June 21, 2013
Beth Pletsky, Plaintiff,
ROBERT GUERRIERI in his individual and official capacities & JOHN DOES, 1-6 In their individual and official capacities JANE DOES, 1-4) In their individual and official capacities Defendants.
PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT; EXHIBITS A & B
SHARON JOHNSON COLEMAN, District Judge.
PLAINTIFF'S REQUEST FOR ENTRY OF DEFAULT
COMES NOW, Plaintiff Beth Pletsky by and through her attorneys of record, who hereby moves this honorable Court to grant the default against the named and known Defendants and each of them who being duly served upon them and/or their duly appointed designees, have willfully failed and refused to answer and/or defend against this instant action.
1. Plaintiff is Beth Pletsky; known Defendants are ROBERT GUERRIERI in his individual capacity and in his official capacity.
2. Plaintiff sued the defendants for 42 U.S.C. § 1983 (Civil Action for Deprivation of Rights) as well as a state tort variety.
3. On April 1, 2013, plaintiff filed the complaint with the Court. On April 13, 2013, defendant Robert Guerrieri was served with a summons and a copy of plaintiff's complaint by certified mail, return receipt requested, and on May 31, 2013, by personal service. A copy of the return of services are attached as Exhibit A and B. Defendant did not file a responsive pleading or otherwise defend the suit.
B. MEMORANDUM; DEFENDANTS A RE REFUSING TO ANSWER OR OTHERWISE DEFEND SUIT
4. A court may render a default judgment against a party who has not filed a responsive pleading or otherwise defended the suit. See Fed.R.Civ.P. 55(a), (b)(2); United States v. $23, 000 in U.S. Currency, 356 F.3d 157, 163-64 (1st Cir. 2004).Court is empowered to enter default judgment against defendant who fails to defend its case. Flynn v. Williams Masonry, D.D.C.2005 , 233 F.R.D. 176.
5. In the instant case the Defendants have not filed a responsive pleading within 21 days after the complaint was served personally on May 31, 2013, the latest date of service. Fed.R.Civ.P. 12(a)(1)(A)(i). See a true and correct copy of the summons and complaint are fully incorporated herein and attached hereto as Exhibits A and B.
6. Although a default judgment is a severe sanction, the status of this case ensures it is proper for a default judgment against the Defendants. Also it should be noted that the extreme sanction of judgment by default, although most severe, is within the discretion of the trial judge. Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 614 (2d Cir. 1964); Gill v. Stolow, 240 F.2d 669, 670 (2d Cir. 1957); 8 C. Wright & A. Miller, Federal Practice & Procedure § 2284 (1970).
7. Plaintiff also certifies that the Defendants are not infants and/or incompetent persons.
Wherefore, because of the foregoing and based on the attachments to this memorandum the Court should grant this default against the Defendants because they refuse to answer, respond or otherwise defend this suit.
DECLARATION UNDER PENALTY OF PERJURY
I am one of the attorneys for Plaintiff in the instant case, Beth Pletsky v. ROBERT GUERRIERI et al, case no 1:13-cv-2398.
Attached hereto are true and correct copies of the Summons, and proof of service therefore, Exhibits A and B.
In the instant case the Defendants have not filed a responsive pleading within 21 days after the complaint was served upon them.
I am aware of no reply whatsoever by the Defendants.
I declare under penalty of perjury that all of the foregoing is true and correct to the best my knowledge.