BOB KIMBALL BUILDING & REMODELING INC v. SHURLAND et al
Filing
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MEMORANDUM DECISION on 13 Motion for Entry of Default (no answer or responsive pleading having been filed) as to BOB KIMBALL BUILDING & REMODELING INC. By MAGISTRATE JUDGE JOHN H. RICH III. (ccs) Modified on 7/19/2016 to correct title(ccs).
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BOB KIMBALL BUILDING &
REMODELING, INC.,
Plaintiff
v.
ABRAHAM SHURLAND and
ELIZABETH SHURLAND,
Defendants
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No. 2:16-cv-163-JDL
MEMORANDUM DECISION ON MOTION FOR ENTRY OF DEFAULT
In this mechanic’s lien case removed from state court, the defendants move for entry of
default against the plaintiff on their counterclaim. Defendants’ Request for Entry of Default (ECF
No. 13). I grant the motion and direct the clerk to enter default on the counterclaim (included in
ECF No. 4).
The defendants’ answer and counterclaim were filed on March 28, 2016. ECF No. 4. The
plaintiff had filed a motion to compel arbitration on March 11, 2016. ECF No. 3. The parties
objected to the scheduling order that was issued on March 29, 2016 (ECF No. 5), and requested a
telephone conference to address the effect of the then-pending motion to compel arbitration on the
scheduling order. ECF No. 8. That conference was held on April 21, 2016, ECF No. 11, and
resulted in a report and order on the same day. ECF No. 12.
During the telephone conference, the plaintiff’s attorney requested that all proceedings in
this case be stayed pending resolution of the motion to compel arbitration. Report of Hearing and
Order re: Scheduling (ECF No. 12) at 1. The defendants’ attorney expressed a preference to
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proceed on a standard course of discovery while the motion was pending. Id. The report of the
conference provides, in relevant part, as follows:
After discussion, both attorneys agreed with my suggestion that the parties
commence discovery pending the resolution of the motion to compel arbitration,
with the terms of the scheduling order remaining in effect, subject to the right of
either side to come to the court to seek protection from discovery that is deemed to
be beyond the scope of discovery that would be applicable to the proposed
arbitration proceeding. These parameters will stay in place until the motion to
compel arbitration is resolved, at which time another telephone conference will be
held to address scheduling issues, if any, resulting from that resolution.
Id/ at 1-2.
The plaintiff has not yet filed an answer to the counterclaim asserted in the defendants’
answer, although one was due on April 18, 2016, and despite the filing of the motion for entry of
default. The defendants invoke Federal Rule of Civil Procedure 55(a) as the authority for their
request that the court now enter default on the counterclaims. The rule provides, in relevant part:
When a party against whom a judgment for affirmative relief is sought has failed
to plead or otherwise defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party’s default.
Fed. R. Civ. P. 55(a). Federal Rule of Civil Procedure 12(a)(1)(B) provides that a party must serve
an answer to a counterclaim within 21 days after being served with the pleading that states the
counterclaim.
The plaintiff opposes the motion, asserting that the report of the telephone conference
quoted above established that “[t]he only matter pursuant to the Court Order that was to move
forward was discovery.” Plaintiff’s Objection to Defendant[s’] Request for Entry of Default (ECF
No. 15) ¶ 5. This is incorrect; the report and order clearly stated, as quoted above, that the terms
of the scheduling order would remain in effect. The plaintiff’s request for a stay of all proceedings
was not granted. The scheduling order does not mention pleading response dates set by the rules
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of civil procedure, and no reasonable reader could interpret the report of the telephone conference
to suspend the operation of those rules in any sense.
While it may ultimately prove to be little more than a minor technical matter, Rule 55(a)
does require the entry of default on the counterclaim under the circumstances of this case. I
emphasize that only a default is to be entered, not default judgment.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file an
objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 18th day of July, 2016.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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