Ashford et al v. Douglas County et al

Filing 56

MEMORANDUM AND ORDER - The Plaintiffs' Motion for Default Judgment 51 is denied. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TIMOTHY L. ASHFORD, TIMOTHY
L. ASHFORD, P.C.L.L.O.,

)
)
)
Plaintiffs,
)
)
v.
)
)
DOUGLAS COUNTY, STATE OF
)
NEBRASKA, JOHN DOES, 1-1000, )
JANE DOES, 1-1000, W. RUSSELL )
BOWIE, In His Official
)
Capacity, CRAIG MCDERMOTT, In )
His Official Capacity, HORACIO)
WHEELOCK, Individually and
)
in his official capacity,
)
THOMAS RILEY, Individually
)
and in his official capacity, )
DENISE FROST, Individually
)
and in her official capacity, )
JAMES GLEASON, Individually
)
and in his official capacity, )
TIMOTHY BURNS, Individually
)
and in his official capacity, )
and DERICK VAUGHN,
)
Individually and in his
)
official capacity,
)
)
Defendants.
)
______________________________)

8:15CV8

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs’ motion
for default judgment filed pursuant to Federal Rule of Civil
Procedure 55(Filing No. 51).

The plaintiffs seek an order

entering a default judgment against the State, Craig McDermott,
Derick Vaughn, Russell Bowie, Timothy Burns, Tom Riley, James
Gleason, and Horacio Wheelock.

After reviewing the motion, and

the applicable law, the Court will deny the plaintiffs’ motion.
Background
The plaintiffs filed a complaint against Douglas
County, the State of Nebraska, John Does, 1-1000, and Jane Does,

1-1000 on January 12, 2015 (Filing No. 1).

On September 1, 2015,

the plaintiffs filed a Second Amended Complaint including
additional defendants (Filing No. 31).

The plaintiffs had 120

days from the day of the filing of the Second Amended Complaint
to complete service.

On December 30, 2015, the deadline for

serving summons, the plaintiffs filed a motion to extend the time
to serve the defendants (Filing No. 34).

At that time, the

plaintiffs had failed to file any executed summons with the
Court.

On January 11, 2016, the Court denied the plaintiffs’

motion and dismissed the amended complaint as to all defendants
(Filing No. 36).

On January 15, 2016, the plaintiffs filed a

motion to alter or amend the judgment based on evidence that
certain defendants were properly served (Filing No. 37).

On May

9, 2016, the Court granted the plaintiffs’ motion in part, and
vacated the portion of the order dismissing certain defendants
who were properly served.
The plaintiffs filed a motion on February 10, 2016,
asking the Court to enter a default judgment against the State,
Craig McDermott, Derick Vaughn, Russell Bowie, Timothy Burns, Tom
Riley, James Gleason, and Horacio Wheelock.

The plaintiff claims

that the defendants were properly served and have failed to plead
or otherwise defend as required by Federal Rule of Civil
Procedure 55.

Defendants Russell Bowie, Timothy Burns, James

Gleason, Craig McDermott, Thomas Riley, and Derick Vaughn filed a
motion to dismiss for failure to state a claim on May 19, 2016.

-2-

Discussion
An entry of default may occur “[w]hen 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.”

Fed. R. Civ. P.55(a).

Generally, a defendant

must serve an answer “within 21 days after being served with the
summons and complaint.”

Fed. R. Civ. P. 12(a)(1)(A)(i).

“If a

plaintiff fails to properly serve a defendant, however, entry of
default is not warranted.”

Edmonds v. Williams, No. 14-4535,

2015 WL 1399035, at *1 (D. Minn. March 26, 2015)(citing Haley v.
Simmons, 529 F.2d 78,79 (8th Cir. 1976)).
The record reflects that defendants Craig McDermott,
Derick Vaughn, Russell Bowie, Timothy Burns, Tom Riley, and James
Gleason were timely served.

Defendant Wheelock was dismissed

from the case due to failure to timely serve.

In addition, there

is no evidence that the State of Nebraska has been properly
served.

The Court finds that entering a default judgment is not

proper because the case was initially dismissed on January 11,
2016, and reopened on May 9, 2016.

Defendants McDermott, Vaughn,

Bowie, Burns, Riley, and Gleason, were served on December 31,
2015 (See Filing No. 39, 40, 42, 43, 44, and 45).

Generally,

defendants are required to file an answer within 21 days after
being served, but due to the fact that the case was dismissed on
January 11, 2016, the defendants had no need to file an answer
after that time.

The case was reopened on May 9, 2016, and

Defendants Russell Bowie, Timothy Burns, James Gleason, Craig
-3-

McDermott, Thomas Riley, and Derick Vaughn filed a motion to
dismiss for failure to state a claim on May 19, 2016.

Therefore,

the defendants have responded to plaintiffs’ amended complaint
within 21 days of the case being reopened.

As a result, the

plaintiffs’ motion for default judgment will be denied.
Accordingly,
IT IS ORDERED that plaintiffs’ motion for default
judgment is denied.
DATED this 23rd day of May, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

-4-