Allen v. Kupchenko et al
Filing
17
OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiff Jared Allen's Motion for Entry of Clerk's Default Against Defendants Oleg Kupchenko, US Best Trucking, LLC, and Muradin Fodlov 9 is DENIED. Defendants' Motion t o permit late filing of the Answer to the Complaint on behalf of Defendant US Best Trucking, LLC 8 , the Motion to Dismiss Complaint 12 on behalf of Defendant Fodlov, and the Answer to Complaint 15 filed on behalf of Defendant Kupchenko is ALLOWED and said pleadings are allowed to be filed instanter. See written order. (LB, ilcd)
E-FILED
Friday, 12 February, 2016 02:48:41 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
JARED ALLEN,
Plaintiff,
v.
OLEG KUPCHENKO,
US BEST TRUCKINC, LLC, and
MURADIN FODLOV,
Defendants.
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No. 15-cv-3317
OPINION AND ORDER
THOMAS P. SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Before the Court is Plaintiff Jared Allen (Plaintiff)’s Motion for Entry of
Clerk’s Default Against Defendants Oleg Kupchenko, US Best Trucking,
LLC, and Muradin Fodlov (d/e 9) (Motion).
Background
Plaintiff seeks damages in this action for injuries suffered by the
Plaintiff when he was operating a motor vehicle in Coles County, Illinois.
Plaintiff alleges that he suffered injuries when the vehicle he was driving
was struck by a vehicle operated by Defendant Kupchenko in the course
and scope of his employment with Defendant US Best Trucking, LLC. The
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Complaint alleges the Court has jurisdiction over the subject matter
pursuant to the diversity of citizenship between the parties under
28 U.S.C. §1332(a). Plaintiff’s Motion indicates all Defendants were served
with the Complaint on November 30, 2015.
Attorney Richard H. Narup entered his appearance on behalf of
Defendant US Best Trucking, LLC and Defendant Fodlov on December 9,
2015 (d/es 3, 4). On February 1, 2016, Attorney Narup filed an Answer to
the Complaint on behalf of Defendant US Best Trucking, LLC (d/e 8).
On February 8, 2016, Plaintiff filed the instant Motion (d/e 9) seeking
default against all Defendants. On the same date, Defendant Fodlov filed a
Motion to Dismiss Complaint (d/e 12). On February 9, 2016, an Answer
was filed on behalf of Defendant Kupchenko (d/e 15).
In Defendant US Best Trucking, LLC and Defendant Fodlov’s
Response to Motion for Default Judgment and Motion to File Answer
Instanter (d/e 14), defense counsel represents that Defendant Kupchenko
was uncooperative. Defense counsel indicates that the Answer (d/e 8) filed
on behalf of Defendant US Best Trucking, LLC, Defendant Fodlov’s Motion
to Dismiss (d/e 12), and the Answer (d/e 15) filed on behalf of Defendant
Kupchenko, were late. Defense counsel requests that the pleadings be
allowed to stand instanter.
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Analysis
The determination of whether default judgment is appropriate is
committed to the discretion of the trial court. Jackson v. Beech, 636 F.2d
831, 836 (D.C. Cir. 1980). For default judgment, defendant must be
considered a “totally unresponsive” party, and its default plainly willful,
reflected by its failure to respond to the summons and complaint, the entry
of default, or the motion for default judgment. Gutierrez v. Berg
Contracting, Inc., No. 99-3044, 2000 WL 331721, at *1 (D.D.C. Mar. 20,
2000) (citing Jackson, 636 F.2d at 836).
Given the events described above, the Court does not believe that
the Defendants must be considered “totally unresponsive parties”. All
Defendants, at this time, have filed responsive pleadings. The Defendants
have not “failed to plead or otherwise defend” as required for entry of
judgment by the Clerk under Rule 55(a) of the Federal Rules of Civil
Procedure.
IT IS THEREFORE ORDERED AS FOLLOWS:
1)
Plaintiff Jared Allen’s Motion for Entry of Clerk’s Default Against
Defendants Oleg Kupchenko, US Best Trucking, LLC, and Muradin Fodlov
(d/e 9) is denied; and,
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2)
Defendants’ Motion to permit late filing of the Answer to the
Complaint on behalf of Defendant US Best Trucking, LLC (d/e 8), the
Motion to Dismiss Complaint (d/e 12) on behalf of Defendant Fodlov, and
the Answer to Complaint (d/e 15) filed on behalf of Defendant Kupchenko is
allowed and said pleadings are allowed to be filed instanter.
ENTER: February 12, 2016
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
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