Brown v. Phillips et al

Filing 100

ORDER denying without prejudice 76 Motion for Entry of Default; denying without prejudice 90 Motion for Default Judgment; denying as moot 93 Motion for Hearing; denying without prejudice 94 Motion in Limine. Signed by Chief Judge Frank D. Whitney on 8/7/19. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-561-FDW
EDWARD EARL BROWN, JR.,

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Plaintiff,
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vs.
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ALEJANDRO PHILLIPS, et al.,
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Defendants.
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____________________________________)

ORDER

THIS MATTER is before the Court on Plaintiff’s pro se Request for Entry of Default,
(Doc. No. 76), Request for Entry of Default Judgment, (Doc. No. 90), Motion for Pretrial
Conference, (Doc. No. 93), and Motion In Limine, (Doc. No. 94).
Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 addressing incidents that
allegedly occurred at the Lanesboro Correctional Institution. The Complaint passed initial review
on claims of excessive force against Defendants Phillips, Baker, Rorie, Martin, and Lamburt. (Doc.
No. 23). A summons was returned executed as to Defendant Baker on September 18, 2018. (Doc.
No. 61). However, Defendant Baker has not filed an Answer or otherwise responded to the
Complaint to date.
Plaintiff filed a Request for Entry of Default, (Doc. No. 76), against Defendant Baker that
was docketed on February 26, 2019, and on April 15, 2019, Plaintiff’s Request for Entry of Default
Judgment, (Doc. No. 90), against Defendant Baker was docketed.
Rule 55(a) makes mandatory the entry of default by the clerk when a defendant “has failed
to plead or otherwise defense” when “that fact is made to appear by affidavit or otherwise.” 1

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It appears that the Clerk never entered a default in this case pursuant to Rule 55(a). However, even if a
default had been entered, the Court would set it aside without prejudice.

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Assuming that the Complaint was properly served on Defendant Baker, the Court will deny the
entry of default judgment without prejudice until the case has proceeded as to the answering
defendants. See generally Fed. R. Civ. P. 55; Frow v. De La Vega, 82 U.S. 552 (1872)(where a
plaintiff alleges joint liability of defendants, the appropriate course is to reserve entry of default
judgment until after the case has proceeded as to the answering defendants); United States v.
Shaffer Equip, Co., 11 F.3d 450, 453 (4th Cir. 1993) (noting the “strong policy” that cases be
decided on their merits” and listing the factors that must be considered before a court exercises its
inherent power to dismiss); see, e.g., Richardson v. Bostick, 2013 WL 3166398 (E.D.N.C. June
20, 2013) (in a prisoner excessive force case, denying without prejudice plaintiff’s motion for
default judgment so the case could proceed against the remaining defendants).
Plaintiff’s pro se Motion seeking a pretrial conference will be denied as moot because the
Court intends to set a pretrial conference in future. The Motion In Limine will be denied because
Plaintiff is now represented by counsel who may file a motion in limine on Plaintiff’s behalf.
IT IS THEREFORE ORDERED that:
1. Plaintiff’s Request for Entry of Default and Default Judgment, (Doc. Nos. 76, 90), are
DENIED without prejudice
2. Plaintiff’s Motion for Pretrial Conference, (Doc. No. 93), is DENIED as moot.
3. Plaintiff’s Motion In Limine, (Doc. No. 94), is DENIED without prejudice.

Signed: August 7, 2019

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