Jackson v. Louisiana Tech University et al

Filing 59

ORDER granting 44 Motion to Amend Opposition to motions to dismiss ; denying 24 Motion to Strike; denying 25 Motion for Entry of Default and denying as unnecessary, plaintiff's associated request for evidentiary hearing; denying 35 M otion to Strike 17 Order on Motion for Extension of Time to Answer, 14 Order on Motion for Extension of Time to Answer, and 13 Order on Motion for Extension of Time to Answer; denying as moot 41 Motion to Stay; denying 49 Motion for Hearing. Signed by Magistrate Judge Karen L Hayes on 11/22/11. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
IAN J. JACKSON, ET AL.

*

CIVIL ACTION NO. 11-0524

VERSUS

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JUDGE DONALD E. WALTER

LOUISIANA TECH UNIVERSITY, ET
AL.

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MAG. JUDGE KAREN L. HAYES

MEMORANDUM ORDER
Before the undersigned magistrate judge, on reference from the District Court, are several
motions filed by pro se plaintiff, Ian J. Jackson. They include 1) a motion to strike the court
orders the granted the Louisiana Tech defendants an extension of time to file responsive
pleadings [doc. # 24]; 2) a motion for default judgment against the Louisiana Tech defendants
[doc. # 25]; 3) a motion to strike [doc. # 35] the motion to dismiss filed by the Louisiana Tech
defendants; 4) a motion to stay all proceedings [doc. # 41] pending the court’s resolution of
plaintiff’s motion for default judgment; 5) a motion for leave to amend and/or supplement [doc.
# 44] plaintiff’s response(s) to defendants’ motions to dismiss; and 6) a request for hearing to
address defendants’ purported failure to properly serve him with copies of filings [doc. # 49].
For reasons assigned below, plaintiff’s motion for leave to amend and/or supplement his
responses [doc. # 44] is GRANTED; plaintiff’s remaining motions are DENIED.1

1

As these motions are not excepted within 28 U.S.C. § 636(b)(1)(A), nor dispositive of
any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure,
this order is issued under the authority thereof, and in accordance with the standing order of this
court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R.
74.1(W).

Background
On April 1, 2011, plaintiff Ian J. Jackson filed the instant, pro se civil rights complaint
against numerous law enforcement officers, agencies, and court personnel affiliated with
Louisiana Tech University and the City of Ruston to vindicate his constitutional rights that he
contends defendants transgressed in connection with an April 3, 2010, traffic stop and the
ensuing prosecution for the precipitating traffic infraction. See Complaint. The named
defendants include Ruston City Court Prosecutor Kyle Green; City of Ruston; Ruston City Court
Judge, the Honorable Danny W. Tatum; the Ruston City Court; Ruston City Court Clerk of Court
Wanda Neeles (incorrectly named in the complaint as “Wander” Neeles; Ruston City Court
Deputy Clerk Brenda Gafton; Court Reporter Linda Hanes; Louisiana Tech University; Louisiana
Tech University Police Department; Chief of Police Randal Hermes; Assistant Chief of Police
Bill Davis; Officer Randy Gay; and Officer Tim Holstead.
On June 1, 2011, plaintiff filed returns of service indicating that he perfected service
against all defendants on May 17, 2011. See returns [doc. # 4]. Accordingly, the deadline for
defendants to file their responsive pleadings was June 7, 2011. See Fed.R.Civ.P. 12(a)(1)
(answer due 21 days after service of the summons and complaint). On June 6, 2011, defendants,
Kyle Green, the City of Ruston, the Honorable Danny W. Tatum, the Ruston City Court, Wanda
Neeles, Brenda Gafton, and Linda Hanes, each joined in one of four motions to dismiss for lack
of subject matter jurisdiction and/or for failure to state a claim pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (6), respectively. See doc. #s 6, 7, 8, & 9.
On Wednesday, June 8, 2011, – one day after the responsive pleading deadline had
lapsed, defendants, Louisiana Tech University and Louisiana Tech Police Department, filed a
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motion for extension of time to file responsive pleadings. (M/Extension of Time [doc. # 11]). In
support of the motion, counsel alleged that he only recently had been assigned the case, and had
not yet had an opportunity to receive additional file materials or to investigate plaintiff’s claims
and defenses. Id. Accordingly, counsel requested a 40 day extension of time to file responsive
pleadings. Id. Counsel further represented that he attempted to contact plaintiff on June 7, 2011,
but was unable to reach him. Id. He stated, however, that for purposes of Local Rule 7.9W, he
assumed (correctly, as it turns out), that plaintiff would oppose the motion. Id.2 Counsel opined
that a 40 day extension of time would not unduly prejudice plaintiff. Id. The motion included a
certificate of service indicating that counsel served plaintiff with a copy of the motion by mailing
it to his address of record. Id.
On Monday, June 13, 2011, – six days after the responsive pleading deadline had lapsed –
the same attorney who appeared on behalf of the Louisiana Tech defendants, filed a motion for
extension of time to file responsive pleadings on behalf of defendants, Randal Hermes, the
Louisiana Tech Chief of Police and Bill Davis, the Louisiana Tech Assistant Chief of Police.
(M/Extension of Time [doc. # 12]). By and large, the motion was identical to the motion that
counsel filed a few days earlier on behalf of the Louisiana Tech defendants. One notable
difference between the two, however, was that the motion filed on June 13 did not include a
certificate of service, as ostensibly required by Local Rules 5.3 and 5.7.09 and Federal Rule of

