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Tomashek v. Raleigh County Emergency Operating Center

United States District Court, S.D. West Virginia, Charleston Division

April 2, 2018

PHILIP J. TOMASHEK, II Plaintiff,
v.
RALEIGH COUNTY EMERGENCY OPERATING CENTER, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPR R. GOODWIN UNITED STATES DISTRICT JUDGE

         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 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 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].

         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 ...


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