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IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT
TIANNA ANDERSON ) CASE NO. CV-2018-08-3476
)
Plaintiff ) JUDGE SUSAN BAKER ROSS
-vs- ) MAGISTRATE KANDI S. O'CONNOR
)
JUAN MITCHELL )
) MAGISTRATE’S DECISION
Defendant )
)
)
- - -
To the Honorable Susan Baker Ross, Judge of the Court of Common Pleas, Summit County,
Ohio:
Pursuant to Civ.R. 53 and Local Rule 18 of the Court of Common Pleas, General Division, this
matter was assigned to the General Division, Common Pleas Court Magistrate for resolution and
disposition. See September 16, 2019 Order of Reference. In accordance with the Order of Reference,
the Magistrate will proceed to address 1) Plaintiff Tiana Anderson’s Oral Motion to Dismiss the
Counterclaims of Juan Mitchell, 2) the Motion and Brief to Deem Facts Admitted as Against the
Plaintiff for Failure to Comply with Oh. Civ. R. 36 filed pro se by Defendant Juan Mitchell
(“Defendant”), 3) Defendant’s Motion for Leave to Amend, 4) Defendant’s Motion for Default
Judgment, and 5) the Motion for Default Judgment filed by Plaintiff Tianna Anderson as Against
Foundations Auto Group, Inc. All of the aforementioned Motions are ripe for Court review.
FACTUAL AND PROCEDURAL FINDINGS
1. Plaintiff Tianna Anderson originally commenced action against Juan Mitchell
on July 23, 2018 in Akron Municipal Court. Plaintiff alleges in her July 23, 2018 filing that
Juan Mitchell wrongfully repossessed her 2011 Ford Fusion for which she had paid the full
purchase amount. Plaintiff alleged:
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My vehicle was repossed [sic] under false allegations and trickery. Juan
Mitchell (CEO) of [F]oundation Auto Group mislead me with false information
about paperwork regarding my car. The incident took place at 1385 Massillon
Rd., July 5th at 2:00 a.m. I believe that I am owed $5,000.00 dollars.
See Complaint at 1.
2. Defendant filed an Answer and Counterclaim in Akron Municipal Court on July
30, 2018. In his Answer, Defendant denies the material allegations of the Complaint.
Defendant’s Counterclaim is for an alleged abuse of process. Defendant alleges in his
Counterclaim:
9. Plaintiff engaged in Abuse of Process by began [sic] legal proceedings
resulting in Akron Municipal Court case number CV-2018-05990 under
the guise of having probable cause.
10. However, Plaintiff perverted the lawsuit when they making false alleges
[sic] in an effort to accomplish the ulterior purpose of harming
Defendant and providing unlawful gain to herself.
11. As a direct and proximate cause of Plaintiffs Abuse of Process, Mitchell
has incurred damages including, but not limited to direct and
compensatory damages, special damages, and the fees and costs
associated with this action in excess of $25,000.00.
See Counterclaim at ¶¶9-11.
3. This case was transferred to the Summit County Court of Common Pleas,
General Division on August 20, 2018.
4. Plaintiff filed an Answer to Defendant’s Counterclaim on August 31, 2018. In
her Answer, Plaintiff denies the allegations of the Counterclaim and maintains that she paid full
price for the subject 2011 Ford Fusion.
5. On July 22, 2019, and in accordance with the Court’s July 15, 2019 Order,
Plaintiff filed an Amended Complaint. Plaintiff’s Amended Complaint adds “Juan Mitchell
S/A Foundation Auto Group, Inc.” as a Defendant. Plaintiff again maintains in her Amended
Complaint that she paid full purchase price for the vehicle that was wrongfully repossessed by
Defendant.
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6. In addition to other rulings, the Magistrate issued an Order on November 7,
2019 ordering Defendant to file an Answer to Plaintiff’s Amended Complaint within fourteen
(14) days of the Magistrate’s Order. Defendant accordingly filed an Answer to Amended
Complaint and Counterclaim on November 8, 2019.
7. In his Answer to Amended Complaint and Counterclaim, Defendant denies the
material allegations of the Complaint and asserts abuse of process and malicious prosecution
Counterclaims. Defendant asserts in his Counterclaims:
COUNT ONE
ABUSE OF PROCESS
***
10. Plaintiff engaged in Abuse of Process by began [sic] legal proceedings
resulting in Akron Municipal Court case number CV-2018-05990 under
the guise of having probable cause.
11. However, Plaintiff perverted the lawsuit when they making false alleges
[sic] in an effort to accomplish the ulterior purpose of harming
Defendant and providing unlawful gain to herself.
12. As a direct and proximate cause of Plaintiff’s Abuse of Process, Mitchell
has incurred damages including, but not limited to direct and
compensatory damages, special damages, and the fees and costs
associated with this action in excess of $25,000.00.
COUNT TWO
Malicious Prosecution
***
14. Plaintiff have [sic] engaged in malicious prosecution by began [sic] legal
proceedings resulting in Akron Municipal Court case number CV-2018-
05990 without probable cause.
15. This action was erroneous and predicated on false and malicious
statements provided and/or supported by Plaintiff.
16. The was [sic] terminated which was a resolution in defendant’s favor.
17. As a direct and proximate cause of Plaintiffs malicious prosecution,
Mitchell has incurred damages including, but not limited to direct and
compensatory damages, special damages, and the fees and costs
associated with this action in excess of $25,0000.00.
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See November 8, 2019 Counterclaim at ¶¶10-12, 14-17.
8. On January 27, 2020, the Magistrate issued a Decision denying Defendant’s
Motion to Deem Facts Admitted and Motion for Judgment on the Pleadings. The Court
adopted this Decision on June 17, 2020.
9. On September 30, 2020, Attorney Beverly Proctor-Donald filed a Notice of
Appearance on behalf of Plaintiff. Shortly thereafter, and on behalf of Plaintiff, Attorney
Proctor-Donald filed a Motion to Continue Final Pretrial. A revised case management schedule
was subsequently set. Among the dates set was a status conference for June 8, 2021 at 9:00
a.m.
10. Neither Defendant nor someone on his behalf appeared for the June 8, 2021
status conference. Accordingly, Plaintiff orally moved for a dismissal of Defendant’s
Counterclaims.
11. The Magistrate issued an Order on June 8, 2021 addressing Plaintiff’s oral
Motion to Dismiss. The Magistrate’s June 8, 2021 Order warned Defendant that, as a sanction
for his failure to appear at the status conference, his counterclaims could be dismissed. The
June 8, 2021 Order notified Defendant:
Before a trial court can dismiss a party’s case for failure to prosecute
under Civ.R. 41(B)(1), the record must show that the party had notice of the
possibility of dismissal. Logsdon v. Nichols, 72 Ohio St.3d 124, 1995-Ohio-
225. This rule specifically applies to cases in which the court dismisses a case
for a party’s nonappearance at a pretrial. Perotti v. Ferguson, 7 Ohio St.3d 1,
454 N.E.2d 951 (1983). The purpose of the notice is to provide the party in
default an opportunity to explain the circumstances and provides reasons why
the case should not be dismissed with prejudice. Logsdon at 128. The notice of
dismissal ‘must be specific and not a general warning.’ Shoreway Circle v.
Gerald Skoch Co., L.P.A., 92 Ohio App.3d 823,830, 637 N.E.2d 355 (8th
Dist.1994).
A dismissal with prejudice effectively contravenes the ‘basic tenet of
Ohio jurisprudence that cases should be decided on their merits.’ Perotti at 3,
454 N.E.2d 951. Recognizing that a dismissal with prejudice is an extremely
harsh sanction, it should, therefore, be reserved for cases in which “ “ ‘the
conduct of a party is so negligent, irresponsible, contumacious or dilatory as to
provide substantial grounds for a dismissal with prejudice for a failure to
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prosecute or obey a court order.’ ” ” Quonset Hut, Inc. v. Ford Motor Co., 80
Ohio St.3d 46, 48, 684 N.E.2d 319 (1997), quoting Tokes & Son, Inc. v.
Midwestern Indemn. Co., 65 Ohio St.3d 621, 632, 605 N.E.2d 936 (1992),
quoting Schreiner v. Karson, 52 Ohio App.2d 219, 223, 369 N.E.2d 800 (9th
Dist.1977). Absent such extreme circumstances, a court must consider lesser
sanctions before dismissing a case with prejudice. Sazima v. Chalko, 86 Ohio
St.3d 151, 158, 1999-Ohio-92, 712 N.E.2d 729, citing Jones, 78 Ohio St.3d at
371-372, 1997-Ohio-203, 678 N.E.2d 530; Autovest, 8th Dist. Cuyahoga No.
