Kearney et al v. Hibner et al

Filing 35

MEMORANDUM (Order to follow as separate docket entry) re Mtn for entry of default 30 filed by Richard Muliek Kearney Signed by Honorable Sylvia H. Rambo on 12/2/13. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD MULIEK KEARNEY
and MARC STEVEN DORCE,
Plaintiffs
v.
GARY HIBNER,
CPL. CHARLES E. GLIECHMAN,
CPL. WILLIAM D. BAKER,
Defendants

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Civil No. 1:13-CV-1892

Judge Sylvia H. Rambo

MEMORANDUM
In this Section 1983 civil rights action, Plaintiffs have sued several
individuals asserting violations of their rights protected by the Fourth, Sixth, and
Fourteenth Amendments. Presently before the court is a motion for entry of default
(Doc. 30),1 filed by one of the plaintiffs.2 Because the record demonstrates Plaintiffs
are not entitled to an entry of default, the motion will be denied.
I.

Background
Because the court writes primarily for the parties, it will outline only the

procedural history essential to its disposition of Plaintiffs’ motion.

Plaintiffs entitle their filing“Declaration for Entry of Default.” (Doc. 30.) However, the
form of the motion and relief requested therein indicates the document is more properly presented in the
form of a motion for entry of default. For sake of clarity, the court will refer to the filing by its proper
name.
1

Although only Plaintiff Kearney signs his name on the document, the court will refer to
the motion as if jointly filed by Plaintiffs. The court also notes the motion appears to have been
docketed twice, the first at Docket Entry 30 and the second at Docket Entry 32. The motions are
identical, and will be considered jointly.
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Proceeding pro se, Plaintiffs, Richard M. Kearney and Marc S. Dorce,
initiated this action by filing a complaint on July 12, 2013. (Doc. 1.) Following
several months of a cooperative effort by the court and the Clerk of Court’s office to
guide Plaintiffs’ filings of the appropriate documents, the court granted Plaintiffs’
motions for leave to proceed in forma pauperis, and directed the Clerk of Courts to
prepare and issue a summons on October 7, 2013 (Doc. 21). That day, the Clerk of
Court issued a summons and provided the same to the United States Marshal for
service pursuant to Rule of Civil Procedure 4. (Doc. 22.) Defendants received a
request for waiver of summons sent on October 16, 2013. (Doc. 31.) Defendants
timely waived service. (Id.)
On November 1, 2013, Gregory R. Neuhauser, Esquire, entered his
appearance on behalf of Defendants. (Doc. 26.) On November 22, 2013,
Defendants filed a joint motion to dismiss for failure to state a claim. (Doc. 29.)
Plaintiffs filed the instant motion for entry of default three days thereafter. (Doc.
30.)
In support of their motion, Plaintiffs aver the record “show[s] that the
Defendants were served by the United States Marshal with a copy of [the] summons
. . . and complaint pursuant to [the court’s October 7, 2013 order],” but that “[m]ore
than [twenty] days have elapsed since the date on which the Defendants . . . were
served,” and that “[t]he Defendants have failed to answer or otherwise defend . . .
Plaintiff[s]’ complaint.” (Id.) The motion further provides that “Defendants are not
in the military service and are not infants or incompetents.” (Id.) The court
disagrees with Plaintiffs’ representation that Defendants have failed to “otherwise
defend” the action, and will accordingly deny Plaintiffs’ motion.
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II.

Legal Standard
Entry of default judgment is a two-step process. See Fed. R. Civ. P.

55(a), (b). Rule 55(a) of the Federal Rules of Civil Procedure provides that “the
clerk must enter default” when a defendant has “failed to plead or otherwise defend,
and that failure is shown by affidavit or otherwise.” Fed. R. Civ. P. 55(a). Thus, a
party, seeking to obtain a default judgment must first request that the Clerk of Court
“enter . . . the default” of the party that has not answered the pleading or “otherwise
defend[ed]” within the time required by the rules or as extended by court order. Id..
The words “otherwise defend,” as used in Rule 55(a), have been interpreted to refer
to motions to dismiss which may prevent default without pleading to the merits. See
Davis v. Corr. Med. Sys., 480 F. Supp. 2d 754, 757 (D. Del. 2007) (“Timely serving
and filing a motion to dismiss under [Rule] 12(b) precludes entry of default.”).
Pursuant to Rule 12(a)(1)(A)(i), a defendant must serve an answer
within 21 days after being served with the summons and complaint. Fed. R. Civ. P.
12(a)(1)(A). However, if a domestic defendant timely waives service of the
summons, the Rules of Civil Procedure provide him an additional period of 39 days
in which to serve an answer. See Fed. R. Civ. P. 12(a)(1)(A)(ii) (extending the
period in which a defendant must respond to sixty days if he timely waives service).
Entry of default will not be entered where the defendants have “otherwise
defend[ed]” the action by timely filing a motion to dismiss under Rule 12(b). See
Fed. R. Civ. P. 55. Thus, if a defendant waives service, a Rule 12(b) motion is
timely so long as it is filed within sixty days from the date on which the request for
waiver was sent. Fed. R. Civ. P. 12(a)(1)(A)(ii).

