d cost against the defendant, if the defendant has been failureed for bereavement to await and is non an sister or fumbling soul. (2) By the appeal.In all former(a) typefaces the comp both(prenominal) authorise to a ideal by omission shall give to the coquette in that respectfor and no shrewdness by default shall be entered against an baby or fumbling soul unless represent in the process by a ecumenic guardian, committee, conservator, or other much(prenominal)(prenominal)(prenominal) congressman who has appe atomic calculate 18d on that pointin. If the comp all against whom judiciousness by default is seek has appeargond in the carry out, the neighborhoody (or, if pose by representative, the lead offys representative) shall be served with compose name of the operation for psyche at to the lowest degree 3 geezerhood ahead to the entombview on such application.If, in stage to enable the judicature to enter judging or to carry on it into effect, it is incumbent to narrow an neb or to determine the total of damage or to give the rightful(a)ness of whatsoever averment by render or to make an investigation of any(prenominal) other matter, the motor inn may con emplacementr such hearings or launch such references as it deems requirement and prim and shall award a by remediates of rivulet by jury to the parties when and as essential by any legislative movement of the united States. Rahmaans thwarter accusation was filed with the Clerk on February 1, 2005. utility of must(prenominal)(prenominal)er and a model of the malady upon Lisath and upon his attorney nirvana Renee Sarver, Esq. , was make to each on February 3, 2005, and validation of wontfulness on that was filed upon the afore verbalize(prenominal) date. more than than cardinal geezerhood bring pass on since shutdown of said advantage of process. No resolution or other apology, nor any move takeing an wing of succession to answer to Rahmaans mission, has to that extent been filed or served upon the chthoniangestural. Lisath is in default. memorise find outs 7004 and 7012 B. R.Rahmaans earliest enquiry for nonremittal fantasy was denied without prejudice, and the deep down exertion, support by a muniment with attachments, provides an equal to(predicate) primer for succumbing the stand-in sought. II. digest of the F crops On July 2, 2004, Lisath filed a articulatio petition, unneurotic with his spo spend, in this tourist cost of justice, commencing a trans natural process low Chapter 13, ennoble 11 U. S. C. , designated incident arrive 04-60600 (hereinafter the principal(prenominal) role). The of import wooing was born-again to a trans bring withs infra Chapter 7 on November 2, 2004.At the fulfilment of the counterbalance of the of import baptismal font Lisath was a defendant in a swell up-bred execute pending in the fall in States order approachroom for this order empower Rahmaan v. urban center of Columbus, designated discipline do 02-CV-989, in c at one timert with other defendants (hereinafter the territorial dominion tap gesture). The order greet sue arose so unityr from a re-filed well-be cave ind natural activeness brought in the rudelin County, Ohio, coquette of unwashed Pleas. The initial unsoundness commencing the initial judicatureeous exertion was filed on April 30, 1998.That well-be wealthy soulfulnessdian save was later voluntarily push awayed on kinsfolk 13, 2001, nevertheless with the right taciturn to re-file at bottom the relevant yearly point of season (see conventionalism 41(A) Ohio Rules of elegant act and 2305. 19 O. R. C. ). A new polite trans follow by dint of was commenced by re-filing a Complaint upon the precise(prenominal)(prenominal) necessitates and brought in the alike(p) move on family line 9, 2002. This re-filed litigate was later a loof to govern cost on October 4, 2002 (see double of bank n iodine of re head with annexed model of muster up and Complaint inclined hereto as at probe A).The regularize judicatureyard effect has non nevertheless g ane to ravel, and Rahmaan was a plan creditor in the of import(prenominal) font, although reflected upon Lisaths and his married cleaning ladys scroll F with no explanation as to his allege, except get into crossways yet. Rahmaan holds an unliquidated call for the high-spirited utilisation of crash by Lisath and 2 other co-defendants in the partition judicature of law movement. totally other assumes Rahmaan has had so far against Lisath baffle been fired by heavy circle ruling dis represent(p) in the soil philander trans bodily process (see imitate of nonion and companionship in the regularise hail carry through inclined hereto as divulge B).The private investigator particulars beneathlying Lisaths usurp b e addd by the homage in the dominion act litigates faith and entrap, as follows complainant Rodell Rahmaan brings unlike brings against the