Opinion
Civil Action 1:23-cv-02144-PAB-SBP
12-13-2023
VONTRAY NUBINE, Plaintiff, v. OPEN AMERICA, INC. d/b/a OPENWORKS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO DENY PLAINTIFF'S FORTHWITH REQUEST FOR DEFAULT (ECF NO. 17)
Susan Prose, United States Magistrate Judge
This matter comes before the court on the Plaintiff, Vontray Nubine's, Forthwith Request for Default (the “Motion for Default” or “Motion”) against Defendant Open America, Inc. d/b/a OpenWorks (“OpenWorks”). ECF No. 17. The undersigned Magistrate Judge considers the Motion pursuant to 28 U.S.C. § 636(b)(1)(A) and the Order dated December 4, 2023. ECF No. 29; see also ECF No. 30, Memorandum Referring Motion. For the following reasons, the court respectfully RECOMMENDS that the Motion be DENIED.
Mr. Nubine filed his original complaint in this action on August 22, 2023. ECF No. 1. On August 23, 2023, the court granted Mr. Nubine leave to proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 4. That same day, the court entered an order directing Mr. Nubine to cure deficiencies in his original complaint. ECF No. 5. Mr. Nubine filed an amended complaint on August 30, 2023, which is the operative complaint in this action (the “Amended Complaint”). ECF No. 6.
The record reflects that the United States Marshals Service attempted service on OpenWorks on two occasions. The first attempt, which was made on October 13, 2023, was unsuccessful. See ECF No. 10 (“Summons Returned Unexecuted”). The second attempt, which was made on October 24, 2023, was successful. See ECF No. 12 (“Summons Returned Executed”). Pursuant to Federal Rule of Civil Procedure 12, OpenWorks was required to file an answer to the Amended Complaint “within 21 days after being served with the summons and complaint.” Fed.R.Civ.P. 12(a)(1)(A)(i). Per the court's careful calculation, OpenWorks' deadline to answer the Amended Complaint was November 14, 2023. OpenWorks filed both an answer and a Rule 7.1 Corporate Disclosure Statement on November 14, 2023. See ECF Nos. 14, 15. Accordingly, this court finds that OpenWorks' answer was timely.
On November 16, 2023, Mr. Nubine filed the Motion for Default, asserting that OpenWorks' answer was not timely because it was not made within 21 days of OpenWorks' “actual knowledge of [the] lawsuit.” Mot. at 1. Mr. Nubine relies on the Supreme Court's holding in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), to support his position. Murphy Bros., however, does not address the deadline to answer a complaint filed in federal court. Rather, the Supreme Court's holding in Murphy Bros. relates solely to the deadline for a party to remove a state court case to federal court. Id. at 356 (“In sum, it would take a clearer statement than Congress has made to read its endeavor to extend removal time[.]”) (emphasis added). Furthermore, Murphy Bros. does not actually stand for the proposition that a defendant's actual knowledge of a lawsuit can trigger the removal deadline. Justice Ginsberg, writing for the majority, held that the time for removal begins to run, not when a party receives “actual knowledge” of the lawsuit, but from the time the party is served. See Id. (rejecting the contention that Congress intended “to render removal the sole instance in which one's procedural rights slip away before service of a summons”). The court therefore rejects Mr. Nubine's contention that OpenWorks was required to file a responsive pleading before it was even served with process.
OpenWorks filed an opposition to the Motion on December 5, 2023. ECF No. 31. The court does not believe that a reply brief is necessary to make a determination on this issue, and it therefore makes this Recommendation without one. See D.C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed.”).
Mr. Nubine cites to “Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. (1995).” The court was unable to find a 1995 case, but it believes that the 1999 Murphy Bros. case is the one Plaintiff is referring to.
Mr. Nubine next asserts that the court should enter default against OpenWorks because its attorney, Frederick Thomas Winters, “never filed a notice of appearance prior to entering the case” under this Court's Local Rule 5. Mot. at 2. Local Rule 5 provides that “[u]nless otherwise ordered, an attorney shall not appear in a matter before the court unless the attorney has filed an Entry of Appearance or an Entry of Appearance to Provide Limited Representation or signed and filed a pleading or document.” D.C.COLO.LAttyR 5(a)(1) (emphasis added). Mr. Winters signed and filed OpenWorks' Answer to the Amended Complaint. ECF No. 14 at 8. His actions were in accordance with Local Rule 5, and this court sees no basis for entering a default against OpenWorks on this theory.
Finally, Mr. Nubine contends that the court should enter default against OpenWorks and hold Mr. Winters in contempt for a failure to confer with Mr. Nubine pursuant to Local Rule 7.1. Mot. at 2. However, Local Rule 7.1 only requires parties to confer before filing certain types of motions, not an answer. D.C.COLO.LCivR 7.1(a). As such, the court finds that OpenWorks had no duty to confer with Plaintiff prior to filing its answer, and the relief sought by Plaintiff is unwarranted.
Because Defendant OpenWorks timely filed its answer to the Amended Complaint and abided by the Court's procedures for doing so, this Court respectfully RECOMMENDS that the Motion for Default be DENIED.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).