Romero v. Barnett et al
Filing
74
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 5/20/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MICHAEL R. ROMERO
:
v.
:
Civil Action No. DKC 09-2371
:
BRANDON BARNETT, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this prisoner
civil rights action is a motion filed by Plaintiff Michael R.
Romero to strike Defendants’ answer and for entry of default
judgment.
(ECF No. 64).
The issues are fully briefed and the
court now rules pursuant to Local Rule 105.6, no hearing being
deemed
necessary.
For
the
reasons
that
follow,
Plaintiff’s
motion will be denied.
I.
Background
On
inmate
September
at
Western
9,
2009,
Plaintiff
Correctional
Michael
Institution,
R.
Romero,
commenced
an
this
action by filing a pro se complaint alleging violations of 42
U.S.C. § 1983 against prison staff.1
defendants
defendants”
1
–
the
–
“medical
separately
In response, two sets of
defendants”
and
moved
dismiss
to
the
“correctional
or,
in
the
Plaintiff
has
since
been
transferred
to
Roxbury
Correctional Institution in Hagerstown, Maryland, where he is
currently incarcerated.
alternative, for summary judgment.
By a memorandum opinion and
order dated August 2, 2010, the court granted summary judgment
in
favor
of
the
medical
defendants
and
granted
in
denied in part the correctional defendants’ motion.
45,
46).
The
only
surviving
claims
were
part
and
(ECF Nos.
those
alleging
excessive force and punitive transfer to a higher security level
prison against current or former correctional officers Brandon
Barnett,
Quentin
Ragin,
Phil
(collectively, “Defendants”).
Smith,
and
Adam
Hocker
(ECF No. 46, ¶ 5).
After Plaintiff was assigned pro bono counsel, a telephone
conference
schedule
was
going
held
on
February
28,
forward.
During
that
2011,
to
discuss
conference,
the
the
court
observed that Defendants had not yet answered the complaint.
Defense counsel explained that this was an oversight on his part
and asserted that he would file a form answer by the end of the
day.
Plaintiff’s counsel did not indicate any objection to the
proposed late filing.
defense
filed
allegation
every
counsel
set
certain defenses.
Later on the same date, as promised,
an
answer
forth
in
generally
the
denying
complaint”
and
“each
and
asserting
(ECF No. 59).2
2
Notably, the answer purports to be filed on behalf of
“Charles Keim, Sergeant Barnett, Lieutenant Reagan, and Phil
Smith.”
(ECF No. 59, at 1).
The claims against Mr. Keim,
however, did not survive the prior dispositive motions.
The
docket will be corrected to reflect that he was terminated as a
defendant.
Moreover, at least some of the claims against
2
On March 21, Plaintiff filed the pending motion to strike
answer
and
for
entry
of
default
judgment.
(ECF
No.
64).
Thereafter, Defendant filed papers opposing Plaintiff’s motion
(ECF No. 66) and separately filed a supplemental answer and
request for jury trial (ECF No. 67), admitting that jurisdiction
was
proper
in
this
court,
but
generally
denying
all
other
allegations contained in the complaint.3
II.
Analysis
Plaintiff’s motion consists of two parts.
the
court
to
strike
Defendants’
answer
First, he asks
because
(1)
it
was
untimely filed, and (2) it allegedly fails to comply with the
requirements set forth by Federal Rule of Civil Procedure 8(b).
Defendant Adam Hocker did survive, but his name was omitted from
the answer, and the name of Defendant Ragin was apparently
misspelled “Reagan.”
3
This document names the proper defendants, i.e.,
“Defendants Barnett, Hocker, Ragin and Smith” (ECF No. 67, at
1), but is procedurally improper insofar as it purports to be a
supplemental pleading.
Pursuant to Fed.R.Civ.P. 15(d), “[o]n
motion and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date
of the pleading to be supplemented.”
