Maggiore v. BarensfeldMaggiore v. Barensfeld
Case Information
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[Cite as
Maggiore v. Barensfeld
,
COURT OF APPEALS
STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT CHRISTOPHER MAGGIORE : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
: Consolidated Case Nos. 2011CA00180 & 2011CA00230 GLEN BARENSFELD :
:
:
Defendant-Appellant : O P I N I O N
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010CV03792 JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 22, 2012
APPEARANCES:
For Appellee: For Appellant: OWEN J. RARRIC RANDOLPH L. SNOW 4775 Munson St. NW JAMES M. WHERLEY, JR.
P.O. Box 36963 220 Market Ave. S., Suite 1000 Canton, OH 44735-6963 Canton, OH 44702 JEFFREY T. KNOLL
JOHN P. SUSANY
3475 Ridgewood Rd.
Akron, OH 44333
Delaney, P.J.
{¶1} Defendant-Appellant Glen Barensfeld appeals the September 29, 2011 judgment entry of the Stark County Court of Common Pleas affirming and adopting the July 19, 2011 Magistrate’s Decision to deny Barensfeld’s Motion for Relief from Judgment.
FACTS AND PROCEDURAL HISTORY
{¶2} On October 13, 2010, Plaintiff-Appellee Christopher Maggiore filed a Complaint on a Note in the Stark County Court of Common Pleas. Maggiore alleged on or about April 17, 2002, Barensfeld executed and delivered to Maggiore a cognovit promissory note in the amount of $277,219.63 with interest at the rate of 8.5% per annum. Maggiore alleged that as collateral for the Note, Barensfeld executed and delivered a Mortgage Deed for real property located in Ohio and recorded in Medina County. The principal and interest on the Note was payable in full five years from the date of execution. Maggiore alleged more than five years had passed and Barensfeld failed to make any payment despite demand.
{¶3} Barensfeld is a California resident. Barensfeld was served with the
summons and Complaint on October 18, 2010. Pursuant to
{¶4} Barensfeld did not respond to the Complaint, or otherwise defend the
matter within the 28-day time period set by
{¶5} On November 16, 2010 at 5:13 p.m., Barensfeld filed a Notice of Removal with the United States District Court for the Northern District of Ohio, Eastern Division ( Maggiore v. Barensfeld , N.D.Ohio No. 5:10cv2622). Barensfeld removed the case on the basis of diversity jurisdiction. 28 U.S.C. 1332. Barensfeld filed a notice with the Stark County Court of Common Pleas on November 17, 2010 at 9:06 a.m. indicating the case had been removed to federal court.
{¶6} Barensfeld filed an Answer and Counterclaim in federal court. Maggiore filed a Motion for Default Judgment and a Motion to Strike Barensfeld’s Answer and Counterclaim. Barensfeld responded to the motion and filed a Motion for Relief from Judgment, requesting the federal court to vacate the state court default judgment. On May 12, 2011, the federal court issued its ruling granting Maggiore’s Motion to Strike and denying Barensfeld’s Motion for Relief from Judgment. The federal court remanded the case to the Stark County Court of Common Pleas.
{¶7} On June 10, 2011, Barensfeld filed a Motion for Relief from Judgment. An oral hearing was held before the Magistrate on June 30, 2011. The Magistrate issued a Decision denying the Motion for Relief from Judgment on July 19, 2011. The Magistrate found Barensfeld’s failure to timely answer or otherwise defend was not the result of “mistake” or “excusable neglect,” but rather a strategic decision by Barensfeld not to respond to the state litigation but to focus on removing the matter to federal court.
{¶8} Barensfeld filed objections to the Magistrate’s Decision. On September 29, 2011, the trial court affirmed and adopted the Magistrate’s Decision.
{¶9} It is from this judgment Barensfeld now appeals.
ASSIGNMENTS OF ERROR
{¶10} Barensfeld raises one Assignment of Error:
{¶11} “THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO VACATE THE INSTANT DEFAULT JUDGMENT, WHICH WAS ENTERED ON THE 29TH DAY AFTER SERVICE OF THE COMPLAINT, EVEN THOUGH BARENSFELD TIMELY REMOVED THE CASE TO FEDERAL COURT AND TIMELY ANSWERED WITH THE FEDERAL COURT AFTER REMOVAL.”
ANALYSIS
STANDARD OF REVIEW {¶12} The decision whether to grant a motion for relief from judgment under
{¶13} A party seeking relief from judgment pursuant to
{¶14} Barensfeld brought his Motion for Relief from Judgment pursuant to
{¶15} The trial court assumed, for purposes of the Magistrate’s Decision,
Barensfeld met the first element of the GTE test by having a meritorious defense to
Maggiore’s complaint. The trial court also determined that Barensfeld’s Motion for
Relief from Judgment was timely filed. Based on the analysis below, we find no abuse
of discretion as to the trial court’s determination on the first and third elements of the
GTE test. We then turn to the second element of the GTE test: whether Barensfeld is
entitled to relief under
“A PRICKLY LITTLE TECHNICAL PROBLEM”: CIV.R. 12,
28 U.S.C. 1446
{¶16} The issue in this case is the interplay between the Ohio Civil Rules of
Procedure and the Federal Rules of Civil Procedure when a party removes a state
court case to federal court. The thrust of Barensfeld’s motion for relief from judgment
is that due to a mistake in law characterized as excusable neglect, Barensfeld
misinterpreted
{¶17} Barensfeld was served with the Complaint on October 18, 2010.
