Opinion
No. 3-01-CV-2315-M
March 4, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Yvonne Evette Brown has filed an amended and second amended motion for default judgment in this pro se civil rights case. For the reasons stated herein, the motions should be denied.
The Civil Justice Expense and Delay Reduction Plan adopted by this Court provides that "[e]ach judge will continue to give priority to the monitoring and resolution of pending motions." Plan at § XI(2), reprinted in Texas Rules of Court — Federal at 278 (West Pamph. Supp. 2001). To eliminate undue delay and unnecessary expense to the parties in this and other civil actions, and to expedite the determination of these patently frivolous motions, the magistrate judge will make a recommendation on plaintiff's amended and second amended motions for default judgment without waiting for a response.
I.
Plaintiff is a registered nurse who formerly operated a home health care agency in DeSoto, Texas. In June 1999, the Texas Board of Nursing Examiners ("Board") filed formal charges against plaintiff alleging various violations of the Texas Nursing Practices Act. Plaintiff was notified of these charges by letter dated June 16, 1999. She was directed to answer the allegations within 20 days and schedule an informal conference with an investigator by July 2, 1999. (Plf. Compl., Exh. E). Plaintiff states that she did not receive this letter until July 2, 1999 and requested an informal conference shortly thereafter. ( Id. at 1).This conference was scheduled for November 24, 1999. However, plaintiff failed to attend. Plaintiff also failed to appear for a hearing before an administrative law judge on December 9, 1999. As a result, the ALJ recommended that a default judgment be entered against plaintiff and that her nursing license be revoked. ( Id., Exh. F). Plaintiff objected to this recommendation, claiming that she never received notice of the administrative hearing and that "[t]he State Board of Nursing Examiners indicated to me over a year ago that this case had been closed and was resolved." ( Id., Exh. G). The ALJ rejected these objections as untimely. ( Id., Exh. I). By order dated April 13, 2000, the Board adopted the ALJ's recommendation and revoked plaintiff's license to practice professional nursing in Texas. ( Id., Exh. J).
The Texas Administrative Code provides that objections to a proposal for decision must be filed "within 15 days after the date of service of the proposal for decision." 22 TEX. ADMIN. CODE § 213.23(b) (1998). The regulations further provide that "service is complete when sent by certified or registered mail, return receipt requested, to the licensee's address of record at the time of mailing." Id. § 213.10(a). Although plaintiff did not receive the ALJ's proposal for decision until February 23, 2000, the proposal was sent to her by certified mail on February 7, 2000. Therefore, plaintiff's objections filed on March 9, 2000 were untimely.
On November 16, 2001, plaintiff filed suit against the Board in federal district court. Her pro se complaint alleges civil rights violations under 42 U.S.C. § 1983 and numerous violations of the Texas Administrative Code. Plaintiff sought and obtained leave to proceed in forma pauperis and the Court directed the United States Marshal to serve the Board at the address provided by plaintiff in her complaint. Service was obtained by certified mail on January 22, 2002. On February 12, 2002 — just one day after the answer deadline — plaintiff filed an amended motion for default judgment. One week later, the Board filed a motion to dismiss. Plaintiff filed a second amended motion for default judgment on February 25, 2002. Both motions have been referred to the magistrate judge for recommendation.
Before filing this federal civil rights action, plaintiff sought judicial review of the order revoking her nursing license in state court. That case was dismissed for want of jurisdiction. Plaintiff appealed that decision, but her appeal was dismissed for want of prosecution. Brown v. The Texas Board of Nursing Examiners, No. 05-01-01200-CV (Tex.App.-Dallas, Oct. 23, 2001). The state appellate court also denied mandamus relief. In re Brown, No. 05-01-01656-CY (Tex.App.-Dallas, Oct. 23, 2001).
Plaintiff originally moved for a default judgment on January 18, 2002. However, the Board was not served with process until January 22, 2002.
II.
A district court may enter a default judgment "[w]hen a party against whom affirmative relief is sought has failed to plead or otherwise defend . . ." FED. R. CIV. P. 55(a). This is a drastic remedy not favored by the federal courts. See Rogers v. Hartford Life and Accident Insurance Co., 167 F.3d 933, 936 (5th Cir. 1999); Sun Bank of Ocala v. Pelican Homestead and Savings Assoc., 874 F.2d 274, 276 (5th Cir. 1989). A default judgment should be entered only in extreme situations where there is "a clear record of delay and contumacious conduct." Turner v. Salvatierra, 580 F.2d 199, 201 (5th Cir. 1978); Tompkins v. Cyr, 995 F. Supp. 689, 696 (N.D. Tex. 1998) (Kaplan, M.J.). See also Sun Bank, 874 F.2d at 276 (noting that default judgments "are available only when the adversary process has been halted because of an essentially unresponsive party") (citation and footnote omitted).
A.
Plaintiff is not entitled to a default judgment for two reasons. First and foremost, it appears that the Board timely answered the complaint. Rule 12(a) of the Federal Rules of Civil Procedure requires a defendant to " serve an answer within 20 days after being served with the summons and complaint." FED. R. Civ. P. 12(a)(1)(A) (emphasis added). This rule is silent as to when an answer must be filed. Instead, Rule 5(d) provides that "[a]ll papers after the complaint required to be served upon a party . . . must be filed with the court within a reasonable time after service." FED. R. Civ. P. 5(d) (emphasis added). See also Blank v. Bitker, 135 F.2d 962, 965 (7th Cir. 1943) (Rule 12(a) simply provides for service, not filing); Pass v. National Broadcasting Co., 1993 WL 77215 at *1 (S.D.N.Y. Mar. 19, 1993), citing 5A C. WRIGHT A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1346 at 177 (2d ed. 1990) (time provision of Rule 12(a) does not apply to filing the answer).
If a defendant timely serves a Rule 12 motion, an answer must be served within 10 days after the parties are notified that the motion has been denied. See FED. R. Civ. P. 12(a)(4).
As evidenced by the certificate of service attached to its motion to dismiss, the Board mailed a copy of this pleading to plaintiff on February 8, 2002 — three days before the answer date. Although the motion was not filed until February 19, 2001, the Court has no difficulty in finding that this brief lapse between service and filing was reasonable. See Pass, 1993 WL 77215 at *1-2 (motion for default judgment denied where answer was timely served but not filed until 21 days later). Consequently, plaintiff is not entitled to a default judgment because the Board was never in default.
B.
Even if the Board was in default, there is no evidence of undue delay or contumacious conduct to support the entry of a default judgment. The Board filed its motion to dismiss barely one week after the answer was due. Cf. Sun Bank, 874 F.2d at 275 (finding no undue delay and reversing default judgment where defendant failed to answer four months after service of summons and complaint). Plaintiff has not alleged, nor is it likely she could show, any harm or prejudice as a result of this delay. "The Federal Rules of Civil Procedure are designed for the just, speedy, and inexpensive disposition of cases on the merits, not for the termination of litigation by procedural maneuver." Id.. at 276. It would be inequitable for the Court to enter a default judgment under these circumstances.
RECOMMENDATION
Plaintiff's amended and second amended motions for default judgment should be denied.