Martin v. Meigs

Filing 13

Order re: 10 MOTION to Amend Complaint filed by Rachel C. Martin. Responses due by 8/18/2009, Replies due by 8/25/2009. The 10 Motion for Default Judgment is DENIED. Signed by Judge William H. Steele on 8/11/09. Copy mailed to Plaintiff. (tgw)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION RACHEL C. MARTIN, Plaintiff, v. JUDGE JACK W. MEIGS, Defendant. ) ) ) ) ) ) ) ) ) ORDER This matter is before the Court on the plaintiff's motion for entry of default judgment. (Doc. 10). The basis of the motion is that the defendant has not "return[ed] his summons to" the plaintiff. (Id. at 1). Default can be entered only when a defendant "has failed to plead or otherwise defend." Fed. R. Civ. P. 55(a). The defendant filed a motion to dismiss, (Doc. 6), and so has defended. Bass v.Hoagland, 172 F.2d 205, 210 (5th Cir. 1949) ("The words `otherwise defend' refer to attacks on the service, or motions to dismiss, ... and the like ...."); accord Abdullah v. City of Jacksonville, 242 Fed. Appx. 661, 663 (11th Cir. 2007) ("Abdullah was not entitled to a default judgment because [the defendants] filed a motion to dismiss .... Therefore, the defendants defended Abdullah's action against them."); Gibson v. Gains, 2006 WL 858336 at *2 (11th Cir. 2006) ("[T]he defendants' motion to dismiss qualified as a responsive pleading, and therefore, a default judgment was not warranted."). For the reasons set forth above, the motion for entry of default judgment is denied. The plaintiff's filing also includes a motion to amend the complaint to add a claim under 18 U.S.C. 242. The defendant is ordered to file and serve any response to this motion on or before August 18, 2009. The plaintiff is ordered to file and serve any reply in support of her motion on or before August 25, 2009. The Court will take the motion CIVIL ACTION 09-0308-WS-N under submission on August 25, 2009. DONE and ORDERED on this 11th day of August, 2009. s/WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE -2-

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