Taylor, Anthony v. Lynn, Robert et al

Filing 42

ORDER denying plaintiff's 34 Motion for Entry of Default. Defendant City of Beloit may have until July 10, 2015 to file an answer to the complaint. Signed by District Judge Barbara B. Crabb on 6/26/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ANTHONY D. TAYLOR, SR.,
ORDER
Plaintiff,
13-cv-862-bbc
v.
ROBERT LYNN, KEVIN WITTE,
and CITY OF BELOIT,
Defendants.1
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Anthony Taylor is proceeding on a claim that defendants Robert Lynn
and Kevin Witte searched his home without justification and in accordance with the policies
of defendant City of Beloit, in violation of the Fourth Amendment. Now before the court
is plaintiff’s motion for entry of default judgment against the city on the ground that the city
has not answered the complaint. Dkt. #34.
In its opposition brief, the city says that it filed its answer on March 31, 2015, as
reflected at docket no. 31. However, that answer states that it was filed on behalf of the
other defendants: “The Defendants, Officer Robert Lynn and Officer Kevin Witte, by their
attorneys, Gunta Law Offices, S.C., answer Plaintiff’s Complaint/Amended Complaint as
follows . . . .” Dkt. #31 at 1. At the end of the complaint counsel identify themselves as

1

Plaintiff identified this defendant as “Office Witte” in his complaint. I have
amended the caption to include his full name, as reflected in defendants’ answer.
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“Attorneys for Defendants Officer Robert Lynn and Office Kevin Witte.” Id. at 4. They do
not mention the city. Accordingly, I conclude that docket no. 31 cannot serve as the city’s
answer.
This does not mean that plaintiff is entitled to a default judgment. The city is
represented by the same counsel as the other defendants and it appears that counsel’s failure
to include the city in the answer was an oversight. The Court of Appeals for the Seventh
Circuit has a “well established policy” for “favoring a trial on the merits over a default
judgment.” Sun v. Board of Trustees of University of Ilinois, 473 F.3d 799, 811-12 (7th
Cir. 2007).

For this reason, a court may enter a default judgment “only when a party

wilfully disregards pending litigation.” Id.
There is no indication that the city is willfully disregarding this case, so I am denying
plaintiff’s motion. Instead, I will give the city two weeks to file its own answer or for all of
the defendants to file an amended answer that includes the city.

ORDER
IT IS ORDERED that plaintiff Anthony Taylor’s motion for a default judgment, dkt.
#34, is DENIED. Defendant City of Beloit may have until July 10, 2015 to file an answer

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to the complaint.
Entered this 26th day of June, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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