Partee v. Eldercare Management Services

Filing 50

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs motions for entry of clerks default and for default judgment are DENIED. ECF Nos. 47 , 48 . Signed by District Judge Audrey G. Fleissig on 09/25/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDWARD PARTEE, JR.,
Plaintiff,
vs.
ELDERCARE MANAGEMENT
SERVICES,
Defendant.

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Case No. 4:17-CV-2827 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motions of pro se Plaintiff for entry of
Clerk’s default and for default judgment against the sole Defendant in this case, Eldercare
Management Services. ECF Nos. 47, 48.
On June 25, 2018, the Court granted Plaintiff’s motion to amend his complaint and
his second amended complaint was docketed that day. In the same Order, the Court
denied Defendant’s pending motion to dismiss as moot but allowed Defendant to refile
the motion against the new complaint within 14 days. Defendant filed the new motion to
dismiss 14 days later on July 9, 2018. Plaintiff filed a response in opposition to the
motion to dismiss on July 16, 2018. Plaintiff chose not file a reply in support of its
motion to dismiss, and the time for doing so has passed. The motion to dismiss is fully
briefed and under the Court’s advisement.
Plaintiff now argues that default judgment is appropriate against Defendant
because Defendant has failed to answer Plaintiff’s second amended complaint in a timely

manner. According to Plaintiff, Federal Rule of Civil Procedure 15(3) requires an answer
or other responsive pleading to the amended pleading by July 23, 2018, and none has
been filed. This is not correct. The Defendant filed a motion to dismiss based on Federal
Rule of Civil Procedure 12(b)(6), within the time frame allowed by the Court. Under
Federal Rule of Civil Procedure 12(a)(4), serving a motion under Rule 12 alters the time
to serve an answer. Defendant’s answer is due within fourteen days after notice from the
Court of a denial of the motion to dismiss or a postponement of its disposition until trial.
Fed. R. Civ. P. 12(a)(4)(A). Because the motion to dismiss is still before the Court,
Defendant’s answer is not late and default judgment is not appropriate in this case.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motions for entry of clerk’s default
and for default judgment are DENIED. ECF Nos. 47, 48.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 25th day of September, 2018.

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