Tomco Metal Fabricating, Inc. v. Turner Construction Company, Inc.
| Ohio Northern District Court | |
| Judge: | Thomas M Parker |
| Case #: | 1:21-cv-02248 |
| Nature of Suit | 190 Contract - Other Contract |
| Cause | 28:1332 Diversity-Breach of Contract |
| Case Filed: | Nov 29, 2021 |
| Terminated: | Aug 10, 2022 |
| Case in other court: | Cuyahoga County Court of Common Pleas, CV 21 954660 |
| Last checked: Saturday May 28, 2022 5:05 AM EDT |
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Defendant
Turner Construction Company, Inc.
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Represented By
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Plaintiff
Tomco Metal Fabricating, Inc.
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Represented By
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GPO
Jul 08 2022
Memorandum Opinion and Order: For the reasons stated in the Memorandum Opinion and Order, Defendant Turner Construction Company, Inc.'s motion for judgment on the pleadings (ECF Doc. 11) is GRANTED. Plaintiff Tomco Metal Fabricating, Inc.'s ("Tomco") complaint 1-2 is DISMISSED WITHOUT PREJUDICE, Tomco's request for leave to amend is GRANTED, and the July 13, 2022 deadline for Tomco to show cause (ECF Doc. 24) is VACATED. On or by August 8, 2022, Tomco must either: (i) obtain new counsel, cause that attorney to enter an appearance, and file an amended complaint; or (ii) show cause why this case should not be dismissed for failure to prosecute. Failure to comply with these requirements will result in the dismissal of this action with prejudice. Magistrate Judge Thomas M. Parker on 7/8/2022. (Attachments: # (1) March 18, 2022 documents received from Louis and Frank Tombazzi). (D,JJ) |
| Docket last updated: 04/15/2025 11:59 PM EDT |
| Wednesday, August 10, 2022 | ||
| 28 | 28
2
pgs
order
Order Dismissing Case
Wed 08/10 4:40 PM
Order : Despite plaintiff's failure to comply with the requirements of the court's July 8, 2022 order, upon which the court could dismiss plaintiff's case with prejudice, the court APPROVES plaintiff's notice (ECF Doc.27 ) of dismissal without prejudice. Fed. R. Civ. 41(a)(1)(A)(i). This action is DISMISSED WITHOUT PREJUDICE. See Order for additional details. IT IS SO ORDERED. Magistrate Judge Thomas M. Parker on 8/10/2022. (D,JJ) |
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| 27 | 27
notice
Notice of Dismissal
Wed 08/10 3:01 PM
Notice of Dismissal Under FRCP 41(a)(1) filed by Tomco Metal Fabricating, Inc.. (Rubenstein, Kenneth) |
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| 26 | 26
motion
Appointment of Counsel
Wed 08/10 2:58 PM
Notice of Appearance of Attorney Ken Rubenstein on behalf of Plaintiff Tomco Metal Fabricating, Inc. (Rubenstein, Kenneth) Termed motion and modified text on 8/10/2022 (S,HR) |
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| Friday, July 08, 2022 | ||
| 25 | 25
minutes
~Util - Terminate Motions Memorandum Opinion and Order
Fri 07/08 4:39 PM
Memorandum Opinion and Order : For the reasons stated in the Memorandum Opinion and Order, Defendant Turner Construction Company, Inc.'s motion for judgment on the pleadings (ECF Doc.11 ) is GRANTED. Plaintiff Tomco Metal Fabricating, Inc.'s ("Tomco") complaint1 -2 is DISMISSED WITHOUT PREJUDICE, Tomco's request for leave to amend is GRANTED, and the July 13, 2022 deadline for Tomco to show cause (ECF Doc.24 ) is VACATED. On or by August 8, 2022, Tomco must either: (i) obtain new counsel, cause that attorney to enter an appearance, and file an amended complaint; or (ii) show cause why this case should not be dismissed for failure to prosecute. Failure to comply with these requirements will result in the dismissal of this action with prejudice. Magistrate Judge Thomas M. Parker on 7/8/2022.. (D,JJ) |
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Att: 1
March 18, 2022 documents received from Louis and Frank Tombazzi
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oth_evt
Remark re Pro Se Service
Fri 07/08 4:43 PM
Copy of25 Memorandum Opinion and Order, mailed to Louis Tombazzi, Tomco Metal Fabricating at 1701 East 12th Street, Apt. 21T, Cleveland, Ohio 44114, and to Tomco Metal Fabricating, Inc. at 1873 East 55th Street, Cleveland, Ohio 44103 on 7/8/2022. (D,JJ) |
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| Wednesday, June 22, 2022 | ||
| 24 | 24
5
pgs
order
Order on Motion to clarify
