H.C. Duke & Son, LLC v. Prism Marketing Corporation et al

Filing 139

ORDER entered by Judge Sara Darrow on November 15, 2013. Defendant Prism's 132 Motion for Entry of Default Against H.C. Duke & Son, LLC on Second Amended Counterclaim is DENIED. Plaintiff Duke's 134 Motion to Dismiss Counts I, II, III, IV, V, VIII and IX of the Second Amended Counterclaim is considered timely filed. (JD, ilcd)

E-FILED

Friday, 15 November, 2013 03:33:45 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
H.C. DUKE & SON, LLC,

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Plaintiff,
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v.
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PRISM MARKETING
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CORPORATION, SUPERIOR QUALITY )
EQUIPMENT, INC., STEVEN LEVINE, )
and DOES 1 to 100,
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Defendants.
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PRISM MARKETING CORPORATION, )
a Nevada corporation,
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Counter-Plaintiff,
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v.
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H.C. DUKE & SON, LLC, a Delaware
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limited liability company,
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Counter-Defendant.
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No. 4:11-cv-04006-SLD-JAG

ORDER
This case involves a suit by Plaintiff/Counter-Defendant H.C. Duke & Son, LLC
(“Duke”) against Defendant/Counter-Plaintiff Prism Marketing Corporation (“Prism”), and
Defendants Superior Quality Equipment and Steven Levine, arising from a distributorship
agreement. For the following reasons, Defendant Prism’s Motion for Entry of Default Against
H.C. Duke & Son, LLC on Second Amended Counterclaim, ECF No. 132, is DENIED.

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BACKGROUND
On September 30, 2013, the Court dismissed portions of Prism’s First Amended
Counterclaim against Duke, ECF No. 64, but granted Prism leave to amend the counterclaim. ECF
No. 121. Prism accordingly filed its Second Amended Counterclaim, ECF No. 124, on October 15,
2013. On November 5, 2013, noting that Duke had not responded to the Second Amended
Counterclaim, Prism moved for Entry of Default against Duke. ECF No. 132. Later that day, Duke
moved to dismiss Counts I, II, III, IV, V, VIII, and IX of Prism’s Second Amended Counterclaim.
ECF No. 134. Duke also filed a Response to Prism’s Motion for Entry of Default, ECF No. 133,
claiming that Duke had met what it understood to be its 21-day deadline to respond to the amended
counterclaim under Federal Rule of Civil Procedure 12(a)(1)(B). In the alternative, Duke asked that
it be allowed to file its Motion to Dismiss out of time. ECF No. 133 at 4.
DISCUSSION
I. Legal Standard
Federal Rule of Civil Procedure 15(a)(3) provides: “Unless the court orders otherwise, any
required response to an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the amended pleading, whichever is later.” By
contrast, Rule 12(a)(1)(B) requires a party to “serve an answer to a counterclaim or crossclaim within
21 days after being served with the pleading that states the counterclaim or crossclaim.” Rule 12,
however, does not apply where the response is to an amended pleading and Rule 15(a)(3)’s 14-day
deadline is applicable. See, e.g., Gen. Mills, Inc. v. Kraft Foods Global, Inc., 495 F.3d 1378, 1379
(Fed. Cir. 2007) (holding that Rule 15, not Rule 12, dictates the deadline for responding to an
amended pleading unless there is time remaining to respond to the original pleading); United States
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v. Cain’s Barber College & Styling School, Inc., No. 07-2695, 2011 WL 812088, at * 2 (N.D. Ill.
Mar. 1, 2011) (noting that Rule 15's text and “typical practice” under Rules 12 and 15 indicate that,
where time to respond to original pleading has elapsed, Rule 15(a)(3) governs the deadline to
respond to an amended complaint). Rule 6(d) adds three days to filing periods where service is
made through, among other methods, the mail. See Fed. R. Civ. P. 5(b)(2)(E) & 6(d). Finally, Local
Rule 5.3(D) provides that this three day rule also applies to service by electronic means.
As for default, Rule 55 provides for entry of default “when a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend ….” Fed. R. Civ. P. 55(a).
Entry of default is justified “if the defaulting party has exhibited a willful refusal to litigate the case
properly.” Davis v. Hutchins, 321 F.3d 641, 646 (7th Cir. 2003) (citation omitted). Such willfulness
manifests itself as a “continuing disregard for the litigation or for the procedures of the court.” Id.
(citation omitted). For example, in Moore v. J.T. Roofing, Inc., 94 F. App’x 377, 378-79 (7th Cir.
2004), a party’s failure to timely answer a pleading did not warrant entry of default where the party
otherwise fully participated in proceedings and abided by court orders, and did file an answer, albeit
two weeks late.
II. Analysis
Prism timely filed its Second Amended Counterclaim on October 15, 2013. Adding Local
Rule 5.3(D)’s three-day extension to Federal Rule 15(a)(3)’s 14-day window, Duke’s deadline to
answer or otherwise respond to the Second Amended Counterclaim was November 1, 2013. By
filing its Motion to Dismiss Counts I, II, III, IV, V, VIII and IX of the Second Amended
Counterclaim, ECF No. 134, on November 5, 2013, Duke missed the deadline by four days.

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Duke has fully participated in proceedings in this case and otherwise generally abided by
court deadlines. Further, Duke’s response to Prism’s amended pleading was served a mere four
days late, neither prejudicing Defendants nor exhibiting a “willful refusal to litigate the case
properly,” see Davis, 321 F.3d at 646, as Duke claims to have acted in mistaken conformity with
Rule 12's 21-day deadline for answering a counterclaim. For these reasons, the Court denies Prism’s
Motion for Entry of Default, ECF No. 132. Duke’s Motion to Dismiss, ECF No. 134, is considered
timely filed.
CONCLUSION
Prism’s Motion for Entry of Default Against H.C. Duke & Son, LLC on Second
Amended Counterclaim, ECF No. 132, is DENIED. Duke’s Motion to Dismiss Counts I, II, III,
IV, V, VIII and IX of the Second Amended Counterclaim, ECF No. 134, is considered timely
filed.

Entered this 15th day of November, 2013.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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