Norton v. Rosier et al

Filing 36

ORDER denying 28 Motion for Entry of Default and denying 30 Motion for Judgment on the Pleadings. The parties are DIRECTED to confer and to file a Rule 26(f) report with the Court on or before July 15, 2016. Signed by District Judge Terrence W. Boyle on 6/28/2016. Copies sent to pro se plaintiff via US Mail to PO Box 1145, Whiteville, NC 28472. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:14-CV-260-BO

CALVIN TYRONE NORTON,
Plaintiff,
v.

JEFFREY ROSIER, in his individual capacity,
Defendant.

)
)
)
)
)
)
)
)
)

ORDER

This matter is before the Court on plaintiffs motion for entry of default and motion for
judgment on the pleadings. For the reasons discussed below, plaintiffs motions are denied.
BACKGROUND
Plaintiff filed this action under 42 U.S.C. § 1983 arising out of a stop of his vehicle
conducted by defendant. Following this Court's dismissal of plaintiffs complaint for failure to
state a claim, the court of appeals vacated the order of dismissal as against defendant Rosier and
remanded the matter for further proceedings. The Fourth Circuit's mandate was entered on
January 29, 2016, and on February 5, 2016, this Court entered an order effecting the mandate of
the court of appeals. [DE 25].
On March 17, 2016, plaintiff filed his motion for entry of default due to defendant
Rosier's failure to answer. Fed. R. Civ. P. 55(a). The same day, Rosier filed his answer to
plaintiffs complaint. Thereafter, on March 28,2016, plaintiff filed a motion for judgment on the
pleadings in light of Rosier's failure to timely answer plaintiffs complaint. Fed R. Civ. P. 12(c).

DISCUSSION
Ordinarily, a defendant must serve his answer within twenty-one days from the date of
being served with the summons and complaint. Fed. R. Civ. P. 12(a)(l)(A)(i). When a motion
to dismiss under Rule 12 has been filed, however, the time for responding to a complaint is
extended until fourteen days after notice ofthe court's action on the motion to dismiss. Fed R.
Civ. P. 12(a)(4)(A). Although this Court dismissed plaintiffs complaint in its entirety on a
motion by defendants, when that order was reversed in part and remanded by the Fourth Circuit
so that plaintiffs claims against Rosier might proceed, the rule relating to the time for filing a
responsive pleading following a motion to dismiss was revived, and Rosier had fourteen days
from the date of entry of the order of this Court effecting the mandate of the court of appeals.

See Broglie v. Mackay-Smith, 75 F.R.D. 739, 742 (W.D. Va. 1977); but see Greenberg v. Nat'!
Geographic Soc., 488 F.3d 1331, 1340 (11th Cir. 2007), vacated on other grounds 533 F.3d
1244 (11th Cir. 2008) (Rules do not expressly provide time period for filing an answer following
reversal of a district court's order granting motion to dismiss, noting that Rule 12(a)( 4 )(A) is
analogous to such circumstance, but applying the longer Rule 12(a)(l)(A)(i) time period because
the Rules are unclear). Thus, Rosier's answer was due under Rule 12(a)(4) on or about February
22, 2016, or on or about February 29, 2016 if a more lenient standard is applied using Rule
12(a)(1)(A)(i). See Fed. R. Civ. P. 6(d).
Rosier's answer was filed on March 17, 2016, which is plainly beyond any time for filing
allowed by the Rules. However, "[w]here a defendant appears and indicates a desire to contest
an action, a court may exercise its discretion to refuse to enter default, in accordance with the
policy of allowing cases to be tried on the merits." Lee v. Bhd. of Maint. of Way Employees-

Burlington N System Fedn., 139 F.R.D. 376, 381 (D. Minn. 1991); see also Dow v. Jones, 232 F.

2

Supp. 2d 491, 494 (D. Md. 2002) (declining to enter default despite failure to answer or take
defensive action within the time prescribed where no substantial prejudice has been suffered);
First Am. Bank, N A. v. United Eq. Corp., 89 F.R.D. 81, 86 (D.D.C. 1981) (declining to enter
default judgment where defendant's motion was filed almost one month out of time). Rosier has
indicated a desire to contest this action, having previously filed a motion to dismiss, and the
Court finds no substantial prejudice to have been suffered by plaintiff due to Rosier's delay in
filing his answer. Thus, the Court in its discretion declines to find that entry of default against
Rosier is appropriate in this instance.
Plaintiffs motion for judgment on the pleadings is premised on the entry of default
against Rosier which the Court has found should not be entered. Thus, the motion for judgment
on the pleadings is denied.
CONCLUSION
For the reasons discussed above, plaintiffs motion for entry of default [DE 28] is
DENIED and plaintiffs motion for judgment on the pleadings [DE 30] is DENIED. The parties
are DIRECTED to confer and to file a Rule 26(f) report with the Court on or before July 15,
2016.

SO ORDERED, this

J---C day of June, 2016.
ERRENCE W. BOYLE
UNITED STATES DISTRIC

3