Wed 06/22 10:50 AM
Order : For the reasons stated in the Order, defendant Turner Construction Company, Inc.'s motion to clarify (ECF Doc.23 ) is GRANTED IN PART and DENIED IN PART. On or by July 13, 2022, plaintiff Tomco Metal Fabricating, Inc., must show cause why its action should not be dismissed for want of prosecution. The Clerk of Court is ordered to forego stamping documents delivered to the court by or on Louis Tombazzi's or Frank Tombazzi's behalf as "Received" by the court. Documents delivered to the court by or on the Tombazzis's behalf should be returned as "Rejected" pursuant to this Order. Magistrate Judge Thomas M. Parker on 6/22/2022. (D,JJ) |
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oth_evt
Remark re Pro Se Service
Wed 06/22 10:57 AM
Copy of24 Order mailed to Louis Tombazzi, Tomco Metal Fabricating at 1701 East 12th Street, Apt. 21T, Cleveland, Ohio 44114, and to Tomco Metal Fabricating, Inc. at 1873 East 55th Street, Cleveland, Ohio 44103 on 6/22/2022. (D,JJ) |
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order
~Util - Restricted Filer
Thu 06/23 4:03 PM
Louis Tombazzi and Frank Tombazzi restricted from filing. re24 .(M,CE) |
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| Thursday, June 16, 2022 | ||
| 23 | 23
motion
Clarify
Thu 06/16 2:54 PM
Motion to clarify Plaintiff Representation and Communications filed by Defendant Turner Construction Company, Inc..(Thrush, William) |
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Att: 1
Exhibit A. Ltr from Tombazzi to Davoren,
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Att: 2
Exhibit B. Ltr from Curran to Thrush
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| Thursday, June 02, 2022 | ||
| 22 | 22
1
pgs
order
Order
Thu 06/02 11:46 AM
Order : The Clerk of Court received on May 31, 2022 a letter from Louis Tombazzi on behalf of his company, Tomco Metal Fabricating, Inc. ("Tomco"), the plaintiff in this matter. In the letter, which is attached to this order, Tombazzi suggests that the presiding magistrate judge and the previously assigned district judge should recuse themselves in light of an investigation by the Ohio Supreme Court Office of Disciplinary Counsel into Tombazzi's allegations of "improper behavior[]." Because the plaintiff is a corporate entity and Tombazzi is not an attorney, Tombazzi cannot appear in this matter and act on Tomco's behalf. Ginger v. Cohn , 426 F.2d 1385, 1386 (6th Cir. 1970) ("An officer of a corporation, who is not a licensed attorney, is not authorized to make an appearance in this Court on behalf of the corporation."). Thus, the court cannot accept Tombazzi's letter as a motion to recuse and will not take action on the letter. See, e.g., Conaway v. H&R Block E. Enters. , 240 F. Supp. 3d 1353, 1357 (S.D. Ga. 2017); Simitar Entm't, Inc. v. Silva Entm't, Inc. , 44 F. Supp. 2d 986, 990 (D. Minn. 1999); Codapro Corp. v. Wilson , 997 F. Supp. 322, 326 (E.D. N.Y. 1998). IT IS SO ORDERED. Magistrate Judge Thomas M. Parker on 6/2/2022. (D,JJ) |
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oth_evt
Remark re Pro Se Service
Thu 06/02 11:51 AM
Copy of20 Order,22 Order, mailed to Louis Tombazzi, Tomco Metal Fabricating Company, 1701 East 12th Street, Apt. 21T, Cleveland, Ohio 44114 on 6/2/2022. (D,JJ) |
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| Wednesday, May 25, 2022 | ||
| 21 | 21
oth_evt
Returned Mail
Wed 05/25 2:11 PM
Returned Mail addressed to Party Tomco Metal Fabricating, Inc. at 1701 East 12th Street, Cleveland, OH 44114. Marked, "Return to Sender, Insufficient Address, Unable to Forward." Related document(s)20 . (M,KS) |
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| Monday, May 16, 2022 | ||
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oth_evt
Remark re Pro Se Service
Mon 05/16 8:54 AM
Copy of20 Order, mailed to Tomco Metal Fabricating, Inc. at 1701 East 12th Street, Cleveland, OH 44114 on 5/16/2022. (D,JJ) |
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| Friday, May 13, 2022 | ||
| 20 | 20
30+
pgs
order
Order
Fri 05/13 2:29 PM
