The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JANE DOE, et al.,
Plaintiffs,
Case No. 2:20-cv-4798
v. JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
OHIO HI-POINT SCHOOL
DISTRIC BOARD OF EDUCATION, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Intervenor Plaintiff State Farm Fire and Casualty
Company’s (“State Farm”) Motion for Default and/or Summary Judgment. (ECF No. 54.) State
Farm seeks a declaration that it “owes no duty to defend or indemnify [Defendant] Minor Student
2 against Plaintiffs’ claims in this action,” through default judgment or summary judgment. (ECF
No. 57 at 5.) Defendants Ohio Hi-Point School District Board of Education, Rick Smith, Tonya
N. Ramey, Jon Cook, John Wilson, Robin Harrington, Jaclyn Atherton, Melissa Gonglik, Amy
McCarthy, Caleb Lang, and Kaitlyn King (collectively, “Ohio Hi-Point Defendants”) filed a
response in opposition (ECF No. 55), and State Farm replied (ECF No. 57). Plaintiffs Jane Doe,
Mary Doe, Dan Doe, and Jenny Doe (collectively, “Plaintiffs”) filed a response in opposition (ECF
No. 56) and State Farm replied (ECF No. 62.) Defendant Minor Student 2 filed a response in
opposition therein requesting a reasonable extension of time to, among other things, obtain proper
counsel, respond to State Farm’s intervenor complaint, and respond to State Farm’s summary
judgment motion. (ECF No. 61.) State Farm replied soon after. (ECF No. 66.)
For the following reasons, the Court DENIES IN PART and HOLDS IN ABEYANCE
IN PART State Farm’s Motion for Default and/or Summary Judgment as to Ohio Hi-Point
Defendants and Plaintiffs, (ECF No. 54), and GRANTS Defendant Minor Student 2’s request for
a reasonable extension of time.
I. BACKGROUND
Plaintiffs Jane Doe, her mother Mary Doe, her father John Doe, and sister Jenny Doe
(collectively, “Plaintiffs”) have brought an eighteen-count complaint seeking declaratory,
injunctive, and/or legal relief against forty-eight different named and unnamed defendants.1
(Compl., ECF No. 3.) One of those defendants is Defendant Minor Student 2. Plaintiffs allege,
specifically, that Minor Student 2 raped Plaintiff Jane Doe on the Ohio Hi-Point school campus in
October 2019. (Id. at ¶ 143.) Accordingly, they now bring an assortment of civil claims against
him for, among other things, negligence/gross negligence, intentional infliction of emotional
distress, assault and battery, and rape. (Id. at ¶¶ 262-75, 286-98, 354-64.)
A. State Farm’s Insurance Policy
On June 9, 2019, State Farm issued a one-year Homeowner’s Policy (Policy No. 35-BU-
S620-7) (the “Policy”) to Defendant Minor Student 2’s parents. (State Farm Compl., ECF No. 44
at ¶ 7.) The Policy specifically “provide[d] liability coverage for sums that the insured becomes
legally obligated to pay as damages because of bodily injury and property damage . . . caused by
an occurrence.” (Id. at ¶ 8.) Under the Policy, an “occurrence” constituted any “accident including
1 Specifically, Plaintiffs allege violations of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§
12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; Individuals with Disabilities Education
Act (IDEA); Title IX of the Education Amendments of 1972, as amended; Mandatory Reporting Requirements under
R.C. § 5123.01; 34 U.S.C. § 20341 for violations of the Child Abuse Protection Act; 42 U.S.C. § 1983 for violations
of substantive due process and equal protection under the Fourteenth Amendment; violations of the right to free speech
under the First and Fourteenth Amendments; torts of common law false imprisonment and intentional infliction of
emotional distress; and civil recovery for criminal acts under R.C. § 2307.60 including for kidnapping, abduction, and
failure to report a crime. (Compl., ECF No. 3 at PageID #94.)
exposure to conditions, which results in: a. bodily injury; or b. property damage.” (Id. at ¶ 9.) It
further defined “bodily injury” as “physical injury, sickness, or disease to a person,” which
included “required care, loss of services and death resulting therefrom.” (Id. at ¶ 10.) The term
specifically excluded, however, “emotional distress, mental anguish, humiliation, mental distress,
mental injury or any similar injury unless it arises out of actual physical injury to some person.”
(Id.)
As State Farm notes, the Policy did not extend coverage to “bodily injury or property
damage that: (1) was a result of a: (a) willful and malicious; or (b) criminal; act or omission of the
insured; (2) was intended by the insured; or (3) would have been expected by the insured based on
a reasonable person standard,” or for “bodily injury or property damage arising out of any actual,
alleged, or threatened: (1) sexual harassment, sexual molestation, or sexual misconduct; (2)
physical or mental abuse; or (3) corporal punishment; by the insured.” (Id. at ¶¶ 11–12.)
