Tomashek v. Raleigh County Emergency Operating Center et al

Filing 92

MEMORANDUM OPINION AND ORDER granting the jail defendants' 80 MOTION to Set Aside Default; denying the plaintiff's 90 MOTION for Entry of Default Judgment; granting the jail defendants' 82 MOTION for Leave to Accept Res ponsive Pleading Filed Out of Time; granting plaintiff's 74 MOTION to Amend Scheduling Order, Allow Additional Discovery, and for Extension of Time to Respond to Defendants Motions for Summary Judgment; denying 68 MOTION for Summary Judgment and 70 MOTION for Summary Judgment; directing the jail defendants to turn over their late Rule 26 disclosures by 4/7/2018. Signed by Judge Joseph R. Goodwin on 4/2/2018. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
PHILIP J. TOMASHEK, II
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-01904

RALEIGH COUNTY EMERGENCY
OPERATING CENTER, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
I.

Introduction
Pending before the Court are six related motions. The first is the jail

defendants’1 Motion to Set Aside Default [ECF No. 80]. The plaintiff filed a response
[ECF No. 89], and the defendants filed a reply [ECF No. 91]. The second is the
plaintiff’s Motion for Entry of Default Judgment [ECF No. 90]. The third is the jail
defendants’ Motion for Leave to Accept Responsive Pleading Filed Out of Time [ECF
No. 82], to which the plaintiff did not respond. The fourth is the plaintiff’s Motion to
Amend Scheduling Order, Allow Additional Discovery, and for Extension of Time to
Respond to Defendants’ Motions for Summary Judgment [ECF No. 74]. The police

For the purposes of this order, “the jail defendants” refers to David A. Farmer, Michael Francis, and the John Doe
Correctional Officers.
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defendants 2 responded [ECF No. 83]. The fifth is the jail defendants’ Motion for
Summary Judgment [ECF No. 68]. The plaintiff responded [ECF No. 73], and the jail
defendants replied [ECF No. 76]. The sixth is police defendants’ Motion for Summary
Judgment [ECF No. 70]. The plaintiff responded [ECF No. 73], and the police
defendants replied [ECF No. 75].
For the reasons stated herein, (1) the jail defendants’ Motion to Set Aside
Default [ECF No. 80] is GRANTED; (2) the plaintiff’s Motion for Entry of Default
Judgment [ECF No. 90] is DENIED; (3) the jail defendants’ Motion for Leave to
Accept Responsive Pleading Filed Out of Time [ECF No. 82] is GRANTED; (4) the
plaintiff’s Motion to Amend Scheduling Order, Allow Additional Discovery, and for
Extension of Time to Respond to Defendants’ Motions for Summary Judgment [ECF
No. 74] is GRANTED; and (5) both of the pending Motions for Summary Judgment
[ECF Nos. 68, 70] are DENIED.
II.

Factual and Procedural History
On December 22, 2016, the plaintiff, Philip J. Tomashek, II, filed a twenty-

count complaint against the defendants in the Circuit Court of Kanawha County,
West Virginia. Notice Removal Ex. A [ECF Nos. 1-1, 1-2]. On March 16, 201, the case
was removed to federal court. Notice Removal [ECF No. 1].
On April 24, 2017, the jail defendants filed a motion to dismiss. Mot. of W. Va.
Reg’l Jail & Corr. Fac. Auth., David A. Farmer, SRJ, Michael Francis & John Doe

For purposes of this order, “the police defendants” include Robert Steven Tanner, A.S. Meadows, J.D. Johnson, and
the County Commission of Raleigh County.
2

