Gillo v. Gary Community School Corporation et al
Filing
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OPINION AND ORDER denying 41 and 46 Motions for Sanctions; granting 47 Rule 12(f) Motion to Strike and striking 38 Defendant's Motion to Dismiss for Failure to State a Claim and 49 Answer to Complaint. Signed by Magistrate Judge John E Martin on 7/31/14. cc: Gillo (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
PETER T. GILLO,
Plaintiff,
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v.
GARY COMMUNITY SCHOOL
CORPORATION, et al.,
Defendants.
CAUSE NO.:2:14-CV-99-JVB-JEM
OPINION AND ORDER
This matter is before the Court on three motions:
(1)
Plaintiff’s Motion for Sanctioning the Defendants Gary Community School
Corporation, Cheryl Pruitt, Willie Cook, Marianne Fidishin, Edmund J. Fraire,
Latanza Boarden, Andrew S. Greene and Charlotte Wright and Their Counsels Tracy
Coleman and Robert Lewis and Associates for Failure to Serve the Plaintiff Copies
of Their Appearance as Counsel for the Listed Defendants and All Other Pleading
They Filed Per Rule 5 of the Federal Rules of Civil Procedure [DE 41], filed by
Plaintiff on June 6, 2014;
(2)
Plaintiff’s Motion for Court to Sanction the Defendants’ Counsels Tracy Coleman
and Robert Lewis and Associates for Failure to Serve Copy of Their Motion to
Dismiss on Plaintiff in Disregard of to [sic] Rule 5 of the Fed. R. Civ. Pro. [DE 46],
filed by Plaintiff on June 20, 2014; and
(3)
Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ.
Pro. 12(a)(1)(A)(i) and 12(f) [DE 47], filed by Plaintiff on June 24, 2014.
PROCEDURAL BACKGROUND
Plaintiff, pro se, filed his Complaint against the Gary Community Schools Corporation, Gary
Teachers Union Local Number 4, Deaf Services Inc., and various members of their respective staffs
on April 1, 2014. Defendants Gary Community School Corporation, Cheryl Pruitt, Willie Cook,
Marianne Fidishin, Edmund J. Fraire, Latanza Boarden, Andrew S. Greene, and Charlotte
Wright—who the Court will refer to collectively as “the Gary Schools Defendants”—were served
with the Complaint and Summonses on various dates between April 4 and April 14, 2014, making
their responsive pleadings due between April 25 and May 5, 2014.
On May 17, 2014, Attorney Tracy Coleman filed her Appearance on behalf of all of the Gary
Schools Defendants. No certificate of service was included to indicate whether the Appearance was
served on Plaintiff or any other Defendant. On June 5, 2014, the Gary Schools Defendants filed a
Motion to Dismiss for lack of subject matter jurisdiction and for failure to state a claim. The Motion
included a certificate of service that stated that a copy of the Motion, as well as a copy of the earlierfiled Appearance, was sent to Plaintiff by U.S. mail on June 5, 2014, at the address on record for
him.
On June 6, 2014, Plaintiff filed a motion for clerk’s entry of default against the Gary Schools
Defendants because their deadlines to answer the Complaint had passed. He also filed his first
Motion for Sanctions, asking that Attorney Coleman be sanctioned for not serving him with her
Appearance. On June 16, 2014, Plaintiff filed a second motion for clerk’s entry of default against
the Gary Schools Defendants, as well as a motion for entry of default judgment against them. On
June 20, 2014, Plaintiff filed his second Motion for Sanctions, stating that he had not been served
with the Motion to Dismiss and asking that Attorney Coleman be sanctioned for failing to serve him
with it. On June 24, 2014, he filed his Motion to Strike, asking that the Motion to Dismiss be
stricken because it was untimely filed.
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On June 25, 2014, without requesting leave to file their responsive pleading after the
deadline, the Gary Schools Defendants filed an Answer.
On July 7, 2014, the Gary Schools Defendants belatedly filed a response to the first Motion
for Sanctions and timely filed responses to the second Motion for Sanctions and to the Motion to
Strike.
All Union and Deaf Services Defendants moved for and were granted extensions of time to
respond to the Complaint before their deadlines to answer had passed. They all also filed their
Answers within the deadlines set by the Court.
