Opinion
1:03-CV-0409-JDT-TAB.
May 20, 2003.
ENTRY ON MOTION TO SET ASIDE ENTRY OF DEFAULT AND MOTION FOR JUDGMENT ON THE PLEADINGS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Defendant Varsity Contractors, Inc. ("Varsity") removed this action and then filed a motion for judgment on the pleadings. The Plaintiff Roberta Whitaker filed an objection to that motion, and the Defendant then filed a verified response to the objection and a motion to set aside entry of default.
I. Background
On February 19, 2003, the Plaintiff filed her Complaint in the Howard County Circuit Court, Cause Number 34C01-0302-PL-0158. The Complaint alleges as follows: Ms. Whitaker was employed by Varsity at the Markland Mall during June and July of 2000. Toward the end of June 2000, she was sexually assaulted by an employee of Simon Property Group, Inc. ("Simon"), which managed the operations at the Markland Mall and employed Varsity. She reported the incident to her employer. Approximately four days later, the same Simon employee again sexually assaulted her. Ms. Whitaker reported this incident to her supervisor. Varsity's alleged failure to take immediate and appropriate corrective action created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Ms. Whitaker was forced to resign from Varsity as a result.
On June 20, 2002, Ms. Whitaker filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Indiana Civil Rights Commission under Charge No. 240A202255, alleging that she was sexually harassed in July 2000 while employed by Varsity.
On March 20, 2003, she filed a motion for default judgment in state court. The state court entered judgment on that date and set the case for a hearing on damages for May 16, 2003.
On March 21, 2003, the Defendant timely filed a Notice of Removal, invoking this court's federal question jurisdiction. The Defendant followed-up with a motion for judgment on the pleadings, arguing that the Plaintiff's claims are time-barred because she did not file her Complaint within 300 days of the alleged unlawful employment practice. The Plaintiff objected to the motion, contending that she obtained a default judgment in state court before removal. That objection led to the Defendant's verified response and motion to set aside the entry of default.
II. Discussion
The first matter to be taken up is the Defendant's motion to set aside the entry of default. Though the Plaintiff moved for a default judgment, this court finds that the state court issued an entry of default rather than a default judgment. Under Indiana law, there are two stages for obtaining a default judgment in cases such as this in which the amount of the plaintiff's damages is unliquidated or otherwise uncertain: (1) the entry of default, and (2) the entry of appropriate relief including damages. Stewart v. Hicks, 395 N.E.2d 308, 312 (Ind.Ct.App. 1979); see also Ind. Tr. R. 55(B). In such cases, the order of default is interlocutory until it determines all the rights of the parties, at which time it becomes a final judgment. Stewart, 395 N.E.2d at 312.
In this case, the "Judgment" of the state court entered on March 20, 2003, indicates that the "Defendant is defaulted" and sets the case for a hearing on damages on May 16, 2003. (Def.'s Verified Resp., Ex. A.) Thus, the "Judgment" did not determine all the rights of the parties as matters, that is, damages, remained to be decided. The court therefore finds that the "Judgment" entered by the state court was not a final judgment, but rather, was an entry of default.
Furthermore, it seems that neither the Plaintiff's motion for default judgment nor the court's "Judgment" were entered on the state court's docket until April 2, 2003 — well after the Defendant had removed this action to this court. ( See Def.'s Notice Filing Add'tl Evid., Heather Wilson Aff. Ex. A.).
This district court has the authority to revisit the state court's entry of default. The Seventh Circuit has said:
In the context of removal, once the case is in federal court, the state court orders issued prior to removal are not conclusive but remain binding until they are set aside. See 28 U.S.C. § 1450 (providing that all "orders and other proceedings had in such [state court] action prior to its removal shall remain in full force and effect until dissolved or modified by the district court"); Granny Goose Foods, Inc. v. Brotherhood of Teamsters Auto Truck Drivers Local No. 70, 415 U.S. 423, 436, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974) ("The `full force and effect' provided state court orders after removal of the case to federal court was not intended to be more than the force and effect the orders would have had in state court."). As the Supreme Court explained in Granny Goose Foods, by providing that the state court proceedings are effective in federal court, judicial economy is promoted, and the parties' rights are protected. See 415 U.S. at 435-36, 94 S.Ct. 1113.Payne for Hicks v. Churchich, 161 F.3d 1030, 1037-38 (7th Cir. 1998) (footnote omitted). On removal, a district court should "evaluate the state court proceedings under the law of the case doctrine[.]" Id. at 1038. Thus, the court may revisit matters decided by the state court where there are compelling reasons to do so. See id.; SmithKline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 2003 WL 728889, at *1 (N.D. Ill. Mar. 3, 2003) (Posner, J.). This case presents compelling reasons to revisit the state court's entry of default.
The Federal Rules of Civil Procedure govern the procedure of a case after removal. Fed.R.Civ.P. 81(c). A district court may set aside an entry of default where the moving party has shown (1) good cause, (2) quick action to correct the default, and (3) a meritorious defense to plaintiff's complaint. See Fed.R.Civ.P. 55(c); Pretzel Stouffer, Chartered v. Imperial Adjusters, Inc., 28 F.3d 42, 45 (7th Cir. 1994) (citing United States v. DiMucci, 879 F.2d 1488, 1495 (7th Cir. 1989)). The Defendant has made this showing.
The Plaintiff quickly moved for entry of default: She filed her Complaint on February 19, 2003, and then filed a motion for default judgment on March 20, 2003. Thus, the motion for default judgment was filed only several days after the due date for the Defendant's responsive pleading. See Ind. Tr. R. 6(C) (requiring service of a responsive pleading 20 days after service of the prior pleading); Ind. Tr. R. 6(E) (allowing 3 additional days when service is by mail).
The Complaint was served on the Defendant by certified mail on February 19.
At the time defense counsel removed this action, counsel was unaware that the Plaintiff had filed a motion for default. Counsel did not learn of the motion for default until May 2, 2003, upon receipt of the Plaintiff's objection to the Defendant's motion for judgment on the pleadings. The Defendant quickly moved to set aside the entry of default within two business days. And, as discussed below, the Defendant has a meritorious defense to the Complaint-so meritorious in fact that this case must come to a close.
The certificate of service to the motion for default states that the motion was served on defense counsel on March 19. Thus, the certificate and reasonable inferences drawn therefrom support defense counsel's representations.
To prevail on a motion for judgment on the pleadings, the Defendant must show that there are no material issues of fact and that it is entitled to judgment as a matter of law. See N. Ind. Gun Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). The Defendant has done so.
In Indiana, an EEOC charge must be filed within 300 days after the alleged unlawful employment practice that is the basis of the plaintiff's complaint. See 42 U.S.C. § 2000e5(e)(1); see also Newbold v. Wis. State Public Defender, 310 F.3d 1013, 1015 (7th Cir. 2002); Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7th Cir. 1999); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 445 (7th Cir. 1994). The Plaintiff alleges sexual harassment of her occurred toward the end of June 2000 and again approximately four days thereafter. She did not file a charge of discrimination until June 20, 2002, almost two years after the alleged harassment and well beyond the 300 day period. Thus, her charge was untimely. The Plaintiff has not argued that her claim is saved by any equitable doctrine or any other theory. Therefore, the court finds that her Title VII action is time-barred. See Sharp v. United Airlines, Inc., 236 F.3d 368, 372 (7th Cir. 2001). Accordingly, the Defendant is entitled to a judgment in its favor and its motion for judgment on the pleadings will be GRANTED.
ALL OF WHICH IS ORDERED.