Ayo et al v. East Baton Rouge Parish

Filing 74

RULING granting 63 Motion to Vacate the Entry of Default. The Clerk's 42 Entry of Default is VACATED. The Defendants shall pay the Plaintiffs an amount sufficient to reimburse the Plaintiffs for the time and expense incurred in filing the pleadings at Record Documents 38 and 70. Signed by Chief Judge Shelly D. Dick on 9/26/2018. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HENRY AYO, and KAIASHA WHITE
on behalf of themselves
and all others similarly situated

CIVIL ACTION
17-526-SDD-EWD

VERSES
CLEVE DUNN Sr., REHABILITATION HOME
INCARCERATION, SID J.
RULING
Before the Court is a Motion to Vacate Preliminary Default filed by Defendants
Cleve Dunn, Sr. (“Dunn”) and Rehabilitation Home Incarceration, Inc. (“RHI”).1 The
Motion is opposed by Plaintiffs Henry Ayo (“Ayo”) and Kaiasha White (“White”).2
Defendants, Dunn and RHI, significantly delayed filing responses to the Plaintiffs’
Complaint. The Court is unpersuaded by the excuse offered by Dunn and RHI. The Court
finds that Defendants Dunn and RHI have not explained, nor offered any plausible excuse
for, their delay in filing a timely response to Plaintiffs’ pleadings.
Plaintiffs filed a Complaint on August 7, 2017 and Amended Complaint on August
8, 2017 naming Dunn and RHI as Defendants. Plaintiffs assert that Dunn and RHI eluded
service causing Plaintiffs to seek an extension of time to serve these Defendants.
According to the Plaintiffs, they “attempted service numerous times and in myriad ways—
by mail and in person, employing a process server and two different paralegals who
visited different addresses and made [service] attempts on five occasions in October,

1
2

Rec. Doc. 63.
Rec. Doc. 70.

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2017”.3 Following numerous attempts, a process server contacted Dunn4 by phone at
which point Dunn advised that he would accept service but, thereafter, Plaintiffs’ process
server phoned Dunn six times, leaving three voicemails, which were not returned.5 At last,
Plaintiffs were successful in serving Dunn and RHI on Nov. 22, 2017,6 almost 4 months
after suit was filed.
The deadline for filing responsive pleadings was December 13, 2017. No
responsive pleadings were filed, nor did the Defendants timely move for an extension of
time to plead. On January 4, 2018, Defendants sought an out-of-time Motion for Extension
of Time to Plead.7 In their Motion for Extension of Time, Defendants asserted that they
“tried without success to retain counsel” and “because of their indigency, could not retain
any counsel”.8 The Magistrate Judge granted Defendants until February 2, 2018 to
respond “based on sufficient showing of excusable neglect pursuant to F.R.C.P.
6(b)(1)(B).”9 Defendants, Dunn and RHI, failed to file responsive pleadings by the Court
Ordered deadline. Plaintiffs moved for entry of default.10 Rather than responding to the
Motion for default, on February 6, 2018, Defendants filed an out-of-time Motion for Leave
to File a Motion to Dismiss.11 On February 8, 2018, the Clerk of Court granted an Entry

3

Rec. Docs 70 and 20, ¶¶ 2-10.
Dunn was sued individually and Dunn is also the registered agent for service of process for RHI.
5
Rec. Docs 70 and 20, ¶ 13.
6
Rec. Docs. 26 and 27.
7
Rec. Doc. 34.
8
Rec. Doc. 34, ¶3, 5.
9
Rec. Doc. 35.
10
Rec. Doc. 38.
11
Rec. Doc. 41.
4

