Smith v. State of Missouri/ Consumer Protection Division

Filing 18

ORDER - Plaintiff has not responded to Defendants' Motion to Dismiss 9 , the motion is GRANTED as unopposed. This matter is DISMISSED. Signed on 8/30/17 by Chief District Judge Greg Kays. (Strodtman, Tracy) Modified on 8/30/2017 - Mailed to Plaintiff. (Strodtman, Tracy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
GREGORY WAYNE SMITH,
Plaintiff,
v.
STATE OF MISSOURI, et al.,
Defendants.

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Case No. 4:17-CV-00441-DGK

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
On June 6, 2017, Plaintiff Gregory Wayne Smith (“Plaintiff”) filed this action alleging
Defendants1 failed to take appropriate action after he contacted their office with claims involving
utility theft.

Now before the Court are Plaintiff’s Motions for Default (Docs. 7, 8) and

Defendants’ Motion to Dismiss (Doc. 9).
Plaintiff served the State of Missouri Consumer Protection Division and Missouri
Attorney General Joshua D. Hawley with a copy of his complaint on June 12, 2017.2 Return of
Service at 3 (Doc. 5). On June 28, 2017, Plaintiff filed a “Motion for Default” (Doc. 7) and a
“Request for Entry of Default” (Doc. 8), requesting that the Court enter default against
Defendants for their failure to timely answer or otherwise plead in response to his complaint. On
June 30, 2017, Defendants filed their Motion to Dismiss (Doc. 9). Plaintiff’s suggestions in
opposition were due on July 14, 2017, and Plaintiff failed to respond. On August 7, 2017, the
Court entered a show cause order directing Plaintiff to show cause on or before August 16, 2017,

1

Plaintiff named only the “State of Missouri/Consumer Protection Division” as a defendant in his complaint’s
caption, Compl. at 1 (Doc. 6), and named “Mr. Joshua D. Hawley, Missouri’s Attorney General” as a defendant in
the body of his complaint. Compl. ¶ 2.
2

No date of service is given on the proof of service page, but the “Sheriff’s or Server’s Return” page indicates the
summons was served on “6/12/17.” Return of Service at 2-3. Plaintiff’s affidavit in support of his motions also
indicates Defendants were served on June 12, 2017. Pl.’s Aff. ¶ 7 (Doc. 8-1).

why Defendants’ Motion to Dismiss should not be granted or risk having the motion granted as
unopposed (Doc. 12). Plaintiff did not respond.
Under Federal Rule of Civil Procedure 12(a)(1), a defendant must serve an answer within
21 days after being served with the summons and complaint. “When a party against whom a
judgment or 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).
Here, Defendants were served with a copy of the summons and Plaintiff’s complaint on
June 12, 2017, giving them until July 3, 2017, to respond under Rule 12(a)(1)(A). Defendants
filed a responsive pleading on June 30, 2017, three days before the deadline.

Because

Defendants have not “failed to plead or otherwise defend,” the Court cannot enter a default
against them. Accordingly, Plaintiff’s “Motion for Default” (Doc. 7) and “Request for Entry of
Default” (Doc. 8) are DENIED.
Further, because Plaintiff has not responded to Defendants’ Motion to Dismiss (Doc. 9),
the motion is GRANTED as unopposed. This matter is DISMISSED.
IT IS SO ORDERED.
Dated: August 30, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT