United States District Court, E.D. Tennessee, Knoxville
JODI CHESHIRE, as next friend for V.C., her minor daughter, Plaintiff,
RAY LINCOLN HEAD, II, Defendant.
MEMORANDUM AND ORDER
C. Poplin United States Magistrate Judge
case is before the undersigned pursuant to 28 U.S.C. §
636, the Rules of this Court, and Standing Order 13-02.
before the Court is a Motion to Strike Answer of Defendant
Ray Lincoln Head II as Inadequate [Doc. 39]. Defendant did
not respond to Plaintiff's Motion, and the time for doing
so has expired. The Court, however, has considered
Plaintiff's request and finds the request not well taken.
Accordingly, for the reasons further explained below,
Plaintiff's Motion [Doc. 39] is
POSITIONS OF THE PARTIES
Motion, Plaintiff states that she filed her Amended Complaint
on October 17, 2016, and that the Amended Complaint contains
fifty-three (53) enumerated paragraphs of allegations and
includes two distinct causes of action. Plaintiff submits
that Defendant filed his Answer to the Amended Complaint on
November 7, 2016, and that Defendant's entire response to
the allegations of the Amended Complaint states as follows:
“I, Ray Lincoln Head II, plead not guilty to the
allegations set against me in, United States District Court,
Eastern District of Tennessee, No.
3:16-CV-539-JRG-CCS.” Plaintiff argues that Defendant
Head's Answer amounts to a general denial and that he
cannot in good faith deny many of the allegations in the
Amended Complaint. Plaintiff requests that the Court strike
Defendant's Answer as inadequate and allow her to request
a default judgment against Defendant.
did not file a response to the Motion.
initial matter, and as noted above, the Court observes that
Defendant has not responded to the instant Motion, and the
time for doing so has expired. See E.D. Tenn. L.R.
7.2 (“Failure to respond to a motion may be deemed a
waiver of any opposition to the relief
the lack of opposition, however, the Court finds
Plaintiff's requests to strike Defendant's Answer and
allow her to seek a default judgment not well taken. First,
Plaintiff acknowledges that pursuant to Federal Rule of Civil
Procedure 8, a defendant is permitted to file a general
denial. The Court is mindful that Defendant is proceeding pro
se and that a “pro se pleading must be construed
liberally and ‘held to less stringent standards than
formal pleadings drafted by lawyers.'” Felts v.
Cleveland Hous. Auth., 821 F.Supp.2d 968, 970 (E.D.
Tenn. 2011) (quoting Erickson v. Pardus, 551 U.S.
89, 94 (2007)) (other citations omitted). In addition, the
Court observes that Plaintiff's Motion was filed
approximately fourteen months after Defendant filed his
Answer. See Fed. R. Civ. P. 12(f) (explaining that a
court may strike from a pleading an insufficient defense on a
motion made by a party within 21 days after being served with
the pleading). Plaintiff fails to explain why she waited over
a year to file the instant request.
Court further finds Plaintiffs request to allow her to seek a
default judgment against Defendant Head unwarranted. See
United Coin Meter Co., Inc. v. Seaboard Coastline RR,
705 F.2d 839, 845 (6th Cir. 1983) (explaining that
“[j]udgment by default is a drastic step which should
be resorted to only in the most extreme cases”). The
Court notes that Plaintiff offers no explanation or legal
support for her request to seek a default judgment against
Defendant. Further, although Plaintiffs Motion is unclear as
to how she intends to seek a default judgment, the Court
observes that the Clerk has not entered an entry of default
against Defendant Head, which “is a prerequisite to
entry of a default judgment under [Federal Rule of Civil
Procedure] Rule 55(b).” See Ramada Franchise Sys.,
Inc. v. Baroda Enterprises, LLC, 220 F.R.D. 303, 305
(N.D. Ohio 2004) (citing Systems Indus., Inc. v.
Han, 105 F.R.D. 72, 74 (E.D. Pa. 1985)). Pursuant to
Rule 55(a), “When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party's default.” To the
contrary, Plaintiff acknowledges Defendant filed an Answer,
and it appears Defendant has also responded to discovery.
[Doc. 18 at 3]. Accordingly, the Court finds Plaintiffs
request not well taken.
for the reasons explained above, the Court
DENIES Plaintiffs Motion to Strike Answer of
Defendant Ray Lincoln Head II as Inadequate [Doc.