Opinion
Case No. 01-2535-JWL.
March 22, 2002.
MEMORANDUM ORDER
Pro se plaintiff Mason L. Wilson filed suit against defendant Wesley Medical Center alleging that defendant defamed him, violated his First and Fourteenth Amendment rights, discriminated against him giving rise to a claim under 42 U.S.C. § 1981 and committed medical malpractice in treating his brother, Willie Wilson. The matter is currently before the court on plaintiff's motion for a default judgment (Doc. 10) and defendant's motion to dismiss for failure to state a claim upon which relief can be granted and/or request to change the place of trial (Doc. 4). For the reasons set forth below, plaintiff's motion for default judgment is denied and defendant's motion to dismiss is retained under advisement by the court. Plaintiff will have until April 12, 2002, to file a response to defendant's motion to dismiss.
Although it is not clear from plaintiff's complaint whether he intends to bring a claim for negligent medical treatment, defendant addressed the claim and the court will assume plaintiff intended to raise the claim. If the court is mistaken, plaintiff is encouraged to clear up the uncertainty.
II. Motion For Default Judgment
Plaintiff argues that he is entitled to a default judgment because defendant did not file its answer within 20 days after being served with plaintiff's complaint in accordance with Federal Rule of Civil Procedure 12(a). Defendant explains that the clerk of the court properly extended the 20 day deadline by 10 days in accordance with District of Kansas Local Rule 77.2. Plaintiff contends that defendant did not comply with District of Kansas Local Rule 77.2, which permits the clerk of the court to grant a 10 day extension to the filing deadline, because defendant did not submit a request for an extension of time in writing. Plaintiff misunderstands the origin of the clerk's order extending time to plead (Doc. 2). It appears that plaintiff is under the mistaken impression that the clerk of the court created the order extending the time to plead. The order was created and submitted by defendant and then signed by the clerk of the court. Thus, as long as the order submitted by defendant meets the requirements of District of Kansas Local Rule 77.2, defendant filed its answer in a timely fashion.
Plaintiff filed his complaint on November 8, 2001. Service of the complaint was made on defendant on November 19, 2001. In accordance with Federal Rules of Civil Procedure 6 and 12, defendant had until December 10, 2001, 20 days after November 20, 2001, to file its answer. On November 30, 2001, defendant submitted an order to the clerk of the court entitled clerk's order extending time to plead (Doc. 2), requesting a 10 day extension of time to file its answer. The clerk of the court signed the order.
Under District of Kansas Local Rule 77.2, the clerk of the court is authorized to extend the time for filing an answer by 10 days if the original time to plead has not expired. The order shall be signed by the party submitting it, state the original time to plead, state the new time to plead after the extension and state that the time originally proscribed has not expired. District of Kansas Local Rule 77.2. The order submitted by defendant complied with all of the requirements of Rule 77.2 because it was signed by defendant's counsel, stated that the original deadline was December 10, 2001, stated that defendant requested that the court extend the deadline to December 24, 2001 and stated that the order was filed before the original filing deadline. Accordingly, defendant had until December 24, 2001 to file its answer. Defendant filed its answer in a timely fashion on December 19, 2001. Thus, plaintiff's motion for default judgment is denied.
Defendant requested that the clerk of the court extend the deadline by 10 days. Under Federal Rule of Civil Procedure 6(a), if "the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Thus, defendant requested that the deadline be extended from December 10, 2001 to December 24, 2001. Even if the deadline should have been extended only to December 20, 2001, defendant still would have met that deadline because its motion was filed on December 19, 2001.
III. Motion To Dismiss For Failure To State a Claim
Defendant's motion to dismiss for failure to state a claim upon which relief can be granted and/or request to change the place of trial argues that plaintiff has failed to set forth facts sufficient to support its causes of action. Alternatively, if the court does not grant the motion to dismiss, defendant requests that the case be transferred to Wichita. Plaintiff filed a response entitled plaintiff's motion for default judgment and to deny defendant's motion to dismiss. After arguing he is entitled to a default judgment, plaintiff states at the end of his motion that he should not have to address defendant's motion to dismiss because default judgment should be granted in favor of the plaintiff and because every plaintiff has the right to go through discovery and recite laws to prove his or her case.
In light of the fact that the court has denied plaintiff's motion for default judgment, the court will give plaintiff 20 days to file a response to defendant's motion to dismiss that addresses the merits of defendant's motion to dismiss.
Finally, the court will not address defendant's argument that the case should be transferred to Wichita until after the parties have submitted their papers on defendant's motion to dismiss.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for default judgment (Doc. 10) is denied and defendant's motion to dismiss for failure to state a claim (Doc. 4) is retained under advisement by the court. Plaintiff will have until April 12, 2001, to respond to defendant's motion to dismiss.
IT IS SO ORDERED.