Peterson v. City of Hickory, et al.

Filing 91

ORDER denying 84 Motion for Default Judgment without prejudice as nonjusticiable; denying 90 Motion for Extension of Time to Secure Counsel without prejudice as nonjusticiable; Clerk is instructed to calendar this matter for IPC on 7/22/2009 at 12 Noon. Signed by Magistrate Judge Dennis Howell on 7/5/2009. (cbb)

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA S T A T E S V IL L E DIVISION 5 :0 7 cv 7 4 E D I T H C. PETERSON, individually, a n d as Trustee of the ECP Trust, P la in t if f, V s. T H E CITY OF HICKORY; THE C I T Y OF HICKORY CODE E N F O R C E M E N T DIVISION, H I C K O R Y , NC 28601; MR. JERRY S H E R W O O D ; MR. MICHAEL E. ) C A S H ; THE CITY OF HICKORY P L A N N IN G BOARD; CATAWBA C O U N T Y , NC 28658; CATAWBA ) C O U N T Y ZONING BOARD; C A T A W B A COUNTY PUBLIC H E A L T H DEPARTMENT E N V I R O N M E N T A L AFFAIRS D IV IS I O N ; and CATAWBA ) C O U N T Y PLANNING BOARD, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER

D efen d an ts. _______________________________

T H I S MATTER is before the court on Edith C. Peterson's pro se "Motion for T im e to Secure Councel [sic]." Review of the pleadings reveals that Attorney Ellis B . Drew III is counsel of record for plaintiffs, having filed plaintiffs' Amended

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C o m p la in t and represented therein that he is counsel of record for plaintiffs. See A m e n d e d Complaint, Docket Entry #77, at p. 10. Ms. Peterson represents in her most recent pro se motion that Mr. Drew intends to withdraw "in view of previously [sic] writings by our latest Council [sic] Ellis D re w , telling us and the Clerks Office, they will be withdrawing." Motion for Time to Secure Councel [sic], at p. 1. The undersigned has reviewed the pleadings of record a n d can find no indicia that Mr. Drew has notified this court that he seeks to withdraw fro m representation of plaintiffs in this case. T u r n in g next to Ms. Peterson's motion, in which she appears to seek additional tim e to obtain substitute counsel, Ms. Peterson is advised that there is no time limit to enlarge as she is under no present deadline imposed by this court to obtain new c o u n s e l. Ms. Peterson is again advised that it unadvisable for her to file pro se m o tio n s when in fact she is represented by counsel in this matter. In making such filin g s, she is revealing confidential communications between herself and her attorney, w h ic h is a valuable part of the attorney-client relationship. Ms. Peterson is advised th a t where a party is represented by counsel, the court as well as opposing counsel are o b lig a te d to deal with her attorney and that pro se filings with the court are wholly in a p p ro p ria te where she is appearing through counsel. Finally, Ms. Peterson is a d v is e d that as a result of her pro se filings she has delayed the court in reaching the

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m e rits of her claims and those of the trust for nearly a year - - typically, proponents o f litigation in federal court desire that their claims be heard sooner rather than later. F u r th e r review of the pleadings reveals that there is also a pro se Motion for D e f a u l t Judgment pending, which was filed on August 27, 2008, immediately before M s . Peterson filed her appeal to the Court of Appeals for the Fourth Circuit. That m o tio n is equally nonjusticiable as a default judgment can only be entered after a d e fa u lt has been entered. It appearing that no default has been entered and that none c o u ld be entered inasmuch as defendants have answered,1 the court will deny such m o tio n as it is nonjusticiable as a matter of law. F in a lly , the mandate of the Court of Appeals for the Fourth Circuit issued May 1 2 , 2009. It appearing that issues joined with the filing of an answer before such a p p e a l was lodged, the time for counsel to conduct an Initial Attorneys Conference h a s run and a Certificate of Initial Attorneys Conference is now past due. See L.Civ.R. 1 6 .1 . Counsel shall bring the pleadings into compliance with Rule 16.1 within 10 d a y s . The court will conduct an Initial Pretrial Conference, at which a Pretrial Order w ill be developed.

Ms. Peterson takes issue in her motion with defendant's late filing of their Answer to the Amended Complaint. While the Answer appears to be late filed, default can only be entered where a party has "failed to plead or otherwise defend . . . ." Fed.R.Civ.P. 55(a). Plaintiffs have not moved to strike the Answer even though nearly a year has passed and issues have now joined. -3-

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ORDER I T IS, THEREFORE, ORDERED that (1 ) E d ith C. Peterson's "Motion for Time to Secure Councel [sic]" (#90) is D E N I E D without prejudice as nonjusticiable; (2) E d ith C. Peterson's "Motion for Default Judgment" (#84) is DENIED w ith o u t prejudice as nonjusticiable; and (3 ) th e Clerk of this court is respectfully instructed to calendar this matter f o r an Initial Pretrial Conference on Wednesday, July 22, 2009, at 12 n o o n . Counsel for all parties shall confer well in advance of such h e a r in g and discuss a proposed Pretrial Order.

Signed: July 5, 2009

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