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It is only after a default has been entered when a court can enter a
default judgment. DeTore v. Local No. 245 of the Jersey City Pub. Emp. Union, 511
F. Supp. 171, 176 (D.N.J. 1981) (“[N]o default judgment may be entered under
either Fed. R. Civ. P. 55(b)(1) or (b)(2) unless a default has previously been entered
by the clerk under 55(a). Thus, the entry of default is an essential predicate to any
default judgment.”). In any event, even if default is properly entered, the entry of
judgment by default pursuant to Rule 55(b)(2) is within the discretion of the trial
court. Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). It is preferable
that “cases be disposed of on the merits whenever practicable.” Id. at 1181 (internal
citation omitted); Lentini v. Ruggiero, Civ. No. 12-3586, 2013 WL 5913683, *2
(D.N.J. Oct. 31, 2013).
III.

Discussion
Disposition of this matter is quite clear.3 Plaintiffs’ statement that the

record “show[s] that the Defendants were served” on October 7, 2013 (Doc. 30)
mischaracterizes both the court’s October 7, 2013 order and the record. In actuality,
the October 7, 2013 order simply directed the Clerk of Court to prepare the
summons and provide it and copies of the complaint to the United States Marshal to
serve upon Defendants. (Doc. 21.) The record demonstrates that the Clerk of Court
complied with the court’s directive, and prepared and delivered the summons to the
United States Marshal that day. (Doc. 22.) The record does not, however,
Normally, such a meritless motion does not prompt the court to issue a memorandum to
accompany its denial. However, the court is cognizant of Plaintiffs’ pro se status and the difficulties
they endured in traversing the court’s rules for obtaining authorization to proceed in forma pauperis.
Nevertheless, the court cautions Plaintiffs that they should not become accustomed to receiving an
explanation accompanying the denial of a motion to which a summary denial is more appropriate.
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demonstrate that the United States Marshal effectuated service upon Defendants on
October 7, 2013; rather, the request for waiver of service was sent on October 16,
2013, and received by Defendants thereafter. (Doc. 31.) The date of service – or the
date on which the request for waiver of service was sent provided the defendant
waives service – is the date from which Defendants must file an answer or otherwise
defend the action.
The request to waive service was sent on October 16, 2013. Defendants
agreed to waive service, and accordingly, received the benefit of Rule
12(a)(1)(A)(ii), to wit, an extended period in which they could file an answer or
otherwise defend the action. Thus, the operable day is December 16, 2013; sixty
days later. Defendants’ motion to dismiss was filed before the December 16, 2013
deadline, and was timely pursuant to Rule 12(a).4 (See Doc. 29.) Because the filing
of the motion to dismiss demonstrates that Defendants have “otherwise defend[ed]”
the action, Rule 55(a) provides Plaintiffs no relief, and entry of default is
inappropriate.
IV.

Conclusion
Defendants received the request for waiver of summons on October 16,

2013. Defendants filed their motion to dismiss on November 22, 2013. Thus, for

The court notes that Plaintiffs appear to be under the impression that a defendant generally
has twenty days in which to file an answer or otherwise defend an action under Rule 12(a)(1)(A)(i).
(Doc. 30 (“More than (20) Days have elapsed since the date on which the Defendants herein were
served with summons and a copy of Plaintiffs’ complaint.”).) Plaintiffs are advised to refer and cite to
the version of the Rules currently in effect. See Fed. R. Civ. P. 12 cmt (explaining the times set in the
former rule at ten or twenty days have been revised to fourteen or 21 days). In any event, subsection (ii)
provides Defendants an extended period of time in which to respond because they waived service.
Thus, Plaintiffs’ error is immaterial to the court’s disposition of the motion sub judice.
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purposes of Rule 55, Defendants have otherwise defended the action within the time
prescribed by Rule 12(a)(1)(A)(ii). Accordingly, relief pursuant to Rule 55 is
inappropriate, and Plaintiffs’ motion for the entry of default will be denied.
An appropriate order will be entered.

s/Sylvia H. Rambo
United States District Judge
Dated: December 2, 2013.

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