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Corr. Off. to Dismiss [ECF No. 15]. On January 22, 2018, the Court granted in part
and denied in part the motion. Mem. Op. & Order [ECF No. 63]. Under Federal Rule
of Civil Procedure 12(a)(4)(A), the jail defendants’ answer to the complaint was due
“14 days after notice of the court’s action,” which was February 5, 2018. Based on the
Court’s scheduling order, dispositive motions were also due February 5, 2018. Sched.
Order [ECF No. 18].
On February 5, 2018, the jail defendants filed a Motion for Summary Judgment
[ECF No. 68], but failed to file an answer to the complaint. On February 20, 2018, the
plaintiff filed his response to this motion, in which he noted the jail defendants’
failure to answer the complaint. Pl.’s Resp. Opp’n to the Mots. Summ. J. 8 [ECF No.
73]. The same day, the plaintiff also filed a motion requesting that the court amend
the scheduling order, allow additional discovery, and grant an extension of time to
respond to the defendants’ motions for summary judgment. Pl.’s Mot. Amend [ECF
No. 74]. In their reply, the jail defendants acknowledged their failure to answer the
complaint, but did not correct their mistake. Reply to Pl.’s Resp. 4 [ECF No. 76].
On March 5, 2018, the Court directed the Clerk to enter default against the jail
defendants pursuant to Rule 55(a), for failure to answer. Order [ECF No. 77]. Later
that day, the jail defendants filed: (1) an Answer to Amended Complaint [ECF No.
79]; (2) a Motion for Leave to Set Aside Default [ECF No. 80]; and (3) a Motion for
Leave to Accept their belated answer [ECF No. 82]. The following day, the Clerk
entered default against the jail defendants. Entry of Default by Clerk [ECF No. 84].
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Rule 26(a)(1) disclosures were due May 29, 2017, and the defendants’ expert
disclosures were due December 18, 2017. Order & Notice [ECF No. 3]; Sched. Order.
The jail defendants have yet to file either.
III.

Analysis
a. The Jail Defendants’ Motion to Set Aside Default

Under Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend . . .
the clerk must enter the party’s default.” Courts “may set aside an entry of default
for good cause[.]” Fed. R. Civ. P. 55(c). Rule 55(c) “must be ‘liberally construed in order
to provide relief from the onerous consequences of defaults[.]’” Lolatchy v. Arthur

Murray, Inc., 816 F.2d 951, 954 (4th Cir. 1987). The Fourth Circuit has “repeatedly
expressed a strong preference that, as a general matter, defaults be avoided and that
claims and defenses be disposed of on their merits.” Colleton Preparatory Acad., Inc.

v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010).
In determining whether good cause exists, courts “should consider [(1)]
whether the moving party has a meritorious defense, [(2)] whether it acts with
reasonable promptness, [(3)] the personal responsibility of the defaulting party, [(4)]
the prejudice to the party, [(5)] whether there is a history of dilatory action, and [(6)]
the availability of sanctions less drastic.” Payne v. Brake, 439 F.3d 198, 204–05 (4th
Cir. 2006).

