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Neuman v. United States

July 31, 2008

JAMES NEUMAN, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

On March 14, 2007, Neuman filed suit in Illinois state court alleging violations of his civil rights by a variety of federal and state defendants, including the Office of the Attorney General of the State of Illinois, and Karen McNaught, an Assistant Attorney General. In his complaint, Neuman requests declaratory relief, injunctive relief, and monetary damages. The federal defendants removed the case to federal court in the Central District of Illinois on May 1, 2007. Because several defendants were employed in the Central District of Illinois, including a district judge, all judges in that district recused themselves, and the case was transferred to the Southern District of Illinois on May 17, 2007. The undersigned District Judge was then randomly assigned to the case.

On January 7, 2008, the Court dismissed all claims against McNaught without prejudice (Doc. 151). Having been given leave of the Court to do so, Neuman has filed an amended complaint wherein he attempts to cure some of the defects that existed in his original complaint, again naming McNaught as a defendant (Doc. 214). This most recent amended complaint was filed on March 2, 2008.

Prior to filing his amended complaint, Neuman moved for default judgment against both McNaught and the Office of the Attorney General (Doc. 202).

FEDERAL RULE OF CIVIL PROCEDURE 55 provides the proper procedure for obtaining a default judgment. Rule 55(a) requires that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Once default is entered, a party may seek default judgment under Rule 55(b).

Neuman has not moved for entry of default at this juncture, but rather attempts to proceed straight to the default judgment phase. Procedurally, this is improper. Only after default is entered under Rule 55(a) may a party move for default judgment under Rule 55(b). Accordingly, Neuman's motion for default judgment must be DENIED.

However, even if the Court construed Neuman's motion as one for entry of default, it would be futile. The Court may set aside default for good cause under Rule 55(c). See Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 385--86 (7th Cir. 2008) (stating that for good cause shown, a district court may set aside an entry of default sua sponte). Under the circumstances of the case and the Office of the Attorney General's submissions, good cause exists to set aside any such entry of default, and default judgment would be denied.

The relevant facts related to Neuman's motion are as follows. Neuman sent both defendants a waiver of service on April 9, 2007 (Doc. 166-2). Despite having filed his complaint in Illinois state court, Neuman sent a waiver to each defendant modeled on FEDERAL RULE OF CIVIL PROCEDURE 4, relating the relevant deadlines and potential consequences under the FEDERAL RULES.*fn1 On May 1, 2007, just prior to the execution of defendants' waivers, the United States removed the litigation to federal court (See Doc. 2). McNaught and the Office of the Attorney General signed and returned their waivers on May 4, 2007 (Doc. 166-2).

Because the case was pending in Illinois state court and was removed before McNaught or the Office of the Attorney General had answered, however, the relevant time period for answering is not provided by either Rule 4 or 735 ILCS 5/2-213. Rather, Rule 81(c) governs this issue, and provides as follows:

A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest of these periods:

(A) 20 days after receiving-through service or otherwise-a copy of the initial pleading stating the claim for relief.

(B) 20 days after being served with the summons for an initial pleading on file at the time of service; or

(C) 5 days after the notice of removal is filed.

Thus, under the longest of the applicable period, defendants had twenty days from receiving a copy of the complaint in which to file an answer. The Court is uncertain as to when defendants received the complaint, but it is clear that it was no later than May 4, 2007. Counting from that ...


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