(A) When answer presented
(I) Generally. The defendant shall serve his answer within twenty-eight days after service of the summons and complaint upon him; if service of notice has been made by publication, he shall serve his answer within twenty-eight days after the completion of service by publication.
{¶18} In order to determine when Barensfeld’s answer was due in the Stark
County case, we also look to
In computing any period of time prescribed or allowed by these rules, by the local rules of any court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. When a public office in which an act, required by law, rule, or order of court, is to be performed is closed to the public for the entire day which constitutes the last day for doing such an act, or before its usual closing time on such day, then such act may be performed on the next succeeding day which is not a Saturday, a Sunday, or a legal holiday.
{¶19} Pursuant to
{¶20} However, Barensfeld did not wish to defend his case in state court. On November 16, 2010, based on diversity jurisdiction, Barensfeld removed the Stark County action to federal court. Under the Ohio Rules of Civil Procedure, this was the 29th day. Under 28 U.S.C. 1446(b)(1), “[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.”
{¶21}
(c) Removed Actions.
(1) Applicability. These rules apply to a civil action after it is removed from a state court.
(2) Further Pleading. After removal, repleading is unnecessary unless the court orders it. A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest of these periods:
(A) 21 days after receiving -- through service or otherwise -- a copy of the initial pleading stating the claim for relief; *8 (B) 21 days after being served with the summons for an initial pleading on file at the time of service; or
(C) 7 days after the notice of removal is filed. {¶22} In the present case, Barensfeld filed his Answer in the federal court action on November 22, 2010, six days after removal.
{¶23} Upon Barensfeld’s Answer in federal court, Maggiore filed a Motion to
Strike the Answer based on the default judgment awarded on November 15, 2010 in
the Stark County action. Barensfeld opposed the motion, arguing the application of
{¶24} The federal court granted the motion to strike Barensfeld’s Answer. It
found that regardless of the application of the Rules of Civil Procedure, default
judgment was granted in the Stark County action before Barensfeld removed the case
to federal court. Because there was a default judgment granted in the state court
action prior to removal, the federal court “takes the case as it finds it on removal and
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treats everything that occurred in the state court as if it had taken place in federal
court.” Butner v. Neustadter ,
{¶25} The federal court next considered Barensfeld’s alternative motion for relief from the default judgment and denied that motion as well. The matter was returned to the Stark County Court of Common Pleas.
{¶26} In his motion for relief from judgment before the Stark County Court of
Common Pleas, Barensfeld argued his failure to respond to the complaint was the
result of “mistake, inadvertence, surprise, or excusable neglect.”
{¶27} Although excusable neglect is an “elusive concept,” “the failure to plead or
respond after admittedly receiving a copy of a complaint is generally not excusable
neglect.” Dutton v. Potroos, 5th Dist. No. 2010CA00318,
{¶28} Excusable neglect has been further defined as some action “not in
consequence of the party's own carelessness, inattention, or willful disregard of the
process of the court, but in consequence of some unexpected or unavoidable
hindrance or accident.” Emery v. Smith, 5th Dist. Nos. 2005CA00051, 2005CA00098,
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{¶29} The trial court determined Barensfeld failed to establish excusable neglect or mistake in his failure to file an answer or otherwise defend his position in the Stark County action. The court reviewed Barensfeld’s actions and found them to be deliberate, concluding Barensfeld chose to remove the action to federal court for strategic purposes, rather than make an appearance in the Stark County action until after the removal was filed. (July 19, 2011 Magistrate’s Decision.)
{¶30} Barensfeld argued he was entitled to relief because he made a mistake
in the law based on
{¶31} The trial court rejected Barensfeld’s argument based in part on the May
12, 2011 federal court memorandum opinion in Maggiore v. Barensfeld , N.D.Ohio No.
5:10cv2622. The trial court further held “mistakes of legal advice or mistakes of law
are not within the contemplation of
{¶32} Barensfeld’s failure to file an answer or otherwise defend in the Stark County action was not the consequence of some unexpected or unavoidable hindrance or accident. Pursuant to the Ohio Rules of Civil Procedure, Barensfeld could have prevented the default judgment from occurring in the Stark County action.
CIV.R. 60(B)(3)
{¶33} Barensfeld next argues he is entitled to relief based on
{¶34} As stated above, pursuant to the Ohio Rules of Civil Procedure,
Barensfeld’s answer or otherwise was due in the Stark County action on November
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15, 2010. Maggiore filed his motion for default judgment on November 16, 2010 under
CIV.R. 60(B)(5)
{¶35}
{¶36} We do not find the facts and circumstances of this case present this
Court with an extraordinary and unusual situation to warrant the application of
{¶37} Accordingly, Barensfeld’s sole Assignment of Error is overruled.
CONCLUSION
{¶38} Based on the foregoing, we overrule Barensfeld’s sole Assignment of Error. The trial court did not abuse its discretion in denying Barensfeld’s Motion for Relief from Judgment.
{¶39} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Wise, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY HON. JOHN W. WISE HON. JULIE A. EDWARDS IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT :
CHRISTOPHER MAGGIORE :
: Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Consolidated Case Nos. GLEN BARENSFELD : 2011CA00180 & 2011CA00230
:
Defendant - Appellant :
: For the reasons stated in our accompanying Opinion on file, the judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant. HON. PATRICIA A. DELANEY HON. JOHN W. WISE HON. JULIE A. EDWARDS