Opinion
7:21-CV-27-D
01-19-2022
LAMAR IRONHORSE, Plaintiff, v. TERRY B. STOMEL, and ADLER AND STOMEL, Defendants.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers, United States Magistrate Judge.
This matter comes before the court on the motion [D.E. 7] by Plaintiff Lamar Ironhorse (“Plaintiff”), who is proceeding pro se, for entry of default and default judgment against Defendants Terry B. Stomel and Adler and Stomel, PA (collectively “Defendants”). Defendants filed a response [D.E. 23] in opposition to Plaintiff's motion. Plaintiff's motion was referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the motion, it is recommended that Plaintiff's motion be denied.
Defendants' response was filed pursuant to the court's order of July 1, 2021. [D.E. 20].
The instant memorandum and recommendation addresses only Plaintiff's motion for entry of default and default judgment. [D.E. 7]. Neither the Defendants' motion to dismiss [D.E. 16] nor motion to strike Plaintiff's amended complaint [D.E. 21] is addressed herein.
I. BACKGROUND
Plaintiff commenced this action against Defendants by filing a Complaint in this matter on February 17, 2021. Compl. [D.E. 1]. On that same date, a summons was issued to Defendant Terry B. Stomel, Esquire, at his law firm Adler and Stomel, PA. [D.E. 4]. On March 1, 2021, Plaintiff filed a Certificate of Service with the court stating that service was made upon Defendant Terry B. Stomel, Esquire at Adler and Stomel, PA via U.S. Certified Mail, on February 19, 2021. [D.E. 5]. After Defendants failed to respond to Plaintiff's Complaint, Plaintiff filed the instant motion for entry of default and default judgment on March 16, 2021. Mot. [D.E. 7]. On March 25, 2021, Plaintiff filed a Certificate of Service stating that Plaintiff's motion for entry of default had been served upon Defendant Terry B. Stomel, Equire at Adler and Stomel, PA via U.S. Certified Mail, on March 20, 2021. [D.E. 9].
On April 14, 2021, a notice of appearance was filed on behalf of Defendants by attorney John Crook. [D.E. 10]. On that same day, defense counsel also filed a motion for extension of time to file an answer or plead to Plaintiff's Complaint. [D.E. 11]. On April 15, 2021, the Clerk of Court issued an Order granting Defendants' motion and extending the time for Defendants to serve an answer, pleadings, or motions to May 15, 2021. [D.E. 12]. Defendants then timely filed a motion to dismiss Plaintiff's Complaint on May 17, 2021. Mot. to Dismiss [D.E. 16].
As noted by Defendants in their response to Plaintiff's motion for entry of default and default judgment, because the court's deadline of May 15, 2021 fell on a Saturday, Defendants had until May 17, 2021 to file an answer, pleadings, or motion pursuant to Federal Rule of Civil Procedure 6(a). Defs.' Resp. [D.E. 23] at 2.
To note, Plaintiff's initial Complaint includes his minor child as a plaintiff to this action. However, United States District Judge James C. Dever III issued an Order on March 3, 2021 notifying Plaintiff that he is “not permitted to litigate pro se on behalf of his minor child[, ]” but he may “obtain counsel to represent his minor son or file an amended complaint.” Order [D.E. 6] at 2. Plaintiff subsequently filed a motion for appointment of next friend on behalf of his minor child on March 16, 2021. [D.E. 8]. However, following a notice of appearance [D.E. 15] filed by attorney Moses Brown on behalf of Plaintiff, Plaintiff amended his Complaint and removed his minor child as a plaintiff [D.E. 18]. Defendants have since moved to strike Plaintiff's Amended Complaint. [D.E. 21]. Plaintiff's counsel has also subsequently withdrawn their representation of Plaintiff. [D.E. 29, 30]. Plaintiff is currently appearing in this action pro se. [D.E. 31].
II. DISCUSSION
Rule 55 of the Federal Rules of Civil Procedure sets forth the procedure for obtaining default judgment. “Prior to obtaining a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of default as provided by Rule 55(a).” 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2682 (3d ed.); see also Dingle v. Baggett, No. 5:19-CV-00425-D, 2020 WL 4342212, at *3 (E.D. N.C. July 28, 2020) (“The court cannot grant a motion for default judgment if it has not first entered default.”). An entry of default is proper “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a).
Here, Plaintiff filed his Complaint on February 17, 2021 and service was effected on February 19, 2021. Defendants failed to timely file a responsive pleading. Thus, Plaintiff argues, an entry of default and default judgment is warranted.
However, on April 14, 2021, defense counsel entered a notice of appearance and filed a motion for extension of time to file an answer on Defendants' behalf. The Clerk of Court subsequently granted Defendants' motion, finding that good cause existed for doing so, and extended the time within which Defendants had to serve an answer, pleadings, or motions in response to Plaintiff's Complaint to May 15, 2021. Because Defendants did timely file a motion to dismiss prior to this extended deadline, an entry of default is not appropriate here. See Howell v. Wood, No. 5:17-CV-93-BO, 2018 WL 1369916, at *3 (E.D. N.C. Mar. 16, 2018) (“The Court having previously allowed the [] defendants an extension of time to respond to the complaint, and such defendants having filed a motion to dismiss within the allowed time, entry of default is not appropriate.”); Bell v. Turner, No. 7:17-CV-39-BO, 2017 WL 3927666, at *1 (E.D. N.C. Sept. 7, 2017) (finding an entry of default and default judgment not warranted where the defendant filed a motion to dismiss within the time provided by the Court, even though “the second motion for extension of time was filed after the previously extended time period had expired, [because] the Court's allowance of [the] defendant's second motion for extension found good cause for the delay”); Graham v. United States Anti-Doping Agency, No. 5:10-CV-194-F, 2010 WL 3027864, at *3 (E.D. N.C. Aug. 2, 2010) (“Because the Clerk of Court correctly allowed the Motion for Extension of Time, and because the [defendant] timely responded to the Complaint in accordance with the Clerk of Court's Order, [the plaintiff's] multiple Motions to Court to File Default Judgement [sic] [] are DENIED.”).
Accordingly, the undersigned recommends that Plaintiff's motion for entry of default and default judgment be denied.
III. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's motion for entry of default and default judgment [D.E. 7] against Defendants Terry B. Stomel and Adler and Stomel, PA be DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 2, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation
by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).