Phillips et al v. USDA Forest Service et al

Filing 25

MEMORANDUM OF DECISION AND ORDER Clerk's Entries of Default as to Defts Anthony M. Milici and wife, Selena Milici [doc. 12], Joseph K. Hall and wife, Gloria B. Hall [doc. 13], Van S. Boyd and wife Patricia Ann Boyd [doc. 14], Judy Edmonds Riggins and husband, Russell Lewis Riggins [Doc. 15] are hereby VACATED and these Defts along with Defts Michael J. Birch and Frances J. Birch shall file an answer or otherwise respond to Pltfs' Amended Complaint within 21 days of the entry of this Order; FURTHER ORDERED denying 16 , 17 , 18 & 19 Motions for Default Judgment. (See order for further details). Signed by District Judge Martin Reidinger on 4/24/12. (nll)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv152

FRANK W. PHILLIPS, JR. and
wife, VIVIEN PHILLIPS; MITCHELL
LUMBER COMPANY, INC.; MARTHA
PHILLIPS, widow; TONI RUTH SMITH
and husband, WESLEY CHAD
SMITH; and RUFFIN PHILLIPS
AYERS and husband, ROGER ELLIS
AYERS, JR.,

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Plaintiffs,
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vs.
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TERRI HOPE DUGAS; IRENE W.
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CAIN; JUDY EDMONDS RIGGINS and )
husband RUSSELL LEWIS RIGGINS; )
MICHAEL J. BIRCH and wife,
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FRANCES J. BIRCH; VAN S. BOYD
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and wife, PATRICIA ANN BOYD;
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JOSEPH K. HALL and wife, GLORIA )
B. HALL; ANTHONY M. MILICI and
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wife, SELENA MILICI; and the U.S.
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DEPARTMENT OF AGRICULTURE
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FOREST SERVICE,
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Defendants.
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_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiffs' Motions for Default
Judgment [Docs. 16, 17, 18, 19].

I.

BACKGROUND
The United States of America, on behalf of its agency the United States

Department of Agriculture, United States Forest Service ("USFS"), removed
the present civil action to this Court on June 22, 2011, following the filing of
an Amended Complaint naming the USFS as a defendant in an action then
pending in the Superior Court for McDowell County, North Carolina. [Doc. 1].
The removal of this action was authorized by 28 U.S.C. § 1442(a)(1), which
allows removal to the District Court of an action which names as a defendant
the United States or any agency thereof. In support of its Notice of Removal,
the United States filed copies of the Civil Summons and Amended Complaint
with which it was served. [See Doc. 1-1, 1-2].
The Plaintiffs allege that they are the owners of undivided fractional
interests in a tract of land containing approximately 841 acres (the "841-acre
tract") located in North Cove Township, McDowell County, North Carolina.
[Amended Complaint, Doc. 1-2 at ¶¶ 4, 9, 10, 11]. The Plaintiffs assert that
the only means of ingress, egress, and regress for their property is a 30-footwide private, unpaved road known as Old Yellow Mountain Road. [Id. at ¶ 2,
5]. The Plaintiffs bring suit against adjoining property owners Terri Hope
Dugas ("Dugas") and Irene W . Cain ("Cain"), alleging that since October 2009,

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Dugas and Cain have wrongfully prevented the Plaintiffs and their assignees
from utilizing Old Yellow Mountain Road as a means of accessing their 841acre tract.

[Amended Complaint, Doc. 1-3 at ¶¶ 68, 77].

The Plaintiffs

therefore seek damages and injunctive relief against Dugas and Cain. [Id.,
Prayer for Relief]. The Plaintiffs also seek a judicial determination that the
Plaintiffs have the absolute legal right to ingress, egress, and regress over Old
Yellow Mountain Road. [Id.].
The Plaintiffs further allege that Judy and Russell Riggins, Michael and
Frances Birch, Van and Patricia Boyd, Joseph and Gloria Hall, Anthony and
Selena Milici, and the USFS are property owners who also utilize Old Yellow
Mountain Road as a means of accessing their respective properties.
[Amended Complaint, Doc. 1-2 at ¶¶ 21, 24, 27, 31]. The Plaintiffs specifically
state in the Amended Complaint that they "have no conflict" with these
parties, that the Plaintiffs "assert no claims against" them, and that the
Plaintiffs "fully respect and honor [their] property rights and easement
rights." [Id. at ¶¶ 23, 24, 26, 30, 36, 38 (emphasis in original)]. Nevertheless,
the Plaintiffs state that they have named these parties as "technical
Defendants" in this case because their respective properties are also served
by Old Yellow Mountain Road. [Id.].