ANALYSIS
All three of the instant Motions stem from Plaintiff’s frustration with Attorney Coleman’s
lack of adherence to the rules of procedure and the difficulty it has caused him as a pro se litigant
in tracking the status of his case.
I.
Motion to Strike
In his Motion to Strike, Plaintiff asks the Court to strike the Gary Schools Defendants’
Motion to Dismiss because it was filed more than 21 days after service of the Complaint. Federal
Rule of Civil Procedure 12 governs the form and timing for responding to a complaint. It provides
that “[a] defendant must serve an answer . . . within 21 days after being served with the summons
and complaint.” Fed. R. Civ. P. 12(a). It also permits certain defenses—including lack of subjectmatter jurisdiction and failure to state a claim upon which relief can be granted—to be asserted by
a motion “made before pleading.” Fed. R. Civ. P. 12(b). As with most deadlines, Federal Rule of
Civil Procedure 6 permits a court to extend the deadlines to answer or file a motion to dismiss. Fed.
R. Civ. P. 6(b)(1) (“When an act may or must be done within a specified time, the court may, for
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good cause, extend the time . . . before the original time or its extension expires[] or on motion made
after the time has expired if the party failed to act because of excusable neglect.”)
The Gary Schools Defendants argue that their Motion to Dismiss was timely because it was
made before they filed their Answer; that it, it was “made before pleading” as Rule 12(b) requires.
That Answer was not, however, itself timely filed, and the Gary Schools Defendants were not
granted leave to file it late. While Rule 12(b) standing alone would on its face permit the Gary
Schools Defendants to file their Motion to Dismiss at any time before their responsive pleading,
reading that section in the context of the rest of Rule 12 requires a motion to dismiss under Rule
12(b) to be filed before the deadline for pleading—either within the 21 days set by Rule 12(a) or
within an extension of time granted by the Court according to Rule 6(b). 5C Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1361 (3d ed. 2004) (“Since the only time
limitation on Rule 12(b) motions is that they must be made ‘before pleading,’ Rule 12(a) . . .
normally controls the time limits on these motions.”); see Wabash Ry. Co. v. Bridal, 94 F.2d 117,
121 (8th Cir. 1938) (holding that the defendants waived their objection to jurisdiction by failing to
file their motion to dismiss until after the time to answer had expired); cf. Clover Leaf Freight Lines
v. Pac. Coast Wholesalers Ass’n, 166 F.2d 626, 632 (7th Cir. 1948) (stating that a motion to quash
service for lack of venue was untimely when filed after time to answer had expired). To conclude
otherwise would effectively allow a defendant that has failed to answer to grant itself an extension
of time without showing good cause or excusable neglect. Fed. R. Civ. P. 6; Cf. Fed. R. Civ. P.
12(a)(4) (providing for the automatic resetting of the deadline to answer to 14 days after the denial
of a motion to dismiss under Rule 12(b)).
Accordingly, the Court will strike as untimely the Gary Schools Defendants’ Motion to
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Dismiss and their Answer. If they wish to re-file either document, they must first file a motion
requesting leave to do so as required by Federal Rule of Civil Procedure 6(b), showing good cause
for the extension of time and excusable neglect for failing to act earlier. Fed. R. Civ. P. 6(b)(1).
II.
Motions for Sanctions
In his Motions for Sanctions, Plaintiff requests that the Court sanction the Gary Schools
Defendants and Attorney Coleman for failing to serve Plaintiff with Attorney Coleman’s Appearance
and for failing to serve him with their Motion to Dismiss. Plaintiff states that he only learned that
Attorney Coleman had appeared in the case because her name was included on a certificate of service
filed by other Defendants sixteen days after she appeared. In his second Motion for Sanctions,
Plaintiff writes that he only learned of the Motion to Dismiss after requesting a copy of the docket
from the Clerk of the Court.
In their response to the first Motion for Sanctions, the Gary Schools Defendants admit to
failing to serve Plaintiff with a copy of Attorney Coleman’s Appearance at the time it was filed but
state that a copy was mailed on June 5, 2014, to correct that failure. The Gary Schools Defendants’
response to the second Motion for Sanctions states that they served Plaintiff with the Motion to
Dismiss, as they indicated in the certificate of service.
