Opinion
No. 1:00CV00166
November 22, 2002
MEMORANDUM ORDER
This matter is before the Court on the Defendants' Motion to Consolidate/Stay or in the Alternative, Motion to Dismiss [Doc. #4] pursuant to Federal Rules of Civil Procedure 7(b)(1), 8(a), 12(b)(1), 12(b)(2), 12(b)(6), 21, and 42(a). In a responsive pleading, Ms. Jenkins has filed a Motion to Deny the Defendants' Motions and a Motion for Default Judgment [Doc. #7]. For the reasons set forth below, the Defendants' motion will be GRANTED, and Ms. Jenkins' motion will be DENIED.
I.
On August 11, 1999, Plaintiff Diane Joy Jenkins filed a complaint, case number 1:99CV664, against Defendant Trustees of Sandhills Community College and Defendant State of North Carolina. An amended complaint was filed on October 19, 1999. On February 18, 2000, Ms. Jenkins filed a similar complaint against the same defendants in case number 1:OOCV166. An amended complaint was filed on May 31, 2000. The Defendants now move to have these cases consolidated.
II.
Rule 42(a) permits consolidating actions that involve a "common question of law or fact." Fed.R.Civ.P. 42(a) (West Supp. 2002). The Fourth Circuit has found that common questions of law or fact exist when the "claims, brought against the same defendant, rely on the same witnesses, allege the same misconduct, and [were] answered with the same defenses." Harris v. L L Wings, Inc., 132 F.3d 978. 982 n. 2 (4th Cir. 1997). In the matters currently before the Court: (1) both cases involve the same defendants; (2) both cases arise from Ms. Jenkins' employment with Sandhills Community College so that the witnesses will be the same; (3) both cases allege racial discrimination; and (4) and in both cases, the defendants have filed motions to dismiss for failure to state a claim. Because the cases involve common questions of law and fact, the Defendants' Motion to Consolidate is GRANTED, and Ms. Jenkins' Motion to Deny the Motion to Consolidate is DENIED.
III.
In response to the Motion to Consolidate, Ms. Jenkins requested that the Court "decide Plaintiff's amended complaint as an uncontested complaint and, accordingly, grant the relief demanded in the amended complaint to plaintiff." [Doc. #8]. It appears that Ms. Jenkins is requesting entry of a default judgment against the defendants.
Rule 55 of the Federal Rules of Civil Procedure outlines the process for the entry of default judgment. Fed.R.Civ.P. 55. Specifically, Rule 55(a) provides that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules . . . the clerk shall enter the party's default." Fed.R.Civ.P. 55(a). Once default has been entered pursuant to Rule 55(a), the complaining party may move for an entry of default judgment. Fed.R.Civ.P. 55(b)(1), (2).
While Ms. Jenkins has noted correctly that the defendants have not filed answers in this case, the defendants have made an appearance by filing the current motion to dismiss. See Fed.R.Civ.P. 12(b) (listing the defenses that may be filed in lieu of a responsive pleading). Because the defendants have taken steps to "otherwise defend," entry of default judgment would be impermissible. Therefore, Ms. Jenkins' Motion for Default Judgment is DENIED.