CLIMO v. RUSTIN et al

Filing 39

MEMORANDUM ORDER denying 32 Request for Default Judgment filed by SHANEA LEIGH CLIMO, 35 Request for Default Judgment filed by SHANEA LEIGH CLIMO, 33 Request for Default Judgment filed by SHANEA LEIGH CLIMO, 34 Request for Default Judgment filed by SHANEA LEIGH CLIMO, for the reasons set forth more fully in the memorandum order itself. Signed by Magistrate Judge Maureen P. Kelly on 1/10/2013. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHANEA LEIGH CLIMO,
Plaintiff,
vs.
RAMON C. RUSTIN; CHARLES L.
WALKER; MARGUERITE S.
BONENBERGER; JEREMY W. PUGH;
JOHN DOE and COUNTY OF
ALLEGHENY,
Defendants.

)
)
)
) Civil Action No. 11-1339
) Magistrate Judge Maureen P. Kelly
)
)
)
) ECF Nos. 32, 33, 34, 35
)
)

MEMORANDUM ORDER
KELLY, Magistrate Judge
Plaintiff, Shanea Leigh Climo ("Climo"), filed this civil rights action on October 20,
2011, bringing claims against Defendants the County of Allegheny ("the County"), Ramon C.
Rustin ("Rustin"), the Warden of the Allegheny County Jail ("ACJ"), and Corrections Officers
Charles L. Walker ("Walker"), Marguerite S. Bonenberger ("Bonenberger"), Jeremy W. Pugh
("Pugh"), and John Doe ("Doe") (collectively, "Defendants"), alleging that Defendants violated
her rights under the Eighth and Fourteenth Amendments to the United States Constitution while
she was incarcerated at the ACJ. Specifically, Climo has brought claims against Defendant
Walker for sexual assault and excessive force in violation of the Eighth and Fourteenth
Amendments to the United States Constitution (Count I), and state law claims for Involuntary
Deviate Sexual Intercourse, Aggravated Indecent Assault, Institutional Sexual Assault and
Unlawful Restraint (Count II). Climo has also brought claims against Defendants Pugh,
Bonenberger and Doe for assault and excessive force in violation of the Eighth and Fourteenth
Amendments (Count III), for conspiracy in violation of the Eighth and Fourteenth Amendments

(Count IV), and state law claims pursuant to 18 Pa. C.S.A. §§ 2701, 2702, 4952 and 4953, for
Assault/Battery, and Intimidation/Retaliation against a Witness (Count V). Claims for Failure to
Train, Implement Policies and Supervise in violation of the Eighth and Fourteenth Amendments
have also been brought against Defendants Rustin (Count VI), and the County (Count VII).
A Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) was filed by the County and
Defendant Rustin on December 19, 2011, ECF No. 11, and on March 6, 2011, Defendants
Bonenberger and Pugh filed a similar motion (ECF No. 20), arguing that Climo’s Complaint
failed to state a claim against them. In an Opinion dated August 31, 2012, this Court granted in
part and denied in part both motions. (ECF No. 27). With respect to those claims dismissed
without prejudice, Plaintiff was given Plaintiff until September 21, 2012, to file an Amended
Complaint. (ECF No. 28).
Following a request for an extension of time, which was granted by the Court, Plaintiff
filed an Amended Complaint on November 5, 2012. (ECF Nos. 29, 30, 31). Defendants,
therefore, had fourteen (14) days, or until November 20, 2012, to file an Answer to the Amended
Complaint. See Fed. R. Civ. P. 15 (a)(3). As of December 17, 2012, none of the Defendants in
this matter had done so. Accordingly, Plaintiff filed Requests for Entry of Default Judgment
against Defendants Bonenberger (ECF No. 32), Pugh (ECF No. 33), Rustin (ECF No. 34), and
the County (ECF No. 35).1 Defendants responded to Plaintiff’s requests for default on
December 27, 2012 (ECF No. 37). Plaintiff filed a Reply on January 4, 2013. (ECF No. 38).
The requests therefore are now ripe for review.

1 Although Defendant Walker filed an Answer to the original Complaint, ECF No. 22, he has not filed an Answer to
the Amended Complaint in which somewhat different claims have been brought against him. See ECF Nos. 1, 31.
Plaintiff, however, has not requested that default be entered against him.

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II.

