The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge
Chief District Judge Curtis L. Collier
Before the Court is plaintiffs Rodolfo Reyes's and Sandra Reyes's (collectively "Plaintiffs'") First Motion for Entry of Default (Court File No. 16). Defendants Seaton Enterprises, L.L.C. ("Seaton Enterprises") and David Russel Seaton ("Seaton") filed a Motion to Dismiss in response (Court File No. 19). Defendants Anthony Crady ("Crady") and Kristie Marvin ("Marvin") also filed a Motion to Dismiss (Court File No. 21). Plaintiffs filed a motion asking the Court to dismiss all Defendants' time barred pleadings and waived motions (Court File No. 23). Defendants filed a reply to the Motion for Entry of Default (Court File No. 31), and Plaintiffs responded (Court File No. 33). Defendant Crady then filed a Motion to Strike the Declaration of George T. Underwood (Court File No. 36), which Plaintiffs had attached to their motion for entry of default. Crady filed a First Motion to Set Aside Request of Clerk for Entry of Default (Court File No. 37). Plaintiffs then filed a Motion to strike this motion to "set aside" Plaintiffs' motion for entry of default (Court File No. 38), along with what might be described as an omnibus Response in Opposition to Defendants Motions (Court File No. 39). Defendants then filed an additional response to the Motion for Default Judgment (Court File No. 41). Plaintiffs then filed a reply to Defendants' Response to Plaintiff's Motion for Entry of Default (Court File No. 42). Defendants then filed their First Motion to Dismiss Plaintiffs' Amended Complaint (Court File No. 43). Defendants also filed a motion asking for a hearing in this matter (Court File No. 44).
The facts underlying Plaintiffs' claim may be very briefly summarized as they are not complicated. Plaintiffs allege the following:
Seaton and Crady, employees of Seaton Enterprises, lured Rudolfo Reyes to a maintenance shop building owned by Seaton Enterprises on June 2, 2007 (Court File No. 8, "Amended Complaint" ¶¶ 9, 16). Seaton and Crady told Rudolfo Reyes he was needed to do work for Seaton Enterprises (Amended Complaint ¶ 10). During the drive to the location, Crady and Seaton started using racial slurs (Amended Complaint ¶ 13, 14). After they arrived at the shop building, Crady and Seaton held a hushed conference, which Rudolfo Reyes could not hear (Amended Complaint ¶ 19). Eventually, Seaton struck Rudolfo Reyes from behind, and Crady and Seaton continued to beat Rudolfo Reyes while calling him a racial epithet (Amended Complaint ¶ 24). After Seaton and Crady finished, Seaton pulled out a gun and held it inches away from his head (Amended Complaint ¶ 27).
After Defendants Seaton and Crady left, Rudolfo Reyes was able, with the help of "Good Samaritans" to contact the police and to eventually get to a hospital (Amended Complaint ¶ 32). Finally, Crady and Marvin then went to the Good Samaritans' home and told them they 'did not see anything.' (Amended Complaint ¶ 32).
II. PLAINTIFFS' MOTION FOR DEFAULT
Plaintiffs filed this action on August 13, 2007 (Court File No. 1). According to the filings, Plaintiffs served the various Defendants on either August 14 or 15 (Court File Nos. 2-4). On September 4, Defendants moved for an extension of time to file an answer to the complaint (Court File No. 10). Plaintiffs filed an Amended Complaint on September 6, 2007. The magistrate judge granted Defendants motion for an extension of time to respond, and Defendants had "an extension of fifteen (15) days within which to respond to plaintiffs' complaint." (Court File No. 11). Plaintiffs filed a Motion for Entry of Default on September 21 (Court File No. 16). Defendants filed their motions to dismiss on September 26 (Court File Nos. 19, 21). Plaintiffs' Motion for Entry of Default will be DENIED for two reasons. First, Defendants timely filed their motions to dismiss. Second, even if Defendants' motions were not timely this Court would vacate entry of default on these facts.
"When a party against whom a judgment or affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Fed. R. Civ. P 55(a). "A default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party. In that instance, the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights." 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2681 (3d ed. 1998) (citing H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C.Cir 1970)). "Under modern procedure, defaults are not favored by the law and any doubts usually will be resolved in favor of the defaulting party." Id.
B. Arguments of the Parties
Plaintiffs argue the Court should calculate time as follows: Plaintiffs served Defendants with the Amended Complaint on August 14. From this date Defendants had 20 days to answer the complaint according to Fed. R. Civ. P. 12(a)(1)(A) (Court File No. 16 at 2). Therefore, Defendants had until September 4, 2007 to file an answer. On that day Attorney Charles Pope entered an appearance on behalf of all of the Defendants (Court File No. 6) and moved for an extension of time requesting an additional 15 days to answer the complaint (Court File No. 10). The magistrate judge granted an extension of 15 days to answer (Court File No. 11). Plaintiffs argue the extension counts from the end of the original answer period, and so Defendants had until September 19 to respond to the complaint (Court File No. 16 at 2). Defendants argue the fifteen day extension counts from the date of entry of the order, September 10, and therefore they had until September 26 to answer or otherwise defend (Court File No. 36 at 3). Defendants filed their motions to dismiss on September 26 (Court File Nos. 19, 21).
Defendants Crady and Hurst filed a motion to strike the affidavit of Plaintiffs' counsel George T. Underwood ("Underwood") (Court File Nos. 35-36). Defendants argue Underwood's affidavit states a mistake of time and the extension of time granted by the magistrate should start the day after the order was entered (Court File No. 36 at 3). This computation would yield a filing deadline of September 26 (id.). Defendants also argue the affidavit should be stricken because it states a mistake as to the sum certain of damages.
There are two further responses by Defendants to Plaintiffs Motion for Entry of Default (Court File Nos. 37, 41). Plaintiffs have moved to strike one of these replies as untimely (Court File Nos. 38) and responded to the other reply (Court File No. 42). Defendants have responded in opposition to the motion to strike (Court File No. 54).
This Court need not consider the vast majority of the arguments of the parties as the Court finds Defendants timely filed their motions to dismiss. Plaintiff's timeline is correct, in so far as it goes. Defendants' argument the period of extension should run from the date of the order is without merit. Defendants had an extension of fifteen days by the terms of the magistrate judge's order. Extension implies those days are added onto an existing time limit. Therefore, the days are tacked onto the end of the previous answer period.
However, Plaintiffs incorrectly calculate the end of the previous answer period. When Plaintiffs filed their Amended Complaint on September 6, 2007 the Rules changed the date a response was due. "A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading whichever period may be longer." Fed. R. Civ. P. 15(a). The original answer period was over when Plaintiffs filed their Amended Complaint so Defendants had 10 days from the filing of the Amended Complaint because that was longer than the original answer period. Ten days after September 6 is September 20. Fed R. Civ. P. 6 (Saturdays and Sundays omitted where period is less than 11 days). When the magistrate judge ordered an extension to the answer period the ...