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Defendants, Dugas, Cain, and the USFS have filed Answers to the
Amended Complaint.

[Docs. 2, 3, 4].

While they have filed no formal

pleadings, Defendants Michael and Frances Birch submitted a letter to the
Clerk of the McDowell County Superior Court in response to being served with
the Summons and Amended Complaint. [Doc. 7]. The remaining Defendants
-- Judy and Russell Riggins, Van and Patricia Boyd, Joseph and Gloria Hall,
and Anthony and Selena Milici (hereinafter, the “Defaulting Defendants”) -have not appeared in this action. The Clerk of Court entered default against
these Defendants on September 14, 2011. [Docs. 12, 13, 14, 15].
The Plaintiffs now moves for the entry of default judgments against the
Defaulting Defendants. [Docs. 16, 17, 18, 19]. Defendants Dugas and Cain
object to the Plaintiffs’ Motions. [Doc. 20].
II.

ANALYSIS
Before addressing the substance of the Plaintiffs' Motions for Default

Judgment, the Court must first address the propriety of the entries of default
made against the Defaulting Defendants. Entry of default is proper where "a
party against whom a judgment or affirmative relief is sought has failed to
plead or otherwise defend." Fed. R. Civ. P. 55(a). In the present case, the
Amended Complaint does not clearly seek "a judgment or affirmative relief"

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against the Defaulting Defendants. The Plaintiffs repeatedly state throughout
the Amended Complaint that they "have no conflict" with these Defendants
and "assert no claims against" them, and that the Defaulting Defendants were
named as "technical" parties to the action simply due to the fact that they also
access their respective properties via Old Yellow Mountain Road. [Id. at ¶¶
23, 24, 26, 30, 36, 38]. The Amended Complaint, therefore, does not make
clear that the Plaintiffs intend to seek any type of "judgment or affirmative
relief" from these Defendants. The fact that the Plaintiffs now are pursuing the
entry of default judgments against these Defendants resolves any ambiguity
regarding the Plaintiffs' intent; clearly, the Plaintiffs intend to seek affirmative
declaratory relief with regard to and adverse to these Defendants. Because
such intent is not evident from the Amended Complaint, however, the Court
finds the entries of default to have been allowed improvidently. The Court
therefore will vacate the entries of default and allow these Defendants an
opportunity to answer or otherwise respond to the Amended Complaint.
The Plaintiffs have not sought an entry of default as to the Defendants
Michael and Frances Birch. The Birches filed a letter pro se with the Superior
Court Clerk in response to being served with the Amended Complaint. [Doc.
7]. To date, however, the Birches have not filed an answer to the Amended

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Complaint or sought dismissal of the claims against them. In light of the
ambiguous nature of the Amended Complaint, the Court will also allow these
Defendants the opportunity to answer or otherwise respond to the Plaintiffs'
claims.
The Court hereby advises Defendants Judy and Russell Riggins,
Michael and Frances Birch, Van and Patricia Boyd, Joseph and Gloria
Hall, and Anthony and Selena Milici that the Amended Complaint seeks
affirmative declaratory relief against them. If these Defendants wish to
defend against this action, they must file an answer to the Amended
Complaint pursuant to Rule 8 of the Federal Rules of Civil Procedure or
otherwise seek dismissal of this action pursuant to Rule 12 of the
Federal Rules of Civil Procedure. The Defendants are further warned
that failure to answer or otherwise respond may result in the entry of a
default judgment against them.
The entries of default having been vacated as improvidently granted, the
Plaintiffs’ Motions for Default Judgment are rendered moot.