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Considering the first factor, the jail defendants may have a meritorious
defense. “[A]ll that is necessary to establish the existence of a ‘meritorious defense’ is
a presentation or proffer of evidence, which, if believed, would permit either the Court
or the jury to find for the defaulting party.” United States v. Moradi, 673 F.2d 725,
727 (4th Cir. 1982). “The underlying concern is . . . whether there is some possibility
that the outcome . . . after a full trial will be contrary to the result achieved by the
default.” Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808,
812 (4th Cir. 1988) (ellipses in original). The jail defendants allege that they have
qualified immunity for the three counts remaining against them. Mem. Law Supp.
Mot. Set Aside Default 6 [ECF No. 81]. They briefed the issue of qualified immunity
in their summary judgment motion, which has not yet been ruled on. Mem. Law Supp.
Mot. Summ. J. [ECF No. 69]. This potential defense weighs in their favor.
Turning to the second factor, “[w]hether a party has taken ‘reasonably prompt’
action, of course, must be gauged in light of the facts and circumstances of each
occasion[.]” Moradi, 673 F.2d at 727. The jail defendants were extremely prompt once
default was entered—they filed their answer and motion to set aside default the same
day. This promptness weighs in the jail defendants’ favor; however, they were aware
of their failure to answer before default was entered.
On February 20, 2018, in his response to the jail defendants’ motion for
summary judgment, the plaintiff noted that they never answered the complaint. Pl.’s
Resp. Opp’n to the Mots. Summ. J. 8 (“[W]hile the Jail Defendants found the time to
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participate in the briefing of their motion for summary judgment and plaintiff’s
deposition, they failed entirely to answer the complaint . . . .”). Instead of immediately
filing an answer after being reminded of the lack thereof, the jail defendants waited
six days and filed a reply brief acknowledging their failure to file an answer. Reply to
Pl.’s Resp. 4 (“[I]t is ludacris for Plaintiff to suggest, without filing any affirmative
motion, that Defendants’ timely motion for summary judgment should be denied
because it was filed prior to an Answer.”) [ECF No. 76]. It was not until one week
after this, when the Clerk entered default, that the answer was finally filed.
While the Court finds this timeline suspect, this factor still weighs in favor of
the defendants, because their answer was filed within two weeks of the plaintiff’s
notice and the same day default was entered. See Cline v. HSBC Bank USA, No. 3:17cv-02975, 2017 WL 5617510, at *2 (S.D. W. Va. Oct. 25, 2017) (“Within thirteen days,
HSBC filed a response in opposition and motion for leave to file a response to
Plaintiff’s complaint . . . . This time frame is consistent with other cases in which the
defaulting party was determined to be reasonably prompt in responding to an entry
of default.”).
The third factor is the personal responsibility of the defaulting party. It is not
the jail defendants who are responsible for the late answer, but instead, their
attorney. According to their attorney, he drafted the answer after their dismissal
motion was denied in part, but “[d]ue to inadvertent oversight” it was not filed at that
time. Mot. Set Aside Default Ex. A, at 2 [ECF No. 80-1]. He alleges that this oversight
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was due largely to his position as per diem staff counsel for the West Virginia Senate,
which was in session during the period between the court’s dismissal order and the
date the answer was due. Id. “When the party is blameless and the attorney is at
fault, the former interests control and a default judgment should ordinarily be set
aside.” Augusta Fiberglass Coatings, Inc., 843 F.2d at 811. Here, it is clear that the
jail defendants’ tardy answer was due to the admitted “inadvertent oversight” of their
counsel. Thus, this factor weighs in favor of the jail defendants.
The next factor is the prejudice to the party. The plaintiff argues that he is
prejudiced by the delay because the responsive pleading was not filed until after the
close of discovery. Pl.’s Resp. Opp’n to Mot. Set Aside Default 2 [ECF No. 89]. While
the court acknowledges the inconvenience of this, the answer was not due until after
discovery had closed. 3 The court is unaware of any other prejudice that occurred
because of this late filing. Thus, this factor weighs in favor of the jail defendants.
The fifth factor is whether there is a history of dilatory action. Rule 26(a)(1)
disclosures were due May 29, 2017, and the defendants’ expert disclosures were due
December 18, 2017. Order & Notice [ECF No. 3]; Sched. Order. The jail defendants
have yet to file either. The defendants argue that it is “pointless [for the plaintiff] to
complain about [their lack of] pretrial disclosures,” because the other defendants
submitted theirs on time. Reply to Pl.’s Resp. [ECF No. 91]. This argument is absurd,
or, to use the defendants own words, pointless. Each party is required to make their

3

Discovery closed on January 16, 2018, and the answer was due February 5, 2018.

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own disclosures under Rule 26, and the defendants’ failure to make their disclosures
constitutes dilatory action. Fed. R. Civ. P. 26(a)(1)(A) (“[A] party must, without
awaiting a discovery request, provide to the other parties . . . .”).4 This factor weighs
against the jail defendants.
The final factor is the availability of sanctions less drastic. “Less drastic
sanctions are available to the Court, and no such sanctions [were] tried in this case
before the default was entered.” Pearson v. Giles Indus. Inc., No. 3:13-cv-19629, 2013
WL 6048714, at *3 (S.D. W. Va. Nov. 13, 2013). Thus, this factor weighs in favor of
the jail defendants.