Order : The Clerk of Court has received several documents dropped off at the Clerk's Office Intake Desk at the Carl B. Stokes United States Courthouse, apparently by Louis Tombazzi on behalf of his company, Tomco Metal Fabricating, Inc., the plaintiff in this matter. Those documents include: (i) the affidavits referred to in the court's March 21, 2022 order; (ii) the letter in ECF Doc.19 ; and (iii) letters addressed to the Ohio Supreme Court Office of Disciplinary Counsel. Nothing in the documents the court has received indicates that the copies were served upon defendant Turner Construction Company, Inc. Thus, the documents appear to be attempted ex parte communications with the court by a non-lawyer on behalf of a corporate party. The Clerk of Court is instructed to file the attached documents on the docket of the court in this case. The court will not consider these ex parte materials in connection with any matter to be decided in this action. See, e.g., Freedom Hawk Kayak, LLC v. Ya Tai Elec. Appliances Co. , 908 F. Supp. 2d 763, 766 n.2 (W.D. Va. 2012); Frayler v. New York Stock Exch., Inc. , 118 F. Supp. 2d 448, 449 n.2 (S.D.N.Y. 2000). IT IS SO ORDERED. Magistrate Judge Thomas M. Parker on 5/13/2022. (D,JJ) |
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| Monday, April 04, 2022 | ||
| 19 | 19
oth_doc
Letter (court event)
Tue 04/05 8:40 AM
Notice of filing: Letter from Louis Tombazzi. Filed by Tomco Metal Fabricating, Inc.. (M,KS) |
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| Monday, March 28, 2022 | ||
| 18 | 18
motion
Withdraw as Attorney
Mon 03/28 10:26 AM
Motion by Jonathan P. Blakely to withdraw as attorney filed by Plaintiff Tomco Metal Fabricating, Inc.. (Blakely, Jonathan) |
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order
Order on Motion to withdraw as attorney
Mon 03/28 1:38 PM
Order [non-document]: Plaintiff's motion to withdraw attorney Jonathan P. Blakely as counsel (ECF Doc.18 ) is GRANTED. The court notes that because plaintiff is a corporation, it can only appear in federal court through an attorney. Doherty v. Am. Motors Corp. , 728 F.2d 334, 340 (6th Cir. 1984). Therefore, it is ORDERED that plaintiff shall have 30 days - until April 27, 2022 - to retain new counsel and cause that person to enter an appearance on behalf of plaintiff. IT IS SO ORDERED. Magistrate Judge Thomas M. Parker on 3/28/2022. (D,JJ) |
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| Wednesday, March 23, 2022 | ||
| 17 | 17
notice
Status Report (atty event)
Wed 03/23 3:01 PM
Status Report filed by All Plaintiffs. (Blakely, Jonathan) |
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| Monday, March 21, 2022 | ||
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order
Order
Mon 03/21 10:50 AM
Order [non-document]: The court received on March 18, 2022 two envelopes, one from Louis Tombazzi and one from Frank Tombazzi, the president and vice-president, respectively, of plaintiff Tomco Metal Fabricating, Inc. ("Tomco"). The envelopes contained affidavits from the Tombazzis and a "Payment & Retention Schedule" dated May 24, 2007 and signed by Louis Tombazzi and the purchasing manager of defendant Turner Construction Company, Inc. ("Turner"). The documents received from the Tombazzis do not appear on the docket. Nor do these documents indicate that a copy was provided to Turner. Thus, the documents constitute an improper ex-parte communication by Tomco. Further, Tomco is represented by counsel in this matter. If the Tombazzis intended to file their affidavits in support of Tomco's opposition to Turner's motion for judgment on the pleadings, they were required to do so through counsel. 28 U.S.C. § 1654. Accordingly, plaintiff's counsel is hereby ORDERED to file a status report within three days, by March 24, 2022, stating whether he intends to file the affidavits and, if so, explaining their relevance. Magistrate Judge Thomas M. Parker on 3/21/2022. (D,JJ) |
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| Thursday, March 03, 2022 | ||
| 16 | 16
resp
Reply
Thu 03/03 3:19 PM
Reply in support of11 Motion for judgment on the pleadings filed by Turner Construction Company, Inc.. (Thrush, William) |
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| Tuesday, February 22, 2022 | ||
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order
Order on Motion for leave
Tue 02/22 8:40 AM
Order [non-document]: Plaintiff's motion for leave to file an untimely opposition to defendant's motion for judgment on the pleadings (ECF Doc.15 ) is GRANTED. Magistrate Judge Thomas M. Parker on 2/22/2022. (D,JJ) |
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| Friday, February 18, 2022 | ||
| 15 | 15
motion
Leave
Fri 02/18 8:22 AM