Federal Rule of Civil Procedure 5 requires that certain papers, including appearances, be
served on all parties. Fed. R. Civ. P. 5(a)(1)(E). Neither Rule 5 itself nor any Local Rule provides
for sanctions for non-compliance. See Fed. R. Civ. P. 5; Almy v. Kickert Sch. Bus Line, Inc., No.
08-CV-2902, 2013 WL 80367, at *5-6 (N.D. Ill. Jan. 7, 2013); compare Fed. R. Civ. P. 11(a) (“The
court must strike an unsigned paper . . .”). However, a court may fashion sanctions aimed at curing
any prejudice caused to a party by the lack of service, at punishing frequent or bad faith violations
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of the rules of procedure, or at deterring future violations. See Almy, 2013 WL 80367, at *6-7
(declining to impose sanctions for lack of service under Rule 5, taking into consideration the lack
of bad faith or prejudice to the other party and that it was an isolated incident); see also 4B Charles
Alan Wright, et al., Federal Practice and Procedure § 1143 (3d ed. 2004) (“The consequences of
a failure to serve as required by Rule 5 depend on the nature of the paper involved, . . . and it is not
possible to generalize.”)(collecting cases).
Plaintiff states he had to spend $10 to obtain a copy of the Motion to Dismiss from the Clerk
of the Court but otherwise does not explain how the lack of service of either document has
practically affected his case. If, as Plaintiff alleges but the Gary Schools Defendants deny, Plaintiff
was not actually served with the Motion to Dismiss, his lack of notice of the need to respond would
potentially have caused him prejudice. However, any potential prejudice will be cured by the
Court’s decision to strike the Motion to Dismiss on other grounds. Because the Court finds no
prejudice caused to Plaintiff by the Gary Schools Defendants’ lack of service on him, sanctions
beyond the striking of the Motion to Dismiss and the Answer are not warranted.
Despite declining to impose sanctions at this time, the Court reminds Attorney Coleman that
the service requirements of Rule 5 are not mere technicalities, but are meant to assure that all parties
are provided with the papers affecting them, an especially important consideration when a party is
pro se and has no electronic access to the Court’s docket. 4B Charles Alan Wright, et al., Federal
Practice and Procedure § 1141 (3d ed. 2004) (citing Fed. R. Civ. P. 5, Advisory Committee Notes
on 1963 Amendments). The Court cautions that it will be less tolerant of any further failures to
follow all applicable rules of procedure.
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CONCLUSION
For the foregoing reasons, the Court hereby:
(1)
DENIES Plaintiff’s Motion for Sanctioning the Defendants Gary Community School
Corporation, Cheryl Pruitt, Willie Cook, Marianne Fidishin, Edmund J. Fraire,
Latanza Boarden, Andrew S. Greene and Charlotte Wright and Their Counsels Tracy
Coleman and Robert Lewis and Associates for Failure to Serve the Plaintiff Copies
of Their Appearance as Counsel for the Listed Defendants and All Other Pleading
They Filed Per Rule 5 of the Federal Rules of Civil Procedure [DE 41] but
CAUTIONS Attorney Coleman of the need to comply with all applicable Rules and
reiterates that further delinquencies may result in the Court entertaining future
Motions for Sanctions from Plaintiff;
(2)
DENIES Plaintiff’s Motion for Court to Sanction the Defendants’ Counsels Tracy
Coleman and Robert Lewis and Associates for Failure to Serve Copy of Their Motion
to Dismiss on Plaintiff in disregard of to [sic] Rule 5 of the Fed. R. Civ. Pro. [DE
46]; and
(3)
GRANTS Plaintiff’s Motion to Strike Defendants’ Motion to Dismiss Pursuant to
Fed. R. Civ. Pro. 12(a)(1)(A)(I) and 12(f) [DE 47] and STRIKES the Gary Schools
Defendants Motion to Dismiss [DE 38] and Answer [DE 49].
SO ORDERED this 31st day of July, 2014.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:
All counsel of record
Plaintiff, pro se
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