Tuholski v. Delavan Rescue Squad, Inc. et al

Filing 96

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 6/25/2014 finding as moot 88 Delavan Rescue's Motion for Extension of Time to Answer ; granting 93 Delavan Rescue's Motion for Leave to File responsive pleadings; denying 89 plaintiffs' Motion for Default Judgment. (cc: all counsel) (djd)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH TUHOLSKI, as Independent Administrator
of the ESTATE OF DENNIS D. TUHOLSKI and
DENNIS L. TUHOLSKI,
Plaintiffs,
v.

Case No. 13-CV-1349

DELAVAN RESCUE SQUAD, INC.,
Defendant and Third-Party Plaintiff,
and
PHILIPS MEDICAL SYSTEMS, INC., et al.,
Defendants,
v.
PHILIPS MEDICAL SYSTEMS, et al.,
Third-Party Defendants.
DECISION AND ORDER
On May 2, 2014, the plaintiffs filed their fourth amended complaint. (Docket # 75.)
Defendant Delavan Rescue Squad, Inc. (“Delavan Rescue”) was served via the court’s
electronic case filing system on the same day. See Fed. R. Civ. P. 5(b)(1) (“If a party is
represented by an attorney, service under this rule must be made on the attorney unless the
court orders service on the party.”); Fed. R. Civ. P. 5(b)(2)(E) (“A paper is served under this
rule by . . . sending it by electronic means if the person consented in writing - - in which

event service is complete upon transmission . . . .”); Fed. R. Civ. P. 5(b)(3) (“If a local rule
so authorizes, a party may use the court’s transmission facilities to make service under Rule
5(b)(2)(E).”) An answer was due 14 days after service of the amended pleading, on May 16,
2014. See Fed. R. Civ. P. 15(a)(3) (“Unless the court orders otherwise, any required response
to an amended pleading must be made within the time remaining to respond to the original
pleading or within 14 days after service of the amended pleading, whichever is later.”). No
answer was filed. On June 16, 2014, Delavan Rescue filed a motion for an extension of time
to answer or otherwise plead, requesting an extension of time until June 20, 2014. (Docket
# 88.) Delavan Rescue also asks for leave to file a cross-claim against its co-defendants and
an amended third-party complaint. (Id.) On June 17, 2014, the plaintiffs filed a motion for
default judgment against Delavan Rescue. (Docket # 89.) On June 19, 2014, Delavan
Rescue opposed the plaintiffs’ motion for default judgment and included responsive
pleadings that it requested to file instanter. (Docket # 93.)
The plaintiffs oppose the motion on the grounds that Delavan Rescue has failed to
establish excusable neglect. (Docket # 90.) The plaintiffs further request that default
judgment be entered against Delavan Rescue for its failure to answer the fourth amended
complaint. (Id.) Because Delavan Rescue filed its request for an extension of time after the
time for answering expired, its request is governed by Fed. R. Civ. P. 6(b)(1)(B), which
requires the moving party to show that it failed to act because of excusable neglect. The
determination of “excusable neglect” is “ ‘at bottom an equitable one, taking account of all
relevant circumstances surrounding the party’s omission.’” Lewis v. School Dist. #70, 523
F.3d 730, 740 (7th Cir. 2008) (quoting Pioneer Inv. Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380, 395 (1993)). The factors to consider include the danger of

