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Pole v. Nault

United States District Court, D. Montana, Great Falls Division

January 31, 2018

LESLIE YOUNG LODGE POLE, Plaintiff,
v.
EMERY NAULT, LENORA MEYERS-NAULT, and GLORIA LITTLE, Defendants.

          FINDINGS AND RECOMMENDATION ON DEFENDANT'S MOTION DEFAULT

          JOHN JOHNSTON, UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         On October 14, 2016, Pro Se Plaintiff Leslie Young Lodge Pole (“Mr. Lodge Pole”) filed a Complaint and a Motion for Leave to Proceed In Forma Pauperis. (Docs. 1 and 2). The Court granted Mr. Lodge Pole leave to proceed in forma pauperis and conducted a sua sponte screening of Mr. Lodge Pole's Complaint pursuant to 28 U.S.C. § 1915. (Doc. 6). Mr. Lodge Pole was granted leave to file an Amended Complaint on or before December 1, 2016. (Id. at 6-7). On February 23, 2017, Mr. Lodge Pole filed his Amended Complaint asserting federal question jurisdiction. (Doc. 9 at 5). The Complaint against Pro Se Defendants Emery Nault, Lenore Meyers-Nault, LCPC, LAC, and Gloria Little, LAC, alleged wrongful termination, “Sexual Harassments/Sexual Suggestive Overtones, ” defamation, and religious discrimination. (Id. at 7).

         On September 19, United States District Judge Brian Morris issued an Order stating that Mr. Lodge Pole had not provided the Court with a return of service on Defendants in accordance with Fed.R.Civ.P. 4(m). (Doc. 10). Judge Morris ordered that Mr. Lodge Pole file proof of service of Summons and Complaint on Defendants on or before October 19, 2017. (Id. at 1-2). On October 20, 2017, Mr. Lodge Pole filed notice that Defendant Lenore Meyers-Nault (“Ms. Meyers-Nault”) was served on October 19, 2017, and that Defendants Emery Nault (“Mr. Nault”) and Gloria Little (“Ms. Little”) were served on October 20, 2017. (Docs. 12, 13, and 14). Accordingly, Ms. Meyers-Nault's Answer was due on November 9, 2017, and the others' on November 10, 2017.

         On November 22, 2017, Mr. Lodge Pole filed a Motion for Entry of Default Judgment against Defendants “pursuant to Fed.R.Civ.P. 55(a), ” stating that Defendants had not filed an appearance with the Court. (Doc. 15). Mr. Lodge Pole's Motion, however, did not indicate that he had contacted Defendants and stated whether the motion was opposed, was filed without a certificate of service, and the accompanying affidavit was not notarized. (See Doc. 17). On December 5, 2017, Mr. Lodge Pole filed an Amended Motion for Entry of Default which stated that he had contacted the other parties and that they did not object to the motion. (Doc. 18).

         On December 7, 2017, Defendants, now represented by counsel, filed their Answer to Mr. Lodge Pole's Amended Complaint. (Doc. 20). That same day, Mr. Lodge Pole filed a Second Amended Motion for Entry of Default, which was identical in substance to his original Amended Motion. (Doc. 21; see Doc. 18). On December 12, 2017, Defendants filed a Response to Mr. Lodge Pole's original Amended Motion for Entry of Default. (Doc. 22). Mr. Lodge Pole has not filed a Reply brief in support of his Motion. Therefore, the issue has been fully briefed and is ripe for adjudication.

         II. LEGAL STANDARD

         “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.” Fed.R.Civ.P. 55(a). Once default has been entered, the non-defaulting party may seek a default judgment, either to the Clerk of Court if the claim is for a sum certain, or to the Court in all other cases. Fed.R.Civ.P. 55(b). The Court may also set aside an entry of default for good cause. Fed.R.Civ.P. 55(c). In determining whether good cause exists, a court may consider “(1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of defendant led to the default.” Brandt v. Am. Bankers Ins. Co. of Florida, 653 F.3d 1108, 1111 (9th Cir. 2011) (quoting Falk v. Allen, 739 F.2d 461, 463).[1] “Any doubts about whether relief should be granted should be resolved in favor of setting aside the default so that the case may be heard on the merits.” Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir. 1969) (citing Hutton v. Fisher, 359 F.2d 913, 916 (3d Cir. 1966)).

         III. Analysis

         1. Default

         Mr. Lodge Pole sought an entry of default on November 22, 2017. (Doc. 15). The Clerk of Court, therefore, was required to enter notice of Defendants' default. Fed.R.Civ.P. 55(a) (“the clerk must enter the party's default”). No such notice was filed in this case. However, “[a] defendant who fails to [file a responsive pleading] within the time specified by the rules is in default even if that fact is not officially noted.” Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, vol. 10A, § 2692 (4th ed. 2017). Therefore, the Court finds that Defendants are in default as of November 10, 2017.

         It appears to the Court that Mr. Lodge Pole is seeking “default judgment” under Rule 55(b), despite being stylized as an Amended Motion for Entry of Default pursuant to Rule 55(a). (See Docs. 18 and 21). As illustrated in Section I above, this case has a complicated procedural history. Mr. Lodge Pole's motions seem to confuse an entry of “default” with an entry of “default judgment, ” as evidenced by his motion for “default judgment” under Rule 55(a) instead of 55(b). Pro se pleadings are to be liberally construed so as to do justice, particularly “where highly technical requirements are involved.” U.S. v. Ten Thousand Dollars ($10, 000) in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir. 1988) (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984)). Therefore, the Court will construe Mr. Lodge Pole's Amended Motion for Entry of Default as a motion for entry of default judgment.

         As stated, the Clerk of Court was required to enter Defendants' default as of November 10, 2017. Because they are already in default, Defendants' Brief in Opposition to Plaintiff's Motions for Entry of Default (Doc. 22) should instead be a motion to set aside default pursuant to Rule 55(c). As the Fourth Circuit noted, citing cases from the Second, Third, Sixth, Ninth, and Tenth Circuits, “[i]t has been held in an extensive line of decisions that Rules 55(c) and 60(b) are to be liberally construed in order to provide relief from the onerous consequences of defaults and default judgments.” Tolson, 411 F.2d at 130 (listing cases). Given the confusion described above, the Court shall construe Defendants' Brief in Opposition as a motion to set aside default under Rule 55(c).

         2. Motion to ...


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