BOARD OF TR. OF O. CARPENTERS' PENS. FUND v. CEAK INT

Full title: BOARD OF TRUSTEES OF THE OHIO CARPENTERS' PENSION FUND ON BEHALF OF THE…

Court: United States District Court, N.D. Ohio, Eastern Division

Date published: Jul 11, 2007

CASE NO. 1:06 CV 1726 (N.D. Ohio Jul. 11, 2007)

Opinion

CASE NO. 1:06 CV 1726.

July 11, 2007

MEMORANDUM OPINION AND ORDER

DONALD NUGENT, District Judge

This matter comes before the Court upon the Request to Vacate Judgment filed by Defendant Barbara A. Dixson on June 20, 2007 (Docket #17). Ms. Dixson moves this Court to vacate the Judgment entered against all defendants in this case on October 13, 2006 (Docket #13). Ms. Dixson states that she was not "properly served any papers" at her current address and that she had not been served at the time the Judgment was entered.

On June 22, 2007, Plaintiffs filed a Memorandum in Opposition to Ms. Dixson's Request to Vacate Judgment (Docket #18). Plaintiffs assert that Ms. Dixson was properly served with the Complaint and that this Court's Judgment is not void. Specifically, Plaintiffs explain that Ms. Dixson personally accepted service of the Complaint on behalf of Defendant CEAK Interiors on August 1, 2006, and was later properly served by ordinary mail pursuant to Fed.R.Civ.P. 4 and Loc. R. Civ. P. 4.2. Further, Plaintiffs argue, relying upon the Sixth Circuit decision in Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899 (6^th Cir. 2006), that Ms. Dixson's Motion for Relief from Judgment was not filed within a reasonable time, as it was filed more than 10 months after the Complaint was filed and 8 months after Judgment was entered in this case. Plaintiffs also discuss that while Ms. Dixson argues that she was not properly served at her current address, she does not claim that she was unaware of the lawsuit. Plaintiffs point to the fact that Ms. Dixson signed for service of the Complaint on August 1, 2006 at her place of business, and received ordinary mail service on or about August 11, 2006. Ms. Dixson argues that she should have received service at her E. 67^th Street address. However, Plaintiffs point to the fact that Ms. Dixson claims that E. 67^th Street was her mailing address after September 2006 and Plaintiffs perfected service prior to that time in August 2006.

On June 28, 2007, Ms. Dixson filed a Reply Brief (Docket #19), discussing the history of her business and her personal situation during the time that the Complaint was served. Ms. Dixson asks this Court to give her the opportunity to resolve this matter now that her personal situation has become more stable.

DISCUSSION

Rule 60(b) provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (4) the judgment is void; . . . The motion should be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

Ms. Dixson argues that she never received service of the Complaint in this case at her 3939 E. 67^th Street address and, therefore, the Court's Judgment should be vacated. The Court sympathizes with Ms. Dixson and expresses its concern for the difficulties she has encountered. However, the Court is bound by the law and the facts and circumstances of this case do not support Ms. Dixson's request that this Court vacate the Judgment entered on October 13, 2006. Ms. Dixson had notice of this lawsuit, signing for the Summons and Complaint personally on behalf of her business on August 1, 2006, and receiving another by ordinary U.S. Mail shortly thereafter at her 1499 E. 105^th Street address. Ms. Dixson specifically stated that her address did not change until September 2006. Further, the Court finds Ms. Dixson's delay in filing her Request to Vacate, nearly 10 months after the Complaint was filed and 8 months after Judgment in this case was entered, to be unreasonable. Ms. Dixson made no attempt to communicate with the Court at any time, despite having knowledge of the lawsuit on August 1, 2006. Accordingly, her request that this Court vacate its judgment must be denied.

CONCLUSION

Based on the foregoing, the Request to Vacate Judgment (Docket #17) filed by Defendant, Ms. Barbara A. Dixson, is hereby DENIED.

IT IS SO ORDERED.