Even if the

entries of default had been made properly, however, the Court would still deny
the Plaintiffs' requests for the entry of default judgments. The Court may enter
a final judgment as to one of multiple defendants in a civil action following an

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express finding that "there is no just reason for delay." Fed. R. Civ. P. 54(b).
"The avoidance of logically inconsistent judgments in the same action and
factually meritless default judgments provide just reason" for delaying the
entry of a final judgment by default. See Phoenix Renovation Corp. v. Gulf
Coast Software, Inc., 197 F.R.D. 580, 582 (E.D. Va. 2000) (internal quotation
marks omitted).
In the present case, the Plaintiffs seek a declaratory judgment to the
effect that they have “an absolute legal right to ingress, egress and regress
over Old Yellow Mountain Road all the way from Peppers Creek Road to their
841-acre tract...." [See Doc. 1-3, Amended Complaint, Prayer for Relief]. The
Plaintiffs' rights to an easement over the private road cannot be determined
piecemeal; either the Plaintiffs have the right to an easement over all of the
affected properties or they do not. Entry of a default judgment against some
of the Defendant property owners at this stage in the proceedings, therefore,
could result in inconsistent declarations of the Plaintiffs’ rights.
Moreover, the Plaintiffs make no allegation in the Amended Complaint
that the Defaulting Defendants’ properties are affected in any way by their
claim of a prescriptive easement.

Accordingly, the entry of a default

declaratory judgment against the Defaulting Defendants regarding the

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Plaintiffs’ rights to an easement over lands owned by others would have no
basis in fact or law.

For these reasons, the Court denies the Plaintiffs’

Motions for Default Judgment.
Finally, the USFS has indicated that there are additional documents
from the state court proceedings that should be submitted to the Court,
including the initial Complaint, the Defendants' answers and counterclaims,
a third party complaint, and an answer from a third party defendant.1 The
USFS is instructed to file these additional documents within seven (7) days of
the entry of this Order.

ORDER
IT IS, THEREFORE, ORDERED that the Clerk's Entry of Default as to
Defendants Anthony M. Milici and wife, Selena Milici [Doc. 12] is hereby
VACATED and these Defendants shall file an answer or otherwise respond
to the Plaintiffs' Amended Complaint within twenty-one days of the entry of
this Order.

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The USFS brought this issue to the Court's attention by way of a filing entitled
"Praecipe." [Doc. 22]. This filing was stricken by the Magistrate Judge on November 9,
2011, due to its failure to comply with the Federal Rules of Civil Procedure. [Doc. 24].
For reasons unknown to the Court, the USFS has never attempted to re-file a corrected
version of this pleading.
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IT IS FURTHER ORDERED that the Clerk's Entry of Default as to
Defendants Joseph K. Hall and wife, Gloria B. Hall [Doc. 13] is hereby
VACATED and these Defendants shall file an answer or otherwise respond
to the Plaintiffs' Amended Complaint within twenty-one days of the entry of
this Order.
IT IS FURTHER ORDERED that the Clerk's Entry of Default as to
Defendants Van S. Boyd and wife Patricia Ann Boyd [Doc. 14] is hereby
VACATED and these Defendants shall file an answer or otherwise respond
to the Plaintiffs' Amended Complaint within twenty-one days of the entry of
this Order.
IT IS FURTHER ORDERED that the Clerk's Entry of Default as to
Defendants Judy Edmonds Riggins and husband, Russell Lewis Riggins [Doc.
15] is hereby VACATED and these Defendants shall file an answer or
otherwise respond to the Plaintiffs' Amended Complaint within twenty-one
days of the entry of this Order.
IT IS FURTHER ORDERED that the Defendants Michael J. Birch and
Frances J. Birch shall file an answer or otherwise respond to the Plaintiffs'
Amended Complaint within twenty-one days of the entry of this Order.

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IT IS FURTHER ORDERED that the Plaintiff's Motions for Default
Judgment [Docs. 16, 17, 18, 19] are DENIED.
IT IS FURTHER ORDERED that within seven (7) days of the entry of
this Order, the USFS shall file any additional pleadings from the state court
proceedings which heretofore have not been included in this Court's record.
IT IS SO ORDERED.
Signed: April 24, 2012

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