Motion for leave to file its objection instanter filed by Plaintiff Tomco Metal Fabricating, Inc. Related document(s)14 . (Blakely, Jonathan) Modified event and docket text to match caption on document on 2/18/2022 (S,DM) |
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| 14 | 14
resp
Opposition
Fri 02/18 8:20 AM
Opposition to11 Motion for judgment on the pleadings filed by Tomco Metal Fabricating, Inc.. (Blakely, Jonathan) |
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| Friday, February 11, 2022 | ||
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order
Order on Motion for extension of time to file response/reply to motion
Fri 02/11 8:00 AM
Order [non-document]: Plaintiff's motion to extend the time to file a response to defendant's motion for judgment on the pleadings until February 17, 2022 (ECF Doc.11 ) is GRANTED. Magistrate Judge Thomas M. Parker on 2/11/2022. (D,JJ) |
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| Thursday, February 10, 2022 | ||
| 13 | 13
motion
Extension of Time to File Response/Reply to Motion
Thu 02/10 3:57 PM
Unopposed Motion for extension of time until February 17, 2022 to file response/reply to11 Motion for judgment on the pleadings Second Motion to February 17, 2022 filed by Plaintiff Tomco Metal Fabricating, Inc.. Related document(s)11 . (Blakely, Jonathan) |
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| Monday, January 31, 2022 | ||
| 12 | 12
motion
Extension (of deadlines)
Mon 01/31 4:05 PM
Motion for extension of January 31, 2022 until Febraury 10, 2022 filed by Plaintiff Tomco Metal Fabricating, Inc.. Related document(s)11 . (Blakely, Jonathan) |
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order
Order on Motion to extend deadlines
Mon 01/31 4:19 PM
Order [non-document]: Plaintiff's motion to extend the time to file a response to defendant's motion for judgment on the pleadings (ECF Doc.12 ) is GRANTED. Plaintiff's response is due by February 10, 2022. IT IS SO ORDERED. Magistrate Judge Thomas M. Parker on 1/31/2022. (D,JJ) |
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| Wednesday, January 12, 2022 | ||
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order
Minute Order _ Case Management Conference
Wed 01/12 2:19 PM
Minutes of Proceedings/Order [non-document]: Case Management Conference held on 1/12/2022. Attorney Jonathan Blakely participated on behalf of plaintiff Tomco Metal Fabricating, Inc. Attorney William Thrush participated on behalf of defendant Turner Construction Company, Inc. The court reviewed with the parties the pleadings and the parties' December 23, 2021 joint position statement (ECF Doc.9 ). In light of the potentially dispositive nature of the pending motion for judgment on the pleadings (ECF Doc.11 ), the parties agreed with the court to postpone setting a case management schedule until after briefing has concluded and the court rules on the motion. Accordingly, the court DEFERS establishment of a case management schedule. Should the court deny judgment on the pleadings or determine that the pending motion is not wholly dispositive of the case, it will issue a new case management scheduling order for a new conference. IT IS SO ORDERED. Magistrate Judge Thomas M. Parker on 1/12/2022. (Court Reporter: N/A. Time: 20 minutes). (D,JJ) |
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| Friday, December 31, 2021 | ||
| 11 | 11
motion
Judgment on the Pleadings
Fri 12/31 1:01 PM
Motion for judgment on the pleadings filed by Defendant Turner Construction Company, Inc.. (Thrush, William) |
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| 10 | 10
answer
Answer to Complaint in a Removal Case
Fri 12/31 12:09 PM
Answer to Complaint filed by Turner Construction Company, Inc..(Thrush, William) |
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Att: 1
Exhibit A - 2007 Turner Tomco Subcontract,
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Att: 2
Exhibit B - 2009 Liquidating Agreement,
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Att: 3
Exhibit C - 2014 Settlement Agreement
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| Thursday, December 23, 2021 | ||
| 9 | 9
notice
Position Statement re: CMC Agenda
Thu 12/23 11:32 AM
Joint Position Statement re: Case Management Conference Agenda filed by Turner Construction Company, Inc.. (Thrush, William) |
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| Tuesday, December 14, 2021 | ||
