O'Hara-Harmon v. Avery

Filing 24

ORDER dismissing without prejudice 15 Motion for Default Judgment and 17 Motion for a Copy of the Judgment. OHara-Harmon or her retained counsel shall attend a status conference on April 11, 2018, at 2:00 p.m. in the Fifth Floor Courtroom, Terr y Sanford Federal Building, Raleigh, North Carolina. Any subsequently filed motion for default judgment shall address whether the court has subject matter jurisdiction over this matter, whether it has personal jurisdiction over the Estate, and whethe r the well-pleaded factual allegations in the complaint entitle OHara-Harmon to the relief she seeks. Signed by US Magistrate Judge Robert T. Numbers, II on 1/31/2018. Sent to Sandra O'Hara-Harmon at 815 F. Street Hartsville, SC 29550 via US Mail. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-44-D
Sandra O’Hara-Harmon,
Plaintiff,
v.

Order

Sidney Avery, Administrator of the
Estate of Dancie Avery,
Defendant.

On February 23, 2017, Sandra O’Hara-Harmon brought an action to quiet title against the
Estate of Dancie Avery through its administrator Sidney Avery. Compl., D.E. 11. After the Estate
failed to respond to the summons and complaint, O’Hara-Harmon filed a motion for entry of
default. D.E. 14. She also filed motions for default judgment and for copy of judgment. D.E. 15.;
D.E. 17. The Clerk of Court subsequently entered a default against the Estate. D.E. 16.
In reviewing the motions for entry of default judgment and for copy of judgment, the court
noted that O’Hara-Harmon asserted diversity jurisdiction in her Complaint but did not delineate
the decedent’s citizenship at the time of her death—a fact required for demonstrating diversity of
citizenship. See D.E. 19. Concerned that it lacked subject matter jurisdiction, the court instructed
O’Hara-Harmon in a January 8, 2018 Order to file documentation for establishing this information.
Id. In her response, O’Hara-Harmon failed to provide the requested documentation and instead
maintained that the court already adjudicated her case by entering a “final judgment.” D.E. 20.
In a January 22, 2018 Order, the court explained that the Clerk of Court’s entry of default
was not the same as a “final judgment” and directed O’Hara-Harmon to attend a hearing the
following week to establish the decedent’s citizenship. D.E. 21. On January 28, 2018, O’Hara-

Harmon requested a 60-day continuation of her case in order to retain counsel. She did not show
up to the January 28 hearing.
The court believes that the issue of whether it has subject matter jurisdiction will be better
addressed once O’Hara-Harmon has retained counsel and, therefore, it is ordered that O’HaraHarmon’s motion for entry of default judgment and motion for a copy of the judgment are
dismissed without prejudice. Dismissal without prejudice does not preclude O’Hara-Harmon from
re-filing these motions at a later date. See Goode v. Central Va. Legal Aid Soc’y, Inc., 807 F.3d
619, 629 (4th Cir. 2015) (explaining that “without prejudice” is “a phrase that generally indicates
that a court’s decision is not final”).
O’Hara-Harmon or her retained counsel shall attend a status conference on April 11, 2018,
at 2:00 p.m. in the Fifth Floor Courtroom, Terry Sanford Federal Building, Raleigh, North
Carolina. Any subsequently filed motion for default judgment shall address whether the court has
subject matter jurisdiction over this matter, whether it has personal jurisdiction over the Estate,
and whether the well-pleaded factual allegations in the complaint entitle O’Hara-Harmon to the
relief she seeks.
Dated: January 31, 2018
January 31, 2018
ROBERT T. NUMBERS, II
______________________________________
UNITED S Numbers, II
Robert T. TATES MAGISTRATE JUDGE
United States Magistrate Judge

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