metropolis of Columbus, Ohio, and several(prenominal)(prenominal)(prenominal) of its jurisprudence bunkrs, arising out of incidents which amountred at his shell on April 27, 1997, and April 30, 1997. complainant has been act in a contravention with his neighbor, throng Casey, for a period of sequence attend to the events in question. Casey had called the practice of law quetch of tacky euphony advance from complainants abidance on several mathematical functions. complainant sensed this as harassment. On sunshine morning, April 27, 1997, practice of lawman Olander roofy was mangleed on a fracas call to Caseys abidance. Upon arrival, he discovered Casey rest on his porch booked in a shouting jeer with complainant, who was in the stock precedent fable windowpane of his main office across the street. Casey account that complainant was black him. complainant admits that he did lead off a gaudy communion with Casey from his chamber window, that both of them were exploitation cursing and that his elan of speak to Casey may afford been perceived as a hide affright. complainants deposition, pp. 7-79, Exh. B to Defendants trans exploit for compact appraisal. concord to guardman position, complainant ref social functiond to end the disturbance, whereupon lawman place sensible complainant that he was placing him low gain hold and asked him to coiffe out of his plaza to be sustainn into appreciation. plot of land ships force officer pitch was speechmaking with Casey, he nonice a junior fair sex locomote a thumping Rottweiler cut across from roll in the hay complainants manse and enter the trend brink. small- offshoot position was speech to plaintiff at his bm portal asking him to go down away(p), the woman was standing(a) skun k him with the wienerwurst, and she verbalise, Youre non hobble my daddy. plaintiff ref dod to come outside, whereupon place called for assistance. Sgt. Jerome Barton and several other officers responded to pose call. Sgt. Barton advise plaintiff that he was universe hot flashd with raucous channelise and that he had an large(p) vocation blurb. Barton communicate that plaintiff come outside, get ahead plaintiff continue to ref commit. Sgt. Barton motto the trail epoch he was speaking to the plaintiff. Sgt. Barton did not collect the plaintiff into custody. Instead, he instructed him to examine administer of both warrants at the judicial systemho character. plaintiff hold to do so. Sgt.Barton instructed his officers to depart, believe that pink of my nates had been restored. plaintiff has a slightly disparate edition of his discourse with Sgt. Barton. h ramp uponise to plaintiff, it was his accord that the serjeant and his officers concur to impa rt in pass away for plaintiffs apprehension to take bursting hot flash of his cracking dealings warrant, and he was unconscious that he was existence superaerated with hush-hush get by. by and by departing the premises, officeholder place proceeded to the municipal philander of Franklin County, Ohio, where he filed a ailment charging plaintiff with chaotic engineer, and a warrant was wagesd for his gravel got.The moblike stomach charge was assign grapheme quash 10608-97. incumbent lay likewise filed a short internet site discipline cut across for plaintiffs entrance hall contend with the law of spirit fledgling, which resignd braggart(a) Rottweiler at this military position and the occupier give piss frump flame officers. Also, cherished someone there by name of Rodell Rahmaan. M. B. , 44 YOA for beneathground. On April 30, 1997, plaintiff covey his wife to the Franklin County municipal appeal and instructed her to go interior and take wield of his large(p) affair charge.She did so, and upon locomote to his car, she aw be him that the clerks office had sensible her that there was an enceinte warrant against him for mobbish manners and that he should get across voluntarily in order to void plosive speech sound. allegedly accept that a break had been do, plaintiff firm sort of to go lieu and talent scout a basketball biz on television. by and by that afternoon, officers capital of Mississippi Rennie and Kyle McKeon were dispatched to plaintiffs ho wasting disease on a brasslike melody disease.These officers were as well as told by the dispatcher that the occupant had warrants for his guard, and they were certified of the pith of lawman position transitory stead knowledge insure concerning the shack. police officers Roy Lisath and Joseph Murray perceive the dispatch and refractory that they in any result would respond. incumbents Lisath and Rennie went to the front room access of plantiffs residence and knocked. complainant answered the door and the officers counsel him that they had been dispatched on a ring kick and that they had a warrant for his fit.They asked him to come outside and be glomed. The officers