United States District Court, C.D. Illinois, Rock Island Division
SARA DARROW, District Judge.
Before the Court are Defendant Tim Lowe's Motion to Dismiss, ECF No. 79, and Plaintiff Aimee Hankins's Objections, ECF No. 86, to Magistrate Judge John A. Gorman's Order of June 3, 2013, which denied Plaintiff's Motion for Entry of Default, ECF No. 74, against Defendant Lowe. For the following reasons, the Magistrate Judge's Order, ECF No. 78, is AFFIRMED, and Defendant Lowe's Motion to Dismiss, ECF No. 79, is GRANTED.
Hankins was released from prison on March 2, 2007, and placed on probation in Sharp County, Arkansas. She was transferred multiple times, and in 2009, following a request to be placed closer to her children, ended up in Mercer County, Illinois, under the supervision of Officer Lowe. Compl. ¶¶ 25-34, ECF No. 1. While in Illinois, Hankins questioned the termination date of her probation on several occasions. Id. at ¶ 36. Lowe allegedly told her that her termination date was determined by Arkansas officials, and when she repeatedly requested copies of her records, was told that her Sharp County Probation Officer, Dennis Burton, indicated he "would consider such a request to be a probation violation and use it to throw [Hankins] back in prison." Id. at ¶ 36. According to Hankins, she remained on probation until at least February 10, 2011, when Lowe gave her a document she claims indicated her probation actually ended in early 2010. Id. at ¶ 45. Hankins claims she was wrongfully kept on probation during the interim in violation of her civil rights. Id. at ¶ 49.
On June 22, 2011, Hankins sued three states, four state agencies, and several individual governmental employees, alleging claims under 42 U.S.C. § 1983 as well as intentional and negligent infliction of emotional distress arising from the extension of her probation. Id. at ¶¶ 67-105. The Court exercised jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), and 1367(a). On August 3, 2012, the Court dismissed all counts against all defendants except for Lowe, who had not yet been served. Order of Aug. 3, 2012, ECF No. 65. Lowe was finally served on or about October 28, 2012. Def.'s Resp. Obj. 1, ECF No. 87. Because Lowe is an Illinois Department of Corrections employee, he sent a request for legal representation in this matter to the Department's Office of the Chief Counsel. Def.'s Resp. Mot. Entry Default 2, ECF No. 72. The Department received his request on or about November 2, 2012, but did not forward it to the Office of the Attorney General until May 7, 2013. Lowe received state counsel the following day. Id.
Hankins moved for entry of default against Lowe on May 2, 2013. Pl.'s Mot. Entry Default, ECF No. 74. On May 15, 2013, Lowe responded to Hankins's motion for entry of default, ECF No. 72, and moved for an extension of time to answer Hankins's complaint, ECF No. 73. Finding that Lowe was technically in default but had demonstrated good cause for his lengthy silence, Judge Gorman entered an Order on June 3, 2013, ECF No. 78, denying Hankins's Motion for Entry of Default and granting Lowe leave to file a motion to dismiss. Hankins moved for reconsideration of her motion for entry of default, ECF No. 84, which Judge Gorman denied. Hankins lodged her Objection to the magistrate's determination, ECF No. 86. Now before the Court are: (1) Hankins's Objection to Judge Gorman's Order denying entry of default, ECF No. 86, and (2) Lowe's Motion to Dismiss, ECF No. 79.
I. Objection to Magistrate's Order
A. Legal Standard
The Court will uphold a magistrate judge's ruling on a nondispositive pretrial matter unless clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). A defendant must serve an answer within 21 days of being served with a summons and complaint unless service has been waived. Fed.R.Civ.P. 12(a)(1)(A). Rule 55 provides for entry of default "when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend...." Fed.R.Civ.P. 55(a). Entry of default is only justified "if the defaulting party has exhibited a willful refusal to litigate the case properly." Davis v. Hutchins , 321 F.3d 641, 646 (7th Cir. 2003) (citation omitted). Such willfulness manifests itself as a "continuing disregard for the litigation or for the procedures of the court." Id. (citation omitted).
Hankins objects to Judge Gorman's denial of entry of default on the grounds that Lowe offered no reasonable explanation for his delayed appearance. Pl.'s Obj. 1, ECF 85. Lowe responds that he did not anticipate his employer's failure to timely lodge his request with the Attorney General. Def.'s Resp. Obj. 3, ECF No. 87. He attributes his delay in appearing at least somewhat to the fact that, because Hankins originally erroneously identified Lowe as a Mercer County and not Illinois State employee, see Compl. ¶ 16, and Mercer County had previously appeared by private counsel, there was no reason for the Illinois Attorney General to anticipate Lowe's request. Def.'s Resp. Obj. 3. Within eight days of receiving state counsel, Lowe had responded to Hankins's motion for entry of default, and had moved for more time to answer her complaint.
Judge Gorman noted that, by not responding or otherwise appearing following service of Hankins's complaint for over six months, Lowe missed the Rule 12 answer deadline. However, Judge Gorman found that Lowe's explanation for the delay justified denying the motion for entry of default. Order 1-2, ECF No. 78.
Hankins casts Lowe's delay as "a bad faith attempt to give law enforcement another opportunity to arrest Plaintiff..., to destroy or further manipulate evidence, allow evidence to grow stale, or see if Plaintiff was going to pursue the case." Pl.'s Obj. 4. Hankins, however, offers not a shred of evidence in support of this theory. Lowe's delay represents at worst excusable neglect. There is no evidence of bad faith on his part, and most if not all of the delay was caused by actors over whom he had no control. Further, he immediately participated in this Court's proceedings upon finally receiving legal counsel. Lowe's actions do not manifest a "willful refusal to litigate the case ...