United States District Court, D. Nebraska
MEMORANDUM AND ORDER
E. STROM, Senior Judge.
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
October 19, 2015, plaintiff filed a complaint against
defendants. 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.
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. 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.
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
Federal Rule of Civil Procedure 12(a)
Rule of Civil Procedure 12(a) gives a defendant 21 days to
file a responsive pleading. Fed.R.Civ.P. 12(a).
Federal Rule of Civil Procedure 55(b)(2)
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).
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
“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 ...