| 8 | 8
minutes
1 - Terminate Hearings Case Management Conference Scheduling Order
Tue 12/14 3:57 PM
Case Management Conference Scheduling Order : Case management conference to be held telephonically on 1/12/2022 at 01:00 PM before Magistrate Judge Thomas M. Parker. Call-in instructions will be emailed to the parties separately. Magistrate Judge Thomas M. Parker on 12/14/2021.. (D,JJ) |
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Att: 1
Attachment A - Position Statement,
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Att: 2
Attachment B - Preliminary Estimate/Budget
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| Monday, December 13, 2021 | ||
| 7 | 7
order
Consent to Magistrate Judge
Mon 12/13 9:34 AM
Consent of the parties to this case being transferred to the docket of Magistrate Judge Thomas M. Parker for further proceedings. Related Document6 . Judge Donald C. Nugent on 12/13/2021. (M,S) |
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utility
Add and Terminate Judge
Mon 12/13 9:37 AM
Magistrate Judge Thomas M. Parker assigned to case, pursuant to consent. Judge Donald C. Nugent terminated. Related document(s)7 . (M,MT) |
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| Thursday, December 09, 2021 | ||
| 6 | 6
notice
Notice (atty event)
Thu 12/09 4:28 PM
Consent to Exercise of Jurisdiction by a United States Magistrate Judge filed by Turner Construction Company, Inc.. Related document(s)3 .(Thrush, William) |
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| Monday, December 06, 2021 | ||
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order
Order on Motion for extension of time to answer
Mon 12/06 8:42 AM
Order [non-document]granting Defendant's5 Motion for Extension of Time to Answer. Turner Construction Company, Inc. answer due 1/3/2022. Judge Donald C. Nugent on 12/3/2021. (M,S) |
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| Thursday, December 02, 2021 | ||
| 5 | 5
motion
Extension (answer complaint)
Thu 12/02 3:14 PM
Unopposed Motion for extension of time until 01/03/2022 to answer Complaint filed by Defendant Turner Construction Company, Inc.. (Thrush, William) |
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| Wednesday, December 01, 2021 | ||
| 4 | 4
order
Case Management Conference Scheduling Order
Wed 12/01 5:27 PM
Case Management Conference Scheduling Order with case management conference on 1/28/2022 at 09:45 AM to be held telephonically before Judge Donald C. Nugent. Counsel are instructed to first initiate a conference call with all parties connected and then contact the Court. Judge Donald C. Nugent on 12/1/2021. (M,S) |
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| Monday, November 29, 2021 | ||
| 3 | 3
oth_evt
Magistrate Consent Form Issued by Intake
Mon 11/29 12:07 PM
Magistrate Consent Form issued. (L,Ja) |
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| 2 | 2
notice
Corporate Disclosure Statement (atty event)
Mon 11/29 11:21 AM
Corporate Disclosure Statement identifying Corporate Parent The Turner Corporation, a Delaware corporation for Turner Construction Company, Inc. filed by Turner Construction Company, Inc.. (Thrush, William) |
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| 1 | 1
cmp
Notice of Removal
Mon 11/29 11:15 AM
Notice of Removal from Court of Common Pleas Cuyahoga County, Ohio, case number CV 21 954660 with jury demand, Filing fee paid $ 402, receipt number AOHNDC-11153447.. Filed by Turner Construction Company, Inc.. (Thrush, William) |
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Att: 1
Civil Cover Sheet,
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Att: 2
10 pgs
Exhibit A - State Court Summons and Complaint,
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Att: 3
Exhibit B - Declaration of Patrick Blake in Support of Notice of Removal,
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Att: 4
Exhibit C - Notice of Filing Notice of Removal in Cuyahoga County Court of Common Pleas
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utility
Add and Terminate Judge
Mon 11/29 12:05 PM
Judge Donald C. Nugent assigned to case. (L,Ja) |
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oth_evt
Random Assignment of Magistrate Judge
Mon 11/29 12:05 PM
Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge Thomas M. Parker. (L,Ja) |
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