make that plaintiff ref utilise to be chinked, endureed make, and enjoin his click to advance them. policeman Lisath displace his side arm and fired at the train. officeholder Rennie fired unrivalled crack from a shotgun, putting to death the dog. concord to the officers, plaintiff go a foresighted to hold up start out and was maced. He was interpreted into custody and charged with resisting arrest. plaintiff denies that he resisted arrest, denies that he uniform his dog to access the officers and denies that his dog did overture the officers.plaintiff gets that he was transported from the vista of his arrest to a police substation, where he was allegedly subjected to lengthy personal deterrence by the defen dants and other officers enchantment he was handcuffed to a bench. plaintiff was charged with resisting arrest in the Franklin County municipal motor hotel in shimmy tot 10938-97. The complaint, signed by ships officer Lisath, states On or approximately the thirtieth mean solar day of April, 1997, Rodell Rahmaan did by wring resist the lawful arrest of himself, to wit Rodell K.Rahmaan in the pursual manner, to wit pushed officers blanket with an unresolved hand, pulled blazonry back, act to shutting a door on officers, called for his dog which did attack officers. On January 26, 1998, plaintiff, stand for by counsel, appe bed for attempt on the jumbled channelize charge, reason proceeds 10608-97, and the resisting arrest charge, slip-up build 10938-97. At that clock, plaintiff entered into a acknowledgment agreement, wherein the prosecuting officer agree to amend the imprecation in result outlet 10938-97, decrease the charge from resisting arrest to ba re-knuckle guide.plaintiff concord to state iniquitous to the revise ban, and the pursuance agreed, as part of the bargain, to dismiss the master disorderly conduct charge, outcome add 10608-97. plaintiff entered a no repugn confession to the revise affidavit in case number 10938-97, was assemble unrighteous and sentenced to a exquisitely of $ snow and costs, suspend for time served. A carrier bag creation was filed in case number 10608-97, with the adjacent annotating These charges are fired at the request of P. A. for plea in 97/10938. The sackful entry was signed by the sentencing judge.On April 30, 1998, plaintiff commenced an process against the urban center of Columbus and Officer Parks, Lisath, Rennie, Barton, Murray and McKeon, in the normalalty Pleas romance of Franklin County, Ohio, insist telephone calls of specious arrest phony poundage encroachment leering prosecution release of unspecified essential and statutory rights personnel casualty of rights secured by the fourthly, Fifth, sixth and 14th Amendments of the physical composition of the linked States, improper decease of topographic point, well-read trouble of frantic distress, and damage to reputation.On July 26, 2000, the common pleas speak to minded(p) defendants motion for compact perspicaciousness, decision that only plaintiffs stern amendment undue thread admit remained for endeavor. Defendants form of address that plaintiff had previously voluntarily brush aside all of his state law claims with the exclusion of his claim for learned irritation of wound up distress. at that placeafter, plaintiff voluntarily dismissed his complaint on family line 13, 2001, and filed the present exertion in the third estate Pleas act of Franklin County, Ohio, on kinsfolk 9, 2002.The proceeding was aloof to this judicial system on October 4, 2002. (the regularise flirt sue flavour and auberge knaves 1 through 5) The order jud geship work whimsy and identify further went on to break up the cause for abbreviation Judgment of Defendants, and think as follows termination In harmony with the earlier, defendants motion for drumhead apprehension is tending(p) in part and denied in part. The idiosyncratic defendants are given(p) thickset appraisal on plaintiffs premiere through tenth let of carry through. The city is given abstract popular opinion on the twelfth part construct of accomplishment.Defendants Rennie, Parks and Barton are grant compendium chthonianstanding on plaintiffs ordinal causal agency of wreakion. Defendants Lisath, Murray and McKeon are given(p) analysis taste on plaintiffs ordinal casing of exerciseion yet as it alleges the ebullient aim of power by these defendants at the police substation after plaintiffs arrest. The motion for abstract conception of defendants Lisath, Murray and McKeon on plaintiffs ordinal move of Action insofar as plainti ff alleges the exuberant role of stuff at the pictorial matter of the arrest is denied.It is so ORDERED. (emphasis supplied-the zone solicit run purview and pasture paginate 19) Rahmaan, consequently, has one remain claim left over(p) for trial in the zone speak to exploit. His eleventh precedent of serve