GRAY v. CONESTOGA TITLE COMPANY et al

Filing 63

ORDER denying 57 Plaintiff's Motion for Clerk's Entry of Default - Although many motions are pending, this Order will only discuss Mr. Gray's Motion for Clerk's Entry of Default. [Dkt. 57.] In that motion, Mr. Gray seeks to h ave a default entered against Citibank; Chase Home Finance, LLC ("Chase"); and JT Property Services, Inc. [See id.] The Court DENIES Mr. Gray's motion. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 5/31/2012. (copy to Plaintiff via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DWAYNE E. GRAY,
Plaintiff,
vs.
CONESTOGA TITLE COMPANY; AMERICAN
MODERN INSURANCE GROUP; CHASE HOME
FINANCE, LLC; SAFEGUARD PROPERTIES,
LLC; JT PROPERTY SERVICES, INC.; and
CITIBANK,
Defendants.

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1:11-cv-01575-JMS-DKL

ORDER
Pro se Plaintiff Dwayne E. Gray has filed this action against several Defendants, in which
he claims violations of § 1983, the Truth-in-Lending Act, and various state causes of action.
Although many motions are pending, this Order will only discuss Mr. Gray’s Motion for Clerk’s
Entry of Default. [Dkt. 57.] In that motion, Mr. Gray seeks to have a default entered against
Citibank; Chase Home Finance, LLC (“Chase”); and JT Property Services, Inc. [See id.] The
Court DENIES Mr. Gray’s motion for the following reasons:
•

Citibank

As Mr. Gray’s motion for default notes, the Court previously gave Citibank until January
26, 2012 to respond to Mr. Gray’s Complaint. [Dkt. 33.] For reasons unknown, Citibank did not
file its answer until April 4, 2012. [Dkt. 56.] The reasons are unknown because Citibank has
failed to respond to the motion for Clerk’s Entry of Default. Nonetheless, because no default has
yet been entered; because the law prefers merits dispositions, see Cracco v. Vitran Express, Inc.,
559 F.3d 625, 631 (7th Cir. 2009); and because Citibank filed its motion to dismiss before Mr.
Gray filed his motion for default, the Court will deny Mr. Gray’s motion. At this point, Mr.

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Gray has suffered no prejudice, so the Court will excuse Citibank’s tardiness. See Fed. R. Civ.
Pro. 61 (“At every stage of the proceeding, the court must disregard all errors and defects that do
not affect any party's substantial rights.”).
•

Chase

As Mr. Gray’s motion for default notes, the Court also gave Chase, until January 26,
2012 to respond to Mr. Gray’s Complaint. [Dkt. 17.] For reasons unknown, Chase waited until
February 9, 2012, to file its motion to dismiss. Again, because Chase has not responded to Mr.
Gray’s motion, the record contains no explanation for the delay. But because no default has yet
been entered; because the law prefers merits dispositions, see Cracco, 559 F.3d at 631; and because Chase filed its motion to dismiss before Mr. Gray filed his motion for default, the Court
will deny Mr. Gray’s motion. Again, at this point Mr. Gray has suffered no prejudice, so the
Court will excuse Chase’s tardiness. See Fed. R. Civ. Pro. 61.
•

JT Property Services

Mr. Gray’s motion for default also argues that JT Property Services has failed to timely
respond to the summons. As no extensions of time have been sought or received, the question of
whether JT Property Services’ pending motion to dismiss, [dkt. 60], is timely depends upon
when it received service of the summons.
Mr. Gray previously filed a return of service on January 12, 2012. [Dkt. 29.] The return
states both that Mr. Gray personally served the summons on JT Property Services on November
29, 2011 and that he sent it by certified mail on November 30, 2011. [Id. at 2-3.] Any personal
service was, however, ineffective because Mr. Gray, as a party, may not personally serve a summons; a non-party must do it. Fed. R. Civ. Pro. 4(c)(2). And the return of service cannot establish proof of service by certified mail because the return only shows that the letter was sent, not

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delivered; no signed return receipt has been filed. As he has failed to establish proper service,
Mr. Gray has also failed to show that JT Property Services is late with its motion to dismiss.
Even if JT Property Services were late, however, the Court would decline to default JT
Property Services in light of Cracco, 559 F.3d at 631 and Federal Rule of Civil Procedure 61.
The Motion for Clerk's Entry of Default [dkt. 57] is DENIED.

05/31/2012
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via U.S. Mail:
DWAYNE E. GRAY
5567 West 43rd Street
Indianapolis, IN 46254
Distribution via ECF only:
Elizabeth J. Wysong Berg
GOODIN ABERNATHY LLP
[e-mail]
Matthew W. Conrad
GEIGER CONRAD & HEAD LLP
[e-mail]
Oni N. Harton
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Deborah A. Kapitan
KOPKA PINKUS DOLIN & EADS LLC
[e-mail]
Richard M. Malad
COHEN & MALAD LLP

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[e-mail]
Theodore J. Nowacki
BOSE MCKINNEY & EVANS, LLP
[e-mail]
Matthew D Snyder
KOPKA PINKUS DOLIN & EADS PC
[e-mail]
TaKeena Monette Thompson
COHEN & MALAD, LLP
[e-mail]

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