The plaintiff raised a few other examples of the jail defendants’ alleged dilatory action that are not
actually dilatory. First, the plaintiff argued that the jail defendants were dilatory because they did not
respond to a motion filed by the plaintiff to amend the complaint earlier in the litigation. Pl.’s Resp. 3.
The jail defendants, of course, were under no obligation to respond to this, and therefore, their failure
to do so is not evidence of prior dilatory action.
4

Second, the plaintiff argues that the jail defendants were dilatory when they failed to respond to his
written discovery requests, and refused to produce a witness for a Rule 30(b)(6) deposition. Id. The
plaintiff is referring to the interrogatory request he made to the Southern Regional Jail (“SRJ”) on
September 15, 2017 [ECF No. 40], and the deposition notice he filed regarding SRJ on January 16,
2018 [ECF No. 57]. As the Court has already previously explained, SRJ
is not a legal entity. It is simply a “facility operated by the [West
Virginia Regional Jail and Correctional Facility Authority] and used
jointly by two or more counties for the confinement, custody,
supervision or control of adult persons convicted of misdemeanors or
awaiting trial or awaiting transportation to a state correctional
facility.” As such, it is not an entity capable of being sued.
Mem. Op. & Order [ECF No. 63] (quoting Edwards v. West Virginia, No. 2:00-cv-0775, 2002 WL
34364404, at *6 (S.D. W. Va. Mar. 29, 2002)); see W. Va. Code R. § 31-20-2 (“‘Regional jail facility’ or
‘regional jail’ means any facility operated by the authority and used jointly by two or more counties for
the confinement, custody, supervision or control of adult persons convicted of misdemeanors or
awaiting trial or awaiting transportation to a state correctional facility.”). Since SRJ is nothing more
than a facility, it cannot respond to interrogatory requests or be deposed. Therefore, this is also not
evidence of prior dilatory behavior.

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Based on these factors, the Court finds that good cause exists to set aside the
entry of default against the jail defendants. Therefore, their Motion to set aside
default is GRANTD [ECF No. 80]. While other sanctions are available, the court will
not impose them at this time. The jail defendants are warned, however, that the
federal rules are mandatory, and further noncompliance may lead to a different
outcome.
b. The Plaintiff’s Motion for Entry of Default Judgment
Because the Court has set aside the Clerk’s entry of default, the plaintiff’s
motion for entry of default judgment under Rule 55(b)(2) is DENIED [ECF No. 90].
c. The Jail Defendants’ Motion for Leave to Accept Late Responsive
Pleading
After default was entered, the jail defendants filed their answer with an
accompanying Motion for Leave to Accept Responsive Pleading Filed Out of Time
[ECF No. 82]. Federal Rule of Civil Procedure 6(b)(1)(B) governs determinations of
whether to extend the time for filing an answer. Under Rule 6(b)(1)(B), “[w]hen an
act must be done within a specified time, the court may, for good cause, extend the
time: on motion made after the time has expired if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “Although inadvertence, ignorance of
the rules, or mistakes construing the rules do not usually constitute ‘excusable’
neglect, it is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic
concept’ and is not limited strictly to omissions caused by circumstances beyond the