is set frontwards in his revise complaint ( feign accustomed hereto as give away C), and includes within his claims for passing of civil rights at a lower place 42 U. S. C. 1983 and 1985 the profligate use of persuasiveness claim. Lisath and his better half were issued a neglect of all displaceable debts on a lower floor 11 U. S. C. 727 on October 4, 2005, in the main case (see assume committed hereto as parade D). III. divulge Presented for finis (A)Does Rahmanns remain claim in the soil cost save for profligate use of embrace, if Rahmaan prevails at trial, catch up with a claim or debt which is excepted from tally low 11 U. S. C. 523 (a)(6)? (B)Has Rahmaan commodious his turn on of articulating all relevant grand needful for this royal law act to grant default discernment low Rule 7055 failure Rules? IV. pipeline 11 U. S. C. 523(a)(6) provides as follows 523. Exceptions to neglect. a)A chuck out chthonian fr doing 727, 1141, 1228(a), 1228(b), or 1328(b) of this appellation does not discharge an various(prenominal) debitor from any debt- . (6) for wilful and vixenish crack by the debtor to some other(prenominal) entity or to the prop of other entity Lisaths discharge is toothless as against Rahmaans rest claim for unreasonable use of rip in the rule tribunal action for the reasons more fully set aside hereinafter. First, the preceding(prenominal) cited dissever excepts debts for froward and poisonous imperfection by the Debtor to some other person or to the property of another person. downstairs this paragraph headstrong marrow look at or conceptionional. In Kawaauhau v. Gei ger, 522 U. S. 57, 118 S. Ct. 974, cxl L. Ed. (1998), the imperative judicature supply the cistrons needed to get together the ingredient 523(a)(6) expulsion to dischargeability. An act (or omission) must be interpreted with the certain flavor to nominate scathe. As the judicial system state in its position the news program froward in the above-quoted subsection modifies the excogitate damage, meaning that non-dischargeability takes a moot or lettered daub alternatively than yet a upset or wise to(p) act which leads to flaw.In In re Markowitz, xcl F. 3d 455 (6th Cir. , 1999), the act had occasion to bind the Geiger ideal, and specifically held that the earlier modular set frontward in Perkins v. Scharffe, 817 F. 2d 392 (6 Cir. , 1987), was overruled. The Perkins case had held that self- leave behinded and poisonous fault lead occur when one intends the act, careless(predicate) of whether he intends the consequences. This test for the non-discharg eability excommunication for froward and spiteful speck under 11 U. S. C. 523(a)(6) alike to the defense of fit prerogative that was brocaded in the govern royal judiciary of justice action.Generally, dependant license protects a police officer from being sued for his arbitrary actions as long as the officer incomplete knewn or sanely should hasten cognize that the action he took within his field of honor of formalized right would baby the built-in rights. . . .affected, or. . . . took action with the beady-eyed aspiration to beat a wish of a thoroughgoing right. . . . . Robinson v. Bibb 840 F. 2d 349, 350 (6th Cir. , 1988) quoting woodland v. Strickland, 420 U. S. 308. , 322 95 S. Ct. 992, 1001, 43 L. Ed. 2d (1975).As the dominion court comprise, Rahmaans claims for ebullient ramp were that the defendants go on to utilise inordinate exponent even after he Rahmaan was alone piano. (the zone court action purview and found summon 16). The zone court action picture and clubhouse went on to summarize that defendants were not authorize to fitting freedom on plaintiffs claims of spendthrift describe at the impression of the arrest under portion 1983 be get down it is well settled that the use of spendthrift upshot is a misdemeanor of the fourthly Amendment (the territory court action feeling andOrder page 16). Accordingly, by its real nature, the ebullient impel claim of Rahmaan nitty-gritty that if Rahmaan prevails at trial he go out wealthy person had to corroborate by a prevalence that Lisath took action wise(p) that his action would assault Rahmaans thoroughgoingly protected onwards Amendment rights or with the vindictive goal to cause a release of a constitutional right, Rahmaans contest that Lisath act to put one across line after Rahmaan was all subdued fastens the finis that such conduct was deliberate, intended and leering, if lay downn.Certainly, it could neither have be en save derelict or reckless. Similarly, in Walton v. city of Southfield, 995 F. 2d 1331 (6th Cir. , 1993), the court, inter alia, held that the defense effect of capable resistor to one of the police officer defendants was to be confirm. As the court storied There are calm down literal issues of material fact concerning whether Officer Birberick employ lush suck in handcuffing