Thornsberry v. Kelly et al

Filing 23

ORDER granting 21 Motion for Relief to file belated answer and denying 22 plaintiff's Motion for Entry of Default. Signed by Magistrate Judge Jerome T. Kearney on 1/11/2022. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DELTA DIVISION
CHRISTOPHER A. THORNSBERRY,
ADC #169180
V.

PLAINTIFF

2:21CV00113-LPR-JTK

MORIEON KELLY, et al.

DEFENDANTS
ORDER

Pending is Defendant Terrance Daniel’s Motion for Relief to File Belated Answer. (Doc.
No. 21). Also pending is Plaintiff Christopher A. Thornsberry’s (“Plaintiff’s”) Motion for Entry
of Default. (Doc. No. 22). For the reasons set out below, Defendants’ Motion for Relief to File
Belated Answer (Doc. No. 21) is GRANTED and Plaintiff’s Motion for Entry of Default (Doc.
No. 22) is DENIED.
Plaintiff filed an action pursuant to 42 U.S.C. § 1983 against multiple Arkansas Division
of Correction (“ADC”) officials. (Doc. No. 2). The Court directed service of Plaintiff’s claims
on Defendants Daniels and Kelly. (Doc. No. 4). Summons for Defendant Kelly was returned
executed and he has filed an Answer. (Doc. Nos. 10, 12). Summons for Defendant Daniels was
returned unexecuted; the Court ordered service a second time at an address for Defendant Daniels
that is maintained under seal. (Doc. No. 13). Defendant Daniels was served on October 26,
2021. (Doc. No. 18).
When Defendant Daniels failed to file any responsive pleading, the Court entered a show
cause order directing Defendants Daniels to show cause why default should not be entered against
him. (Doc. No. 19). In response, Defendant Daniels requested leave to file a belated Answer.
(Doc. No. 21). According to Defendant Daniels, through counsel, Defendant Daniels is no longer
employed by the ADC and did not immediately contact counsel upon being served because he did

not know what to do with the Summons and Complaint. (Id.) In the meantime, Defendant
Daniels contacted counsel for the ADC and wishes to be represented. (Id).
After Defendant Daniels requested permission to file a belated Answer, Plaintiff filed his
Motion for Entry of Default. (Doc. No. 22). Rule 55(a) of the Federal Rules of Civil Procedure
provides: “When a party against whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter
the party’s default.” FED. R. CIV. P. 55(a). As the Court of Appeals for the Eighth Circuit has
noted, “[e]ntry of a default under Federal Rule of Civil Procedure 55(a) is not, as such, entry of a
judgment; it merely permits the plaintiff to move for a default judgment under Rule 55(b)(2),
assuming that the default is not set aside under Rule 55(c).” Inman v. American Home Furniture
Placement, Inc., 120 F. 3d 117, 118 n.2 (8th Cir. 1997).
Counsel for Defendant Daniels seeks leave to file the Answer included as an attachment to
his Motion. (Doc. No. 21). Defendant Daniels promptly reacted to the Court’s show cause
Order. Plaintiff will not be prejudiced by Defendants’ brief delay. Further, it appears counsel
acted in good faith, as counsel promptly filed the pending motion after learning Defendant Daniels
wishes to be represented. Accordingly, for excusable neglect Defendant Daniel’s Motion For
Relief to File Belated Answer (Doc. No. 21) is GRANTED. See Chorosevic v. MetLife Choices,
600 F.3d 934, 946-47 (8th Cir. 2010). As such, Plaintiff’s Motion for Entry of Default (Doc. No.
22) is DENIED.
IT IS SO ORDERED this 11th day of January, 2022.

____________________________________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE