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Moore v. Ngoma

United States District Court, S.D. Illinois

April 11, 2017

DEMETRIUS D. MOORE, Plaintiff,
v.
OFFICER NGOMA and OFFICER SHELLENBERG, Defendants.

          ORDER

          DONALD G. WILKERSON United States Magistrate Judge

         Now 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).

         For the 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).

         Motion for Default

         Plaintiff 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).

         On 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.

         When a 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).

         In any 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 (Doc. 42).

         Motion to Amend

         Federal 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).[1] 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 premature.

         Motion for Recruitment of Counsel

         Finally, 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.

         Conclusion

         For the 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 ...


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