Additionally, it excluded coverage for “punitive or exemplary damages or attorney fees associated
with these damages.” (Id. at ¶ 13.)
State Farm now asserts that “an actual, justiciable, and ripe controversy presently exists
between State Farm and Minor Student 2 as to whether the Policy provides coverage for the claims
set forth in Plaintiffs’ Complaint against Minor Student 2.” (Id. at ¶ 15.) It specifically seeks a
declaration that it does not have a duty to defend or indemnify Minor Student 2 against Plaintiffs’
claims under the Policy, given its limited definition of an “occurrence” and its specific coverage
exclusions. (Id. at ¶ 17.)
B. Minor Student 2’s Military Service
On August 30, 2021, Minor Student 2 enlisted in the United States Marine Corps. (ECF
No. 61 at PageID #533.) He attended basic training from November 15, 2021, to February 11,
2022. (Id.) Thereafter, he was assigned to combat training at Camp Giger in North Carolina and
remained there until approximately April 6, 2022. (Id.) After that, he presumably enrolled in
military occupational specialty (“MOS”) program. (Id.)
C. State Farm’s Motion for Default Judgement and/or Summary Judgment Against
All Parties; Minor Student 2 Counsel’s Conflict of Interest
On February 18, 2022, State Farm moved for default and/or summary judgment against
Ohio Hi-Point Defendants, Plaintiffs, and Minor Student 2. (ECF No. 54.) At that point, Minor
Student had retained attorneys Anne Keeton and Julianne Bush to represent him in this case. (See
ECF No. 41.) On March 11, 2022, attorney Zebulon Wagner entered a “limited notice of
appearance” on behalf of Minor Student 2.2 (ECF No. 60.) That same day, Mr. Wagner filed a
response in opposition to State Farm’s motion. (ECF No. 61.) Therein, Mr. Wagner represented
that it “has been impossible for Minor Student #2 to defend” against State Farm’s claims due to
both his enlistment in the Marine Corps and his initial counsel’s apparent conflict of interest with
State Farm. (Id. at PageID #533.) Mr. Wagner further noted that he had only been able to
communicate once with his client (via e-mail), and that Minor Student 2’s “opportunities to
communicate are limited, after hours, and sometimes after multiple days of no sleep as he
participates in combat training in the field.” (Id. at PageID #535.) To that extent, Mr. Wagner,
among other things, requested a “reasonable extension of time” for Minor Student 2 to “(i) obtain
insurance coverage defense counsel to defend [against] the claims set forth within State Farm’s
2 Mr. Wagner specifically noted that his appearance is only for the
limited purpose of (i) responding to Intervenor State Farm Fire and Casualty Company’s (“State
Farm”) Motion for Default Judgment and/or Summary Judgment; and (ii) to request a continuance
and/or stay of proceedings for Minor Student #2 to obtain counsel to respond to State Farm’s
Motions and in accordance with the Servicemembers Civil Relief Act (“SCRA”) 50 USC §§ 3931(d)
and 3932(b).
(ECF No. 60.)
Complaint; (ii) file an Answer to State Farm’s Complaint out of time; and (iii) respond to State
Farm’s Motion for Summary Judgment.” (Id. at PageID #536.)
II. APPLICABLE LAW
A. Default Judgment
Federal Rule of Civil Procedure 55 “contemplates a two-step process in obtaining
a default judgment against a defendant who has failed to plead or otherwise defend.” Columbus
Life Ins. Co. v. Walker-Macklin, No. 1:15-cv-535, 2016 WL 4007092, at *2 (S.D. Ohio July 26,
2016). First, a plaintiff must request an entry of default from the Clerk of Courts. Fed. R. Civ. P.
55(a). Upon the Clerk's entry of default, “the complaint's factual allegations regarding liability are
taken as true, while allegations regarding the amount of damages must be proven.” United States
v. Parker-Billingsley, No. 3:14-cv-307, 2015 WL 4539843, at *1 (S.D. Ohio Feb. 10,
2015) (quoting Broad. Music, Inc. v. Pub Dayton, LLC, No. 3:11-cv-58, 2011 WL 2118228, at *2
(S.D. Ohio May 27, 2011)). Second, if the plaintiff's claims are not for “a sum certain or a sum
that can be made certain by computation,” the plaintiff must then apply to the Court for
a default judgment. Fed. R. Civ. P. 55(b).
B. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The Court may therefore grant a motion for summary judgment if the nonmoving party who has
the burden of proof at trial fails to make a showing sufficient to establish the existence of an
element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The “party seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.” Id. at 323.
