Darden v. Wayne County Board of Education

Filing 12

ORDER denying 6 Motion for Entry of Default and granting 8 Motion for Leave to File. Defendant shall respond to plaintiff's complaint not later than October 5, 2017. Signed by US District Judge Terrence W. Boyle on 9/28/2017. (Stouch, L.)

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IN THE UNITED STATES DISTRIC:r COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No. 7:17-CV-84-BO GLEN I. DARDEN, Plaintiff, v. WAYNE COUNTY BOARD OF EDUCATION, Defendant. ) ) ) ) ) ) ) ) ) ) ORDER This cause comes before the Court on plaintiffs motion for entry of default and defendant's motion for extension of time to answer the complaint. For the reasons that follow, plaintiffs motion for entry of default is denied and defendant's motion for extension of time is allowed. BACKGROUND Plaintiff initiated this action on April 23, 201 7, by filing a complaint for wrongful termination of plaintiffs employment. On June 12, 2017, plaintiff filed an affidavit of service reflecting that defendant had been served on May 9, 2017, and filed a motion for entry of clerk's default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. On June 14, 2017, defendant, through counsel, filed a motion for leave to file an answer out of time. Plaintiff opposes defendant's request. DISCUSSION The courts of appeals have "repeatedly expressed a strong preference that, as a general matter, defaults be avoided and that claims and defenses be disposed of on their merits." Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). Counsel for defendant contends that although defendant was served on May 9, 201 7, counsel was not contacted about the complaint until June 7, 2017, after the time for filing an answer or other responsive pleading had expired. Although default is plainly appropriate in this instance, the Court declines to enter default against defendant as the factors which would support setting aside the default are also present. See id.; Fed. R. Civ. P. 55(c). Defendant has acted with reasonable promptness, there is no history of dilatory action by defendant, and while defendant is personally responsible for failing to take timely action, counsel for defendant has promptly appeared and moved for leave to file an answer out of time. See Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204 (4th Cir. 2006). In light of the foregoing factors and the strong preference for resolution of disputes on the merits, entry of default is not warranted here. CONCLUSION Accordingly, plaintiffs motion for entry of default [DE 6] is DENIED and defendant's motion for leave to file out of time [DE 8] is GRANTED. Defendant shall respond to plaintiffs complaint not later than October 5, 2017. SO ORDERED, this Hday of September, 2017. TERRENCE W. BOYLE UNITED STATES DISTRICT 2

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