Van Go LLC v. Potts et al
ORDER - Granting 103 Motion for Extension of Time to File Answer filed by Coughlin Automotive LLC, Thomas A Coughlin, Unknown Coughlin. Defendants shall have until 11/30/2017 to file their answer. Plaintiffs' Application for Entry of Default is Denied. Signed by Magistrate Judge Elizabeth Preston Deavers on November 21, 2017. (jlk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
DEBORAH D. POTTS, et al.,
Civil Action 2:17-cv-911
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers
Coughlin Automotive LLC, et al.,
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s Application for Entry of
Default (ECF No. 100), Defendants’ Motion for Extension of Time to File Answer (ECF No.
103), and Plaintiff’s Response in Opposition to Defendants’ Motion (ECF No. 104.). For the
reasons explained below, Plaintiff’s Application is DENIED, and Defendants’ Motion is
This matter arises out of a case initially filed in the District of Arizona on January 11,
2016. (ECF No. 1.) Plaintiffs, who are defendants in the original Arizona action, filed this
Third-Party Complaint on January 27, 2017. (ECF No. 35.) On May 10, 2017, Defendants filed
their Motion to Dismiss for Lack of Jurisdiction. (ECF No. 55.) On August 25, 2017, after
receiving responses to subpoenas pertaining to jurisdictional contacts, Plaintiffs conceded the
absence of personal jurisdiction over Defendants in Arizona and moved for transfer of their
Third-Party Complaint to the this Court. (ECF No. 88.) On October 19, 2017, the Arizona Court
denied Defendants’ Motion to Dismiss and granted Plaintiffs’ Motion to Transfer and severed
their Third-Party Complaint from the underlying matter. (ECF No. 97.) On November 10, 2017,
Plaintiffs filed their Application for Entry of Default. (ECF No. 100.) On November 13, 2017,
the Court issued its Notice of Hearing announcing a status conference for December 7, 2017, at
which Plaintiffs’ Application for Entry of Default and all other pending issues would be
addressed. (ECF No. 102.) On November 16, 2017, Defendants filed their Motion for Extension
of Time to File Answer (ECF No. 103), and the next day Plaintiffs filed their Response in
Opposition (ECF No. 104).
Plaintiffs argue that the Court should enter default in this matter because Defendants have
failed to plead or otherwise defend, as required by the Rules. (ECF No. 100 at 1.) Specifically,
more than fourteen days elapsed between the denial of Defendants’ Motion to Dismiss in
Arizona and Plaintiffs’ Application. (Id. at 2.)
Defendants do not dispute that they missed the deadline to file their responsive pleading.
(ECF No. 103.) Instead, they urge the Court to grant them seven days in which to file a
responsive pleading based on their misinterpretation of the effect of the Arizona Court’s October
19, 2017, Order. (ECF No. 103 at 1.) Plaintiffs state that they “were awaiting notice from this
Court indicating that the case was opened in the Southern District of Ohio.” (Id.)
By rule, the Clerk must enter default “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). After
denial of a Motion to Dismiss, a defendant must serve a responsive pleading within fourteen
days. Fed. R. Civ. P. 12(a)(4)(A). Under Federal Rule of Civil Procedure 6(B)(1)(b), however,
the Court may grant an extension of time to file where a party’s failure to act was due to
excusable neglect. Fed. R. Civ. P. 6(B)(1)(b). The United States Court of Appeals for the Sixth
Circuit described the standard this Court must apply, commonly referred to as the “Pioneer
factors,” as follows:
[T]he governing legal standard for excusable-neglect determinations is a
balancing of five principal factors: (1) the danger of prejudice to the nonmoving
party, (2) the length of the delay and its potential impact on judicial proceedings,
(3) the reason for the delay, (4) whether the delay was within the reasonable
control of the moving party, and (5) whether the late filing party acted in good
Nafziger v. McDermott Intern., Inc., 467 F.3d 514, 522 (6th Cir. 2006) (citing Pioneer Inv. Servs.
Co. v. Brunswick Assoc., Ltd. P’ship, 507 U.S. 380,395 (1993)). Excusable neglect is an “elastic
concept” permitting courts to “accept late filings caused by inadvertence, mistake, or
carelessness, not just those caused by intervening circumstances beyond the party’s control.”
Pioneer, 507 U.S. at 381.
Bearing in mind that this matter is still in its procedural infancy, consideration of the
Pioneer factors reveals that Defendants are entitled to a reasonable extension of time. It is
undisputed that the delay was within the reasonable control of Defendants, but the Court finds
that they have acted in good faith throughout. The record reflects that they actively defended
throughout the Arizona proceedings, and they quickly moved the Court for an extension when it
became clear that their deadline to file a responsive pleading had passed in this venue. The
danger of prejudice to Plaintiffs resulting from a further one week delay is slight. Defendants
moved the Court for an extension within one week of the original deadline. Although Plaintiffs
argue that this matter has been pending for almost eleven months, the responsibility for any delay
in moving this case forward does not lie with Defendants. They timely filed their Motion to
Dismiss for Lack of Jurisdiction in May, and, as the Defendants in this matter, they did not
control the forum in which Plaintiffs brought the original Third-Party Complaint. Furthermore, a
delay for two or three weeks will have minimal effect on the case schedule. The Court’s initial
status conference is still almost three weeks distant, no preliminary pretrial conference has been
held or even scheduled, and the only discovery to take place has been limited to jurisdictional
matters. The Court finds, therefore, that Defendants’ failure to file a responsive pleading within
the Rules resulted from “excusable neglect.” Nafziger, 467 F.3d at 522. Accordingly,
Defendants are entitled to a reasonable extension of time in which to file their Answer.
For the reasons explained above, Plaintiffs’ Application for Entry of Default is DENIED.
(ECF No. 100.) Defendants’ Motion for Extension of Time to File Answer is GRANTED.
(ECF No. 103.) Defendants shall have until NOVEMBER 30, 2017, in which to file their
IT IS SO ORDERED.
Date: November 21, 2017
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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