2

Local Rule 7.9 provides that,
[a] motion for continuance or for extension of time shall be accompanied by a
certificate by the applicant's attorney that (1) there is or is not opposition to the
request; and, if there is opposition, the reasons therefor, or, (2) if neither is
obtainable, a statement of the efforts made by the applicant to secure the same.
LR 7.9.
3

Civil Procedure 5(a)(1)(D). Typically, the docket clerk assigned to the case will catch this
omission, bring it to the attorney or party’s attention, and permit the filer to correct the deficiency
before the motion is forwarded to the judge for consideration.3 In this case, however, the Clerk
forwarded the motion to chambers, despite the missing certificate of service.
On Tuesday, June 14, 2011, the undersigned signed orders granting both motions for
extensions of time [doc. #s 11 & 12], thereby affording movants an additional 40 days to file
responsive pleadings. (June 14, 2011, Orders [doc.#s 13 & 14]). Accordingly, following the
extension, movants’ responsive pleading deadline became July 18, 2011.4
On Wednesday, June 15, 2011, – eight days after the original responsive pleading
deadline had lapsed – the same attorney who filed the two previous motions for extensions of
time, filed a motion for extension of time to file responsive pleadings on behalf of defendants,
Officers Randy Gay and Tim Holstead. (M/Extension of Time [doc. # 15]). By and large, the
motion was identical to the two previous motions. Id. In fact, like the prior motion, this latest
motion did not include a certificate of service. Id. Later that day, however (likely after having
been advised by the docket clerk that he failed to include a certificate of service), counsel re-filed
the motion, together with a certificate of service. (M/Extension of Time [doc. # 16]).
On Thursday, June 16, 2011, the undersigned signed an order granting defendants, Gay
and Holstead’s motion for extension of time, thereby affording them an additional 40 days to file

