Cole v. Johnson et al

Filing 63

MEMORANDUM AND ORDER, Plaintiffs Motion for Default Judgment or Motion for Entry of Contempt (Doc. 55 ) is DENIED and Defendants Marc Hodges Answer (Doc. 56 ) is deemed timely filed. Signed by Judge J. Phil Gilbert on 3/9/2015. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMEON COLE, R13404,
Plaintiff,
vs.
CEDRICK L. JOHNSON, et al.,
Defendants.

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Case No. 14-cv-01059-JPG-PMF

MEMORANDUM AND ORDER
This matter comes before the court on Motion for Default Judgment or Motion for Entry
of Contempt (Doc. 55). Defendant Marc Hodge filed a Response in Opposition (Doc.61). A
prerequisite of obtaining a default judgment is the obtainment of a default order. Plaintiff has
not motioned for a default order and as such, a Motion for default judgment is premature.
In Defendant’s Response, he acknowledges that, due to a clerical error, his response was
filed untimely and without leave of the Court. (Doc. 61). "The Supreme Court has concluded
that the determination of “excusable neglect” is “at bottom an equitable one, taking account of all
relevant circumstances surrounding the party's omission.” Lewis v. School Dist. #70, 523 F.3d
730, (7th Cir. 2008) citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489. “The factors to consider
include the danger of prejudice, the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, and whether the movant had acted in good faith.” Id.
In this matter, there is no reason to believe that the Plaintiff was prejudiced by the
defendant’s answer being filed late. The length of the delay and the potential impact on judicial
proceedings is minimal, and there is no reason to believe that the defendant acted in bad faith.
As such, the Court finds that the tardy filing was a result of excusable neglect.

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It should be noted that defendant Hodge should have filed request for an extension of
time in the form of a motion (and not a response), but “courts give effect to the substance of a
document and not to its caption.” Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002).
Based on the above, Plaintiff’s Motion for Default Judgment or Motion for Entry of
Contempt (Doc. 55) is DENIED and Defendant’s Marc Hodge’s Answer (Doc. 56) is deemed
timely filed.
IT IS SO ORDERED.
DATED: 3/9/2015

s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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