Defendants did not seek
leave to file a supplemental answer, nor is this pleading truly
“supplemental,” as it does not relate to events alleged to have
taken place since the prior answer was filed – in fact, it is
not even filed on behalf of the same defendants. Nevertheless,
the court will construe Defendants’ supplemental answer as a
motion for leave to file an amended answer, pursuant to
Fed.R.Civ.P. 15(a)(2), and, so construed, that motion will be
granted.
The clerk will be directed to correct the docket to
reflect this document as Defendants’ amended answer.
3
Assuming the success of his motion to strike, Plaintiff then
asks that a default judgment be entered in his favor.
Motions to strike are governed by Federal Rule of Civil
Procedure 12(f), which gives the court discretion to “strike
from
a
pleading
an
insufficient
defense
or
any
immaterial, impertinent, or scandalous matter.”
generally
accepted
that
a
motion
to
strike
redundant,
While it is
“is
neither
an
authorized nor proper way to procure the dismissal of all or
part of” of a pleading, 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 1380, 391 (3d ed. 2004),
some courts have found that an untimely answer may be stricken
in its entirety under certain circumstances, see Canady v. Erbe
Elektromedizin GmbH, 307 F.Supp.2d 2, 8 (D.D.C. 2004).
In any
context,
remedy
however,
Rule
12(f)
motions
seek
“a
drastic
which is disfavored by the courts and infrequently granted.”
Clark v. Milam, 152 F.R.D. 66, 70 (S.D.W.Va. 1993); see also
Waste Management Holdings v. Gilmore, 252 F.3d 316, 347 (4th Cir.
2001).
In Canady, the defendants moved to strike the plaintiffs’
answer to counterclaims on the ground that it was untimely by
more than six months and separately moved for entry of default
judgment.
In response to the motion to strike, the plaintiffs
asserted that the parties had reached an agreement as to when
the answer would be served, a claim the defendants denied.
4
The
court concluded that it had the authority to grant the requested
relief, but nevertheless declined to do so:
The defendants would like to strike the
plaintiffs’ answer so that the court can
declare
the
plaintiffs
in
default
and
proceed toward default judgment. Such a
result,
however,
would
contravene
the
established policies disfavoring motions to
strike, Stabilisierungsfonds Fur Wein [v.
Kaiser Stuhl Wine Distributors Pty. Ltd.,
647
F.2d
200,
201
(D.C.
Cir.
1981)]
(emphasizing that courts “strongly favor
resolution of disputes on their merits” and
“it seems inherently unfair to . . . enter
judgment as a penalty for filing delays”
(internal quotations omitted)).
Canady,
307
F.Supp.2d
at
8.
The
court,
thus,
denied
the
defendants’ motion to strike and denied as moot their motion for
default judgment:
Even if the court were to strike the
plaintiffs’ answer, the court still would
not be in a position to grant the defendants
default judgment in light of the absence of
an entry of default. Indeed, a fatal flaw
with the defendants’ approach is their
blindness to the two-step process calling
for the entry of default, followed by the
entry of default judgment. Fed. R. Civ. P.
55; Eitel v. McCool, 782 F.2d 1470, 1471
(9th Cir. 1986); Meehan v. Snow, 652 F.2d
274, 276 (2d Cir. 1981); see also 10A Fed.
Prac. & Proc. Civ.3d § 2682 (stating that
“[p]rior to obtaining a default judgment
under either Rule 55(b)(1) or Rule 55(b)(2),
there must be an entry of default as
provided by Rule 55(a)”). The defendants
failed to implement the first step by asking
the Clerk of the Court to enter default
against the plaintiffs. Thus, under this
alternate theory, the defendants are in no
5
position to apply for the entry of default
judgment.
Id. at 8-9.
See also Wilson v. King, Civ. No. 06-CV-2608, 2010
WL 678102, at *3 (E.D.Pa. Feb. 24, 2010) (“[f]requently relying
on
the
reasoning
in
Canaday,
other
courts
have
also
denied
motions to strike late pleadings in favor of deciding cases on
their merits,” citing cases).
Plaintiff’s
motion
will
be
denied
for
similar
reasons.
This is not a case where a party has failed to defend such that
the
entry
of
appropriate.
default
and/or
default
judgment
would
be
See Khadka v. Rajamani, No. 1:08cv1320 (JCC), 2009
WL 910849, at *1 (E.D.Va. Apr. 1, 2009) (citing Canady, noting,
“[t]he Fourth Circuit also strongly favors the resolution of
cases
on
the
merits”).
To
the
contrary,
defense
counsel
thoroughly litigated a potentially dispositive motion on behalf
of his clients and simply neglected to file an answer to the
complaint
Plaintiff,
thereafter.
but
by
This
the
telephone conference.
court
oversight
during
the
was
not
February
raised
28,
by
2011,
Defense counsel candidly acknowledged his
error, promised to correct it promptly, and the court accepted
his explanation, essentially finding “excusable neglect” for the
late filing.
See Fed.R.Civ.P. 6(b) (court has discretion to
permit the filing of a late answer “when the failure to act was
the
result
of
excusable
neglect”);
6
see
also
Mommaerts
v.
Hartford Life and Acc. Ins. Co., 472 F.3d 967, 968 (7th Cir.
2007) (“Extensions may be granted, after the time for action has
passed,
when
Plaintiff
justified
generally
by
asserts
‘excusable
that
he
neglect.’”).
has
suffered
While
prejudice
insofar as “his ability to obtain a prompt resolution of his
case has been unduly delayed” (ECF No. 64, at 5), he never moved
for
entry
Defendants’
of
default
answer
was
during
the
outstanding,
five-plus
and
the
months
record
at
that
least
suggests that he was unaware that an answer had not been filed
prior to the telephone conference.
Under these circumstances,
Plaintiff’s general claim of prejudice is not compelling.
See
Provident Life and Acc. Ins. Co. v. Cohen, 137 F.Supp.2d 631,
632
(D.Md.
2001)
(Rule
12(f)
motion
“should
absent a showing of undue prejudice”).
not
be
granted
Moreover, even if the
court were to strike Defendants’ answer, it could not enter a
default judgment because Plaintiff’s motion contains the same
“fatal flaw” as the motion for default judgment considered in
Canady – i.e., “blindness to the two-step process calling for
the
entry
judgment.”
obtain
a
of
default,
followed
by
the
entry
Canady, 307 F.Supp.2d at 8-9.
clerk’s
entry
of
default,
pursuant
of
default
Having failed to
to
Fed.R.Civ.P.
55(a), Plaintiff is not eligible for entry of default judgment
under Fed.R.Civ.P. 55(b).
7
Plaintiff
Defendants’
further
general
According
to
complains
denial
of
Plaintiff,
about
all
his
the
sufficiency
substantive
complaint
of
allegations.
raises
“factual
allegations and legal claims against the Defendants which are
sufficiently
clear
and
specific
and
require
Defendants
to
specifically admit or deny their substance in a manner that
fairly responds to the substance of the allegations, which they
must do to satisfy their obligation for pleading under Rule 8.”
(ECF No. 64, at 4).
provides,
however,
designated
Federal Rule of Civil Procedure 8(b)(3)
that
allegations
specifically admitted.”
a
or
party
may
generally
“specifically
deny
all
except
deny
those
In their supplemental answer, which the
court construes as an amended answer, Defendants have admitted
the
jurisdictional
grounds
substantive allegations.
of
the
complaint,
but
denied
all
Nothing more is required of them under
Rule 8(b)(3).
III. Conclusion
For the foregoing reasons, Plaintiff’s motion to strike and
for entry of default judgment will be denied.
A separate order
will follow.
________/s/__________________
DEBORAH K. CHASANOW
United States District Judge
8
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