3

See Guide to Practice, http://www.lawd.uscourts.gov/Docs/guide.pdf, and discussion,

infra.
4

As stated earlier, defendants’ original responsive pleading deadline was June 7. Forty
days from June 7 is July 17. However, because July 17, 2011, fell on a Sunday, the period
automatically was extended until July 18 – the next day that was not a legal holiday or weekend.
Fed.R.Civ.P. 6(a)(1).
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responsive pleadings. (June 16, 2011, Order [doc. # 17]). Accordingly, movants’ responsive
pleading deadline was extended until at least July 18, 2011. See discussion, supra.
On July 6, 2011, plaintiff filed a motion to strike [doc. # 24] the three orders that
extended the responsive pleading deadline for defendants, Louisiana Tech University, Louisiana
Tech University Police Department, Chief of Police Randal Hermes, Assistant Chief Bill Davis,
and Officers Randy Gay and Tim Holstead (collectively “Louisiana Tech defendants”).
On July 6, 2011, plaintiff also filed a motion for default judgment [doc. # 25] against the
Louisiana Tech defendants. In support of his motion, plaintiff submitted an affidavit wherein he
averred, inter alia, that defendants never served him with copies of their motions for extensions
of time. (Affidavit of Ian Jackson; M/Default Judg.).
On July 15, 2011, the Louisiana Tech defendants filed a “Motion in Opposition to Strike
Order Granting an Extension of Time and in Opposition to Motion for Default.” [doc. # 27]. In
this opposition memorandum, the Louisiana Tech defendants perfunctorily asserted that the
court’s orders should not be stricken, and that plaintiff’s motion for entry of default should be set
aside. Id.
On July 18, 2011, the Louisiana Tech defendants filed a motion to dismiss [doc. # 29] for
lack of subject matter jurisdiction and/or for failure to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(1) and (6).
On August 8, 2011, plaintiff filed a motion to strike [doc. # 35] defendants’ motion to
dismiss [doc. # 29]. The Louisiana Tech defendants filed their opposition to the motion to strike
on August 15, 2011.
On August 23, 2011, plaintiff filed a motion to stay [doc. # 41] proceedings pending the
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court’s resolution of his motion for entry of default judgment. In support of his motion, plaintiff
submitted an affidavit wherein he asserted that he accused the Clerk of Court of conspiring with
the Louisiana Tech defendants to dispose of his motion for entry of default judgment without
having advised him of events and matters related to the motion. (Aug. 23, 2011, Affidavit of Ian
Jackson; M/Stay [doc. # 43]).
On August 23, 2011, plaintiff also filed a “Motion for Leave to Correct Record and File
Exhibits.” [doc.# 44]. By this motion, plaintiff seeks leave to amend his oppositions to
defendants’ motions to dismiss by adding title pages, correcting the tables of contents and
authorities, and by submitting additional exhibits comprised of records related to his underlying
prosecution in Ruston City Court. The motion is unopposed. Accordingly, plaintiff’s motion to
amend [doc. # 44] is GRANTED.
On September 1, 2011, the District Court referred all pending motions herein to the
undersigned magistrate judge. (Sept. 1, 2011, Minute Entry [doc. # 47]). On September 19,
2011, plaintiff submitted a response wherein he opposed the District Court’s referral of the
pending motions. See Pl. Opposition [doc. # 49]. In his submission, plaintiff first complained
that the District Court had not referred all matters for consideration. Id. He then argued that the
undersigned was biased and prejudiced against him. Id. Plaintiff also requested oral argument
regarding defendants’ failure to serve him with copies of pleadings. Id.
The court will consider the foregoing motions, seriatim.
Discussion
1)

Motion to Strike [doc. # 24]
By this motion, plaintiff seeks to strike, and/or obtain relief from, the court’s three orders
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of June 14 and 16, 2011 [doc. #s 13, 14, & 17], that extended the responsive pleading deadline
for the Louisiana Tech defendants. Plaintiff raises several arguments in support of his motion.
He initially contends that the orders are invalid because they are undated. Indeed, the dates on
the copies of the orders that plaintiff received from the Clerk of Court are obscured by the
undersigned’s superimposed signature. See Exhs.; M/Strike [doc. # 35-2]. However, the dates
are visible on the orders that appear in the court’s electronic record. See doc. #s 13, 14, & 17.
Upon inquiry, the Clerk of Court explained that the discrepancies on the copies that plaintiff
received were caused by a malfunctioning printer that has since been replaced. The Clerk of
Court is directed to re-print copies of the orders [doc. #s 13, 14, & 17] and transmit them to
plaintiff.
Plaintiff next contends that the Louisiana Tech defendants never filed written motions for
extensions of time, but that even if they did, neither they, nor the Clerk of Court served him with
copies of the motions.5 As detailed above, however, review of the court record confirms that the
Louisiana Tech defendants did file three written motions for extensions of time. [doc. #s 11, 12,
& 15].6 Furthermore, two of the motions were accompanied by certificates of service. See doc.
#s 11, 15-16. Although plaintiff has averred that he did not receive copies of the motions filed
by defendants,7 service by mail under Rule 5(b) service is complete upon mailing. Fed.R.Civ.P.

