United States District Court, S.D. Illinois
DEMETRIUS D. MOORE, Plaintiff,
OFFICER NGOMA and OFFICER SHELLENBERG, Defendants.
G. WILKERSON United States Magistrate Judge
pending before the Court are the Motion for Default Judgment
filed by Plaintiff, Demetrius D. Moore, on February 16, 2017
(Doc. 33), the Motion for Leave to File Motion to Dismiss out
of time filed by Defendants, Ngoma and Shellenberg, on
February 23, 2017 (Doc. 35), the Motion for Entry of Default
filed by Plaintiff on February 23, 2017 (Doc. 37), the Motion
to Strike Motion for Leave to File filed by Plaintiff on
March 6, 2017 (Doc. 42), the Motion for Appointment of
Counsel filed by Plaintiff on March 6, 2017 (Doc. 43), the
Motion for Leave to File Amended Complaint filed by Plaintiff
on March 6, 2017 (Doc. 44), the Motion To Dismiss filed by
Defendants on March 21, 2017 (Doc. 49), and the Motion to
Strike filed by Plaintiff on March 28, 2017 (Doc. 53).
reasons set forth below, the Motion Default Judgment is MOOT
and the Motion for Entry of Default is DENIED (Docs. 33 and
37), the Motion for Leave to File Motion to Dismiss out of
time is GRANTED (Doc. 35), the Motion to Strike Motion for
Leave to File is DENIED (Doc. 42), the Motion for Recruitment
of Counsel is DENIED WITHOUT PREJUDICE (Doc. 43), the Motion
for Leave to File Amended Complaint is DENIED WITHOUT
PREJUDICE (Doc. 44), the Motion to Dismiss is MOOT (Doc. 49),
and the Motion to Strike is MOOT (Doc. 53).
filed a 42 U.S.C. § 1983 complaint on July 18, 2016
alleging that Defendants, police officers employed by Venice
Police Department, violated his constitutional rights around
July 5, 2013 (Doc. 1). Plaintiff claims that they arrested
him without a warrant, used excessive force, failed to
provide medical care, and searched him home without a
warrant. On September 13, 2016, after screening
Plaintiff's complaint pursuant to 28 U.S.C. § 1915A,
the Court permitted Plaintiff to proceed on the four counts
related to his arrest and waivers of service of process were
issued by the Clerk of Court the next day (Docs. 10, 11, and
12). The Waivers were due by October 14, 2016 but were not
filed (Doc. 25). Therefore, according to the September 13,
2016 Order, formal service would be initiated by the Clerk.
In the meantime, Plaintiff had sought default judgment, which
was denied (Doc. 25). On December 30, 2016, summonses were
issued and on January 19, 2017 they were returned as
executed. (Docs. 31 and 32). Responsive pleadings were thus
due on February 9, 2017. No responsive pleadings were filed
by the deadline and Plaintiff now seeks both default and
default judgment (Docs. 33 and 37).
February 23, 2017, however, Defendants entered an appearance
and sought leave to file a motion to dismiss (on statute of
limitations grounds) out of time (Doc. 35). Defendants state
that they were formerly employed by the City of Venice and
that they requested counsel from the City which they
reasonably believed would be provided. Counsel, however, was
not formally retained until February 21, 2017, two days prior
to filing the motion.
Defendant fails to plead or defend an action, “and that
failure is shown by affidavit or otherwise, the Clerk
“must enter the party's default.”
Fed.R.Civ.P. 55(a). Thereafter, default judgment must be
entered by the Clerk if the Plaintiff's claim is for a
sum certain and is shown by affidavit or the Court may enter
default judgment upon motion. The entry of default comes
first, default judgment comes second where appropriate.
See Lowe v. McGraw-Hill Companies, Inc., 361 F.3d
335, 339 (7th Cir. 2004). Plaintiff sought default judgment
prematurely, prior to the entry of default and did not submit
the necessary affidavit (Doc. 33). Therefore, the Motion (for
“Judgement [sic] by Default”) is MOOT as untimely
(Doc. 33). After Defendants appeared, Plaintiff submitted a
“Letter to the District Court Circuit Clerk”
ostensibly seeking entry of default. This request of entry of
default came too late - Defendants had already entered an
appearance, thus “otherwise defend[ing] this
action.” The motion also did not contain an affidavit.
This motion is DENIED (Doc. 37).
event, the Seventh Circuit Court of Appeals “has a
well-established policy favoring a trial on the merits over a
default judgment.” Sun v. Board of Trustees of
University of IL, 473 F.3d 799, 811 (7th Cir. 2007).
Plaintiff has not shown any prejudice to permitting
Defendants the opportunity to participate in this lawsuit.
Defendants seek to file a motion to dismiss on statute of
limitations grounds. Plaintiff responded on the merits (Doc.
38) and also argues that because Defendants failed to timely
plead, their motion should be denied (Doc. 41). Plaintiff is
not completely off-base: generally affirmative defenses (like
a statute of limitations defense) must be pled first and then
proved up. However, “if it is plain from the complaint
that the defense is indeed a bar to the suit dismissal is
proper without further pleading.” Jay E. Hayden
Foundation v. First Neighbor Bank, N.A., 610 f.3d 382,
383 (7th Cir. 2010). Therefore, Defendants' Motion for
Leave to File Motion to Dismiss out of time GRANTED (Doc. 35)
and Plaintiff's Motion to Strike is accordingly DENIED
Rule of Civil Procedure 15 provides that leave to amend
should be freely given when justice so requires but may be
denied if there is undue delay, futility, or prejudice.
Life Plans, Inc. v. Security Life of Denver Ins.
Co., 800 F.3d 343, 357-358 (7th Cir. 2015). A complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Plaintiff's proposed amended
complaint generally complies with Rule 8; however, he has not
signed the pleading as required by Federal Rule of Civil
Procedure 11(a). See Boriboune v. Berge, 391 F.3d
852, 854-855 (7th Cir. 2004). The Motion is accordingly
DENIED WITHOUT PREJUDICE (Doc. 44). In turn, Defendants'
Motion to Dismiss is MOOT (Doc. 49), and Plaintiff's
Motion to Strike is also MOOT (Doc. 53). No amended complaint
has been filed; therefore, the motions (Docs. 49 and 53) are
for Recruitment of Counsel
Plaintiff seeks counsel. Plaintiff's Motion is DENIED
WITHOUT PREJUDICE (Doc. 43). Plaintiff has not used the form
that is typically filled out by pro se parties
seeking counsel. In order to properly evaluate his request,
Plaintiff is DIRECTED to fill out the form “Motion for
Recruitment of Counsel” that is being provided along
with this Order and to submit it to the Clerk for filing.
foregoing reasons, the Motion Default Judgment is MOOT and
the Motion for Entry of Default is DENIED (Docs. 33 and 37),
the Motion for Leave to File Motion to Dismiss out of time is
GRANTED (Doc. 35), the Motion to Strike Motion for Leave to
File is DENIED (Doc. 42), the Motion for Recruitment of
Counsel is DENIED WITHOUT PREJUDICE (Doc. 43), the Motion for
Leave to File Amended Complaint is DENIED ...