McAdoo v. United States of America et al

Filing 24

ORDER denying 10 Pltf's Motion for Default Judgment as to Deft. Joyce Ann Nash; granting 11 Deft Joyce Ann Nash's Motion for Extension of Time to Answer; denying as moot 19 Deft Joyce Ann Nash's Motion for Extension of Time. Signed by District Judge Martin Reidinger on 12/11/12. (Pro se litigant served by US Mail.)(ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12-cv-00328-MR-DLH

CARL McADOO, as Executor of
the Estate of Charles Raford
McAdoo, Sr.,
Plaintiff,
vs.

UNITED STATES OF AMERICA,
et al.,
Defendants.
_____________________________

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ORDER

THIS MATTER is before the Court on the Plaintiff’s “Motion for
Judgment by Default” [Doc. 10] and the Motions for Extension of Time filed
by the Defendant Joyce Ann Nash [Docs. 11, 19].
The Plaintiff, proceeding pro se, filed this action on October 19, 2012
against various defendants, including the Defendant Joyce Ann Nash
(Nash), for injuries allegedly sustained by the decedent while in the
Defendants’ care. On October 31, 2012, the Plaintiff filed an executed
summons, indicating that he served Nash by certified mail on October 22,
2012. [Docs. 4, 5].

On November 16, 2012, the Plaintiff filed the present motion seeking
“a judgment by default” against Nash pursuant to “Fed. R. Civ. P.
55(a)(b)(2) [sic]” for failing to answer or otherwise respond to the
Complaint.

[Doc. 10 at 1].

Subsequently, Nash filed a pro se motion

seeking an extension of time to respond to the Complaint. [Doc. 19]. The
pro se motion was postmarked November 21, 2012 but was not received
by the Clerk’s Office until November 26, 2012, at which time it was
docketed. Also on November 26, 2012, a motion for extension of time was
filed on behalf of Nash by an attorney. [Doc. 11]. At that time, counsel also
filed an Answer on behalf of Nash. [Doc. 12].
Rule 6(b) of the Federal Rules of Civil Procedure provides that a
motion for extension of time made after the time for acting has expired may
be granted only upon a showing of good cause and excusable neglect.
See Fed. R. Civ. P. 6(b)(1). Upon review of counsel’s motion, the Court
concludes that Nash has demonstrated good cause and excusable neglect
for her failure to respond to the Complaint within the time required.
Accordingly, the Court will grant Nash’s request for an extension of time,
and her Answer filed on November 26, 2012 will be deemed to have been

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timely filed.

The Plaintiff’s request for the entry of default against

Defendant Nash is therefore denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s “Motion for
Judgment by Default” [Doc. 10] is DENIED.
IT IS FURTHER ORDERED that the Motion for Extension of Time
filed by the Defendant Joyce Ann Nash [Doc. 11] is GRANTED, and
Defendant Nash’s Answer [Doc. 12] shall be deemed to have been timely
filed.
IT IS FURTHER ORDERED that the Nash’s Motion for Extension of
Time [Doc. 19], filed pro se, is DENIED AS MOOT.
IT IS SO ORDERED.
Signed: December 11, 2012

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