5

It is not the Clerk of Court’s responsibility to serve plaintiff with copies of motions or
pleadings filed by other parties in the case. See generally Fed.R.Civ.P. 5 and LR 5.7.09.
6

At one point, plaintiff argues that because the signed orders contain the word,
“Chambers,” above the signature line, this indicated that the motions were presented orally in
chambers. Plaintiff is mistaken. “Chambers” reflects the place where the orders were signed,
not where the motions were presented.
7

See July 6, 2011, Affidavit of Ian Jackson, ¶ 20; [doc. # 25-1].
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5(b)(2); Anthony v. Marion County General Hospital, 617 F.2d 1164, 1168 n5 (5th Cir. 1980);
Vincent v. Consolidated Operating Co., 17 F.3d 782, 785 n9 (5th Cir. La. 1994); 1-5 MOORE 'S
FEDERAL PRACTICE - CIVIL § 5.04[2][a][ii]. Non-receipt or non-acceptance of the envelope
containing the papers is immaterial. See Anthony, supra. Of course, the fact that plaintiff did not
receive copies of the motions is an equitable consideration that may support reconsideration of
the court’s orders.
Here, however, even if the court were to re-visit the motions for extensions of time, the
court would be compelled to reach the same result. Rule 6 provides that “[w]hen an act may or
must be done within a specified time, the court may, for good cause, extend the time . . . on
motion made after the time has expired if the party failed to act because of excusable neglect.”
Fed.R.Civ.P. 6(b)(1)(B).8 The court enjoys wide discretion to grant or deny an extension under
Rule 6(b)(1)(B). Mattress Giant Corp., supra (citation omitted); see also McCarty v. Thaler, 376
Fed. Appx. 442 (5th Cir. Apr. 30, 2010) (unpubl.) (extensions of time under Rule 6(b) remain
within the court’s discretion). In assessing whether a party’s neglect is excusable, the court
should consider all relevant circumstances including the danger of prejudice to the non-movant,
the length of the delay and its impact on the proceedings, the reason for the delay, and whether
the movant acted in good faith. See Miller v. Pikett, 2010 WL 3489365 (S.D. Tex. Sept. 1, 2010
(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395, 113 S.Ct. 1489, 1498
(1993). Delay alone, however, does not constitute prejudice. Lacy v. Sitel Corp., 227 F.3d 290,