88803, 2007-Ohio-3921, at ¶25; Willis v. RCA Corp., 12 Ohio App.3d 1, 465
N.E.2d 924 (8th Dist.1983).
A dismissal with prejudice of a parties claims is a harsh sanction.
Accordingly, this Court will set a hearing for Defendant Mitchell to explain the
circumstances causing his nonappearance and why his claims and jury demand
should not be dismissed with prejudice.
See June 8, 2021 Magistrate’s Order at 1-2.
12. The June 8, 2021 Order set “[a]n evidentiary hearing on the oral
motion to dismiss the claims of Defendant Mitchell and to dismiss the jury demand
* * * for July 9, 2021 at 9:00 a.m.” See June 8, 2021 Magistrate’s Order at 2.
13. The June 8, 2021 Order notified Defendant that his failure to appear at
the July 9, 2021 at 9:00 a.m. hearing would “result in dismissal of claims with
prejudice.” See June 8, 2021 Magistrate’s Order at 2 (“Failure to appear will result in
dismissal of claims with prejudice.”)
14. Upon conclusion of the June 8, 2021 at 9:00 a.m. status conference, at
which Defendant failed to appear, the Magistrate received an e-mail message from
Defendant. Defendant represented that he had a death in the family and was attending a
viewing funeral prior to the 9:00 a.m. status conference. Defendant also represented
that he had the wrong call-in number for the conference and that, by the time he was
able to get the right number, the conference was over. Defendant testified as to this at
the July 9, 2021 hearing.
15. The July 9, 2021 hearing went forward as scheduled with all parties
appearing via video. As noted in the Magistrate’s July 14, 2021 Order, “[a]t the
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hearing, Defendant Mitchell testified that due to a technology issue, he had the wrong
access number to call into the video conference on June 8 and that by the time he was
able to locate the number for the court, that the hearing had already been concluded.”
See July 14, 2021 Order at 1.
16. Plaintiff’s oral Motion to Dismiss was denied at the July 9, 2021 hearing.
The Magistrate’s July 14, 2021 Order states:
As noted in the Magistrate’s previous order, a dismissal with prejudice is
a harsh sanction and should be reserved for conduct that is negligent and
irresponsible and in complete disregard for the Court’s orders.
Defendant Mitchell contacted the court less than an hour after the
scheduled status time and provided a valid reason for missing the status
conference. Accordingly, this Court finds that this conduct does not rise
to the level that Mitchell’s claims should be dismissed with prejudice.
Accordingly, the Oral Motion to Dismiss is DENIED.
See Magistrate’s July 14, 2021 Order at 1.
17. In addition to setting a deadline for Plaintiff to respond to Defendant’s
Motion for Default, Motion for Leave to Amend Answer, and Motion and Brief to
Deem Facts Admitted, the Magistrate’s July 14, 2021 Order scheduled another status
conference for “August 30, 2021 at 11:00 a.m.” See Magistrate’s July 14, 2021 Order
at 2. The August 30, 2021 at 11:00 a.m. date was set with all parties present.
18. With respect to the August 30, 2021 at 11:00 a.m. status conference, the
Magistrate’s July 14, 2021 Order stated:
A Status Conference is scheduled for August 30, 2021 at 11:00
a.m. By agreement of the parties, the Status Conference will be held via
video conference. A link will be sent to the parties prior to the hearing.
It is the responsibility of the parties to confirm receipt of the link and to
appear at the hearing via video conference. Failure to appear will result
in dismissal of all claims with prejudice.
Id.
19. Defendant Mitchell was properly served via U.S. Certified Mail and U.S.
Certificate of Mail, with the July 14, 2021 Magistrate’s Order.
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20. The Magistrate’s Office sent a link for the August 30, 2021 at 11:00 a.m.
conference to all parties, via e-mail, on August 24, 2021. There was no response to the
Court’s e-mail, no bounce back, and/or no indication that the Court’s emails, with the
link, were not received.
21. Attorney Proctor-Donald and Plaintiff Anderson were present for the
August 30, 2021 at 11:00 a.m. status conference.
22. Once again, Defendant Mitchell failed to appear for a scheduled
conference with the Court. Despite being clearly informed of the August 30, 2021 at
11:00 a.m. status conference, and despite being informed that the “[f]ailure to appear
will result in dismissal of all claims with prejudice,” Defendant Mitchell failed to
appear for the August 30, 2021 at 11:00 a.m. status conference. The Court phoned the
number listed in Defendant Mitchell’s pleadings and received a recorded message
identifying the phone as belonging to multiple entities. The entities were all names that
the Court recognized as being associated with Defendant Mitchell. Further, and based
on the Court’s previous communications with Juan Mitchell, the Court recognized the
voice in the recording as that of Defendant Mitchell. The Court waited and gave
Defendant Mitchell ample time to join the status conference. The status conference
concluded at 11:27 a.m. and, at no time, did Defendant Mitchell join said status
conference and/or otherwise contact the Court. To date, Defendant Mitchell has never
explained and/or otherwise justified his failure to appear for the August 30, 2021 status
conference.
23. On behalf of Plaintiff Anderson, Attorney Proctor-Donald presented an
oral Motion to Dismiss Defendant Mitchell’s Counterclaims with prejudice. Attorney
Proctor-Donald emphasized that the Court previously made it clear that any failure to
appear would result in a dismissal without prejudice. Attorney Proctor-Donald also
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asked the Court to grant Plaintiff’s Motion for Default Judgment that had been filed
against Foundations Auto Group, Inc.
24. On August 2, 2021, Defendant Mitchell filed a Brief in Opposition to
Plaintiff’s pending Motions.
25. On September 8, 2021, Attorney Kani Harvey Hightower filed a Notice
of Appearance on behalf of Defendant Mitchell.
ANALYSIS
For the sake of clarity, the Magistrate will separately address below those Motions that
are pending herein.
I. Plaintiff’s Oral Motion to Dismiss Defendant Mitchell’s
Counterclaims.
1. Plaintiff argues that, because Defendant failed to appear at two scheduled
conferences with the Court, his counterclaims shall be dismissed. Civ.R. 41(B) addresses the
involuntary dismissal of a party’s claim(s). Civ.R. 41(B), titled “Involuntary Dismissal: Effect
Thereof” states:
(1) Failure to Prosecute. Where the plaintiff fails to prosecute, or comply
with these rules or any court order, the court upon motion of a defendant [or a
counterclaim defendant] or on its own motion may, after notice to the plaintiff’s
[counterclaimant’s] counsel, dismiss an action or claim.
2. As set forth in Civ.R. 41(B)(1), a party’s claim(s) may only be dismissed if
notice has been given. “The obvious purpose of this notice requirement is to afford [a party] *
* * an opportunity to show why his * * * case [or claims] should not be dismissed with
prejudice.” Metcalf v. Ohio State Univ. Hosp., 2 Ohio App.3d 166, 167, 441 N.E.2d 299, 301
(1981). See also Sunkin v. Collision Pro, Inc., 174 Ohio App.3d 56, 64-65, 2007-Ohio-6046,
¶16, 880 N.E.2d 947 (9th Dist. 2007) (recognizing that the notice requirement provides a party
with an opportunity to explain why its claims should not be dismissed for failure to prosecute);
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Esser v. Murphy, 9th Dist. No.25945, 2012-Ohio-1168, ¶11, quoting Sazima v. Chalko, 86 Ohio
St.3d 151, 155, 712 N.E.2d 729 (1999) (“’The purpose of notice is to give the party who is in
jeopardy of having his or her action or claim dismissed one last chance to comply with the
order or to explain the default.’”)
3. A party has notice of an impending dismissal when it has “’been informed that
dismissal is a possibility and has had a reasonable opportunity to defend against dismissal.’”
Sunkin,, 174 Ohio App.3d 56, 65, 2007-Ohio-6046, ¶16, 880 N.E.2d 947; quoting Quonset Hut,
Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 684 N.E.2d 319, syllabus (1997). A pending request
for a dismissal may also constitute sufficient notice. Sunkin,, 174 Ohio App.3d 56, 65, 2007-
Ohio-6046, ¶16, 880 N.E.2d 947; citing Sazima v. Chalko, 86 Ohio St.3d 151, 156, 712 N.E.2d
729 (1999).
4. “The power to dismiss for lack of prosecution pursuant to Civ. R. 41(B) is
within the sound discretion of the trial court.” Terrell v. Admin., Bureau of Workers Comp., 9th
Dist. 11916, 1985 WL 10805, *1, citing Pembaur v. Leis, 1 Ohio St.3d 89, 437 N.E.2d 1199.
See also Givens v. Garlando, 9th Dist. No.12075, 27 Ohio App.3d 287, 500 N.E.2d 913, 915
(1985). Accordingly, the trial court’s decision will not be reversed on appeal absent an abuse of
discretion. Pembaur, 1 Ohio St.3d at 91, 437 N.E.2d 1199.
“Abuse of discretion” connotes more than an error of law or judgment as it implies that the
court's attitude is unreasonable, arbitrary, or unconscionable. Deans v. Allegheny Int’l (USA)
Inc., 9th Dist. No.90CA004764, 69 Ohio App.3d 349,351-52, 590 N.E.2d 825, 826 (1990),
citing Steiner v. Custer, 137 Ohio St. 448, 451, 19 O.O. 148, 149, 31 N.E.2d 855, 856–857
(1940); State v. Adams, 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 172, 404 N.E.2d 144, 148
(1980); Cedar Bay Constr. v. Fremont, 50 Ohio St.3d 19, 22, 552 N.E.2d 202, 205 (1990).
“Such a violation is found in the rare instance when a decision is grossly violative of fact and
logic so as to demonstrate perversity of will, defiance of judgment, undue passion, or extreme
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bias.” Deans, 9th Dist. No.90CA004764, 69 Ohio App.3d at 351-52, 590 N.E.2d at 826, citing
State v. Jenkins, 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264, 313
(1984); Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d
1248, 1251 (1985).
5. The facts in this case are similar to those that were before the court in City of
Columbus v. Triplett, 10th Dist. No.00AP-339, 2000 WL 1715835. The trial court in City of
Columbus granted the city’s motion to dismiss James Triplett’s counterclaim after Triplett
failed to appear for two conferences with the Court. The trial court’s dismissal was for failure
to prosecute pursuant to Civ.R. 41(B)(1). In affirming the trial court’s ruling, the appellate
court found that the trial court clearly provided notice to Triplett that his failure to appear, and
failure to comply with court orders, “may result in sanctions including but not limited to
dismissal.” Id. at *5.
6. Defendant failed to appear for two scheduled conferences with the Court. The
first failure to appear was on June 8, 2021. Because neither Defendant nor an attorney on his
behalf appeared on this date, Plaintiff orally moved to dismiss Defendant’s Counterclaims. The
Magistrate’s June 8, 2021 Order set an evidentiary hearing on Plaintiff’s oral motion to dismiss
and specifically notified Defendant that his failure to appear on June 8, 2021 would “result in
dismissal of claims with prejudice.” See June 8, 2021 Magistrate’s Order at 2 (“Failure to
appear will result in dismissal of claims with prejudice.”)
7. Defendant’s second failure to appear was on August 30, 2021. When scheduling
the August 30, 2021 at 11:00 a.m. status conference, the Court informed Defendant that the
“[f]ailure to appear will result in dismissal of all claims with prejudice.” See July 14, 2021
Order. Despite this warning, and even though Defendant was properly served with the Court’s
July 14, 2021 Order, he failed to appear for the scheduled August 30, 2021 at 11:00 a.m. status
conference. Because Defendant again failed to appear for a scheduled status conference,
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Plaintiff again moved for a dismissal of Defendant Mitchell’s Counterclaims with prejudice.
The Court finds that Plaintiff’s Motion to Dismiss Defendant Mitchell’s Counterclaims with
prejudice is well taken and, accordingly, is GRANTED.
8. The Court repeatedly notified Defendant that his failure to obey Court orders
and appear at scheduled status conferences would result in a dismissal of his claims. Despite
such repeated warnings, Defendant failed to appear for two scheduled status conference with
the Court. The Court finds that, in light of Defendant’s failure to comply with Court Orders,
his Counterclaims shall be dismissed pursuant to Civ.R. 41(B)(1). WHEREFORE, Plaintiff
Tiana Anderson’s Oral Motion to Dismiss the Counterclaims of Juan Mitchell with prejudice is
GRANTED. Defendant Mitchell’s Abuse of Process and Malicious Prosecution Counterclaims
are, accordingly, DISMISSED with prejudice.
II. Defendants’ Motion to Deem Request for Admissions Admitted.
1. On June 24, 2021, Defendant filed a Motion and Brief to Deem Facts Admitted as
Against the Plaintiff for Failure to Comply with Oh. Civ. R. 36. Defendant argues that Plaintiff failed
to timely respond to his September 17, 2018 First Request for Admissions and that, pursuant to Civ.R.
36, “the defaulted admissions are deemed admitted.” See Defendant’s Motion and Brief to Deem Facts
Admitted as Against the Plaintiff for Failure to Comply with Oh. Civ. R. 36 at 3.
2. On July 23, 2021, Plaintiff filed a Motion Opposing Defendant’s Motion to Deem Facts
Admitted for Failure to Comply with Civ.R. 36. While Plaintiff disputes being served with the
September 17, 2018 Requests for Admissions, and references a January 5, 2021 correspondence from
her attorney to Defendant Mitchell wherein counsel asks Defendant to “[p]lease notify my office if you
have a Discovery Request for my client,” she emphasizes that the Request for Admissions pertains to
the alleged contractual relationship between Plaintiff and Foundations Auto Group., Inc. As of
September 17, 2018, the only parties to the case were Plaintiff and Defendant Mitchell. Foundations
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Auto Group, Inc. was not added as a party until July 22, 2019 when an Amended Complaint was filed.
Accordingly, Plaintiff argues:
All Requests for Admission included in the Defendant Mitchell’s original
request pertain to the alleged contractual relationship between the corporation
and the Plaintiff. Once the corporation was added to this cause of action, it
would have been prudent for counsel for the corporation to pose the Request for
Admissions upon the Plaintiff; however, Foundations Auto has failed to answer
or enter an appearance and is in default.
See Plaintiff’s Motion Opposing Defendant’s Motion to Deem Facts Admitted for Failure to Comply
with Civ.R. 36 at 2.
3. The Court has reviewed Defendant Mitchell’s September 17, 2018 Request for
Admissions. All of the requests for admissions pertain to Plaintiff and Foundations Auto Group, Inc.
Foundations Auto Group, Inc. was not a party in this action until July 22, 2019. As it pertains to
Foundations Auto Group, Inc., at that time Plaintiff was not subject to any claims or Counterclaims by
this party. Defendant Mitchell is not an attorney licensed in the State of Ohio and did not have
authority to act on behalf of, or serve discovery on behalf of, the corporate entity of Foundations Auto
Group, Inc.1 Even if Plaintiff was served with this Request for Admissions, because Foundations Auto
Group, Inc. was not a party and because Defendant Mitchell did not have authority to act on its behalf,
there was no obligation to respond to Foundations Auto Group, Inc.’s discovery requests at that time.
4. The Court further notes that a motion to deem matter admitted upon the failure of a
party to timely respond to the requests for admission is a nullity pursuant to Ohio Civ.R. 36(A). “By
the explicit terms of Civ.R. 36(A), a party’s failure to timely respond to request for admission result in
default admissions. It is unnecessary for the trial court to ‘deem’ them so admitted.” National City
Bank v. Moore, 9th Dist. No.19465, *5, 2000 WL 235529 (March 1, 2000). See also Marusa v. City of
Brunswick, 9th Dist. No. 04CA0038-M, 2005-Ohio-1135, ¶20. Even if the admissions were admitted
in this matter, because the admissions solely pertain to Plaintiff and Foundations Auto Group, Inc.,
1
See Court’s analysis under Section V(4) below, when addressing Plaintiff’s Motion for Default as against
Foundations Auto Group, Inc.
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they are of no consequence to Plaintiff’s Complaint against Defendant Mitchell. As will be discussed
below, Foundations Auto Group, Inc. has failed to answer or enter an appearance and is in default.
WHEREFORE, Defendant’s Motion and Brief to Deem Facts Admitted as Against Plaintiff for Failure
to Comply with Oh. Civ. R. 36 is DENIED.
III. Defendant’s Motion for Leave to Amend.
1. Defendant filed a pro se Motion for Leave to Amend on June 29, 2021. In his Motion,
Defendant requests leave to amend his Answer to include a failure to mitigate affirmative defense.
Defendant maintains that, “[a]t the time responsive pleadings were filed in this action, defendant was
unaware of the existence of the defense due to the vague and ambiguous nature of the complaint;
specifically the plaintiff’s complete indifference and failure to mitigate damages failure to bring such
an affirmative defense could result in a denial of the rights of defendant herein.” See Defendant’s
Motion for Leave to Amend at 3.
2. Plaintiff opposes Defendant’s Motion for Leave to Amend. Plaintiff first states in her
opposition that “[i]t is unclear whether Defendant Juan Mitchell is filing his Motion in his capacity as
an Individual or as the Statutory Agent for Foundations Auto Group, Inc. or both.” See Plaintiff’s
Motion Opposing Defendant’s Motion for Leave to Amend at 1. The Court agrees. Either way, the
Court agrees that Defendant’s Motion for Leave to Amend should be denied.