STANDARD OF REVIEW
“Before entering a default judgment, a court must consider a number of factors. The

United States Court of Appeals for the Third Circuit has condensed these factors into three main
issues: ‘(i) whether the plaintiff will be prejudiced if the default is denied, (ii) whether the
defendant has a meritorious defense; and (iii) whether the default was the product of defendant's
culpable conduct.’” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000), citing United
States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1995). See E. Elec. Corp. of
New Jersey v. Shoemaker Const. Co., 652 F. Supp. 2d 599, 604 (E.D. Pa. 2009).
III.

DISCUSSION
Review of the applicable factors suggests that entering default against Defendants in this

case is not warranted.
With respect to the first factor, Plaintiff has not argued that she will be prejudiced if
default is not granted. Based on review of the record, the Court does not perceive any prejudice
to Plaintiff other than perhaps a general delay of one month in the litigation. This is not a case
where the Defendants have completely failed to participate in the litigation. Rather, the record
shows that Defendants responded to the original Complaint by filing Motions to Dismiss for
failure to state a claim which were at least partially granted. See (ECF Nos. 11, 20, 27).
Moreover, Defendants did file an Answer to the Amended Complaint -- albeit 27 days
late -- on December 17, 2012. (ECF No. 36). While the filing of the Answer was clearly
prompted by Plaintiff having requested the entry of default judgment, the four week delay from
when the Answer was due is not so onerous as to prejudice Plaintiff.

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As to the second factor for consideration, whether Defendants has a meritorious defense,
this factor does not weigh either in favor of or against entering default. Although it is unclear at
this stage of the litigation whether or not Defendants have a meritorious defense to the serious
allegations against them, they have nevertheless asserted twenty-two (22) defenses in their
Answer. See (ECF No. 31).
Finally, the third factor for consideration is whether the default was the product of
defendants’ culpable conduct. This factor does not favor the entry of default as this Court finds
that the untimely filing of Defendants’ Answer to the Amended Complaint was not the product of
the culpable conduct of Defendants but rather that of their counsel, Attorney Maravich. In this
Court’s experience, Defendants’ counsel has repeatedly missed deadlines as ordered by the Court
and then, when prompted by either the Court or opposing counsel, has submitted motions and/or
briefs that are incomplete and/or of little assistance to the Court. Often, no legal arguments are
made at all and when they are made, some the cases cited in support thereof have been
overturned or do not stand for the proposition for which they are cited by Attorney Maravich.
Indeed, even the single paragraph Response to Plaintiff’s Requests for Entry of Default,
ECF No. 37, filed by defense counsel on his clients’ behalf is woefully inadequate. The fact that
counsel may have been “out of state” on some unspecified date(s) “in November,” and was out of
the office from some unknown date until January 2, 2012, does not serve to excuse the failure to
file an Answer to the Amended Complaint or, at the very least, to file a motion for an extension
of time within which to do so. Furthermore, the fact that counsel was out of the office until
January is of no relevance whatsoever given that an Answer to the Amended Complaint had been
filed on December 17, 2012. Finally, counsel’s unsupported statement that “Plaintiff has failed
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to meet his burden of proof” is totally uninformative and unhelpful.2 Defense counsel fails to
specify what the Plaintiff’s burden of proof to obtain default judgments is or how she has fallen
short of that burden.
This notwithstanding, given the brief delay in filing an Answer to the Amended
Complaint, the absence of any perceived prejudice to Plaintiff, and the apparent lack of
culpability on the part of the Defendants themselves, this Court is reluctant to enter default
against these Defendants. The Court therefore finds that, despite the conduct of their attorney,
Defendants should be allowed to defend themselves in this action.
Any subsequent failures by defense counsel to adhere to deadlines or comply with orders
of this Court may be subject to sanctions as provided for by the Federal Rules of Civil Procedure.
IV.

CONCLUSION
For the foregoing reasons, the following Order is entered:
AND NOW, this 10th day of January, 2013, upon consideration of Plaintiff’s Request for

Entry of Default Judgment against Defendants Bonenberger (ECF No. 32), Pugh (ECF No. 33),
Rustin (ECF No. 34), and the County (ECF No. 35), IT IS HEREBY ORDERED that the
requests are DENIED.
BY THE COURT,

/S/ MAUREEN P. KELLY
MAUREEN P. KELLY
United States Magistrate Judge

2

Defendants’ Response is also sloppy. Counsel’s reference to “his burden of proof” fails to recognize that Plaintiff
in this case is a woman and not a man.

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cc:

All counsel of record via CM/ECF

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