III. STATE FARM’S MOTION FOR DEFAULT JUDGMENT AND/OR SUMMARY
JUDGMENT
State Farm, as noted, seeks declaratory relief against three specific parties: the Ohio Hi
Point Defendants, Plaintiffs, and Minor Student 2. The Court addresses its Motion for Default
Judgment and/or Summary Judgment with respect to each party.
A. Ohio Hi-Point Defendants
Ohio Hi-Point Defendants raise three arguments in opposition to State Farm’s Motion for
Default Judgment and/or Summary Judgment. Specifically, they note that (1) State Farm did not
name Ohio Hi-Point Defendants as Intervention Defendants in its Intervening Complaint, (2) State
Farm did not plead any claims against or seek any relief from Ohio Hi-Point Defendants, and (3)
there is no actual, justiciable, and ripe controversy between State Farm and Ohio Hi-Point
Defendants, such that there is nothing for this Court to adjudicate. (ECF No. 55 at PageID #516.)
On all of these grounds, they argue that neither default judgment nor summary judgment is
appropriate. (Id.)
State Farm concedes that it failed to name the Ohio Hi-Point Defendants in its intervening
complaint, and that it did not specifically plead any claims against them therein. Nevertheless, it
notes it is “requesting a declaration against all of the parties in the underlying litigation,” and that
“[t]o only seek a declaration as to its insured would defeat the purpose of a declaratory judgment
action, which is binding on all parties.” (ECF No. 57 at PageID #525) (emphasis added). State
Farm further observes that “[t]he Declaratory Judgment Act empowers courts to declare the rights
‘of any interested party,’” which, it argues, would include the Ohio Hi-Point Defendants, given
that they would be bound by this Court’s “declaration of rights” with regard to the coverage of its
policy. (Id. at PageID #526.)
The Declaratory Judgment Act provides in relevant part:
[i]n a case of actual controversy within its jurisdiction . . . any court of the United
States, upon the filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not
further relief is or could be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable as such.
28 U.S.C. § 2201. In analyzing the justiciability of a claim under the Declaratory Judgment Act,
the Sixth Circuit has held:
[i]n addition to the ‘actual controversy’ requirement of this statute, the ‘case and
controversy’ clause of the United States Constitution applies to declaratory
judgment actions as well as to other cases of a more conventional nature . . . The
test for determining the ‘case or controversy’ and ‘actual controversy’ issues is
whether the facts alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.
Little Hocking Water Ass’n, Inc. v. E.I. du Pont Nemours & Co., 91 F. Supp. 3d 940, 986–87
(S.D. Ohio 2015) (quoting Hilliard v. First Fin. Ins., No. 91-6238, No. 1992 WL 164998, *2 (6th
Cir. July 16, 1992)).
State Farm argues that an “actual controversy” exists between all parties—namely, with
respect to the coverage of the Homeowner’s Policy it issued Minor Student 2’s parents. (ECF No.
57 at PageID #524-25.) It fails, however, to meaningfully address the “case or controversy”
requirement noted above. The claims in State Farm’s Intervening Complaint stem solely from the
Homeowners Policy between Defendant Minor Student 2’s parents and State Farm. (ECF No. 44
at ¶ 7.) Ohio Hi-Point Defendants are not parties to that contract, and State Farm does not allege
that they are. (See generally ECF No. 44.) Indeed, as State Farm itself explicitly noted in its
intervening complaint, “an actual, justiciable, and ripple controversy presently exists between
State Farm and Minor Student 2 as to whether the Policy provides coverage for the claims set forth
in Plaintiffs’ Complaint against Minor Student 2.” (ECF No. 44 at ¶ 15) (emphasis added).
State Farm, in sum, has failed to allege any facts that show there is a “substantial
controversy of sufficient immediacy and reality” between it and the Ohio Hi-Point Defendants.
Thus, insofar as its Motion for Default Judgment and/or Summary Judgment concerns those
defendants, it is DENIED. (ECF No. 54.)
B. Plaintiffs
Plaintiffs argue that State Farm is ineligible to obtain declaratory relief against them for
essentially the same reasons as it is against the Ohio Hi-Point Defendants. They assert, for one,
that they had no responsibility to submit a response to State Farm’s Intervening Complaint because
they were not named in State Farm’s Intervening Complaint and are not a party against which State
Farm seeks affirmative relief. (ECF No. 56 at PageID #521.) They further note that State Farm is
not entitled to summary judgment against them because its motion “concerns its responsibility to
its own insured, Minor Student 2”—specifically, whether to provide him a defense. (Id. at PageID
#520.) And as they put, that issue arises “regardless of whether coverage for indemnity is
applicable.” (Id.)