3. When Defendant filed his Answer, he was representing himself pro se. The Court notes
that pro se litigants must be held to the same standard as those represented by counsel. Sherlock v.
Myers, 9th Dist. No.22071, ¶5, 2014-Ohio-5178, 2004 WL 2244102. In fact, “a pro se litigant is
presumed to have knowledge of the law and correct legal procedures so that he remains subject to the
same rules and procedures to which regular litigants are bound.” Id., citing Kilroy v. B.H. Lakeshore
Co., 11 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist. 1996). A pro se litigant “is not given greater
rights than represented parties, and must bear the consequences of his mistakes.” Sherlock, 9th Dist.
No.22071 at ¶3, 2014-Ohio-5178, 2004 WL 2244102, citing Sinsky v. Matthews, 9th Dist. No.20499,
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*5, 2001 WL 888378. Accordingly, this Court must hold Defendant Mitchell to the same standard as a
represented party.2 Sherlock, 9th Dist. No.22071 at ¶3, 2014-Ohio-5178, 2004 WL 2244102, citing
Martin v. Wayne Cty. Nat’l Bank, 9th Dist. No.03CA0079, 2004-Ohio-4194, ¶14.
4. As set forth in Civ.R. 12(B), “[e]very defense in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required.” The use of the word “shall” when used in a statute or
rule denotes that compliance with the commands of the statute or rule is mandatory. State v. Payne, 9th
Dist. No.21178, ¶15, 2003-Ohio-1140, 2003 WL 1042506, quoting Ohio Dept. of Liquor Control v.
Sons of Italy Lodge 0917, 65 Ohio St.3d 532, 534, 605 N.E.2d 368 (1992).
5. Failure to mitigate is an affirmative defense that must be raised in the answer. Civ.R.
8(C). An affirmative defense is waived if it is not timely raised. Turner v. Central Local School Dist.,
85 Ohio St.3d 95, 97, 706 N.E.2d 1261, 1999-Ohio-207.
6. Defendant requested leave to amend his August 20, 2018 Answer. While Defendant
represented himself pro se up to September 8, 2021, as set forth above this Court must hold Defendant
to the same standard as a represented party. The affirmative defense that Defendant now seeks to add,
failure to mitigate, is an affirmative defense that Defendant was required to raise in his answer. Civ.R.
8(C). Defendant’s request to Amend his Answer, filed almost three years after the filing of his
Answer, is also untimely. The allegations in this case have not changed and Defendant has had ample
opportunity to learn of and/or know of all applicable defenses. WHEREFORE, Defendant’s Motion
for Leave to Amend is DENIED.
IV. Defendant’s Motion for Default Judgment.
1. Defendant has moved for default judgment against Plaintiff. The basis of Defendant’s
Motion is the allegation that, to date, Plaintiff has not responded to his November 8, 2019
Counterclaim.
2
The Court notes that Attorney Kani Harvey Hightower filed a Notice of Appearance on behalf of Defendant Juan
Mitchell on September 8, 2021.
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2. As set forth above, Defendant’s Abuse of Process and Malicious Prosecution
Counterclaims have been dismissed. See Court’s analysis above addressing and ruling upon Plaintiff’s
Motion to Dismiss Defendant Mitchell’s Counterclaims. Accordingly, Defendant’s Motion for Default
Judgment is DENIED on the basis that it is MOOT. Even if Defendant’s Counterclaims were not
dismissed, the Court notes that default judgment would be inappropriate considering it is unclear as to
whether the November 8, 2019 Counterclaim was filed on behalf of Defendant Foundations Auto
Group, Inc. or Defendant in his individual capacity. No apparent Counterclaim was filed by
Defendant Mitchell and Defendant Mitchell did not have authority to legally represent Foundations
Auto Group, Inc.
V. Plaintiff’s Motion for Default Judgment.
1. Plaintiff filed a Motion for Default Judgment on July 23, 2021. In her Motion, filed
pursuant to Civ.R. 55(A), Plaintiff seeks a Court Order granting her default judgment against
Defendant Foundations Auto Group, Inc. Plaintiff explains:
* * * on July 15, 2019 the court issued an Order for Plaintiff, Tianna Anderson to
amend her complaint to add Foundations Auto Group, Inc. as a party and to serve their
statutory agent by July 22, 2019. The Plaintiff filed her Amended Complaint to Add
All Parties on July 22, 2019, naming Juan Mitchell, Individually and Foundation[s]
Auto Group, Inc. as Defendants. Juan Mitchell demonstrated his acceptance of service
by filing an Answer to Amended Complaint and Counterclaim for Abuse of Process and
Malicious Prosecution on November 8, 2019 as an individual and as an officer of
Foundations Auto Group, Inc. Although Juan Mitchell has timely filed a responsive
pleading, Defendant Foundations Auto Group, Inc. has failed to plead or otherwise
defend Plaintiff’s Amended Complaint as required, pursuant to Civil Rule 55.
See Plaintiff’s Motion for Default Judgment at 1-2. Plaintiff seeks judgment against Defendant
Foundations Auto Group, Inc. in the amount of “$5,000.00 plus interest, attorney fees and all other
costs and remedies or relief deemed legal, equitable and appropriate by this court.” Id. at 3.
2. Defendant Mitchell filed a Brief in Opposition on August 2, 2021. Defendant maintains
that Plaintiff’s Motion for Default Judgment should be denied as the Amended Complaint failed to
properly join Foundations Auto Group, Inc. as a Defendant. It is further asserted that Plaintiff fails to
state a claim upon which relief can be granted, such that default judgment would be improper, and that
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Plaintiff cannot cure her failure to respond to request for admissions by amending her Complaint. The
Court disagrees and finds that Plaintiff’s Motion for Default Judgment is well taken.
3. As stated by Plaintiff, Plaintiff filed her Amended Complaint adding Foundations Auto
Group, Inc. as a Defendant on July 22, 2019. Defendant Mitchell accepted service as statutory agent
for Foundations Auto Group, Inc. and filed an Answer to Amended Complaint and Counterclaim on
November 8, 2019. Although a responsive pleading was filed, Foundations Auto Group, Inc. failed to
timely plead or otherwise respond to Plaintiff’s Amended Complaint.
4. As previously referenced, Defendant Mitchell has not represented to be, nor established,
that he is an attorney who is authorized to practice law in the State of Ohio. While Defendant Mitchell
can certainly represent himself pro se, he may not represent the corporate entity of Foundations Auto
Group, Inc. An Ohio corporation or corporate entity must be represented by an attorney and may not
be represented in court by a non-attorney officer. See Baird v. SDG Inc., 9th Dist. No.03CA0071, ¶8,
2004-Ohio-3705, 2004 WL 1562564, quoting Union Savings Assn. v. Home Owners Aid, Inc., 23 Ohio
St. 2d 60, 262 N.E.2d 558, syllabus (1970) (“[a] corporation cannot * * * appear in court through an
officer of the corporation or an appointed agent not admitted to the practice of law.”)
5. Because Defendant Mitchell is not an attorney and cannot represent Defendant
Foundations Auto Group, Inc., the November 8, 2019 Answer must be construed as an Answer filed on
behalf of Defendant Mitchell only. To date, although being duly served, Foundations Auto Group, Inc.
has not answered or entered an appearance in this action. While a Notice of Appearance was filed by
Attorney Hightower on September 8, 2021, Attorney Hightower represents that she is the attorney for
Juan Mitchell.
6. Accordingly, and pursuant to Civ.R. 55 and applicable law, Plaintiff is entitled to
judgment by default as to her claims against Foundations Auto Group, Inc. The Court holds in
abeyance the issue of damages as it pertains to Plaintiff’s claims against Foundations Auto Group, Inc.
CONCLUSION
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WHEREFORE, for the reasons set forth above and upon due consideration, the Court:
1) GRANTS Plaintiff Tiana Anderson’s Oral Motion to Dismiss the Counterclaims of Juan
Mitchell;
2) DENIES the Motion and Brief to Deem Facts Admitted as Against the Plaintiff for
Failure to Comply with Oh. Civ. R. 36 filed pro se by Defendant Mitchell;
3) DENIES Defendant’s Motion for Leave to Amend;
4) DENIES Defendant’s Motion for Default Judgment; and
5) GRANTS the Motion for Default Judgment filed by Plaintiff Tianna Anderson against
Foundations Auto Group, Inc.
Plaintiff Tiana Anderson’s claims against Defendant Juan Mitchell, Individually, as
asserted in the July 22, 2019 pro se Amended Complaint are the only claims remaining in this
litigation.3 A telephone status conference will be held on February 4, 2022 at 9:00 a.m. via
bridge line 330-926-2552; access #70631.
The parties and/or their counsel are specifically warned and noticed hereby that a
party may not assign as error on appeal the adoption by the trial court of any finding of fact or
conclusion of law set forth herein unless a timely and specific objection is first made to the trial
court pursuant to Civ.R. 53(D)(3)(a)(iii).
Pursuant to Civ.R. 53(D)(3)(a)(iii), the Clerk of Courts shall serve upon all parties
not in default for failure to appear or counsel of record notice of this Magistrate’s Decision and
its date of entry upon the journal.
IT IS SO DECIDED.
Preview
CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 1 of 18 IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT TIANNA ANDERSON ) CASE NO. CV-2018-08-3476 ) Plaintiff ) JUDGE SUSAN BAKER ROSS -vs- ) MAGISTRATE KANDI S. O'CONNOR ) JUAN MITCHELL ) ) MAGISTRATE’S DECISION Defendant ) ) ) - - - To the Honorable Susan Baker Ross, Judge of the Court of Common Pleas, Summit County, Ohio: Pursuant to Civ.R. 53 and Local Rule 18 of the Court of Common Pleas, General Division, this matter was assigned to the General Division, Common Pleas Court Magistrate for resolution and disposition. See September 16, 2019 Order of Reference. In accordance with the Order of Reference, the Magistrate will proceed to address 1) Plaintiff Tiana Anderson’s Oral Motion to Dismiss the Counterclaims of Juan Mitchell, 2) the Motion and Brief to Deem Facts Admitted as Against the Plaintiff for Failure to Comply with Oh. Civ. R. 36 filed pro se by Defendant Juan Mitchell (“Defendant”), 3) Defendant’s Motion for Leave to Amend, 4) Defendant’s Motion for Default Judgment, and 5) the Motion for Default Judgment filed by Plaintiff Tianna Anderson as Against Foundations Auto Group, Inc. All of the aforementioned Motions are ripe for Court review. FACTUAL AND PROCEDURAL FINDINGS 1. Plaintiff Tianna Anderson originally commenced action against Juan Mitchell on July 23, 2018 in Akron Municipal Court. Plaintiff alleges in her July 23, 2018 filing that Juan Mitchell wrongfully repossessed her 2011 Ford Fusion for which she had paid the full purchase amount. Plaintiff alleged: Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 2 of 18 My vehicle was repossed [sic] under false allegations and trickery. Juan Mitchell (CEO) of [F]oundation Auto Group mislead me with false information about paperwork regarding my car. The incident took place at 1385 Massillon Rd., July 5th at 2:00 a.m. I believe that I am owed $5,000.00 dollars. See Complaint at 1. 2. Defendant filed an Answer and Counterclaim in Akron Municipal Court on July 30, 2018. In his Answer, Defendant denies the material allegations of the Complaint. Defendant’s Counterclaim is for an alleged abuse of process. Defendant alleges in his Counterclaim: 9. Plaintiff engaged in Abuse of Process by began [sic] legal proceedings resulting in Akron Municipal Court case number CV-2018-05990 under the guise of having probable cause. 10. However, Plaintiff perverted the lawsuit when they making false alleges [sic] in an effort to accomplish the ulterior purpose of harming Defendant and providing unlawful gain to herself. 11. As a direct and proximate cause of Plaintiffs Abuse of Process, Mitchell has incurred damages including, but not limited to direct and compensatory damages, special damages, and the fees and costs associated with this action in excess of $25,000.00. See Counterclaim at ¶¶9-11. 3. This case was transferred to the Summit County Court of Common Pleas, General Division on August 20, 2018. 4. Plaintiff filed an Answer to Defendant’s Counterclaim on August 31, 2018. In her Answer, Plaintiff denies the allegations of the Counterclaim and maintains that she paid full price for the subject 2011 Ford Fusion. 5. On July 22, 2019, and in accordance with the Court’s July 15, 2019 Order, Plaintiff filed an Amended Complaint. Plaintiff’s Amended Complaint adds “Juan Mitchell S/A Foundation Auto Group, Inc.” as a Defendant. Plaintiff again maintains in her Amended Complaint that she paid full purchase price for the vehicle that was wrongfully repossessed by Defendant. Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 3 of 18 6. In addition to other rulings, the Magistrate issued an Order on November 7, 2019 ordering Defendant to file an Answer to Plaintiff’s Amended Complaint within fourteen (14) days of the Magistrate’s Order. Defendant accordingly filed an Answer to Amended Complaint and Counterclaim on November 8, 2019. 7. In his Answer to Amended Complaint and Counterclaim, Defendant denies the material allegations of the Complaint and asserts abuse of process and malicious prosecution Counterclaims. Defendant asserts in his Counterclaims: COUNT ONE ABUSE OF PROCESS *** 10. Plaintiff engaged in Abuse of Process by began [sic] legal proceedings resulting in Akron Municipal Court case number CV-2018-05990 under the guise of having probable cause. 11. However, Plaintiff perverted the lawsuit when they making false alleges [sic] in an effort to accomplish the ulterior purpose of harming Defendant and providing unlawful gain to herself. 12. As a direct and proximate cause of Plaintiff’s Abuse of Process, Mitchell has incurred damages including, but not limited to direct and compensatory damages, special damages, and the fees and costs associated with this action in excess of $25,000.00. COUNT TWO Malicious Prosecution *** 14. Plaintiff have [sic] engaged in malicious prosecution by began [sic] legal proceedings resulting in Akron Municipal Court case number CV-2018- 05990 without probable cause. 15. This action was erroneous and predicated on false and malicious statements provided and/or supported by Plaintiff. 16. The was [sic] terminated which was a resolution in defendant’s favor. 17. As a direct and proximate cause of Plaintiffs malicious prosecution, Mitchell has incurred damages including, but not limited to direct and compensatory damages, special damages, and the fees and costs associated with this action in excess of $25,0000.00. Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 4 of 18 See November 8, 2019 Counterclaim at ¶¶10-12, 14-17. 8. On January 27, 2020, the Magistrate issued a Decision denying Defendant’s Motion to Deem Facts Admitted and Motion for Judgment on the Pleadings. The Court adopted this Decision on June 17, 2020. 9. On September 30, 2020, Attorney Beverly Proctor-Donald filed a Notice of Appearance on behalf of Plaintiff. Shortly thereafter, and on behalf of Plaintiff, Attorney Proctor-Donald filed a Motion to Continue Final Pretrial. A revised case management schedule was subsequently set. Among the dates set was a status conference for June 8, 2021 at 9:00 a.m. 10. Neither Defendant nor someone on his behalf appeared for the June 8, 2021 status conference. Accordingly, Plaintiff orally moved for a dismissal of Defendant’s Counterclaims. 11. The Magistrate issued an Order on June 8, 2021 addressing Plaintiff’s oral Motion to Dismiss. The Magistrate’s June 8, 2021 Order warned Defendant that, as a sanction for his failure to appear at the status conference, his counterclaims could be dismissed. The June 8, 2021 Order notified Defendant: Before a trial court can dismiss a party’s case for failure to prosecute under Civ.R. 41(B)(1), the record must show that the party had notice of the possibility of dismissal. Logsdon v. Nichols, 72 Ohio St.3d 124, 1995-Ohio- 225. This rule specifically applies to cases in which the court dismisses a case for a party’s nonappearance at a pretrial. Perotti v. Ferguson, 7 Ohio St.3d 1, 454 N.E.2d 951 (1983). The purpose of the notice is to provide the party in default an opportunity to explain the circumstances and provides reasons why the case should not be dismissed with prejudice. Logsdon at 128. The notice of dismissal ‘must be specific and not a general warning.’ Shoreway Circle v. Gerald Skoch Co., L.P.A., 92 Ohio App.3d 823,830, 637 N.E.2d 355 (8th Dist.1994). A dismissal with prejudice effectively contravenes the ‘basic tenet of Ohio jurisprudence that cases should be decided on their merits.’ Perotti at 3, 454 N.E.2d 951. Recognizing that a dismissal with prejudice is an extremely harsh sanction, it should, therefore, be reserved for cases in which “ “ ‘the conduct of a party is so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 5 of 18 prosecute or obey a court order.’ ” ” Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 48, 684 N.E.2d 319 (1997), quoting Tokes & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 632, 605 N.E.2d 936 (1992), quoting Schreiner v. Karson, 52 Ohio App.2d 219, 223, 369 N.E.2d 800 (9th Dist.1977). Absent such extreme circumstances, a court must consider lesser sanctions before dismissing a case with prejudice. Sazima v. Chalko, 86 Ohio St.3d 151, 158, 1999-Ohio-92, 712 N.E.2d 729, citing Jones, 78 Ohio St.3d at 371-372, 1997-Ohio-203, 678 N.E.2d 530; Autovest, 8th Dist. Cuyahoga No. 88803, 2007-Ohio-3921, at ¶25; Willis v. RCA Corp., 12 Ohio App.3d 1, 465 N.E.2d 924 (8th Dist.1983). A dismissal with prejudice of a parties claims is a harsh sanction. Accordingly, this Court will set a hearing for Defendant Mitchell to explain the circumstances causing his nonappearance and why his claims and jury demand should not be dismissed with prejudice. See June 8, 2021 Magistrate’s Order at 1-2. 