Sims et al v. Menu Foods Income Fund et al

Filing 18

Sims et al v. Menu Foods Income Fund et al

Doc. 18

Case 5:07-cv-05053-JLH

Document 18

Filed 05/07/2007

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IN THE UNITED STATES DISTRICT COURT W E ST E RN DISTRICT OF ARKANSAS F A YE T TE V IL L E DIVISION C H AR L ES RAY SIMS and PAMELA SIMS, I n di v id u al l y and on behalf of all o t he r s similarly situated v. M E NU M E NU M E NU M E NU MENU C i vi l No. 07-5053

P L AI N TI F FS

FOODS INCOME FUND, FOODS MIDWEST CORPORATION, FOODS SOUTH DAKOTA INC., FOODS, INC., FOODS HOLDINGS, INC. ORDER

D E FE N DA N TS

N o w on this 7th day of May, 2007, come on for consideration p l ai n ti f fs ' Motion For Default Pursuant To Rule 55 Of The Federal R u le s Of Civil Procedure (document #14) and defendants' Motion For E x te n si o n Of Time To Respond And Response To Plaintiffs' Motion For D e fa u lt (document #16), and from said motions, and the response t h er e to , the Court finds and orders as follows: 1. P l ai n ti f fs make claims of strict products liability, fraud,

b r ea c h of warranty, and negligence, said to arise out of the sale by d e fe n da n ts of defective pet food. They seek to recover on their own

b e ha l f, and to represent a class of similarly situated plaintiffs. 2. T h e Complaint was filed on March 21, 2007, and plaintiffs

o b ta i ne d service on all defendants (the "Served Defendants") except M e nu Foods Income Fund on March 23, 2007. O n April 12, 2007, the Served Defendants moved the Court to stay the litigation, pending decisions on three motions to transfer similar c a se s to Multi-District Litigation and certify a class. That motion

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w a s denied on May 12, 2007. Plaintiffs filed their Motion For Default on May 3, 2007, c o nt e nd i ng that the Served Defendants had failed to timely file a r e sp o ns i ve pleading to the Complaint. Plaintiffs point out that no

m o ti o n for extension of time to respond was filed,, and that a motion t o stay is not one of the motions in F.R.C.P. 12 that alters the time f o r filing a responsive pleading. T h e Served Defendants responded to the Motion For Default, p o in t in g out that they had asked not just for a stay of the case, but f o r a stay of their "obligation to timely response to Plaintiffs' C o mp l ai n t. " They also noted that other, similar, cases had been filed i n the Western District of Arkansas and stayed; that other, similar, c a se s had been filed nationwide and stayed; and that a hearing on s e ve r al motions for transfer to a Multi-District Panel court is s c he d ul e d for May 31, 2007. They ask for "a minimum of thirty (30)

d a ys to respond to Plaintiffs' complaint, during which time" they plan t o move to consolidate the other, similar, cases filed in the Western D i st r ic t of Arkansas; seek stays in those cases; and ask this Court t o reconsider its denial of their Motion To Stay. 3. I t is obvious from the foregoing that the plaintiffs want

t o get started preparing their case for trial, while the Served D e fe n da n ts want to wait until they have the various cases consolidated a n d situated along the lines they consider appropriate, before

c o m m en c in g trial preparation.

The Court has already resolved this

i s su e adversely to the Served Defendants, and therefore is not

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r e ce p ti v e to the suggestion that the Served Defendants be granted an a d di t io n al thirty days to respond to the Complaint. 4. T h e Court is similarly unreceptive to the suggestion that Default judgments,

t h e Served Defendants should be held in default.

a n d their precursors, defaults, are decisions made on procedural t e ch n ic a li t ie s rather than on substantive merits, and as such are d i sf a vo r ed . "The entry of default judgment is not favored by the law, a n d should be a rare judicial act. A court abuses its discretion if

i t enters a default judgment for a marginal failure to comply with the t i me requirements." In re Jones Truck Lines, Inc., 63 F.3d 685, 688

( 8 th Cir. 1995)(internal citations and quotation marks omitted). Cf. W r ig h t, Miller & Kane, Federal Practice and Procedure, Civil 3d §2682: T h e mere appearance by a defending party, without more, w i ll not prevent the entry of a default for failure to p l ea d or otherwise defend . . . . But if defendant appears a n d indicates a desire to contest the action, the court can e x er c is e its discretion and refuse to enter a default. T h is approach is in line with the general policy that w h e n e v e r there is doubt whether a default should be e n te r ed , the court ought to allow the case to be tried on t h e merits. T h e Served Defendants have appeared and indicated that they d e si r e to contest the action. From the timeline set out in ¶2, it

a p pe a rs that the served defendants in this case are less than a month l a te in filing responses to the Complaint. They apparently relied

u p o n the request for a stay of time to respond included in their M o ti o n To Stay. Under these circumstances, if plaintiffs' Motion For D e fa u lt were granted, the Court believes it would have to be set aside u p on a proper motion.

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5.

F o r the foregoing reasons, the Court finds that default

s h ou l d not be entered, but that only a brief additional time should b e allowed for the Served Defendants to respond to the Complaint of t h e plaintiffs. I T IS THEREFORE ORDERED that plaintiffs' Motion For Default P u rs u an t To Rule 55 Of The Federal Rules Of Civil Procedure (document # 1 4) is denied. I T IS FURTHER ORDERED that the served defendants' Motion For E x te n si o n Of Time To Respond (document #16) is granted, and these

d e fe n da n ts are allowed seven (7) days from the date of this Order to f i le a responsive pleading to plaintiffs' Complaint. I T IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN U N IT E D STATES DISTRICT JUDGE

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