Sims et al v. Menu Foods Income Fund et al

Filing 18

ORDER denying 14 Motion for Default Judgment, granting 16 Motion for Extension of Time to Answer Menu Foods Holdings, Inc. answer due 5/14/2007; Menu Foods Midwest Corporation answer due 5/14/2007; Menu Foods South Dakota Inc. answer due 5/14/2007; Menu Foods, Inc. answer due 5/14/2007. Signed by Judge Jimm Larry Hendren on May 7, 2007. (tg)

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Sims et al v. Menu Foods Income Fund et al Doc. 18 Case 5:07-cv-05053-JLH Document 18 Filed 05/07/2007 Page 1 of 4 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 Case 5:07-cv-05053-JLH Document 18 Filed 05/07/2007 Page 2 of 4 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 -2- Case 5:07-cv-05053-JLH Document 18 Filed 05/07/2007 Page 3 of 4 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. -3- Case 5:07-cv-05053-JLH Document 18 Filed 05/07/2007 Page 4 of 4 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 -4-

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