12. The June 8, 2021 Order set “[a]n evidentiary hearing on the oral motion to dismiss the claims of Defendant Mitchell and to dismiss the jury demand * * * for July 9, 2021 at 9:00 a.m.” See June 8, 2021 Magistrate’s Order at 2. 13. The June 8, 2021 Order notified Defendant that his failure to appear at the July 9, 2021 at 9:00 a.m. hearing would “result in dismissal of claims with prejudice.” See June 8, 2021 Magistrate’s Order at 2 (“Failure to appear will result in dismissal of claims with prejudice.”) 14. Upon conclusion of the June 8, 2021 at 9:00 a.m. status conference, at which Defendant failed to appear, the Magistrate received an e-mail message from Defendant. Defendant represented that he had a death in the family and was attending a viewing funeral prior to the 9:00 a.m. status conference. Defendant also represented that he had the wrong call-in number for the conference and that, by the time he was able to get the right number, the conference was over. Defendant testified as to this at the July 9, 2021 hearing. 15. The July 9, 2021 hearing went forward as scheduled with all parties appearing via video. As noted in the Magistrate’s July 14, 2021 Order, “[a]t the Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 6 of 18 hearing, Defendant Mitchell testified that due to a technology issue, he had the wrong access number to call into the video conference on June 8 and that by the time he was able to locate the number for the court, that the hearing had already been concluded.” See July 14, 2021 Order at 1. 16. Plaintiff’s oral Motion to Dismiss was denied at the July 9, 2021 hearing. The Magistrate’s July 14, 2021 Order states: As noted in the Magistrate’s previous order, a dismissal with prejudice is a harsh sanction and should be reserved for conduct that is negligent and irresponsible and in complete disregard for the Court’s orders. Defendant Mitchell contacted the court less than an hour after the scheduled status time and provided a valid reason for missing the status conference. Accordingly, this Court finds that this conduct does not rise to the level that Mitchell’s claims should be dismissed with prejudice. Accordingly, the Oral Motion to Dismiss is DENIED. See Magistrate’s July 14, 2021 Order at 1. 17. In addition to setting a deadline for Plaintiff to respond to Defendant’s Motion for Default, Motion for Leave to Amend Answer, and Motion and Brief to Deem Facts Admitted, the Magistrate’s July 14, 2021 Order scheduled another status conference for “August 30, 2021 at 11:00 a.m.” See Magistrate’s July 14, 2021 Order at 2. The August 30, 2021 at 11:00 a.m. date was set with all parties present. 18. With respect to the August 30, 2021 at 11:00 a.m. status conference, the Magistrate’s July 14, 2021 Order stated: A Status Conference is scheduled for August 30, 2021 at 11:00 a.m. By agreement of the parties, the Status Conference will be held via video conference. A link will be sent to the parties prior to the hearing. It is the responsibility of the parties to confirm receipt of the link and to appear at the hearing via video conference. Failure to appear will result in dismissal of all claims with prejudice. Id. 19. Defendant Mitchell was properly served via U.S. Certified Mail and U.S. Certificate of Mail, with the July 14, 2021 Magistrate’s Order. Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 7 of 18 20. The Magistrate’s Office sent a link for the August 30, 2021 at 11:00 a.m. conference to all parties, via e-mail, on August 24, 2021. There was no response to the Court’s e-mail, no bounce back, and/or no indication that the Court’s emails, with the link, were not received. 21. Attorney Proctor-Donald and Plaintiff Anderson were present for the August 30, 2021 at 11:00 a.m. status conference. 22. Once again, Defendant Mitchell failed to appear for a scheduled conference with the Court. Despite being clearly informed of the August 30, 2021 at 11:00 a.m. status conference, and despite being informed that the “[f]ailure to appear will result in dismissal of all claims with prejudice,” Defendant Mitchell failed to appear for the August 30, 2021 at 11:00 a.m. status conference. The Court phoned the number listed in Defendant Mitchell’s pleadings and received a recorded message identifying the phone as belonging to multiple entities. The entities were all names that the Court recognized as being associated with Defendant Mitchell. Further, and based on the Court’s previous communications with Juan Mitchell, the Court recognized the voice in the recording as that of Defendant Mitchell. The Court waited and gave Defendant Mitchell ample time to join the status conference. The status conference concluded at 11:27 a.m. and, at no time, did Defendant Mitchell join said status conference and/or otherwise contact the Court. To date, Defendant Mitchell has never explained and/or otherwise justified his failure to appear for the August 30, 2021 status conference. 23. On behalf of Plaintiff Anderson, Attorney Proctor-Donald presented an oral Motion to Dismiss Defendant Mitchell’s Counterclaims with prejudice. Attorney Proctor-Donald emphasized that the Court previously made it clear that any failure to appear would result in a dismissal without prejudice. Attorney Proctor-Donald also Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 8 of 18 asked the Court to grant Plaintiff’s Motion for Default Judgment that had been filed against Foundations Auto Group, Inc. 24. On August 2, 2021, Defendant Mitchell filed a Brief in Opposition to Plaintiff’s pending Motions. 25. On September 8, 2021, Attorney Kani Harvey Hightower filed a Notice of Appearance on behalf of Defendant Mitchell. ANALYSIS For the sake of clarity, the Magistrate will separately address below those Motions that are pending herein. I. Plaintiff’s Oral Motion to Dismiss Defendant Mitchell’s Counterclaims. 1. Plaintiff argues that, because Defendant failed to appear at two scheduled conferences with the Court, his counterclaims shall be dismissed. Civ.R. 41(B) addresses the involuntary dismissal of a party’s claim(s). Civ.R. 41(B), titled “Involuntary Dismissal: Effect Thereof” states: (1) Failure to Prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant [or a counterclaim defendant] or on its own motion may, after notice to the plaintiff’s [counterclaimant’s] counsel, dismiss an action or claim. 2. As set forth in Civ.R. 41(B)(1), a party’s claim(s) may only be dismissed if notice has been given. “The obvious purpose of this notice requirement is to afford [a party] * * * an opportunity to show why his * * * case [or claims] should not be dismissed with prejudice.” Metcalf v. Ohio State Univ. Hosp., 2 Ohio App.3d 166, 167, 441 N.E.2d 299, 301 (1981). See also Sunkin v. Collision Pro, Inc., 174 Ohio App.3d 56, 64-65, 2007-Ohio-6046, ¶16, 880 N.E.2d 947 (9th Dist. 2007) (recognizing that the notice requirement provides a party with an opportunity to explain why its claims should not be dismissed for failure to prosecute); Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 9 of 18 Esser v. Murphy, 9th Dist. No.25945, 2012-Ohio-1168, ¶11, quoting Sazima v. Chalko, 86 Ohio St.3d 151, 155, 712 N.E.2d 729 (1999) (“’The purpose of notice is to give the party who is in jeopardy of having his or her action or claim dismissed one last chance to comply with the order or to explain the default.’”) 3. A party has notice of an impending dismissal when it has “’been informed that dismissal is a possibility and has had a reasonable opportunity to defend against dismissal.’” Sunkin,, 174 Ohio App.3d 56, 65, 2007-Ohio-6046, ¶16, 880 N.E.2d 947; quoting Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 684 N.E.2d 319, syllabus (1997). A pending request for a dismissal may also constitute sufficient notice. Sunkin,, 174 Ohio App.3d 56, 65, 2007- Ohio-6046, ¶16, 880 N.E.2d 947; citing Sazima v. Chalko, 86 Ohio St.3d 151, 156, 712 N.E.2d 729 (1999). 