Watterson et al v. Burgess et al

Filing 48

ORDER re 30 Amended Complaint, Frankie Dellinger answer due 8/4/2014; Jason Green answer due 8/4/2014: FURTHER ORDERED that the parties should immediately conduct an Initial Attorneys Conference and file their Certification of Initial Attorneys Conference no later than Wednesday, August 13, 2014. Signed by Chief Judge Frank D. Whitney on 7/28/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-cv-00159-FDW-DCK
JEFFREY RANDOLPH WATTERSON and )
RANDOLPH ALEXANDER WATTERSON,
)
)
Plaintiff,
)
)
vs.
)
)
WOODY BURGESS, JASON GREEN, )
FRANKIE DELLINGER, JENNIFER HOYLE, )
DAVID HODKINS, BOB AUSTELL, MIKE )
ALLRED, DAVID HODKINS, and the CITY )
OF CHERRYVILLE,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court sua sponte as to the status of this case. Plaintiffs
filed their Complaint on March 12, 2013, and, after conducting an initial review pursuant to 28
U.S.C. § 1915, the Court dismissed the claims against several defendants, except Jason Green
and Frankie Dellinger. (Doc. No. 18). Following service by the United States Marshal, both
Green and Dellinger filed Answers to the Complaint. The Court granted Plaintiffs’ Motion for
Reconsideration on its initial order dismissing several Defendants and permitted Plaintiffs to file
an Amended Complaint. On May 6, 2014, Plaintiffs filed an Amended Complaint (Doc. No. 30).
It does not appear that either Green or Dellinger have responded to this Amended Complaint, and
the time for doing so has expired. Plaintiffs, however, have not moved for Entry of Default.
In their Amended Complaint, Plaintiffs added several defendants, who were served by the
United States Marshal.

Each of these new Defendants has responded to the Amended

Complaint, and, notably, included as an affirmative defense, a Motion to Dismiss pursuant to
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Rule 12(b)(6) of the Federal Rules of Civil Procedure. As explained in this Court’s standing
orders, these unbriefed motions simply serve as placeholders in the Answers and do not toll any
deadlines. See Initial Scheduling Order (3:07-mc-47, Doc. No. 2, p. 3) (“Motions to dismiss
based on any of the defenses set forth in Rule 12(b), if contained in the answer, shall be
construed by the Court as placeholders which preserve the defense for future adjudication (e.g.,
at summary judgment or trial). See Local Civil Rule 7.1(C)(1). If a defendant desires preliminary
adjudication of a Rule 12(b) defense, subject to the limitations described below, a motion along
with a supporting memorandum of law must be filed separately from the answer.”); see also
Initial Scheduling Order, p. 6 (“Accordingly, a defendant who contemplates filing a Rule
12(b)(6) motion must still serve and file a timely responsive pleading and prepare to commence
with discovery as provided below. Such defendant may, however, file concurrent with its answer
a Rule 12(b)(6) or 12(c) motion together with a request for preliminary hearing, pursuant to Rude
12(d), for good cause shown.”).
Therefore, but for the fact that Defendants Green and Dellinger have failed to timely file
an Answer in response to the Amended Complaint, joinder of the issues would have occurred on
June 13, 2014, when the last Answer was filed, regardless of the placeholder motions to dismiss.
Id. at pp. 7-8. The parties, however, have not filed a Rule 26(f) Report indicating that they have
conducted an Initial Attorneys’ Conference. The Court therefore enters the following order to
ensure that this case does not linger on its docket.
IT IS THEREFORE ORDERED that Defendants Jason Green and Frankie Dellinger shall
file an answer to the Amended Complaint no later than Monday, August 4, 2014. If Defendants
fail to timely file an Answer by August 4, 2014, Plaintiffs should promptly move for Entry of
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Default. The parties should immediately conduct an Initial Attorneys’ Conference and file their
Certification of Initial Attorneys Conference no later than Wednesday, August 13, 2014. The
Court acknowledges that pro se Plaintiff Randolph Alexander Watterson’s incarceration may
present logistical problems, but the Court is hopeful he can participate by telephone.
IT IS SO ORDERED.
Signed: July 28, 2014

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