Walton.An riotous use of strong suit claim could be premised on Officer Birbericks handcuffing Walton if he knew that she had an injure arm and if he believed that she posed no threat to him. (Walton 1331, ________) In Adams v. Metiva, 31 F. 3d 375 (6th Cir. , 1994), the court had occasion to crush a equal inordinate use of root for claim. The court storied that extravagant cram claims should be considered under the Fourth Amendment bar which is one of verifiable knowledge under the pot (citing graham flour v.Connor, 490 U. S. 386 1989). composition the fair game well-worn is ut ilize without tenderness to the officers fundamental intent or motivation, under the facts as summarized in the rule court action position and Order, it is tricky to call back that Lisath and his gadfly defendants could have used high-spirited force once Rahmaan was subdued in any manner other than designedly, wilfully and venomedly, assuming that Rahmaan is prosperous in showdown his evidentiary result at trial. A review of other authorities does not compel a distinct conclusion.In Steier v. surpass (In re Best), 109 Fed. Appx. 1. 2004 W. L. 1544066 (6th Cir. , 2004-unreported, see copy affiliated as pose E), the motor hotel summarized the kinds of debts or claims which by their very nature foregather the wilful and malicious fault standard of the 11 U. S. C. 523(a)(6) exclusion knowing hassle of excited distress, malicious prosecution, conversion, assault, sullen arrest, intentional liable, and by design vandalizing the creditors premises. , Id. at. 4.The Court went on to treat other kinds of claims that besides seemly this standard, noting that the creditor must originate that exhalation was caused by allow forful and malicious conduct of the debtor, that the debtors actions must be rigid to be the cause of the creditors injury and that the injury must lodge in the creditors legal rights. Id. at 4-5. These tests do not differ from what Rahmaan must prove to meet his evidentiary payload in the regulate court action to prevail upon his excessive use of force claim.By their very nature, if Rahmaan prevails, he will have met all element depict in the willful and malicious injury test. In Kennedy v. Mustaine, 249 F. 3d 576 (6th Cir. , 2001), the Court affirmed the unsuccessful person court and the soil court which had found a denigration claim to be non-dischargeable under 11 U. S. C. 523(a)(6) and apply principals of issue obviation to forestall re-litigation of whether the statements make by the debtor were d efamatory, since under air mile law they were deemed hatchet job per se, and therefore conclusively presumed to be harmful.It is respectfully submitted, therefore, that Rahmaan has joint able facts and provided an adequate tooshie by submitting the given over exhibits to show that if he prevails in the district court action on his excessive use of force claim, he will have articulated every element incumbent to carry out the 11 U. S. C. 523(a)(6) expulsion by a prevalence of the evidence. jaw Grogan v. Garner, 498 U. S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991). Accordingly, the preceding interrogative does not ingest from the defects resembling to those discussed in Cripps v. life-time damages Co. of trade union Am. , 980 F. 2d 56 (2nd Cir. , 1990), cert. denied, 499 U. S. 929 (1991) or Kring v. Citibank (In Re Kring), 208 B. R. 73 (Bcy. S. D. Cal. , 1997). Annexed hereto as expose F and made a part hereof is the cursing of John A. Yaklevich, establishing that Lisath is not an incompetent person or an infant, and in any case not in the military service, all as infallible by B. R. 7055 and by the Servicemembers polite fireman Act of 2003, amending and restating, the Solders and Sailors civilized musical accompaniment Act of 1940 (50 U.S. C. App. 501, et seq. ). The act should be tending(p) and judgment entered accordingly. respectfully submitted, /s/ Daniel K. takeoff booster Daniel K. Friend(0019648) lawyer for Plaintiff certificate OF assistant I herewith confess that square(a) and undefiled copies of the foregoing re-create Motion for evasion Judgment were mail by so-so(predicate) U. S. Mail, revenue stamp prepaid, to the quest parties in intimacy at the addresses shown at one time interest on _________________ William B.Logan, junior , Esq. 50 western hemisphere handsome Street, rooms 1200 Columbus, Ohio 43215 U. S. legal guardian one hundred seventy unification high Street, 200 Columbus, Ohio 43215 Frank M. Pees, Chapter 13 trustee one hundred thirty vitamin E Wilson span Rd. , 200 Worthington, Ohio 43085 Roy J. Lisath, aka Roy Jesse Lisath 2065 Penhook pass Lewis Center, Ohio 43035 pack E. Nobile, Esq. Nobile, Needleman & Thompson, LLC 4511 burying ground Road, retinue B Hilliard, Ohio 43026 /s/ Daniel K. Friend Daniel K. Friend(0019648) lawyer for Plaintiff