4. “The power to dismiss for lack of prosecution pursuant to Civ. R. 41(B) is within the sound discretion of the trial court.” Terrell v. Admin., Bureau of Workers Comp., 9th Dist. 11916, 1985 WL 10805, *1, citing Pembaur v. Leis, 1 Ohio St.3d 89, 437 N.E.2d 1199. See also Givens v. Garlando, 9th Dist. No.12075, 27 Ohio App.3d 287, 500 N.E.2d 913, 915 (1985). Accordingly, the trial court’s decision will not be reversed on appeal absent an abuse of discretion. Pembaur, 1 Ohio St.3d at 91, 437 N.E.2d 1199. “Abuse of discretion” connotes more than an error of law or judgment as it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Deans v. Allegheny Int’l (USA) Inc., 9th Dist. No.90CA004764, 69 Ohio App.3d 349,351-52, 590 N.E.2d 825, 826 (1990), citing Steiner v. Custer, 137 Ohio St. 448, 451, 19 O.O. 148, 149, 31 N.E.2d 855, 856–857 (1940); State v. Adams, 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 172, 404 N.E.2d 144, 148 (1980); Cedar Bay Constr. v. Fremont, 50 Ohio St.3d 19, 22, 552 N.E.2d 202, 205 (1990). “Such a violation is found in the rare instance when a decision is grossly violative of fact and logic so as to demonstrate perversity of will, defiance of judgment, undue passion, or extreme Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 10 of 18 bias.” Deans, 9th Dist. No.90CA004764, 69 Ohio App.3d at 351-52, 590 N.E.2d at 826, citing State v. Jenkins, 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264, 313 (1984); Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1251 (1985). 5. The facts in this case are similar to those that were before the court in City of Columbus v. Triplett, 10th Dist. No.00AP-339, 2000 WL 1715835. The trial court in City of Columbus granted the city’s motion to dismiss James Triplett’s counterclaim after Triplett failed to appear for two conferences with the Court. The trial court’s dismissal was for failure to prosecute pursuant to Civ.R. 41(B)(1). In affirming the trial court’s ruling, the appellate court found that the trial court clearly provided notice to Triplett that his failure to appear, and failure to comply with court orders, “may result in sanctions including but not limited to dismissal.” Id. at *5. 6. Defendant failed to appear for two scheduled conferences with the Court. The first failure to appear was on June 8, 2021. Because neither Defendant nor an attorney on his behalf appeared on this date, Plaintiff orally moved to dismiss Defendant’s Counterclaims. The Magistrate’s June 8, 2021 Order set an evidentiary hearing on Plaintiff’s oral motion to dismiss and specifically notified Defendant that his failure to appear on June 8, 2021 would “result in dismissal of claims with prejudice.” See June 8, 2021 Magistrate’s Order at 2 (“Failure to appear will result in dismissal of claims with prejudice.”) 7. Defendant’s second failure to appear was on August 30, 2021. When scheduling the August 30, 2021 at 11:00 a.m. status conference, the Court informed Defendant that the “[f]ailure to appear will result in dismissal of all claims with prejudice.” See July 14, 2021 Order. Despite this warning, and even though Defendant was properly served with the Court’s July 14, 2021 Order, he failed to appear for the scheduled August 30, 2021 at 11:00 a.m. status conference. Because Defendant again failed to appear for a scheduled status conference, Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 11 of 18 Plaintiff again moved for a dismissal of Defendant Mitchell’s Counterclaims with prejudice. The Court finds that Plaintiff’s Motion to Dismiss Defendant Mitchell’s Counterclaims with prejudice is well taken and, accordingly, is GRANTED. 8. The Court repeatedly notified Defendant that his failure to obey Court orders and appear at scheduled status conferences would result in a dismissal of his claims. Despite such repeated warnings, Defendant failed to appear for two scheduled status conference with the Court. The Court finds that, in light of Defendant’s failure to comply with Court Orders, his Counterclaims shall be dismissed pursuant to Civ.R. 41(B)(1). WHEREFORE, Plaintiff Tiana Anderson’s Oral Motion to Dismiss the Counterclaims of Juan Mitchell with prejudice is GRANTED. Defendant Mitchell’s Abuse of Process and Malicious Prosecution Counterclaims are, accordingly, DISMISSED with prejudice. II. Defendants’ Motion to Deem Request for Admissions Admitted. 1. On June 24, 2021, Defendant filed a Motion and Brief to Deem Facts Admitted as Against the Plaintiff for Failure to Comply with Oh. Civ. R. 36. Defendant argues that Plaintiff failed to timely respond to his September 17, 2018 First Request for Admissions and that, pursuant to Civ.R. 36, “the defaulted admissions are deemed admitted.” See Defendant’s Motion and Brief to Deem Facts Admitted as Against the Plaintiff for Failure to Comply with Oh. Civ. R. 36 at 3. 2. On July 23, 2021, Plaintiff filed a Motion Opposing Defendant’s Motion to Deem Facts Admitted for Failure to Comply with Civ.R. 36. While Plaintiff disputes being served with the September 17, 2018 Requests for Admissions, and references a January 5, 2021 correspondence from her attorney to Defendant Mitchell wherein counsel asks Defendant to “[p]lease notify my office if you have a Discovery Request for my client,” she emphasizes that the Request for Admissions pertains to the alleged contractual relationship between Plaintiff and Foundations Auto Group., Inc. As of September 17, 2018, the only parties to the case were Plaintiff and Defendant Mitchell. Foundations Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 12 of 18 Auto Group, Inc. was not added as a party until July 22, 2019 when an Amended Complaint was filed. Accordingly, Plaintiff argues: All Requests for Admission included in the Defendant Mitchell’s original request pertain to the alleged contractual relationship between the corporation and the Plaintiff. Once the corporation was added to this cause of action, it would have been prudent for counsel for the corporation to pose the Request for Admissions upon the Plaintiff; however, Foundations Auto has failed to answer or enter an appearance and is in default. See Plaintiff’s Motion Opposing Defendant’s Motion to Deem Facts Admitted for Failure to Comply with Civ.R. 36 at 2. 3. The Court has reviewed Defendant Mitchell’s September 17, 2018 Request for Admissions. All of the requests for admissions pertain to Plaintiff and Foundations Auto Group, Inc. Foundations Auto Group, Inc. was not a party in this action until July 22, 2019. As it pertains to Foundations Auto Group, Inc., at that time Plaintiff was not subject to any claims or Counterclaims by this party. Defendant Mitchell is not an attorney licensed in the State of Ohio and did not have authority to act on behalf of, or serve discovery on behalf of, the corporate entity of Foundations Auto Group, Inc.1 Even if Plaintiff was served with this Request for Admissions, because Foundations Auto Group, Inc. was not a party and because Defendant Mitchell did not have authority to act on its behalf, there was no obligation to respond to Foundations Auto Group, Inc.’s discovery requests at that time. 4. The Court further notes that a motion to deem matter admitted upon the failure of a party to timely respond to the requests for admission is a nullity pursuant to Ohio Civ.R. 36(A). “By the explicit terms of Civ.R. 36(A), a party’s failure to timely respond to request for admission result in default admissions. It is unnecessary for the trial court to ‘deem’ them so admitted.” National City Bank v. Moore, 9th Dist. No.19465, *5, 2000 WL 235529 (March 1, 2000). See also Marusa v. City of Brunswick, 9th Dist. No. 04CA0038-M, 2005-Ohio-1135, ¶20. Even if the admissions were admitted in this matter, because the admissions solely pertain to Plaintiff and Foundations Auto Group, Inc., 1 See Court’s analysis under Section V(4) below, when addressing Plaintiff’s Motion for Default as against Foundations Auto Group, Inc. Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 13 of 18 they are of no consequence to Plaintiff’s Complaint against Defendant Mitchell. As will be discussed below, Foundations Auto Group, Inc. has failed to answer or enter an appearance and is in default. WHEREFORE, Defendant’s Motion and Brief to Deem Facts Admitted as Against Plaintiff for Failure to Comply with Oh. Civ. R. 36 is DENIED. III. Defendant’s Motion for Leave to Amend. 1. Defendant filed a pro se Motion for Leave to Amend on June 29, 2021. In his Motion, Defendant requests leave to amend his Answer to include a failure to mitigate affirmative defense. Defendant maintains that, “[a]t the time responsive pleadings were filed in this action, defendant was unaware of the existence of the defense due to the vague and ambiguous nature of the complaint; specifically the plaintiff’s complete indifference and failure to mitigate damages failure to bring such an affirmative defense could result in a denial of the rights of defendant herein.” See Defendant’s Motion for Leave to Amend at 3. 2. Plaintiff opposes Defendant’s Motion for Leave to Amend. Plaintiff first states in her opposition that “[i]t is unclear whether Defendant Juan Mitchell is filing his Motion in his capacity as an Individual or as the Statutory Agent for Foundations Auto Group, Inc. or both.” See Plaintiff’s Motion Opposing Defendant’s Motion for Leave to Amend at 1. The Court agrees. Either way, the Court agrees that Defendant’s Motion for Leave to Amend should be denied. 