United States District Court, D. Maine
ORDER ON MOTION FOR ORDER TO ANSWER AND MOTION FOR
DEFAULT JUDGMENT
JOHN
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
The
Court dismisses a plaintiff's motion for order to answer
and motion for default judgment because by filing a motion to
strike and/or dismiss under Federal Rule of Civil Procedure
12, the time within which the United States must answer is
extended to fourteen days after the Court issues an order on
the motion to dismiss and because the United States has
signaled a clear intention to defend itself against this
civil action.
I.
BACKGROUND
On May
18, 2018, John S. Barth filed a thirty-two page complaint
pursuant to 42 U.S.C. § 1983 against the United States
of America, alleging that the United States violated his
civil rights. Compl. (ECF No. 1). On June 5, 2018,
Assistant United States Attorney James Concannon entered his
appearance on behalf of the United States. Notice of
Appearance (ECF No. 4). On July 23, 2018, the United
States filed a motion to strike complaint or to dismiss.
Def. United States of Am.'s Mot. to Strike
Pl.'s Compl. in Toto under Rule 12(f) or, in the
Alternative, to Dismiss under Rule 8(A)(2) and (D)(1)
(ECF No. 5) (Def.'s Mot.). On July 27, 2018, Mr.
Barth filed a response to the United States' motion and
moved to obtain an order requiring the United States to
answer the complaint. Opp'n to Def. Mot. with Mot. to
Order Answer (ECF No. 6). On August 10, 2018, the United
States filed a reply to Mr. Barth's response. Def.
United States of Am.'s Reply in Support of Mot. to Strike
Pl.'s Compl. in Toto under Rule 12(f) or, in the
Alternative, to Dismiss under Rules 8(A)(2) and (D)(1)
(ECF No. 8).
On
August 22, 2018, Mr. Barth filed a motion for judgment in
default against the United States. Mot. for J. in
Default (ECF No. 9). On September 7, 2018, the United
States filed a response to the motion for default judgment.
Def. United States of Am.'s Resp. to Pl.'s Mot.
for Default J. (ECF No. 13). On September 9, 2018, Mr.
Barth filed a reply to the United States' response.
II.
DISCUSSION
In this
Order, the Court addresses only Mr. Barth's motion for
order to answer and his motion for default judgment. The
Court will separately address the merits of the United
States' motion to strike or dismiss.
Mr.
Barth's motions are not proper under the Federal Rules of
Civil Procedure. Under Rule 12(a)(2), the United States is
generally required to serve an answer to a complaint within
sixty days after service on the United States attorney.
Fed.R.Civ.P. 12(a)(2). However, on July 23, 2018, the United
States filed a motion to strike and to dismiss under Rule 12.
Def.'s Mot. Rule 12(a)(4) expressly provides:
Unless the court sets a different time or postpones its
disposition until trial, the responsive pleading must be
served within 14 days after notice of the court's action.
Fed. R. Civ. P. 12(a)(4). This Rule clarifies that, once the
United States filed a Rule 12 motion, the period within which
the United States was required to file an answer was tolled
until fourteen days after the Court rules on its motion. For
this reason, neither Mr. Barth's motion for order to
answer nor his motion for default judgment is meritorious.
Mr.
Barth's motion for default judgment is not warranted for
a separate reason. An entry of default under Federal Rule of
Civil Procedure 55(a) is only proper if the party against
whom it is sought “has failed to plead or otherwise
defend.” Fed.R.Civ.P. 55(a). Under modern procedure,
“defaults are not favored by the law and any doubts
usually will be resolved in favor of the defaulting
party.” 10A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2681, at
10 (3d ed. 1998). As the Court of Appeals for the First
Circuit has written, “[d]efault is strong medicine and
should be prescribed only in egregious cases.”
Hooper-Haas v. Ziegler Holdings, LLC, 690 F.3d 34,
37-38 (1st Cir. 2012) (citations omitted). Indeed, the rule
in the First Circuit is that “a defaulting party
‘has appeared' for Rule 55 purposes if it has
‘indicated to the moving party a clear purpose to
defend the suit.'” Key Bank of Maine v.
Tablecloth Textile Co., 74 F.3d 349, 353 (1st Cir. 1996)
(quoting Muniz v. Vidal, 739 F.2d 699, 700 (1st Cir.
1984)). In this case, by its attorney's entry of
appearance and by filing its motion, the United States has
“indicated to [Mr. Barth] a clear purpose to defend the
suit.” Mr. Barth is not allowed under the rules to
force the United States to answer his complaint before the
Court rules on its motion to dismiss and he is not entitled
to a default judgment on a case the United States has
indicated a clear purpose to defend.
III.
CONCLUSION
The
Court DISMISSES Plaintiff John S. Barth's Motion for
Order to Answer (ECF No. 7) and his Motion for ...