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control of the movant.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 392 (1993) (footnote omitted).
Based on the Court’s prior analysis under Rule 55(c), the court is persuaded
that good cause exists to allow the jail defendants to file their late answer. Therefore,
their Motion is GRANTD [ECF No. 82].
d. The Plaintiff’s Motion to Amend Scheduling Order and Allow Additional
Discovery
Before default was entered, the plaintiff filed a Motion to amend the scheduling
order and allow for additional discovery. Pl.’s Mot. Amend Sched. Order [ECF No.
74]. In the order, the plaintiff argues that additional discovery is required because of
the jail defendants’ failure to file an Answer or Rule 26 disclosures, and the plaintiff’s
failure to secure depositions of other parties. Id. The plaintiff’s attorney
acknowledged that his failure to secure depositions was due, at least in part, to his
failure to make more “diligent efforts.” Id.
The jail defendants did not respond to this motion, but the police defendants
did. Defs.’ Resp. to Pl.’s Mot. Amend [ECF No. 83]. The police defendants argue that
the plaintiff should not be given a second shot at discovery after being “dilatory in
moving this case forward through litigation.” Id. In support of this accusation, they
submitted evidence of the plaintiff’s attorney’s failure to answer five emails sent
between October and December 2017, in which the jail defendants were trying to
secure a date to take the plaintiff’s deposition. Id. According to the police defendants,
they could not reach the plaintiff or his attorney regarding the plaintiff’s deposition
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until they finally filed a notice of intent to subpoena. Id. at 3. The police defendants
also argue that the plaintiff had plenty of time to schedule depositions of the other
parties, but failed to take any action until discovery was almost over. To date, the
plaintiff has not conducted a single deposition in this matter.
The Scheduling Order [ECF No. 18] in this case specifies that discovery closed
on January 16, 2018. Sched. Order 1. Under the Rule 16(b) standard, a party seeking
to amend the scheduling order must demonstrate “good cause.” Id.
If the plaintiff wanted to reopen discovery solely because he failed to conduct
proper discovery during the time designated by the court, then this would be an easy
motion to deny. Clearly, the plaintiff’s counsel’s failure to depose any parties or fully
engage in discovery because of his admitted lack of diligent efforts does not satisfy
the good cause standard.
The issue remains, however, that the plaintiff did not have the Court’s rulings
on the defendants’ motions to dismiss or the jail defendants’ answer to the complaint
until after discovery closed. Additionally, to date, the plaintiff has not received the
jail defendants’ Rule 26(a)(1) and (a)(2) disclosures, which would provide the plaintiff
with crucial information regarding this litigation. Based on this, the Court is
persuaded that good cause exists to amend the scheduling order and reopen
discovery. The Court will file an amended scheduling order setting out the modified
deadlines.

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Rule 37(c) governs late Rule 26(a) disclosures. Under Rule 37(c), “[i]f a party
fails to provide information or identify a witness as required by Rule 26(a) . . . the
party is not allowed to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” Since the Court is amending the scheduling order and reopening
discovery, allowing the jail defendants to make late Rule 26(a) disclosures is harmless
for Rule 37(c) purposes. Thus, the Court will allow the jail defendants to submit their
late disclosure. The jail defendants are ORDERED to turn over their late Rule 26
disclosures by April 7, 2018.
e. Motions for Summary Judgment
Since the Court is amending the scheduling order and reopening discovery, the
two pending Motions for Summary Judgment [ECF Nos. 68, 70] are DENIED. The
defendants can refile their motions in accordance with the new scheduling order.
IV.

Conclusion
The jail defendants’ Motion to Set Aside Default [ECF No. 80] is GRANTED.

The plaintiff’s Motion for Entry of Default Judgment [ECF No. 90] is DENIED. The
jail defendants’ Motion for Leave to Accept Responsive Pleading Filed Out of Time
[ECF No. 82] is GRANTED. The plaintiff’s Motion to Amend Scheduling Order, Allow
Additional Discovery, and for Extension of Time to Respond to Defendants’ Motions
for Summary Judgment [ECF No. 74] is GRANTED. Both of the pending Motions for

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Summary Judgment [ECF Nos. 68, 70] are DENIED. The jail defendants are
ORDERED to turn over their late Rule 26 disclosures by April 7, 2018.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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April 2, 2018