Inskeep v. Peoples Savings Bank

Full title: STEVEN L. INSKEEP, Plaintiff, v. PEOPLES SAVINGS BANK, et al., Defendants

Court: United States District Court, S.D. Ohio, Western Division at Dayton

Date published: Jun 22, 2006

Case No. 3:04-cv-139 (S.D. Ohio Jun. 22, 2006)

Opinion

Case No. 3:04-cv-139.

June 22, 2006

REPORT AND RECOMMENDATIONS ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS

MICHAEL MERZ, Magistrate Judge

This case is before the Court on Plaintiff's Motion for Judgment on the Pleadings, filed June 22, 2006 (Doc. No. 61).

On September 26, 2005, Judge Rice remanded this action to the undersigned for the sole purpose of considering a supplemental filing by Plaintiff "pointing to specific paragraphs in his Amended Complaint (Doc. #25) which do set forth a pattern of racketeering activity." (Decision and Entry, Doc. No. 45, at 3.) Plaintiff made the requested filing on October 7, 2005 (Doc. No. 47), the undersigned filed a Report and Recommendations recommending that Judge Rice not amend his Decision (Doc. No. 52), and that Report is now pending before Judge Rice on Plaintiff's Objections (Doc. No. 54). Judge Rice granted no leave for additional motions in the case, and thus the instant Motion is untimely. See Wright Miller, Federal Practice and Procedure: Civil 3d, § 1367.

Moreover, the instant Motion is not really a motion for judgment on the pleadings as that term is used in Fed.R.Civ.P. 12(c). The sole proper purpose of a motion for judgment on the pleadings when filed by a Plaintiff is to test the sufficiency of a defense pleaded by a defendant. Id. Plaintiff here has used his Motion as an opportunity to reargue the merits of the case, including the long-since concluded dismissal of Judge Wilson on grounds of judicial immunity.

Accordingly, the Motion for Judgment on the Pleadings should be denied.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within ten days after being served with this Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because this Report is being served by one of the methods of service listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within ten days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6^th Cir., 1981); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).