Stewart v. Timeout Foods, LLC et al

Filing 14

MEMORANDUM AND ORDER that Plaintiff's motion for default judgment is denied. Defendants' motion for leave to file a responsive pleading is granted. Defendants shall file their motion to dismiss by December 7, 2016. Attorneys David J. Reed , Jeremy C. Jorgenson, and Scott P. Moore shall attend a scheduling conference with the undersigned on: Wednesday, December 14, 2016 at 9:00 a.m. in Suite 3190, Roman L. Hruska United States Courthouse, 111 South 18th Plaza, Omaha, Nebraska, to establish a final progression order for this case. Ordered by Senior Judge Lyle E. Strom. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANNIE STEWART,

)
)
Plaintiff,
)
)
v.
)
)
TIMEOUT FOODS, LLC, STEVEN
)
MERCER, JOHN DOES 1 and 2,
)
INCLUSIVE,
)
)
Defendants.
)
______________________________)

8:16CV46

MEMORANDUM AND ORDER

This matter is before the Court on two motions.

The

plaintiff, Annie Stewart (hereinafter “plaintiff” or “Stewart”),
has moved for default judgment under Federal Rule of Civil
Procedure 55(b)(2) (Filing No. 9).

The defendants, Timeout

Foods, LLC, Steven Mercer, and John Does 1 and 2, inclusive
(hereinafter collectively “defendants”) seek leave to file a
responsive pleading (Filing No. 12).

After review of the

motions, the parties’ briefs, and the applicable law, the Court
finds as follows.
BACKGROUND
On October 19, 2015, plaintiff filed a complaint
against defendants.1

See Stewart v. Timeout Foods, LLC et al.,

8:15CV382, (the “382 action”) Filing No. 1.
assigned to the undersigned.

1

The 382 action was

On February 22, 2016, plaintiff

Plaintiff sought and was granted leave to file in forma
pauperis (8:15CV382, Filing Nos. 2 and 5).

moved to dismiss the action without prejudice (Id. at Filing No.
6).

On February 26, 2016, the 382 action was dismissed without

prejudice.
On January 26, 2016, prior to plaintiff’s motion and
the Court’s dismissal of the 382 action, plaintiff, for unknown
reasons, filed a second complaint identical to the complaint
filed in the 382 action.2

Compare id. at Filing No. 1 with

Stewart v. Timeout Foods, LLC, Steven Mercer, John Doe 1 and 2
Inclusive, 8:16CV46, (the “present action”) Filing No. 1.

The

present action was originally assigned to the Honorable John M.
Gerrard.
On September 15, 2016, plaintiff moved for default
judgment under Federal Rule of Civil Procedure 55(b)(2) (Filing
No. 11).

On September 29, 2016, defendant filed a brief in

opposition to default judgment, moved for leave to file an answer
(Filing No. 10) and filed a motion for leave to file a responsive
pleading and corresponding brief (Filing Nos. 11 and 12).

On

October 31, 2016, Chief Judge Laurie Smith Camp issued an order
reassigning the case to the undersigned for disposition due to
the Court’s local rule concerning “related” cases (Filing No.
13).

See NEGenR 1.4.

2

Plaintiff sought and was granted leave to file in forma
pauperis again in this second action (Filing Nos. 2 and 4).
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LAW
I. Federal Rule of Civil Procedure 12(a)
Federal Rule of Civil Procedure 12(a) gives a defendant
21 days to file a responsive pleading.

Fed. R. Civ. P. 12(a).

II. Federal Rule of Civil Procedure 55(b)(2)
Federal Rule of Civil Procedure 55(b)(2) requires a
party to “apply to the court for a default judgment.”
Civ. P. 55(b)(2).

Fed. R.

A default judgment is appropriate “[w]hen a

party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend . . . .”

Fed. R. Civ. P.

55(a).
DISCUSSION
Plaintiff requests “the Court enter Judgment . . .
awarding the relief afforded by the [Americans with Disabilities
Act].

In addition, she also seeks her attorney fees, costs,

litigation expenses, and expert fees.”

(Filing No. 9 at 1-2).

Plaintiff’s motion is premised on defendants’ failure to file a
responsive pleading or otherwise defend in violation of the
Federal Rules.

See generally Filing No. 9.

Defendants “request that the Court deny the Motion for
Entry of Default Judgment and grant the Defendants’ Motion for
Leave to file a Motion to Dismiss because [d]efendants were
engaged in settlement discussions . . . [and] the Court should
favor adjudication . . . rather than an entry of default . . . .”
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(Filing No. 12 at 1).

Defendants argue the Court should apply

the “good cause” standard used when setting aside default
judgments to aid in its determination.

See id. at 3.

The Court finds that plaintiff’s motion for default
judgment should be denied and defendants’ motion for leave to
file a responsive pleading should be granted.

Although

defendants are well past the 21 days allotted under the Federal
Rules, the Court finds that defendants’ actions constitute
excusable neglect.

See Anderson v. Wells Fargo Bank, NA, CIVIL

ACTION NO. 2:15-CV-88-KS-MTP, 2016 WL 164321, at *2 (S.D. Miss.
Jan. 13, 2016) (providing a court “may extend a party’s time to
file a document ‘on motion made after the time has expired if the
party failed to act because of excusable neglect.’” (quoting Fed.
R. Civ. P. 6(b)(1)(B))).
Defendants’ counsel did not begin representation until
June of 2016 (Filing No. 10 at 1-2).

From June to September 15,

2016, when plaintiff moved for default, the parties were in
engaged in settlement discussions.

See Filing Nos. 10 at 2-3; 12

at 3-4); Filing No. 10 Ex. A, A1, and A2.

Furthermore, the law

prefers adjudication on the merits to default judgments as
“adjudication on the merits goes to the fundamental fairness of
the adjudicatory process.”
504 (8th Cir. 1993).

Oberstar v. F.D.I.C., 987 F.2d 494,

See also Willer v. DT Grp. Dev., Inc., No.

8:13CV81, 2014 WL 2550243 at *2 (D. Neb. June 5, 2014).
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Therefore, for good cause shown, the motion for leave to file a
responsive pleading will be granted.

Plaintiff's motion for

default judgment will be denied.
IT IS ORDERED:
1) Plaintiff’s motion for default judgment is denied.
2) Defendants’ motion for leave to file a responsive
pleading is granted.
3) Defendants shall file their motion to dismiss by
December 7, 2016.
4) Attorneys David J. Reed, Jeremy C. Jorgenson, and
Scott P. Moore shall attend a scheduling conference with the
undersigned on:
Wednesday, December 14, 2016 at 9:00 a.m.
in Suite 3190, Roman L. Hruska United States Courthouse, 111
South 18th Plaza, Omaha, Nebraska, to establish a final
progression order for this case.
DATED this 2nd day of December, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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