White v. Caterpillar, Inc.

Filing 38

ORDER denying as moot #27 Motion for Extension of Time to Answer; denying #30 Motion for Default Judgment; denying #34 Motion for Default Judgment; denying as moot #35 Motion to Strike; denying as moot #24 Motion for Default Judgment. The Clerk of Court is DIRECTED to refer the parties' proposed discovery plans to United States Magistrate Judge Robert B. Jones, Jr. Signed by Senior Judge James C. Fox on 4/10/2014. Copy sent to the plaintiff via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-684-F

ANTHONY E. WHITE,
Plaintiff
V.

CATERPILLAR LOGISTICS, INC.,
Defendant.

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ORDER

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This matter is before the court on the Plaintiff's Motions for Default Judgment [DE-24;
DE-30; DE-34] and Defendant's Motion to Set or Extend Time for a Responsive Pleading to
Plaintiff's First Amended Complaint [DE-27] and Motion to Set Pretrial Conference and to
Strike Plaintiff's "Motion to Proceed Grant Judgment by Default" [DE-35].
I. PROCEDURAL BACKGROUND

Plaintiff, proceeding pro se, initiated this action by filing an application to proceed in
district court without prepaying fees or costs [DE-l] on September 30, 2013. United States
Magistrate Judge James E. Gates allowed the Plaintiff's application, determined that Plaintiff's
proposed complaint was not frivolous, and directed the Clerk of Court to file the Complaint.
In the Complaint [DE-4], Plaintiff alleges that Defendant Caterpillar Logistics, Inc.
("CLI"), terminated his employment on the basis of his race and retaliation in violation of Title
VII of the Civil Rights Act of 1964. CLI filed an Answer [DE-ll] on November 12, 2013. The
Clerk of Court promptly issued an order for discovery plan [DE-12]. Both parties subsequently
filed separate proposed discovery plans which have been referred to Judge Gates.

Thereafter, Plaintifffiled a "Motion to Proceed and Response" [DE-13], which this court
construed as a motion to amend his complaint. Because Plaintiff still had the opportunity to
amend his complaint once as a matter of course under Rule 15(a)(l), the court allowed the
motion in an order filed on December 31,2013 [DE-21], which was superseded by an amended
order entered that same day [DE-22]. Rather than directing the Plaintiff to file a new amended
complaint, the court stated that the operative complaint in this case will consist of the Plaintiffs
original Complaint [DE-l], as amended by the Plaintiffs motion to amend at docket entry 13.
Under the applicable rules, CLI's response to the amended pleading was due on or before
January 17, 2014. 1 Plaintiff, however, filed a Motion for Default Judgment [DE-24] on January
3, 2014, asserting that CLI failed to file an answer or otherwise respond to his amended pleading
within 21 days. CLI responded by filing a Motion to Set or Extend Time for a Responsive
Pleading to Plaintiffs First Amended Complaint [DE-27], its Answer [DE-28] and its opposition
[DE-29] to Plaintiffs Motion for Default Judgment, all on January 13, 2014. That same date,
Plaintiff file a Second Motion for Default Judgment [DE-30], to which CLI timely responded in
opposition [DE-33]. Plaintiff, on February 3, 2014, filed a Third Motion for Default Judgment
[DE-34]. CLI, in turn, filed a motion asking the court to strike the third motion for default
judgment and also asking the court to set a pretrial conference [DE-35].

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The court allowed Plaintiffs motion to amend on December 31, 2013. Accordingly, under
Federal Rule 12(a)(4)(A), CLI's answer or response to the amended pleading was due within fourteen
days. When considered in conjunction with Federal Rule 6(d), the deadline was January 17, 2014. See
Fed. R. Civ. P. 6(d) ("When a party may or must act within a specified time after service and service is
made under Rule 5(b)(2)(C), (D), (E) or (F), 3 days are added after the period would otherwise expire
under Rule 6(a).").
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II. DISCUSSION

Plaintiffs motions for default judgment [DE-24; DE-30; DE-34] are all DENIED. Under
Rule 55(a) of the Federal Rules of Civil Procedure, an entry of default is appropriate "[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). As the court
has recounted, CLI had until January 17, 2014 to respond to the amended pleading. It timely filed
its answer on January 13, 2014. Entry of default against CLI, therefore, is not appropriate, and
accordingly, no default judgment can be had against it. 2
CLI's Motion to Set or Extend Time for a Responsive Pleading to Plaintiffs First
Amended Complaint [DE-27] and its motion to strike plaintiffs third motion for default
judgment [DE-35] are accordingly DENIED as MOOT.
In the motion to strike, CLI also requests, pursuant to Rule 16(a), that the court set an inperson pretrial conference, noting that no scheduling order has been entered. Since CLI filed this
motion, United States Magistrate Judge Robert B. Jones, Jr., has been reassigned to this case.
The Clerk of Court is DIRECTED to refer the parties' proposed discovery plans to Judge Jones.
It is within his discretion as to whether an in-person pretrial conference is necessary.

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In the third motion for default judgment, Plaintiff states that CLI failed to respond to a
counterclaim. This is not an accurate statement. Moreover, Plaintiff appears to assert that CLI itself
asserted a counterclaim. This too is not accurate. At the end of its original Answer [DE-ll], CLI
requested "that the court dismiss with prejudice Plaintiffs Complaint in its entirety and award Defendant
its reasonable attorneys' fees, costs, expenses, and any and all other relief the Court deems just and
proper. Answer [DE-ll] p. 11. That request does not constitute a counterclaim.

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III. CONCLUSION

For the foregoing reasons, the Motions for Default Judgment [DE-24; DE-30; DE-34] are
DENIED. CLI's Motion to Set or Extend Time for a Responsive Pleading to Plaintiffs First
Amended Complaint [DE-27] is DENIED as moot, as is the Motion to Set Pretrial Conference
and to Strike Plaintiffs "Motion to Proceed Grant Judgment by Default" [DE-35].
The Clerk of Court is DIRECTED to refer the parties' proposed discovery plans to United
States Magistrate Judge Robert B. Jones, Jr. It is within his discretion as to whether an in-person
pretrial conference is necessary.

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SO ORDERED.
This the __!p__ day of April, 2014.

Senior United States District Judge

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