Marshall et al v. Burnley et al

Filing 82

MEMORANDUM AND ORDER denying 71 Plaintiff's Motion for Default Judgment; granting 79 New England Audio, LLC's Motion for Summary Judgment. The claims against this defendant are dismissed with prejudice. Signed by District Judge J. Thomas Marten on 2/20/2018. Mailed to pro se party Milton J. Davison & Krystal M. Marshall at 935 N Beech St. Wichita, KS 67206 by regular mail. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KRYSTAL M. MARSHALL, and
MILTON J. DAVISON,
Plaintiffs,
v.

Case No. 17-1090-JTM

NEW ENGLAND AUDIO, LLC, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on a pro se motion for default judgment by plaintiffs
(Dkt. 71) and a motion summary judgment by New England Audio, LLC. (Dkt. 79). For
the reasons stated herein, the motion for default judgment is denied and the motion for
summary judgment by New England Audio is granted.
I. Motion for Default Judgment (Dkt. 71)
Plaintiffs filed a “Notice Motion for Default Judgment,” apparently against all of
the defendants named in the complaint, for allegedly failing to answer in a timely
manner.
Default may be entered when a party “has failed to plead or otherwise defend….”
Fed. R. Civ. P. 55(a). Plaintiffs fail to show they are entitled to relief under this provision.
The motions to dismiss or for other relief filed by defendants under Rule 12 qualify as
“otherwise defend[ing]” the claims within the meaning of Rule 55 and make default
judgment inappropriate. See Watson v. Mylan Pharmaceuticals, Inc., No. 16-2449, 2016 WL

6996263, * (Nov. 30, 2016) (defendant filed responsive pleading in the form of its Rule
12(b)(6) motion to dismiss and therefore “has not failed to plead or otherwise defend as
required by Rule 55”).
II. New England Audio Motion for Summary Judgment (Dkt. 79)
The complaint alleged that New England Audio, LLC, d/b/a Rainbow Production
Services, Inc., was liable to Krystal Marshall for an incident at the Cotillion Ballroom in
Wichita, Ks., on May 4, 2016, when Marshall was allegedly discriminated against,
assaulted, unlawfully imprisoned, and otherwise tortuously harmed. New England
Audio moves for summary judgment, asserting that none of its employees were present
at, were responsible for, or had any involvement in the incident alleged by plaintiffs. The
assertions are supported by an affidavit of Thomas L. Hejnicki, the Chief Financial Officer
of New England Audio. (Dkt. 80-1). Plaintiffs have not responded to the motion for
summary judgment, and the time for doing so has expired.
Under the local rules of this court, all material facts in the statement of the movant
“will be deemed admitted for the purpose of summary judgment unless specifically
controverted by the statement of the opposing party.” D. Kan. R. 56.1(a).
Under the uncontroverted facts showing that no New England Audio (or Rainbow
Production) employee was present at, had any responsibility for, or was involved in the
incident alleged by plaintiffs, the court concludes that plaintiffs have failed to show any
possible basis for New England Audio to be liable for any of the claims alleged.
IT IS THEREFORE ORDERED this 20th day of February, 2018, that plaintiffs’
Motion for Default Judgment (Dkt. 71) is DENIED. It is further ordered that the Motion
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for Summary Judgment (Dkt. 79) by defendant New England Audio, LLC, d/b/a
Rainbow Production Services, Inc., is GRANTED; the claims against this defendant are
dismissed with prejudice.

___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE

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