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prejudice, the length of delay and its potential impact on judicial proceedings, the reason for
the delay, and whether the movant had acted in good faith. Id.
Further, the grant or denial of a motion for the entry of default judgment lies within
the sound discretion of the trial court. Dundee Cement Co. v. Howard Pipe & Concrete Prod., Inc.,
722 F.2d 1319, 1322 (7th Cir. 1983). The court of appeals for this circuit has stated that
“[w]e have long since moved away from the position of disfavoring default judgments . . .”;
however, the appeals court has cautioned that “[e]ntry of default judgment is a serious
penalty, one that may punish the client for the sins of counsel, and we remain sensitive to
claims that a court has acted reflexively in imposing the sanction.” Calumet Lumber, Inc. v.
Mid-America Indus., Inc., 103 F.3d 612, 617 (7th Cir. 1997) (internal quotation and citation
omitted).
Delavan Rescue argues that there is no danger of prejudice to the plaintiffs because
the plaintiffs are already aware of Delavan Rescue’s defenses to the plaintiffs’ claims, which
were set forth in Delavan Rescue’s answer to the plaintiffs’ third amended complaint, which
asserts virtually the same allegations against Delavan Rescue as the fourth amended
complaint. Further, Delavan Rescue argues that the length of delay will not have any
impact on the judicial proceedings in this matter because several parties have not yet
appeared and there will be no delay in discovery. Finally, Delavan Rescue argues that it did
not act in bad faith in failing to timely file its responsive pleading. Rather, the failure
stemmed from the deadline being miscalendared due to personal matters taking Delavan
Rescue’s attorney out of the office for various dates in May 2014.
I find good cause to accept the filing of Delavan Rescue’s responsive pleadings to the
plaintiffs’ fourth amended complaint, cross-claim, and amended third-party complaint

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instanter and deny the plaintiffs’ motion for default judgment. Although Delavan Rescue
argues that its answer was untimely filed in part because it required additional time to
investigate the plaintiffs’ allegations concerning the new parties and because counsel was
awaiting the plaintiffs’ response to certain discovery requests, this should not have
prevented the defendant from requesting an extension of time prior to the expiration of the
deadline to answer. Rather, it appears the likely cause of the untimely filing was
miscalendaring by defense counsel. Even so, attorney error can constitute excusable neglect
where the attorney acted in good faith and the error did not prejudice the opposing party.
See Crue v. Aiken, 370 F.3d 668, 680-81 (7th Cir. 2004). Delavan Rescue’s counsel explained
that the miscalendaring was due to ongoing family issues that took him out of the office on
various dates in May 2014 and upon realizing that Delavan Rescue’s responsive pleading
had not been filed, promptly contacted plaintiffs’ counsel in an attempt to reach an
agreement on an extension of time. The plaintiffs do not allege that Delavan Rescue’s
counsel acted in bad faith and I find no evidence of bad faith.
Further, the plaintiffs do not allege, and I do not find, that the plaintiffs would be
prejudiced by allowing Delavan Rescue to answer. With the exception of an additional
cause of action for punitive damages against all defendants, the allegations against Delavan
Rescue in the plaintiffs’ fourth amended complaint are the same as the allegations against it
in the plaintiffs’ third amended complaint, which Delavan Rescue timely answered and
asserted its affirmative defenses. Thus, Delavan Rescue’s answer should not come as a
surprise to the plaintiffs. Nor will allowing Delavan Rescue’s motion to dismiss the
plaintiffs’ claim for punitive damages prejudice the plaintiffs, as Delavan Rescue’s motion is

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the same as that of defendant and third-party defendant Philips Electronics North America
Corporation and the arguments made are equally applicable to each defendant.
Finally, allowing Delavan Rescue to file its responsive pleadings will not negatively
impact the judicial proceedings. Several parties have yet to appear in this action and
discovery is ongoing. This is not a case where Delavan Rescue has demonstrated a pattern
of inattentiveness. Rather, this appears to be an isolated case of late filing due to
miscalendaring. The serious penalty of default judgment is not warranted in this case.
Delavan Rescue will be allowed to file its responsive pleadings instanter.
ORDER
NOW, THEREFORE, IT IS ORDERED that Delavan Rescue’s motion for an
extension of time to answer or otherwise plead (Docket # 88) is DENIED AS MOOT.
Delavan Rescue’s motion for leave to file responsive pleadings to plaintiffs’ fourth amended
complaint, cross-claim, and amended third-party complaint instanter (Docket # 93) is
GRANTED.
IT IS FURTHER ORDERED that the plaintiffs’ motion for default judgment
(Docket # 89) is DENIED.

Dated at Milwaukee, Wisconsin this 25th day of June, 2014.

BY THE COURT
s/Nancy Joseph_____________
NANCY JOSEPH
United States Magistrate Judge

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