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of Default against Dunn and RHI.12 Over opposition13 by the Plaintiffs, the Court granted
Defendants, Dunn and RHI, leave to file their Motion to Dismiss on February 14, 2018.14
In the present Motion to vacate the default, Defendants offer 2 excuses; first,
Defendants submit that their delays were “due largely to their inability to secure counsel
early enough to read, familiarize and conduct due diligent research on this matter”; and,
secondly, “Defendants suffered loss of property and home during the August 2016 flood
in Baton Rouge and have still not recovered from such calamity.”15
Under Rule 55 of the Federal Rules of Civil Procedure, the Court may set aside an
entry of default for “good cause.” The decision to set aside a default entry “lies within the
sound discretion of the district court.”16 In determining whether good cause exists, courts
generally consider three factors: (1) whether the default was willful; (2) whether setting it
aside would prejudice the adversary; and (3) whether a meritorious defense is
presented.17
The Defendants utterly fail to explain how a flood in August of 2016 created
excusable neglect for filing a timely response to a lawsuit served upon them in November
of 2017. Likewise, Defendants excuse that they had difficulty securing counsel fails to
explain Defendants’ untimely response after counsel was retained. Defense counsel
appeared on January 4, 2018.18 Defendants, once represented, were granted until
February 2, 2018 to file responsive pleadings but still failed to do so. Defendants claim

12

Rec. Doc. 42.
Rec. Doc. 43.
14
Rec. Doc. 44.
15
Rec. Doc. 63-1, pp. 3-4.
16
Antoine v. Boutte, No. 15-561-JWD-EWD, 2017 WL 1969468, at *2 (M.D. La. May 12, 2017) (citing U.S.
v. One Parcel of Real Property, 763 F.2d 181, 183 (5th Cir. 1985)).
17
Id. at *3.
18
See Rec. Doc. 34.
13

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that “[w]ith due diligence, counsel could not be up to speed by February 2, 2018 [the Court
Ordered deadline for filing responsive pleadings]”19 yet, remarkably, defense counsel was
able to get “up to speed” sufficiently to file a Motion to Dismiss on February 6, 2018.20
Motions under Rule 12(b) of the Federal Rules of Civil Procedure must be filed
before a responsive pleading because Rule 12(b) Motions seek pre-answer dismissal of
a claim. Thus, the act of filing a Rule 12(b) Motion for dismissal suspends the time for
answering.21 Hence, the filing of a Rule 12(b) Motion has a tolling effect on the time for
answering. By granting the Defendants’ Motion for Leave to file their Motion to Dismiss
this Court inadvertently protected the Defendants from the error of their ways.
Because this Court granted Defendants, Dunn and RHI, leave to file a Motion to
Dismiss the Court will exercise its discretion and vacate the entry of default. However, the
Court finds that the Plaintiffs have been prejudiced by the delays and inexcusable neglect
of Defendants Dunn and RHI. Plaintiffs have suffered the time and expense of moving for
entry of default and opposing the Motion to Vacate default. Defendants, Dunn and RHI,
are hereby ordered to reimburse Plaintiffs for the court costs and attorneys’ fees incurred
in filing the Motion for Entry of Default22 and the Memorandum in Opposition to Motion to
Vacate Preliminary Default filed by Plaintiffs23. Defendants are hereby cautioned that
future missed deadlines or failure to comply with discovery will result in additional
appropriate sanctions.

19

Rec. Doc. 63-1.
Rec. Doc. 41, Defendant’s Motion for Leave to File Motion to Dismiss accompanied by the “Proposed
Pleading” Rec. 43-1.
21
FRCP Rule 12(a)(4).
22
Rec. Doc. 38.
23
Rec. Doc. 70.
20

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The Parties are hereby ordered to meet and confer within fifteen (15) days of this
Order to reach a mutual agreement of the time and expenses incurred by Plaintiffs in
connection with the filing of the pleadings at Record Document Numbers 38 and 70. If the
Parties are unable to concur on the amount of reimbursement to be made to the Plaintiffs,
Plaintiffs shall file a Motion to tax costs and expenses in accordance with this Ruling.
Accordingly,
IT IS ORDERED that the Motion to Vacate the Entry of Default (Rec. Doc. 63) is
GRANTED and the Clerk’s Entry of Default (Rec. Doc. 42) is hereby VACATED;
IT IS FURTHER ORDERED that the Defendants shall pay the Plaintiffs an amount
sufficient to reimburse the Plaintiffs for the time and expense incurred in filing the
pleadings at Record Documents 38 and 70.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on September 26, 2018.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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