Opinion
Case No. 2:05-CV-936.
July 7, 2006
OPINION AND ORDER AND REPORT AND RECOMMENDATION
This is a 42 U.S.C. § 1983 action brought by Anthony Harper ("plaintiff") who is an inmate at the Ross Correctional Institution ("RCI") in Chillicothe, Ohio. This matter is currently before the Court on plaintiff's motion for default against the Clerk of Courts, Juvenile Division, Fairfield County Court of Common Pleas Diana Steckman in her individual capacity (" Plaintiff's Motion for Default against Steckman"), Doc. No. 15, plaintiff's motion to strike a motion to dismiss filed by certain defendants, (" Plaintiff's Motion to Strike ODRC Defendants' Motion to Dismiss"), Doc. No. 16, plaintiff's motion to strike the answer filed by Steckman in her individual capacity (" Plaintiff's Motion to Strike Steckman's Answer"), Doc. No. 23, and plaintiff's motion for summary judgment on his claims against Steckman (" Plaintiff's Motion for Summary Judgment against Steckman"), Doc. No. 25.
For the reasons that follow, Plaintiff's Motion to Strike Defendants' Motion to Dismiss and Plaintiff's Motion to Strike Steckman's Answer are both DENIED and the Court RECOMMENDS that Plaintiff's Motion for Default against Steckman and Plaintiff's Motion for Summary against Steckman both be DENIED.
I. RELEVANT BACKGROUND
Plaintiff filed the Complaint in this action on October 13, 2005. Doc. No. 1. In the Complaint, plaintiff named, among others, the Clerk of Court for the Juvenile Division of the Fairfield County Court of Common Pleas. On November 9, 2005, plaintiff supplemented the Complaint with the name of the Clerk of that court, Diana Steckman. Doc. No. 3. Plaintiff represents that service of process was made, by certified mail, on the ODRC defendants on November 4, 2005, Doc. No. 8, and on defendant Steckman on November 17, 2005. Doc. No. 10.
On November 23, 2005, an answer was filed on behalf of, inter alia, the "Fairfield County Clerk of Courts, Juvenile Division." Doc. No. 6. On December 16, 2005, plaintiff filed Plaintiff's Motion for Default against Steckman, requesting an entry and judgment of default against Steckman in her individual capacity for failure to timely respond to the Complaint. Doc. No. 15. On January 9, 2006, Steckman filed an answer to the Complaint in her individual capacity, Doc. No. 20. On January 19, 2006, plaintiff filed Plaintiff's Motion to Strike Steckman's Answer, arguing that it had not been timely filed. Doc. No. 23.
On December 1, 2005, defendants Pat Hurley, Robert Whitten, Linda Coval, Cheryl Martinez and Reginald Wilkinson ["the ODRC defendants"] filed a motion to dismiss (" ODRC Defendants' Motion to Dismiss"). Doc. No. 10. On December 16, 2005, plaintiff filed a motion to strike this motion, arguing that it had not been timely filed. Doc. No. 16. These defendants filed a response to plaintiff's motion to strike on December 20, 2005. Doc. No. 17.
On May 11, 2006, plaintiff filed Plaintiff's Motion for Summary against Steckman, again based on her alleged failure to timely file her answer. Doc. No. 25.
II. DISCUSSION
Plaintiff contends that he is entitled to an order striking the ODRC Defendants' Motion to Dismiss and striking Steckman's answer in her individual capacity for being untimely filed; he also asks for default or summary judgment against Steckman, again, for her asserted untimely filing of her answer. The Court disagrees.
A. Plaintiff's Motions to Strike
First, plaintiff moves this Court under Fed.R.Civ.P. 12(f) for an order striking Steckman's answer because it was not timely filed. Doc. No. 23. Second, in a "praecipe," plaintiff asks the Clerk of this Court to "dismiss" from its docket the ODRC Defendants' Motion to Dismiss because it was not timely filed. Doc. No. 16. Although plaintiff does not indicate the authority for this request of the Clerk, the Court will accept the "praecipe" as a motion to strike under Fed.R.Civ.P. 12(f).
Rule 12(f) provides, "upon motion made by a party . . . the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Because striking a pleading is a drastic remedy, such motions are generally viewed with disfavor and are rarely granted. ATT Global Information Solutions Co. v. Union Tank Car Co., 1997 U.S. Dist. LEXIS 6090, C2-94-876, 1997 WL 382101 (S.D. Ohio Mar. 31, 1997) (citing Brown and Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)); Morrow v. South, 540 F. Supp. 1104, 1111 (S.D. Ohio 1982) ("Motions under Rule 12(f) are not favored, and should not be granted unless it is apparent that the matter has no possible relation to the controversy.").
