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Lewis v. Kennebec County

United States District Court, D. Maine

May 24, 2017

BRANDEE A. LEWIS, Plaintiff,
v.
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

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The 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.

         I. BACKGROUND

         A. Relevant Procedural History

         On 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.

         Ms. Lewis served Ms. Vigue with the Complaint and a summons on February 26, 2017.[1] 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).

         On 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).

         B. Factual Background

         After 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).

         On 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.

         II. THE PARTIES' POSITIONS

         A. Brandee Lewis' Motion

         Stating 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.

         B. Kim Vigue's Opposition

         In her 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 ...


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