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Federal Rule of Civil Procedure 6(b)(1)(B) guides the court’s consideration of a
motion to extend the responsive pleading deadline after the deadline already has lapsed.
Mattress Giant Corp. v. Motor Advertising & Design Inc., 2008 WL 898772 (N.D. Tex. March
31, 2008) (citations omitted).
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293 (5th Cir. 2000) (discussing prejudice for purposes of setting aside default). Rather,”plaintiff
must show that the delay will result in the loss of evidence, increased difficulties in discovery, or
greater opportunities for fraud and collusion.” Id. (citation omitted).
In the case sub judice, plaintiff has neither alleged nor established cognizable prejudice as
a result of the out-of-time extensions obtained by the Louisiana Tech defendants. All three
motions were filed no more than eight days after the original deadline had expired. Moreover,
counsel attributed the delay to the fact that he only recently had been assigned to represent these
defendants. It is not uncommon for defense counsel to seek extensions of time to file responsive
pleadings, especially when, as here, they do not receive the case until near the end of the ordinary
responsive pleading deadline and they must respond to numerous allegations, as set forth in this
lengthy complaint.9 Furthermore, a 40 day extension of time is not inordinate. In other
situations, certain defendants are permitted up to 60 days to file responsive pleadings. See e.g.,
Fed.R.Civ.P. 4(d)(3) & 12(a)(2).
The court also finds that the Louisiana Tech defendants acted in good faith. There is no
indication that counsel purposefully waited until the responsive pleading deadline lapsed before
he filed the motions for extensions of time. Moreover, he tried to contact plaintiff before filing
the motions to discern whether plaintiff opposed them – but was not successful in reaching him.
Thus, counsel represented that he assumed that the motions were opposed. The court likewise
treated the motions as if they were opposed, but nonetheless determined that defendants were
entitled to relief.
Plaintiff protests that because he did not receive notice of the motions he did not have an
9

The instant complaint is 66 pages long.
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opportunity to contest the motions before the court considered them. However, in all of
plaintiff’s subsequent filings with the court, he has failed to raise any cognizable basis for the
court to have denied the motions for extensions of time. As stated earlier, mere delay does not
suffice.
Plaintiff presumably opposes the extensions of time because he hoped to obtain default
judgments against the Louisiana Tech defendants. See discussion, infra. It is axiomatic,
however, that “[a] party is not entitled to a default judgment as a matter of right, even where the
defendant is technically in default.” Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (citation
omitted). Moreover, “[d]efault judgments are a drastic remedy, not favored by the Federal Rules
and resorted to by courts only in extreme situations.” Id. In this regard, even if plaintiff had
obtained an entry of default against the Louisiana Tech defendants, the court would have been
compelled to set it aside. See Lacy, supra (identifying three factors that court should consider in
setting aside default); see also King v. Entergy Operations, Inc., 84 Fed. Appx. 470 (5th Cir. Jan.
9, 2004) (characterizing “as patently frivolous,” plaintiff’s motion seeking a default judgment on
the alleged basis that she never received a copy of the court order extending the time for
defendants to file their brief).
For the foregoing reasons, plaintiff’s motion to strike, and/or relief [doc. # 24] is
DENIED.
2)

Motion for Default Judgment Against the Louisiana Tech Defendants [doc. # 25]
By this motion, plaintiff seeks an entry of default against the Louisiana Tech defendants

because of their purported failure to timely file responsive pleadings. However, the Louisiana
Tech defendants successfully petitioned the court for an out-of-time extension to file responsive
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pleadings. See discussion, supra. Thereafter, the Louisiana Tech defendants filed their
responsive pleading(s) within the extended deadline. Accordingly, defendants are not in default,
and default is not warranted. See Fed.R.Civ.P. 55; Silvas v. Remington Oil and Gas Corp., 109
Fed. Appx. 676 (5th Cir. Sept. 21, 2004) (unpubl.) (affirmed district court’s denial of default
judgment and granting of out-of-time extension of time to file responsive pleadings).
For the foregoing reasons, plaintiff’s motion for default judgment [doc. # 25] is
DENIED. Plaintiff’s associated request for an evidentiary hearing on his motion for default
judgment contained in his August 23, 2011, affidavit [doc. # 43] is DENIED, as unnecessary.10
3)

Motion to Strike [doc. # 35] the Motion to Dismiss Filed by the Louisiana Tech
Defendants
By this motion, plaintiff seeks to strike the motion to dismiss filed by the Louisiana Tech

defendants, essentially for the same reasons urged in support of his other motions, i.e., that the

