Babb v. Osbourne et al
Filing
73
MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 12/8/2016: Motions for Discovery 43 , 44 51 and 56 are DENIED. Motion 58 for Extension of time is DENIED; Motion 60 for entry of default judgment is DENIED; M r. Lee, counsel for the Daviess County Defendants, shall have 21 days from the entry date of this Order to submit a notice of waiver of service on behalf of Defendant Elshy; If Mr. Lee elects not to waive service for Defendant Elshy, he must prov ide the Court with a last known or forwarding address for Defendant Elshy within 30 days from the entry date of this Order so that the Court may ensure service. Defendant Johnson's motion to strike 64 is GRANTED. cc: Counsel, Plaintiff (pro se) (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
RANDALL LEE BABB, SR.
v.
PLAINTIFF
CIVIL ACTION NO. 4:16-CV-P29-JHM
DAVID OSBOURNE et al.
DEFENDANTS
MEMORANDUM AND ORDER
This matter is before the Court upon four discovery motions filed by Plaintiff (DNs 43,
44, 51 & 56); a motion for an extension of time filed by Plaintiff (DN 58); a motion for entry of a
default judgment filed by Plaintiff (DN 60); and a motion to strike filed by Defendant Johnston
(DN 64). The Court will consider each of these motions in turn.
I. MOTIONS FOR DISCOVERY
Plaintiff has filed three documents which he calls “motions for discovery” (DNs 43, 44
& 56) and one letter in which he requests the production of certain documents, which the Court
also construes as a “motion for discovery” (DN 51). These motions appear to be initial requests
for Defendants to produce the documents and records requested therein. Discovery requests,
however, are to be made directly to the opposing party in the first instance. Accordingly, IT IS
HEREBY ORDERED that Plaintiff’s “motions for discovery” (DNs 43, 44, 51 & 56) are
DENIED as premature.
Should Defendants fail to respond to Plaintiff’s request for production of documents
within 30 days after Plaintiff serves the request on Defendants’ counsel, Plaintiff may file a
motion to compel pursuant to Fed. R. Civ. P. 37, containing a certification that he has in good
faith conferred or attempted to confer with Defendants’ counsel in an effort to obtain the
discovery without Court action. Plaintiff is directed to refer to the Court’s Pro Se Prisoner
Handbook for further explanation of the discovery process.
In addition, the Court reminds all parties that, in accordance with the Scheduling Order,
Defendants’ counsel shall produce to Plaintiff all records or documentation relevant to the
claim(s) set forth in the complaint and then certify that the production is complete and file the
certification with the Court. Within the same time, Plaintiff shall provide counsel for Defendants
any records or documentation relevant to his remaining claims and then certify that production is
complete and file the certification with the Court.
II. MOTION FOR AN EXTENSION OF TIME
Plaintiff has also filed a document titled “motion for extension and/or additional time”
(DN 58). In this document, Plaintiff sets forth several tasks that he intends to accomplish once
he is released from incarceration which he believes will help him more effectively litigate this
action. Plaintiff, however, does not request that any specific deadline be extended based upon
these circumstances. Thus, because the relief sought by this motion is ambiguous, IT IS
HEREBY ORDERED that Plaintiff’s “motion for extension and/or additional time” (DN 58) is
DENIED.
III. MOTION FOR ENTRY OF A DEFAULT JUDGMENT
Plaintiff has also filed a “motion seeking entry of a default judgment” (DN 60). In this
motion, Defendant cites to Fed. R. Civ. P. 12 and states that “if the Defendant fails to timely
answer or move to dismiss the complaint, Plaintiff may seek entry of defaught [sic] judgment
against the Defendants by making a motion for defaught [sic].” The Scheduling Order entered
by the Court provided that each Defendant should file an answer no later than 21 days after
service of summons. The Court’s records indicate that every Defendant except Defendant Elshy
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timely answered Plaintiff’s complaint and amended complaints (DNs 53 & 54). As to Defendant
Elshy, the record indicates that his summons was returned unexecuted (DN 47), and “[t]here
must be effective service of process on a defendant before an entry of default can be made.”
Sandoval v. Bluegrass Reg’l Mental Health-Mental Retardation Bd., No. 99-5018, 2000 WL
1257040, at *5 (6th Cir. July 11, 2000) (citing 10A Charles Alan Wright, Arthur R. Miller, and
Mary Kay Kane, Federal Practice and Procedure § 2682 (3d ed. 1998)). For these reasons, IT
IS HEREBY ORDERED that Plaintiff’s motion for entry of a default judgment (DN 60) is
DENIED.
However, Defendant Elshy must be served. “[W]hen a plaintiff is proceeding in forma
pauperis the court is obligated to issue plaintiff’s process to a United States Marshal (USM) who
must in turn effectuate service upon the defendants . . . .” Byrd v. Stone, 94 F.3d 217, 219 (6th
Cir. 1996); Fed. R. Civ. P. 4(c)(3). A handwritten notation on Defendant Elshy’s USM-285 form
states: “No longer employed at DCDC/whereabouts unknown” (DN 47). In an effort to alleviate
the burden on the USM, the Court attempts to secure a waiver of service of process when
possible. Since Michael Trent Lee represents the other “Daviess County Defendants,” the Court
will seek waiver of service for Defendant Elshy from Mr. Lee. Absent a waiver in this case, the
Court will redirect service by the USM.
Accordingly, IT IS HEREBY ORDERED that Mr. Lee, counsel for the Daviess
County Defendants, shall have 21 days from the entry date of this Order to submit a notice
of waiver of service on behalf of Defendant Elshy.
If Mr. Lee elects not to waive service for Defendant Elshy, he must provide the
Court with a last known or forwarding address for Defendant Elshy within 30 days from
the entry date of this Order so that the Court may ensure service. If the address is not public
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record, counsel shall file it under seal. The sealed address will be used only to effect service
and will not be provided to Plaintiff. Further, if an address is provided, the Clerk of Court is
DIRECTED to prepare and issue a summons for Defendant Elshy at that address, and the
USM shall serve a copy of the complaint (DN 1), the six amended complaints (DNs 12, 18,
19, 27, 28 & 35), the separate Memorandum Opinion and Order entered on August 17,
2016 (DN 31), and summons on Defendant Elshy in accordance with Rule 4 of the Federal
Rules of Civil Procedure.
IV. MOTION TO STRIKE
Defendant Johnston has filed a motion to strike (DN 64) a document filed by Plaintiff
titled “Motion for Responding to Defendants Motion to Dismiss” (DN 59). Plaintiff then filed a
“Response to Defendants’ Motion to Dismiss” (DN 68), which the Court construes as Plaintiff’s
response to Defendant Johnston’s motion to strike.
In his motion, Defendant Johnston argues that DN 59 should be stricken from the record
because no Defendant has filed a motion to dismiss. In Plaintiff’s response, he seems to indicate
he filed his “Motion for Responding to Defendants Motion to Dismiss” because he was not sure
how to “respond” to Defendants’ answers. In this response, Plaintiff reiterates the reasons he
believe this action should not be dismissed at this time.
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The Court agrees that Plaintiff’s “Motion for Responding to Defendants Motion to
Dismiss” (DN 59) should be stricken from the record because no Defendant has filed a motion to
dismiss. The only pleadings that Defendants have filed are their procedurally required answers
to Plaintiff’s complaint and amended complaints. Accordingly, IT IS HEREBY ORDERED
that Defendant Johnston’s motion to strike (DN 64) is GRANTED.
Date:
December 8, 2016
cc:
Plaintiff, pro se
Counsel of Record
4414.011
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