1. Plaintiff's Motion to Strike Steckman's Answer
Plaintiff contends that the answer of defendant Steckman, in her individual capacity, filed on January 9, 2006, was approximately one month late. An answer was filed on behalf of the "Fairfield County Clerk of Court, Juvenile Division," on November 23, 2005. Doc. No. 6. In response to plaintiff's motion to strike, Steckman argues that it was unclear to her that she was being sued in her individual capacity and that, once she realized that plaintiff intended to sue her in her individual capacity she filed her answer in that capacity. Plaintiff replies that it was quite clear that he intended to sue Steckman in both her official and individual capacity by looking at the face of the Complaint.
The Court agrees that, as it relates to defendant Steckman, the record is ambiguous. In any event, however, it is unnecessary to decide whether the answer was timely or untimely filed because plaintiff has suffered no prejudice as a result of the timing of the filing. Any lateness in the filing, now remedied, is not the sort of misconduct that should result in the imposition of the "drastic remedy" requested by plaintiff. See ATT Global Information Solutions Co., supra. Accordingly, Plaintiff's Motion to Strike Steckman's Answer, Doc. No. 23, is DENIED. 2. Plaintiff's Motion to Strike the ODRC Defendants' Motion to Dismiss
On December 1, 2005, the ODRC defendants filed a motion to dismiss. On December 16, 2005, plaintiff filed Plaintiff's Motion to Strike ODRC Defendants' Motion to Dismiss, arguing that the motion to dismiss filed on December 1, 2005, on behalf of the ODRC defendants was untimely under Fed.R.Civ.P. 12(a). The ODRC defendants contend that their motion was not untimely filed because plaintiff has never properly effectuated service of process on them; alternatively, the ODRC defendants request that the Court grant them an enlargement of time in which to file their motion to dismiss, pursuant to Fed.R.Civ.P. 6(b)(2).
Federal Rule of Civil Procedure 6(b)(2) confers on this Court discretion to grant a motion for an enlargement of time "where the failure to act was the result of excusable neglect." Fed.R.Civ.P. 6(b)(2). "Neglect exists where the failure to do something occurred because of a simple, faultless omission to act, or because of a party's carelessness." Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir. 2005). Inquiry into whether a failure to abide by a specified time constraint constitutes "excusable neglect" is "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission," including prejudice to the other party, the reason for the delay, its duration, and whether the movant acted in good faith. Alternative Travel, Inc. v. Worldspan L.P., 52 Fed. Appx. 693, 698-99 (6th Cir. 2002) (citing Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993)).
In the case sub judice, the ODRC defendants first argue that their motion was timely filed because they have not yet been properly served under Fed.R.Civ.P. 4(c)(2), which provides that service "may be effected by a person who is not a party" to the action. Plaintiff initially represented that it was he who effected service of process on defendants:
Plaintiff served each Defendant by Certified Mail by the U.S. Postal Service in accordance with Fed.R.Civ.P. 4(c)(2).Proof of Service, Doc. No. 8. See also Proof of Service, Doc. No. 10. In response to the ODRC Defendants' Motion to Dismiss, however, plaintiff asserts that a member of his family, Beulah Mae Pryor, who is not a party to this action, actually made service of process on defendants. Doc. No. 18, and Affidavit of Beulah Mae Pryor attached thereto.
Again, plaintiff has created at least a degree of confusion and ambiguity in the record that cannot be ignored. Moreover, plaintiff points to no evidence that the ODRC defendants acted in bad faith nor does he articulate any prejudice suffered by him as a consequence of the timing of the filing — which under even plaintiff's calculations was a mere one week late. See Alternative Travel, Inc., supra. Under these circumstances, any neglect in the filing of the ODRC Defendants' Motion to Dismiss is, without question, excusable. See Fed.R.Civ.P. 6(b)(2).
Accordingly, Plaintiff's Motion to Strike the ODRC Defendants' Motion to Dismiss is DENIED. ODRC Defendants' Motion to Dismiss, Doc. No. 10, is deemed timely filed. That motion is now fully at issue, Doc. Nos. 18, 19, and will be addressed in due course.
B. Plaintiff's Motion for Default against Defendant Steckman
In Plaintiff's Motion for Default against Steckman, plaintiff requests default judgment against Steckman pursuant to Fed.R.Civ.P. 55 based on the alleged untimely filing of Steckman's answer to the Complaint. Moreover, plaintiff requests, under Fed.R.Civ.P. 55(b)(1), that the Clerk enter judgment against Steckman for a "'sum certain' which can by computation be made certain[,]" i.e., two million dollars ($2,000,000.00). Plaintiff's Motion for Default against Steckman at 3 and Plaintiff's Affidavit in Support ¶ 5 attached thereto.
Fed.R.Civ.P. 55 provides in relevant part:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.
(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor. . . .Fed.R.Civ.P. 55.