3. When Defendant filed his Answer, he was representing himself pro se. The Court notes that pro se litigants must be held to the same standard as those represented by counsel. Sherlock v. Myers, 9th Dist. No.22071, ¶5, 2014-Ohio-5178, 2004 WL 2244102. In fact, “a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which regular litigants are bound.” Id., citing Kilroy v. B.H. Lakeshore Co., 11 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist. 1996). A pro se litigant “is not given greater rights than represented parties, and must bear the consequences of his mistakes.” Sherlock, 9th Dist. No.22071 at ¶3, 2014-Ohio-5178, 2004 WL 2244102, citing Sinsky v. Matthews, 9th Dist. No.20499, Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 14 of 18 *5, 2001 WL 888378. Accordingly, this Court must hold Defendant Mitchell to the same standard as a represented party.2 Sherlock, 9th Dist. No.22071 at ¶3, 2014-Ohio-5178, 2004 WL 2244102, citing Martin v. Wayne Cty. Nat’l Bank, 9th Dist. No.03CA0079, 2004-Ohio-4194, ¶14. 4. As set forth in Civ.R. 12(B), “[e]very defense in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required.” The use of the word “shall” when used in a statute or rule denotes that compliance with the commands of the statute or rule is mandatory. State v. Payne, 9th Dist. No.21178, ¶15, 2003-Ohio-1140, 2003 WL 1042506, quoting Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917, 65 Ohio St.3d 532, 534, 605 N.E.2d 368 (1992). 5. Failure to mitigate is an affirmative defense that must be raised in the answer. Civ.R. 8(C). An affirmative defense is waived if it is not timely raised. Turner v. Central Local School Dist., 85 Ohio St.3d 95, 97, 706 N.E.2d 1261, 1999-Ohio-207. 6. Defendant requested leave to amend his August 20, 2018 Answer. While Defendant represented himself pro se up to September 8, 2021, as set forth above this Court must hold Defendant to the same standard as a represented party. The affirmative defense that Defendant now seeks to add, failure to mitigate, is an affirmative defense that Defendant was required to raise in his answer. Civ.R. 8(C). Defendant’s request to Amend his Answer, filed almost three years after the filing of his Answer, is also untimely. The allegations in this case have not changed and Defendant has had ample opportunity to learn of and/or know of all applicable defenses. WHEREFORE, Defendant’s Motion for Leave to Amend is DENIED. IV. Defendant’s Motion for Default Judgment. 1. Defendant has moved for default judgment against Plaintiff. The basis of Defendant’s Motion is the allegation that, to date, Plaintiff has not responded to his November 8, 2019 Counterclaim. 2 The Court notes that Attorney Kani Harvey Hightower filed a Notice of Appearance on behalf of Defendant Juan Mitchell on September 8, 2021. Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 15 of 18 2. As set forth above, Defendant’s Abuse of Process and Malicious Prosecution Counterclaims have been dismissed. See Court’s analysis above addressing and ruling upon Plaintiff’s Motion to Dismiss Defendant Mitchell’s Counterclaims. Accordingly, Defendant’s Motion for Default Judgment is DENIED on the basis that it is MOOT. Even if Defendant’s Counterclaims were not dismissed, the Court notes that default judgment would be inappropriate considering it is unclear as to whether the November 8, 2019 Counterclaim was filed on behalf of Defendant Foundations Auto Group, Inc. or Defendant in his individual capacity. No apparent Counterclaim was filed by Defendant Mitchell and Defendant Mitchell did not have authority to legally represent Foundations Auto Group, Inc. V. Plaintiff’s Motion for Default Judgment. 1. Plaintiff filed a Motion for Default Judgment on July 23, 2021. In her Motion, filed pursuant to Civ.R. 55(A), Plaintiff seeks a Court Order granting her default judgment against Defendant Foundations Auto Group, Inc. Plaintiff explains: * * * on July 15, 2019 the court issued an Order for Plaintiff, Tianna Anderson to amend her complaint to add Foundations Auto Group, Inc. as a party and to serve their statutory agent by July 22, 2019. The Plaintiff filed her Amended Complaint to Add All Parties on July 22, 2019, naming Juan Mitchell, Individually and Foundation[s] Auto Group, Inc. as Defendants. Juan Mitchell demonstrated his acceptance of service by filing an Answer to Amended Complaint and Counterclaim for Abuse of Process and Malicious Prosecution on November 8, 2019 as an individual and as an officer of Foundations Auto Group, Inc. Although Juan Mitchell has timely filed a responsive pleading, Defendant Foundations Auto Group, Inc. has failed to plead or otherwise defend Plaintiff’s Amended Complaint as required, pursuant to Civil Rule 55. See Plaintiff’s Motion for Default Judgment at 1-2. Plaintiff seeks judgment against Defendant Foundations Auto Group, Inc. in the amount of “$5,000.00 plus interest, attorney fees and all other costs and remedies or relief deemed legal, equitable and appropriate by this court.” Id. at 3. 2. Defendant Mitchell filed a Brief in Opposition on August 2, 2021. Defendant maintains that Plaintiff’s Motion for Default Judgment should be denied as the Amended Complaint failed to properly join Foundations Auto Group, Inc. as a Defendant. It is further asserted that Plaintiff fails to state a claim upon which relief can be granted, such that default judgment would be improper, and that Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 16 of 18 Plaintiff cannot cure her failure to respond to request for admissions by amending her Complaint. The Court disagrees and finds that Plaintiff’s Motion for Default Judgment is well taken. 3. As stated by Plaintiff, Plaintiff filed her Amended Complaint adding Foundations Auto Group, Inc. as a Defendant on July 22, 2019. Defendant Mitchell accepted service as statutory agent for Foundations Auto Group, Inc. and filed an Answer to Amended Complaint and Counterclaim on November 8, 2019. Although a responsive pleading was filed, Foundations Auto Group, Inc. failed to timely plead or otherwise respond to Plaintiff’s Amended Complaint. 4. As previously referenced, Defendant Mitchell has not represented to be, nor established, that he is an attorney who is authorized to practice law in the State of Ohio. While Defendant Mitchell can certainly represent himself pro se, he may not represent the corporate entity of Foundations Auto Group, Inc. An Ohio corporation or corporate entity must be represented by an attorney and may not be represented in court by a non-attorney officer. See Baird v. SDG Inc., 9th Dist. No.03CA0071, ¶8, 2004-Ohio-3705, 2004 WL 1562564, quoting Union Savings Assn. v. Home Owners Aid, Inc., 23 Ohio St. 2d 60, 262 N.E.2d 558, syllabus (1970) (“[a] corporation cannot * * * appear in court through an officer of the corporation or an appointed agent not admitted to the practice of law.”) 5. Because Defendant Mitchell is not an attorney and cannot represent Defendant Foundations Auto Group, Inc., the November 8, 2019 Answer must be construed as an Answer filed on behalf of Defendant Mitchell only. To date, although being duly served, Foundations Auto Group, Inc. has not answered or entered an appearance in this action. While a Notice of Appearance was filed by Attorney Hightower on September 8, 2021, Attorney Hightower represents that she is the attorney for Juan Mitchell. 6. Accordingly, and pursuant to Civ.R. 55 and applicable law, Plaintiff is entitled to judgment by default as to her claims against Foundations Auto Group, Inc. The Court holds in abeyance the issue of damages as it pertains to Plaintiff’s claims against Foundations Auto Group, Inc. CONCLUSION Sandra Kurt, Summit County Clerk of Courts CV-2018-08-3476 BAKER ROSS, SUSAN 01/10/2022 11:46:19 AM ORD-MAGD Page 17 of 18 WHEREFORE, for the reasons set forth above and upon due consideration, the Court: 1) GRANTS Plaintiff Tiana Anderson’s Oral Motion to Dismiss the Counterclaims of Juan Mitchell; 2) DENIES the Motion and Brief to Deem Facts Admitted as Against the Plaintiff for Failure to Comply with Oh. Civ. R. 36 filed pro se by Defendant Mitchell; 3) DENIES Defendant’s Motion for Leave to Amend; 4) DENIES Defendant’s Motion for Default Judgment; and 5) GRANTS the Motion for Default Judgment filed by Plaintiff Tianna Anderson against Foundations Auto Group, Inc. Plaintiff Tiana Anderson’s claims against Defendant Juan Mitchell, Individually, as asserted in the July 22, 2019 pro se Amended Complaint are the only claims remaining in this litigation.3 A telephone status conference will be held on February 4, 2022 at 9:00 a.m. via bridge line 330-926-2552; access #70631. The parties and/or their counsel are specifically warned and noticed hereby that a party may not assign as error on appeal the adoption by the trial court of any finding of fact or conclusion of law set forth herein unless a timely and specific objection is first made to the trial court pursuant to Civ.R. 53(D)(3)(a)(iii). Pursuant to Civ.R. 53(D)(3)(a)(iii), the Clerk of Courts shall serve upon all parties not in default for failure to appear or counsel of record notice of this Magistrate’s Decision and its date of entry upon the journal. IT IS SO DECIDED.