State Farm counters Plaintiff’s assertions with the same arguments it raised against the
Ohio Hi-Point Defendants. In other words, it contends that, notwithstanding its failure to identify
Plaintiffs as a defendant in its intervening complaint, or its failure to make any actual allegations
or claims against them, it is nonetheless entitled to declaratory relief with respect to Plaintiffs
because they “will be bound by a declaration of rights” under the insurance policy issued to Minor
Student 2. (ECF No. 62 at PageID #542.) This argument fails for the same reasons elaborated
above: State Farm has not shown, on the facts alleged, that there is a “substantial controversy of
sufficient immediacy and reality” between it and Plaintiffs. See Hilliard, 1992 WL 164998 at *2.
Accordingly, insofar as it applies to Plaintiffs, State Farm’s Motion for Default Judgment and/or
Summary Judgment is DENIED. (ECF No. 54.)
C. Minor Student 2
Minor Student 2 has requested, among other things, “a reasonable extension of time to (i)
obtain insurance coverage counsel to defend the claims set forth within State Farm’s Complaint;
(ii) file an Answer to State Farm’s Complaint out of time; and (iii) respond to State Farm’s Motion
for Summary Judgment.”3 (ECF No. 61 at PageID #576.)
Rule 6(b) of the Federal Rules of Civil Procedure governs requests such as these.
Specifically, it states:
(1) In General. When an act may or must be done within a specified time, the
court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is
made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act
because of excusable neglect.
Fed. R. Civ. P. 6(b). Federal Rule of Civil Procedure 56 requires a responsive pleading from a
party affected by a motion for summary judgment within 21 days. Fed. R. Civ. P. 56. State Farm
filed its Motion for Default and/or Summary Judgment on February 18, 2022, and Minor Student
2 filed its response 21 days later on March 11, 2022. (ECF No. 54 at 2; ECF No. 61 at 7.) Thus,
Minor Student 2 has properly requested an extension of time under Rule 6(b)(1)(A) of the Federal
Rules of Civil Procedure.
3 Minor Student 2 also asks this Court for a ninety-day stay pursuant to 50 U.S.C. §§ 3931(d) and 3932(b). He qualifies
under neither of these statutes, however, given that he (1) already “appeared” in this suit (via Ms. Keeton) and
answered Plaintiffs’ claims when State Farm filed the instant action (see ECF Nos. 41, 44), and (2) has not produced
a “letter or other communication” from his “commanding officer” noting that his “current military duty prevents
appearance and that military leave is not authorized” for him at the time of the letter. See §§ 3931(a) (cabining §
3931’s applicability to those where “the defendant does not make an appearance”) and § 3932(b) (requiring letter from
commanding officer to stay an action for up to 90 days).
Minor Student 2 has demonstrated good cause to warrant an extension of time. As he notes,
the counsel he initially retained in this case “cannot represent his interests as it relates to State
Farm’s Complaint. (ECF No. 61 at PageID #533.) And as far this Court is aware, Minor Student
2’s military service has given him little opportunity to communicate with the additional counsel
he has retained (who, again, has only appeared on his behalf in a “limited” capacity). (ECF No.
61 at PageID #535.) State Farm, acknowledging this, notes that it does not “oppose a reasonable
extension for Minor Student 2 to obtain insurance coverage counsel and/or file an Answer out of
time as it relates to State Farm’s Intervening Complaint and the coverage issues.” (ECF No. 66 at
PageID #552.)
For these reasons, Minor Student 2 shall have FORTY-FIVE (45) DAYS from the date of
this Order to (i) obtain insurance coverage counsel to defend the claims set forth within State
Farm’s Intervening Complaint; (ii) file an Answer to State Farm’s Intervening Complaint out of
time; and (iii) respond to State Farm’s Motion for Default Judgment and/or Summary Judgment.
Until then, and solely as to him, the Court HOLDS IN ABEYANCE State Farm’s Motion for
Default Judgment and/or Summary Judgment. (ECF No. 54.) State Farm shall have FOURTEEN
(14) DAYS from the date Minor Student 2’s response is filed to reply.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES State Farm’s Motion for Default and/or
Summary Judgment as to the Ohio Hi-Point Defendants and Plaintiffs (ECF No. 54) and GRANTS
Minor Student 2’s an additional forty-five days to (i) obtain insurance coverage counsel to defend
the claims set forth within State Farm’s Intervening Complaint; (ii) file an Answer to State Farm’s
Intervening Complaint out of time; and (iii) respond to State Farm’s Motion for Default Judgment
and/or Summary Judgment. The Court HOLDS IN ABEYANCE State Farm’s Motion for Default
Judgment and/or Summary Judgment (id.) as to Minor Student 2 for the time being.
This case shall remain open.
IT IS SO ORDERED.
9/20/2022 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE