Zemaitiene v. Salt Lake County et al
MEMORANDUM DECISION AND ORDER denying without prejudice Defendant's 13 Motion for Summary Judgment; denying Plaintiff's 14 Motion for Default Judgment; and granting Plaintiff's 23 Motion for Leave to File an Amended Complaint. Plaintiff shall file with the court the amended complaint attached to the Motion to Amend within 14 days of the date of this order. Signed by Judge Dale A. Kimball on 3/1/2018. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MEMORANDUM DECISION AND
Case No. 2:17-cv-00007-DAK-PMW
SALT LAKE COUNTY; JAMES
WINDER, Police Chief; UNIFIED
POLICE DEPARTMENT OF GREATER
SALT LAKE; TAYLORSVILLE CITY;
TRACY WYANT, Taylorsville Precinct
Chief; CORPORATION OF THE
PRESIDING BISHOP OF THE CHURCH
OF LATTER-DAY SAINTS dba Deseret
Industries; JOEL KNIGHTON, Police
Officer; and DENISE LOVENDAHL,
District Judge Dale A. Kimball
Chief Magistrate Judge Paul M. Warner
Before the court are Defendant Corporation of the Presiding Bishop of the Church of
Latter-Day Saints dba Deseret Industries’ (“Deseret Industries” or “Defendant”) motion for
summary judgment (the “Summary Judgment Motion”);1 Plaintiff Kristina Zemaitiene’s (“Ms.
Zemaitiene” or “Plaintiff”) motion for entry of default (the “Default Motion”);2 and Plaintiff’s
motion for leave to amend the complaint (the “Motion to Amend”).3 The court has carefully
See docket no. 13.
See docket no. 14.
See docket no. 23.
reviewed the written memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the
Rules of Practice for the United States District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will determine the motions on the basis of the
written memoranda. See DUCivR 7-1(f).
The court will first address the Motion to Amend, then the Summary Judgment Motion,
and finally, the Default Motion.
Motion to Amend
Ms. Zemaitiene moves the court for leave to amend her complaint “to add additional
parties, causes for relief, and material facts.”4 “In general, ‘the grant or denial of an opportunity
to amend is within the discretion of the District Court.’” Staats v. Cobb, 455 F. App’x 816, 817
(10th Cir. 2011) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Pursuant to Rule 15 of the
Federal Rules of Civil Procedure (“Rule 15”), leave to amend “shall be freely given when justice
so requires.” Fed. R. Civ. P. 15(a). Rule 15’s directive that leave to amend shall be freely given
“is especially true” where a plaintiff “is proceeding pro se.” Murray v. Archambo, 132 F.3d 609,
612 (10th Cir. 1998). “Without apparent grounds to deny leave—such as undue delay, repeated
failure to cure deficiencies in the pleadings, or undue prejudice to the opposing party—the court
should . . . ‘afford [the plaintiff] an opportunity to test his claim on the merits.’” Staats, 455 F.
App’x at 818 (second alteration in original) (quoting Foman, 371 U.S. at 182).
Id. at 1.
Ms. Zemaitiene is proceeding pro se,5 and in forma pauperis (“IFP”) as permitted by the
court under 28 U.S.C. §1915.6 None of the named defendants, other than Deseret Industries has
been served with the complaint.7 The court has not yet screened Ms. Zemaitiene’s complaint as
required by the IFP statute, nor has the court ordered service on the other defendants. See 28
U.S.C. § 1915(d), (e)(2)(B). Accordingly, the court finds that Ms. Zemaitiene has not unduly
delayed in filing the Motion to Amend.
Although Deseret Industries argues that it would be prejudiced by allowing Ms.
Zemaitiene to amend the complaint, the court is unpersuaded. Deseret Industries argues that if
Ms. Zemaitiene is allowed to amend, Defendant will be required to “instigate the summary
judgment process on the basis of essentially the same factual assertions and deficiencies.”8 If
Deseret Industries is correct, this hardly presents Defendant with an undue burden or prejudice.
Accordingly, out of an abundance of caution and respect for Ms. Zemaitiene’s pro se
status, Plaintiff’s Motion to Amend is granted. In accordance with DUCivR 15-1, Ms.
Zemaitiene must file the amended complaint attached to the Motion to Amend. Ms. Zemaitiene is
ordered to file the amended complaint with the court within 14 days of the date of this order.
Summary Judgment Motion
The Summary Judgment Motion is based on the original complaint. Because the court has
granted leave for Plaintiff to file an amended complaint, the court denies the Summary Judgment
See docket no. 3.
See docket no. 2.
Deseret Industries waived service. See docket no. 5.
Docket no. 24 at 4.
Motion without prejudice. Nothing in this order prevents Deseret Industries from filing a new
motion for summary judgment based on the amended complaint.
Rule 4 of the Federal Rules of Civil Procedure provides that, “[a] defendant who, before
being served with process, timely returns a waiver need not serve an answer to the complaint
until 60 days after the request was sent.” Fed. R. Civ. P. 4(d)(3). The Default Motion requests
entry of default against Deseret Industries pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure, which requires the entry of default “[w]hen a party against whom judgment for
affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Ms.
Zemaitiene argues that entry of default against Deseret Industries is proper because “the record
in this case demonstrates that Defendant failed to file an answer or other response within 60 days
after the request for waiver was sent.”9
The record shows that Plaintiff filed a Waiver of Service executed by Deseret Industries
on March 7, 2017.10 The Waiver of Service was signed by a representative of Deseret Industries
on January 23, 2017.11 The docket states that the Waiver of Service was sent on January 23,
2017, and that the answer was due on March 24, 2017.12 However, the Waiver of Service form
indicates that “an answer or a motion under Rule 12 [must be served] within 60 days from
Docket no. 14 at 1.
See docket no. 5.
See id. at 1.
See docket text, docket no. 5.
01/17/2017, the date when the request was sent.”13 That sixty-day period expired on March 20,
2017. See Fed. R. Civ. P. 6(a)(1)(C). The record shows that Deseret Industries filed its answer to
the complaint on March 17, 2017.14 Therefore, whether the answer was due on March 20, 2017,
or on March 24, 2017, Deseret Industries timely filed its answer. Accordingly, the Default
Motion is without merit, and is denied.
In summary, based on the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff’s Motion to Amend15 is GRANTED. Ms. Zemaitiene shall file with the court the
amended complaint attached to the Motion to Amend within 14 days of the date of this
2. Defendant’s Summary Judgment Motion16 is DENIED WITHOUT PREJUDICE.
3. Plaintiff’s Default Motion17 is DENIED.
IT IS SO ORDERED.
DATED this 1st day of March, 2018.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
Docket no. 5 at 1.
See docket no. 9.
Docket no. 23.
Docket no. 13.
Docket no. 14.
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