Opinion
8:22-cv-02031-MGL-JDA
11-30-2022
Kenneth Gene Scott, Plaintiff, v. Richland County, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion for default judgment by Plaintiff and a motion to dismiss by Defendant. [Docs. 8; 13.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff, who is represented in this action, asserts various claims arising out of his eighteen-month incarceration at the Alvin S. Glenn Detention Center (“ASGDC”) while he was waiting for the disposition of charges brought against him. [Doc. 1.] Plaintiff initiated this action by filing a Complaint on June 27, 2022. [Id.] A Summons was issued as to Defendant on the same day [Doc. 4], and it was returned executed on June 30, 2022 [Doc. 5]. On July 29, 2022, Plaintiff requested an entry of default, which was entered that same day. [Docs. 6; 7.]
Plaintiff's Complaint asserts that Defendant “is responsible for the ownership, management, operation, staffing, and oversight of ASGDC.” [Doc. 1 ¶ 8.]
On August 1, 2022, Plaintiff filed a motion for default judgment. [Doc. 8.] On August 29, 2022, Defendant filed a motion to set aside entry of default and a motion to dismiss. [Docs. 12; 13.] On September 12, 2022, Plaintiff filed responses in opposition to Defendant's motions. [Docs. 18; 19.] Plaintiff's motion for default judgment and Defendant's motion to dismiss are ripe for review.
By separate Order, the undersigned found Plaintiff had not established that he properly served Defendant with the Summons and Complaint in this action. [Doc. 26 at 3-8.] Accordingly, the undersigned granted Defendant's motion to set aside entry of default and has given Plaintiff 30 days to properly serve Defendant. [Id. at 9-10.] Because the entry of default has been set aside, the undersigned recommends finding as moot Plaintiff's motion for default judgment. See Allergy Partners, P.A. v. Cox, No. 6:16-89-HMH, 2016 WL 9685363, at *2 (D.S.C. May 12, 2016) (“Because the court grants [the defendant's] motion to set aside the entry of default, [the plaintiff's] motion for default judgment is moot.”).
Defendant has moved for dismissal pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. Because the Court has granted Plaintiff additional time to perfect service, the undersigned recommends denying the motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(5), which are both based on improper service, and denying the motion to dismiss pursuant to Rule 12(b)(6) with leave to refile after Defendant has been properly served. See Tucker v. Thomas, No. 5:10CV31, 2011 WL 1119661, at *9 (N.D. W.Va. Mar. 24, 2011) (“Because this Court will allow the plaintiffs to serve these defendants within 90 days, the defendants' motion to dismiss pursuant to 12(b)(5) is denied. Furthermore, this Court will deny without prejudice those defendants' motions to dismiss pursuant to 12(b)(6) subject to refiling after proper service of process has been made on these defendants within the 90 day period.”); see also Informaxion Sols., Inc. v. Vantus Grp., No. 15-CV-1359, 2016 WL 2588172, at *3 (E.D. Wis. May 4, 2016) (granting the plaintiff additional time to properly serve the defendants, denying a motion to dismiss for insufficient service of process, and declining to address the defendants' Rule 12(b)(6) motion “[b]ecause the defendants need to be served for this Court to acquire personal jurisdiction”).
The parties' arguments to this Court have been primarily focused on the issue of improper service, and, as a result, the other bases for the motion to dismiss received less attention in the briefing. If Defendant files a motion to dismiss after being properly served, both parties should submit more thorough briefing addressing the remaining defenses.
Wherefore, based upon the foregoing, the undersigned recommends that the motion for default judgment [Doc. 8] be FOUND AS MOOT and the motion to dismiss [Doc. 13] be DENIED without prejudice and with leave to refile upon proper service as set forth above.
IT IS SO RECOMMENDED.