United States District Court, D. Maine
BRANDEE A. LEWIS, Plaintiff,
KENNEBEC COUNTY, et al., Defendants.
ORDER DENYING MOTION FOR ENTRY OF DEFAULT AS AGAINST
DEFENDANT KIM VIGUE AND MOTION TO STRIKE UNTIMELY ANSWER OF
DEFENDANT KIM VIGUE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Court denies a motion for entry of default against a
defendant who had already filed a late answer to the
complaint, denies a motion to strike the late-filed answer,
declines to impose sanctions, and grants sua sponte a
presumed motion to file a late answer.
Relevant Procedural History
November 7, 2016, Brandee A. Lewis filed a complaint against
Kennebec County, the Kennebec County Sheriff's Office and
its Corrections Division, the Kennebec County Correctional
Facility (KCCF), a number of Kennebec County officials and
employees, Crisis & Counseling Centers, Correctional
Health Partners (CHP), and Kimberly Arlene Vigue, alleging
that while Ms. Lewis was housed in the KCCF, she was
“brutally sexually assaulted and physically assaulted
by a nurse and multiple staff members at the [KCCF].”
Compl. ¶ 1 (ECF No. 1). The Complaint alleges
that Kimberly Arlene Vigue was a registered nurse, was
employed by CHP, and acted as a nurse for the KCCF.
Id. ¶ 16. The Complaint further alleges that
Ms. Vigue is facing two counts of simple assault in a
separate criminal matter related to the civil allegations
made in the Complaint. Id. ¶ 1.
Lewis served Ms. Vigue with the Complaint and a summons on
February 26, 2017. Summons Returned Executed (ECF
No. 34) (Executed Summons). Ms. Vigue answered the
Complaint through counsel on March 28, 2017 and filed a
cross-claim. Def. Vigue's Answer, Defenses and
Cross-cl. (ECF No. 35) (Def.'s Answer). Ms.
Vigue's cross-claim was against CHP, claiming that she
was acting “at the direction of her employer, for its
benefit and within the scope of that employment” and
she was entitled to indemnification and a defense.
Id. at 5. On April 4, 2017, CHP answered Ms.
Vigue's cross-claim. Def./Cross-cl. Def. Correctional
Health Partners' Answer and Affirmative Defenses
(ECF No. 40).
April 11, 2017, Ms. Lewis filed a motion for entry of default
and a motion to strike answer against Ms. Vigue, Mot. for
Entry of Default for Failure to File Timely Answer and Mot.
to Strike Untimely Answer of Def. Kim Vigue (ECF No. 41)
(Pl.'s Mot.), and a memorandum in support of her
motions. Mem. of Law in Supp. of Pl.'s Mot. for Entry
of Default for Failure to File Timely Answer and Mot. to
Strike Untimely Answer of Def. Kim Vigue (ECF No. 43)
(Pl.'s Mem.). Ms. Vigue responded on April 25,
2017. Def. Vigue's Opp'n to Pl.'s Mot. [for]
Entry of Default and Mot. to Strike (ECF No. 50)
(Def.'s Opp'n). Ms. Lewis replied on April
27, 2017. Reply to Def. Vigue's Opp'n to
Pl.'s Mot. for Entry of Default and Mot. to Strike
(ECF No. 51) (Pl.'s Reply).
filing her Complaint on November 7, 2016, Ms. Lewis sent Ms.
Vigue a “complete package for waiver of service on
November 14, 2016.” Pl.'s Mot. at 2. Ms.
Vigue failed to respond or return a duly executed waiver
form, id., and on February 9, 2017, the Court issued
an order to show cause because Ms. Lewis had named Ms. Vigue
as a defendant in the Complaint but had not served her.
Order to Show Cause (ECF No. 29). On February 10,
2017, Ms. Lewis moved to extend the time within which to
serve Ms. Vigue to an additional forty-five days, or until
March 31, 2017, explaining that her failure to serve Ms.
Vigue was “excusable neglect.” Partially
Consented to Mot. to Extend Time to Effect Service Upon Def.
Kim Vigue at 2 (ECF No. 30). On February 23, 2017, the
Magistrate Judge granted the motion to extend time and
terminated the Order to Show Cause. Order Granting Mot.
to Extend Time to Serve Def. Vigue (ECF No. 31);
Order Terminating Order to Show Cause (ECF No. 32).
February 23, 2017, the Clerk's Office issued a summons
for Ms. Vigue. Summons in a Civil Action (ECF No.
33). A server from the Lincoln County Sheriff's Office
served the summons on Ms. Vigue on February 26, 2017, and Ms.
Lewis filed the executed summons with the Court on March 5,
2017. Executed Summons. On March 28, 2017, Ms. Vigue
answered the Complaint and filed a cross-claim against her
employer. Def.'s Answer.
THE PARTIES' POSITIONS
Brandee Lewis' Motion
that the Court set a deadline of March 20, 2017 for Ms. Vigue
to file an answer, Ms. Lewis observes that Ms. Vigue simply
filed an answer on March 28, 2017 “[w]ithout requesting
leave of court or an extension of time.” Pl.'s
Mot. at 2. Ms. Lewis asserts that Ms. Vigue's answer
would have been due on March 17, 2017 but for the
Court-imposed deadline. Id. Ms. Lewis also notes
that on March 23, 2017, after no timely answer was filed by
Ms. Vigue, the Court set April 24, 2017 as the deadline for
Ms. Lewis to file a motion for default. Id. Noting
that Ms. Vigue refused to waive service, Ms. Lewis urges the
Court to strike Ms. Vigue's answer and to issue a default
against her since she “in all, had over 4 months to
retain counsel and file an Answer to Plaintiff's
Complaint.” Pl.'s Mem. at 3-4.
Kim Vigue's Opposition
response, Ms. Vigue first argues that Ms. Lewis failed to
comply with Rule 55, which she claims requires a party moving
for entry of default to show “by affidavit” that
the party against whom the default is sought has
“failed to plead or otherwise defend.”
Def.'s Opp'n at 2 (quoting Fed.R.Civ.P.
55(a)). Ms. Vigue notes that she submitted an answer on March
28, 2017, two weeks before Ms. Lewis filed her motion for
default, and she asserts that the reason Ms. Lewis did not
file an affidavit is that she could not have done so.
Id. Ms. Vigue contends that even though she ...