Gidarisingh, Sonniel v. Bittelman, Travis et al

Filing 18

ORDER denying plaintiff's 17 Motion for Default Judgment. Signed by District Judge William M. Conley on 12/18/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________________
SONNIEL R. GIDARISINGH,
ORDER
Plaintiff,
v.

12-cv-916-wmc

TRAVIS BITTELMAN, et al.,
Defendants.
_________________________________________________________________________________________

On October 16, 2013, this court granted plaintiff Sonniel R. Gidarisingh leave to
proceed with a civil action against several correctional officers and other state employees at
Columbia Correctional Institution, where plaintiff is currently confined. Pursuant to an
agreement with the Wisconsin Department of Justice, the court promptly sent a copy of that
order to the state attorney general for acceptance of informal service of process on
defendants. Consistent with that agreement, defendants filed an answer on November 25,
2013. The case is now set for a pretrial conference on January 10, 2014.
Arguing that defendants’ answer was untimely, plaintiff now seeks a default judgment.
(See Dkt. #17). That motion will be denied for reasons set forth briefly below.
Plaintiff’s motion is governed by Fed. R. Civ. P. 55(a), which authorizes entry of a
default judgment “[w]hen a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise[.]”
Courts in this circuit follow “a well-established policy favoring a trial on the merits over a
default judgment.” Sun v. Board of Trustees of Univ. of Ill., 473 F.3d 799, 811 (7th Cir. 2007)
(citing C.K.S. Eng’rs, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.

1984) (collecting cases)). Under that policy, “a default judgment should be used only in
extreme situations, or when other less drastic sanctions have proven unavailing.” Sun, 473
F.3d at 811. In other words, “it is a weapon of last resort, appropriate only when a party
wilfully disregards pending litigation.” Id. (citation omitted). Thus, a plaintiff is not
automatically entitled to a default judgment as a matter of right, even where the defendant
is technically in default, so long as the plaintiff has not been prejudiced. See Mommaerts v.
Hartford Life and Acc. Ins. Co., 472 F.3d 967, 968 (7th Cir. 2007).
As noted above, the Wisconsin Department of Justice agreed to accept service of
process for correctional officers and other state officials in actions filed by pro se litigants.
Under the terms of that agreement, defendants have forty days from receipt of the order
granting leave to proceed in which to serve and file an answer. Because the Department of
Justice received a copy of the order granting leave to proceed on October 16, 2013, the
defendants had up to and including November 25, 2013 in which to answer. Court records
confirm that the answer was timely served and filed in this case.
Plaintiff nevertheless argues that because he did not receive a copy of the answer before
the deadline expired, a default judgment in his favor is now warranted. That plaintiff did
not receive the answer until several days after the deadline does not make the answer
untimely or support a finding of default. Even if the answer was late, defendants obviously
attempted to plead or otherwise defend for purposes of Fed. R. Civ. P. 55. Moreover, a short
delay in answering caused plaintiff no prejudice. Therefore, plaintiff’s motion for default
must be denied.

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ORDER
IT IS ORDERED that plaintiff Sonniel R. Gidarisingh’s motion for default judgment
(dkt. #17) is DENIED.
Entered this 18th day of December, 2013.
BY THE COURT:
/s/
______________________
WILLIAM C. CONLEY
District Judge

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