Cotton et al v. Cincinnati City of et al, No. 1:2011cv00389 - Document 17 (S.D. Ohio 2011)
Court Description: OPINION AND ORDER denying 16 Motion for Default Judgment against Equipment Maintenance, Inc. & EMR Limited Ltd. The Court DISMISSES this matter from the docket. Signed by Judge S Arthur Spiegel on 12/22/2011. (km1)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION STATE OF OHIO, ex rel., ALFORD COTTON, et al., Plaintiffs, v. CITY OF CINCINNATI, et al., Defendants. : : : : : : : : : : : NO: 1:11-CV-00389 OPINION AND ORDER This matter is before the Court on Plaintiffs Motion for Entry of Default Judgment Against Defendants Equipment Maintenance, Inc., and EMR Unlimited, Ltd. (doc. 16). For the reasons indicated herein, the Court DENIES Plaintiffs Motion. This case involves Plaintiffs Complaint that the City of Cincinnati and its agents improperly destroyed their property at 1673 Westwood in Cincinnati (doc. 2). On November 4, 2001, the Court issued an Order taking judicial notice of public documents establishing that the property was a public nuisance and finding that the City of Cincinnati was completely justified in taking action to destroy the building on such property (doc. 14). Plaintiffs now move for entry of default judgment against the Defendant contractors who allegedly carried out the destruction of Plaintiffs property on behalf of the City (doc. 16). According to Plaintiffs, because the contractors were served in state court, and failed to ever file an answer, Plaintiffs should be entitled to entry of a default judgment against the contractors. The Court does not find Plaintiffs motion well-taken. The Court s previous Order established that the City was justified in eliminating a public nuisance, that was in fact, a mess [Plaintiffs] allowed to get out of control (doc. 14). The contractors in this case were merely acting as authorized agents on behalf of the City when they entered the property and remedied the problem. An agent is privileged to do what otherwise would constitute a tort if his principal is privileged to have an agent do it and has authorized the agent to do it. RESTATEMENT (SECOND) OF AGENCY, ยง345 (1958). The Court concludes that it would be a waste of judicial resources to allow this matter to proceed, as it is clear even if the Defendant contractors failed to file any Answer, it is equally clear that Plaintiffs there claims is no merit against the to any claim remaining against Defendants them. are not plausible under Ashcraft v. Iqbal, 129 S.Ct. 1937, 1947 (2009). The Court notes that the Sixth Circuit has held that a district court has the inherent power to manage its docket so long as the management is in harmony with the Federal Rules Procedure. In re NLO, 5 F.3d 154, 157 (6th Cir. 1993), See also, In re Prevot, 59 F.3d 556, 566 (6th Cir. 1995). of Civil The Court s dismissal of these Defendants is thus in accordance with Fed. R. Civ. P. (f)(1), which allows the Court to strike immaterial matters from the pleadings. Accordingly, the Court DENIES Plaintiffs Motion for 2 Entry of Default Judgment Against Defendants Equipment Maintenance, Inc., and EMR Unlimited, Ltd. (doc. 16), and DISMISSES this matter from the docket. SO ORDERED. Dated: December 22, 2011 /s/ S. Arthur Spiegel S. Arthur Spiegel United States Senior District Judge 3
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