10

In his August 23, 2011, affidavit, plaintiff also complains that he never received a copy
of defendants’ response to his motion for default judgment. (Jackson Aug. 23, 2011, Affidavit
[doc. # 43]. Again, however, the response included a certificate of service indicating that counsel
served plaintiff with a copy of the response, via U.S. mail. See “Motion in Opposition” [doc. #
27].
To the extent that plaintiff complains that the Clerk of Court failed to notify him that
defendants had filed a response, the court reiterates that it is not the Clerk of Court’s
responsibility to serve plaintiff with copies of filings by other parties.
At other points in the instant record, see e.g., September 13, 2011, letter to the Clerk of
Court [doc. # 50], plaintiff complained that the Clerk of Court did not send him copies of his
own filings or copies of the docket sheet. Again, however, the Clerk of Court does not serve
parties with copies of documents that they or other parties submit for filing. Nonetheless, if a
filing party submits a duplicate copy, the Clerk of Court will stamp “Received” on it, for that
party’s own records.
Furthermore, despite what plaintiff alleges, the Clerk of Court stands ready and willing to
furnish him a copy of the docket sheet, so long as he pays for the affiliated copy charge. Plaintiff
is further reminded that if he has internet access, he can open a Pacer account at www.pacer.gov,
which will permit him to review and print copies of the docket sheet and record documents, for a
fee, at his leisure.
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motion to dismiss was not timely filed. The Louisiana Tech defendants, however, filed their
motion to dismiss within the applicable deadline, as extended by the court. See discussion,
supra. Accordingly, the motion to strike is without merit, and is DENIED. See Jackson v. State
of Louisiana, Civil Action Number 01-2516 (W.D. La. June 18, 2002, Ruling) (denying
plaintiff’s motion to dismiss on timeliness grounds defendants’ motion to dismiss).
4)

Motion to Stay [doc. # 41]
By this motion, plaintiff seeks to stay proceeding pending the court’s resolution of his

motion for default judgment. Having denied plaintiff’s motion for default judgment, plaintiff’s
motion to stay [doc. # 41] is DENIED, as moot.
5)

Opposition to Referral of Motions to the Undersigned and Request for Hearing
[doc. # 49]
As recounted earlier herein, plaintiff opposes the district court’s referral of certain

motions to the undersigned for consideration. Plaintiff opposes the referral, in part, because the
district court did not reference other documents in this case. Plaintiff may rest assured, however,
that the undersigned considered all relevant filings in its resolution of the pending matters.
Accordingly, plaintiff’s opposition to the referral is OVERRULED.
Plaintiff also contests the referral because he contends that the undersigned is biased and
prejudiced against him because the undersigned improperly granted the Louisiana Tech
defendants an extension of time to file responsive pleadings. However, as was explained above,
the extensions of time were properly granted. See discussion, supra.
To the extent that plaintiff’s submission may be construed as a motion to recuse the
undersigned magistrate judge pursuant to 28 U.S.C. §§ 144 and/or 455, the court observes that, at

12

a minimum, a motion to recuse under § 144 requires an affidavit establishing that the judge has a
personal, as opposed to judicial, bias against the party. See Knighten v. John, 115 Fed. Appx.
669 (5th Cir. Oct. 14, 2004) (unpubl.) (citation omitted). Plaintiff has not made that showing
here. Moreover, the undersigned is not aware of any basis for recusal on the basis of personal
bias or prejudice. See 28 U.S.C. § 455. Indeed, “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct.
1147, 1157 (1994). Accordingly, insofar as plaintiff seeks to recuse the undersigned, the request
is DENIED.
Plaintiff also requests an oral evidentiary hearing regarding defendants’ purported failure
to serve him with copies of their filings with the court. The court addressed the service issue
above. There is no further need for a hearing. Accordingly, the request for an evidentiary
hearing [doc. # 49] is DENIED.
Conclusion
For the above-stated reasons,
Plaintiff’s motion for leave to amend and/or supplement his responses [doc. # 44] is
GRANTED; his remaining motions [doc. #s 24, 25, 35, 41, & 49] are DENIED.
IT IS SO ORDERED.
THUS DONE AND SIGNED, in chambers, at Monroe, Louisiana, this 22nd day of
November 2011.

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