A motion for default judgment is addressed to the court's discretion, and, the movant is not entitled to a default judgment as of right, even "when the defendant is technically in default." 10 Charles A. Wright, Arthur R. Miller Mary K. Kane, Federal Practice and Procedure §§ 2681, 2685. When considering whether to enter a default judgment, a court may consider: 1) possible prejudice to the plaintiff; 2) the merits of the claims; 3) the sufficiency of the complaint; 4) the amount of money at stake; 5) possible disputed material facts; 6) whether the default was due to excusable neglect; and 7) the preference for decisions on the merits. Berthelsen v. Kane, 907 F.2d 617, 620 (6th Cir. 1990) (citations omitted).
This Court's "starting point is the general rule that default judgments are ordinarily disfavored." Eitel v. McCool, 782 F.2d 1470, 1471-72 (6th Cir. 1986). "Cases should be decided upon their merits whenever reasonably possible." Id. (citing Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). "Indeed, [the United States Court of Appeals for the Sixth Circuit] has indicated a 'strong preference for trials on the merits.'" United States v. Bridwell's Grocery and Video, 195 F.3d 819, 820 (6th Cir. 1999) (citing Shepard Claims Serv., Inc. v. William Darrah Assoc., 796 F.2d 190, 193 (6th Cir. 1986)).
"The judicial hostility to foreclosing a review on the merits also finds expression in the context of motions to set aside the entry of default, [Fed.R.Civ.P. 55(c)] where courts are to apply a 'standard of liberality' and 'resolve all doubts in favor of the defaulting party.'" Duncan v. Speach, 162 F.R.D. 43, 44-5 (E.D. Pa 1995) (citations omitted).
Applying these principles here, the Court concludes that plaintiff's request for a default judgment against defendant Steckman in her personal capacity should be denied. Plaintiff's request rests solely on Steckman's alleged failure to answer the Complaint in her personal capacity within the twenty days of service of process required by Fed.R.Civ.P. 12(a). Plaintiff can demonstrate no prejudice resulting from the timing of the filing of defendant Steckman's answer in her individual capacity, and indeed he has not even attempted to do so. Allowing defendant Steckman "to put plaintiff to his proof does not in itself materially impair or otherwise compromise plaintiff's claim so as to constitute the sort of prejudice contemplated by the default judgment rule." Duncan v. Speach, 162 F.R.D. 43, 44-5 (E.D. Pa 1995) ("prejudice" for purposes of Fed.R.Civ.P. 55 requires showing that the plaintiff's claim would be materially impaired because of loss of evidence or other substantial factor). Also undermining plaintiff's request is the fact that he seeks $2 million in damages from Steckman in her individual capacity — putting a substantial amount of money at stake. Moreover, even a cursory review of plaintiff's sixty-seven page Complaint make clear that the parties dispute material facts in the pleadings.
Finally, the Court has no difficulty in concluding that defendant Steckman's conduct demonstrates, at worst, merely excusable neglect. As the Court noted supra, plaintiff has himself interjected ambiguity into the record as it relates to his claims against defendant Steckman in her individual capacity. Even by plaintiff's own calculation, defendant Steckman's answer in her individual capacity was only approximately one month late. Defendant Steckman has acted with reasonable diligence in pursing her defense against the claims asserted against her in this action. All of the above reasons militate against entry of default and default judgment against defendant Steckman. Accordingly, the Court RECOMMENDS that Plaintiff's Motion for Default against Steckman be DENIED.
C. Plaintiff's Motion for Summary Judgment against Defendant Steckman
In Plaintiff's Motion for Summary against Steckman, plaintiff moves this Court to enter summary judgment in his favor pursuant to Fed.R.Civ.P. 56(c) on his claims against Steckman.
Plaintiff's request, again, rests solely on defendant Steckman's failure to answer the Complaint within the twenty days of service of process required by Fed.R.Civ.P. 12(a). For the reasons previously articulated, the Court RECOMMENDS that Plaintiff's Motion for Summary against Steckman be DENIED. WHEREUPON, in light of the foregoing, Plaintiff's Motion to Strike ODRC Defendants' Motion to Dismiss, Doc. No. 16, and Plaintiff's Motion to Strike Steckman's Answer, Doc. No. 23, are DENIED. The Court RECOMMENDS that Plaintiff's Motion for Default against Steckman, Doc. No. 15, and Plaintiff's Motion for Summary Judgment against Steckman, Doc. No. 25, both be DENIED.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties objections to the Report and Recommendation, and the part thereof in question, as well as the basis for the objection thereto. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Responses to objections must be filed within ten (10) days after being served with a copy thereof. Fed.R.Civ.P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Harris v. City of Akron, 20 F.3d 1396 (6th Cir. 1994); Smith v. Detroit Fed'n of Teachers, Local 231, Am. Fed'n of Teachers, AFL-CIO, 829 F.2d 1370 (6th Cir. 1987).
Remaining pending for decision are the motions to dismiss filed on behalf of the Ohio Supreme Court defendants, Doc. No. 5, and the ODRC defendants' motion to dismiss, Doc. No. 10.