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Stewart v. Timeout Foods, LLC

United States District Court, D. Nebraska

December 2, 2016

ANNIE STEWART, Plaintiff,
v.
TIMEOUT FOODS, LLC, STEVEN MERCER, JOHN DOES 1 and 2, INCLUSIVE, Defendants.

          MEMORANDUM AND ORDER

          LYLE E. STROM, Senior Judge.

         This matter is before the Court on two motions. The plaintiff, Annie Stewart (hereinafter “plaintiff” or “Stewart”), has moved for default judgment under Federal Rule of Civil Procedure 55(b)(2) (Filing No. 9). The defendants, Timeout Foods, LLC, Steven Mercer, and John Does 1 and 2, inclusive (hereinafter collectively “defendants”) seek leave to file a responsive pleading (Filing No. 12). After review of the motions, the parties' briefs, and the applicable law, the Court finds as follows.

         BACKGROUND

         On October 19, 2015, plaintiff filed a complaint against defendants.[1] See Stewart v. Timeout Foods, LLC et al., 8:15CV382, (the “382 action”) Filing No. 1. The 382 action was assigned to the undersigned. On February 22, 2016, plaintiff moved to dismiss the action without prejudice (Id. at Filing No. 6). On February 26, 2016, the 382 action was dismissed without prejudice.

         On January 26, 2016, prior to plaintiff's motion and the Court's dismissal of the 382 action, plaintiff, for unknown reasons, filed a second complaint identical to the complaint filed in the 382 action.[2] Compare Id. at Filing No. 1 with Stewart v. Timeout Foods, LLC, Steven Mercer, John Doe 1 and 2 Inclusive, 8:16CV46, (the “present action”) Filing No. 1. The present action was originally assigned to the Honorable John M. Gerrard.

         On September 15, 2016, plaintiff moved for default judgment under Federal Rule of Civil Procedure 55(b)(2) (Filing No. 11). On September 29, 2016, defendant filed a brief in opposition to default judgment, moved for leave to file an answer (Filing No. 10) and filed a motion for leave to file a responsive pleading and corresponding brief (Filing Nos. 11 and 12). On October 31, 2016, Chief Judge Laurie Smith Camp issued an order reassigning the case to the undersigned for disposition due to the Court's local rule concerning “related” cases (Filing No. 13). See NEGenR 1.4.

         LAW

         I. Federal Rule of Civil Procedure 12(a)

         Federal Rule of Civil Procedure 12(a) gives a defendant 21 days to file a responsive pleading. Fed.R.Civ.P. 12(a).

         II. Federal Rule of Civil Procedure 55(b)(2)

         Federal Rule of Civil Procedure 55(b)(2) requires a party to “apply to the court for a default judgment.” Fed.R.Civ.P. 55(b)(2). A default judgment is appropriate “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend . . . .” Fed.R.Civ.P. 55(a).

         DISCUSSION

         Plaintiff requests “the Court enter Judgment . . . awarding the relief afforded by the [Americans with Disabilities Act]. In addition, she also seeks her attorney fees, costs, litigation expenses, and expert fees.” (Filing No. 9 at 1-2). Plaintiff's motion is premised on defendants' failure to file a responsive pleading or otherwise defend in violation of the Federal Rules. See generally Filing No. 9.

         Defendants “request that the Court deny the Motion for Entry of Default Judgment and grant the Defendants' Motion for Leave to file a Motion to Dismiss because [d]efendants were engaged in settlement discussions . . . [and] the Court should favor adjudication . . . rather than an entry of default . . . .” (Filing No. 12 at 1). Defendants argue the Court should apply the ...


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