Daley v. CVS Pharmacy Inc

Filing 25

ORDER. IT IS THEREFORE ORDERED that 21 Plaintiff's Motion for Default Judgment is DENIED. Signed by Magistrate Judge Carl W. Hoffman on 6/28/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RICHARD DALEY,
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Plaintiff,
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vs.
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CVS PHARMACY, INC.,
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Defendant.
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__________________________________________)

Case No. 2:16-cv-02693-JCM-CWH
ORDER

Presently before the court is Plaintiff Richard Daley’s Motion for Default Judgment in

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Affidavit Format (ECF No. 21), filed on April 28, 2017. Defendant CVS Pharmacy, Inc. filed a

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response (ECF No. 22) on May 5, 2017. Plaintiff filed a reply (ECF No. 23) on May 12, 2017.

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I. BACKGROUND

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This action arises out of an employment dispute between Plaintiff and Defendant, who is

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Plaintiff’s former employer. Plaintiff alleges he is 62 years old with diabetes and he was not

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provided medical accommodations. (Compl. (ECF No. 1) at 4.) He further alleges he was replaced

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by a less experienced individual for less pay, thereby defrauding him from receiving a medical and

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retirement package. (Id.) Plaintiff bought suit against Defendant in this court on November 23,

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2016, asserting claims under the Age Discrimination in Employment Act, the Americans with

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Disabilities Act, the Government Employees Training Act, and for fraud and breach of contract.

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(Id. at 1.) Defendant was served with the summons and complaint on February 15, 2017.

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(Summons Returned Executed (ECF No. 6).)

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Plaintiff now moves for default judgment, arguing he sent various letters to Defendant and

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that Defendant failed to respond to the letters. Specifically, Plaintiff argues that on September 20,

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2016, Plaintiff provided Defendant with an “Affidavit” requiring $5,000,000 in damages within 10

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days of receipt. Plaintiff states that he sent additional copies of the letter to Defendant on October 5

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and 25, 2016. Plaintiff also argues Defendant never responded to the letters and it is therefore in

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default. Defendant responds that Plaintiff is not entitled to entry of default by the clerk or to a

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default judgment because Defendant timely filed a motion to dismiss and compel arbitration after

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being served the complaint. Plaintiff replies that Defendant did not follow the Federal Rules of

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Civil Procedure by failing to respond to his affidavits.

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II. ANALYSIS

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“A civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3.

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Under Rule 4 of the Federal Rules of Civil Procedure, the summons and a copy of the complaint

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must be served within 90 days after the complaint is filed. Fed. R. Civ. P. 4(c)(1), 4(m). Under

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Rule 12(a)(1)(A)(i), a defendant must serve an answer within 21 days after being served with the

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summons and complaint. Alternatively, a party may bring a Rule 12(b) motion before filing a

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responsive pleading. Fed. R. Civ. P 12(b).

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If a party fails to plead or otherwise defend, a party may move for the clerk’s entry of a

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party’s default. Fed. R. Civ. P. 55(a). After a default under Rule 55(a) has been entered, a plaintiff

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may request entry of default judgment by the clerk or by the court. Fed. R. Civ. P. 55(b). Upon a

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plaintiff’s request and affidavit showing the amount due, a clerk must enter a default judgment for

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the amount and costs against a defendant who has been defaulted for not appearing. Id. In all other

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cases, the party must apply to the court for a default judgment. Id.

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Here, Plaintiff served Defendant with a complaint and summons on February 15, 2017.

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Defendant timely filed a motion to dismiss and compel arbitration on March 7, 2017, within 21

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days after being served the summons and complaint, under Federal Rules of Civil Procedure

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12(b)(1). Plaintiff does not provide any argument or authority explaining Defendant’s obligation to

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respond to affidavits served before any formal case initiation within the court. Given that

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Defendant has filed a timely Rule 12(b)(1) motion, Defendant has not failed to plead or otherwise

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respond to the complaint under Rule 55. The court therefore will not enter a default or default

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judgment against Defendant.

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III. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Default Judgment (ECF No. 21)
is DENIED.

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DATED: June 28, 2017

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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