Christian v. Commerce Bank N.A. et al

Filing 32

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants motion for leave to file their responsive pleading out of time is GRANTED. (Doc. No. 20.) The Clerk of the Court is directed to detach the proposed responsive pleading, Doc. No. 20-1, and file it herein as Defendants' motion for a more definite statement. Signed by District Judge Audrey G. Fleissig on 5/29/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRED CHRISTIAN, d/b/a Sparkle
Quality Cleaners and Laundry,
Plaintiff,
v.
COMMERCE BANK, N.A., et al.
Defendant.

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Case No. 4:14CV00201 AGF

MEMORANDUM AND ORDER
Plaintiff, Fred Christian, who is proceeding pro se, brings this action alleging
discriminatory denial of a small business loan. Now before the Court is the motion of
Defendants Commerce Bank, N. A. and Jeannine Murphy for leave to file their
responsive pleading out of time and Plaintiff’s objection thereto. For the reasons set forth
below, Defendants’ motion will be granted.
I. Defendants’ Motion for Leave to File Responsive Pleading
Defendants were served with Plaintiff’s state court complaint on January 10, 2014.
Defendants were therefore required to respond to the complaint within 30 days of service,
on or before February 10, 2014, but did not do so. On May 5, 2014, Defendants filed
their motion for leave to respond out of time. With respect to their motion, Defendants’
counsel asserts that the press of other urgent matters in his practice prevented him from
filing a timely responsive pleading and he now seeks leave to file a motion for more

definite statement. Plaintiff opposes Defendants’ motion, 1 arguing that Defendants are
technically in default and that their actions in this case, including the failure to file a
timely responsive pleading, have been dilatory and designed to delay the proceedings.
The Court notes that there is a recognized ‘“judicial preference for adjudication on
the merits.’” Jones v. Foster, No. 4:12–CV–136 CAS, 2013 WL 508922, at *1 (E.D. Mo.
Feb. 12, 2013) (quoting Oberstar v. F.D.I.C, 987 F.2d 494, 504 (8th Cir. 1993)). As a
result of this preference, courts consider whether a party promptly responds to a missed
deadline or otherwise has acted to defend the case on the merits. See Hebda v. Lammers,
No. CIV. 12–4050, 2012 WL 3524810, at *1 (D.S.D. Aug. 15, 2012) (citing Johnson v.
Dayton Elec. Manu. Co., 140 F.3d 781, 785 (8th Cir. 1998). Where the party has done
so, courts frequently hold that the late filing is an oversight rather than an occasion to
declare default. Id.
Here the record suggests the failure was simply due to oversight. This is not a
case where Defendants have failed to appear or take action to defend themselves. This
case was removed to federal court by Defendants, and since their removal, Defendants
have been active participants in this case, having opposed several of Plaintiff’s motions.
In addition, the record indicates that Defendants filed their request for leave to respond
out of time before Plaintiff made any motion in this regard. Thus the Court cannot agree
that Defendants’ failure to timely respond is part of an overall strategy of delay. See
Taylor v. City of Ballwin, Mo., 859 F.2d 1330, 1332 (8th Cir. 1988) (holding that only a
1

The Court notes that Plaintiff’s opposition to Defendants’ motion was itself not timely
filed, as the certificate of service is dated May 19, and the envelope indicates its mailing
to the Court on May 21, 2014.
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“clear record of delay or contumacious conduct” warrants a refusal to permit a party to
respond and the entry of default).
Finally, given the progress of the case, the Court cannot find and Plaintiff does not
assert that he has been prejudiced by the minimal delay at issue here. Little has
transpired in this case, other than preliminary motions, some of which related to
discovery requests Plaintiff served in state court and Plaintiff’s notice of appeal of this
Court’s Order on those motions. The Rule 16 Conference is not scheduled until June 10,
2014. In the absence of prejudice, to deny Defendants leave to file and declare a default
would be to ignore the judicial preference for resolution on the merits and to permit the
outcome of this matter to hinge upon a technicality rather than substance. See, e.g.,
United States v. Harre, 983 F.2d 128, 129-30 (8th Cir. 1993) (holding that a district court
abused its discretion by entering a default judgment “for a marginal failure to comply
with the time requirements”).
Therefore, in consideration of the Defendants’ showing of excusable neglect, the
Court’s preference for the resolution of cases on their merits, and the absence of
prejudice to Plaintiff, the Court will permit Defendants to file their responsive pleading
out of time.2
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion for leave to file their
responsive pleading out of time is GRANTED. (Doc. No. 20.) The Clerk of the Court is
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To the extent that Plaintiff’s objection to Defendants’ request for leave may be
construed as a motion for entry of default that motion is implicitly denied. See Doc. No.
29.
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directed to detach the proposed responsive pleading, Doc. No. 20-1, and file it herein as
Defendants’ motion for a more definite statement.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of May, 2014.

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