IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA ERNEST TAYLOR CIVIL ACTION Plaintiff, VS. THE CITY OF BATON ROUGE, ET AL. NO. 13-579-BAJ-RLB Defendants. MOTION TO STRIKE DEFENDANTS ANSWER COMES NOW, Plaintiff, ERNEST TAYLOR, through undersigned counsel, who moves this Court pursuant to Fed. R. Civ. P. 6 and 12 to strike the Answer filed on behalf of defendants The City of Baton Rouge, Mary E. Roper, Carl Dabadie, Jr., Lisa Freeman, Patrick Wennemann, and James Thomas. [Doc. 19]. Filed concurrently herewith is a memorandum in support of Plaintiff s motion, which is incorporated herein by reference. WHEREFORE, Plaintiff, Ernest Taylor, prays that the Answer filed on behalf of defendants The City of Baton Rouge, Mary E. Roper; Carl Dabadie Jr., Lisa Freeman, Patrick Wennemann, and James Thomas be stricken from the record. Respectfully submitted, s/ Terrence J. Donahue, Jr. Christopher D. Glisson #20200 Terrence J. Donahue, Jr. #32126 MCGLYNN, GLISSON, & MOUTON 340 Florida Street Baton Rouge, Louisiana 70801 (225) 344-3555 1
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served on all counsel of record through a Notice of Electronic Filing generated by the Court s CM/ECF system on this, the 3 rd day of May, 2014. s/ Terrence J. Donahue, Jr. Terrence J. Donahue, Jr. 2
IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA ERNEST TAYLOR CIVIL ACTION Plaintiff, VS. THE CITY OF BATON ROUGE, ET AL. NO. 13-579-BAJ-RLB Defendants. MEMORANDUM IN SUPPORT OF PLAINTIFF S MOTION TO STRIKE DEFENDANTS ANSWER Plaintiff, ERNEST TAYLOR moves this Court pursuant to Fed. R. Civ. P. 6 and/or 12 for an order striking the Answer [Doc. 20] filed on behalf of defendants The City of Baton Rouge, Mary E. Roper; Carl Dabadie Jr., Lisa Freeman, Patrick Wennemann, and James Thomas (collectively referred to as Defendants ) as untimely. For the reasons appearing below, Plaintiff s Motion should be granted. 1. Plaintiff Ernest Taylor instituted this action on September 3, 2013. [Doc. 1]. 2. Defendants received copies of the Complaint, summons, and a form requesting waiver of service of process on September 10, 2013. See Affidavit of Terrence J. Donahue, Jr., attached as Exhibit A to Plaintiff s Response in Opposition to Defendants Motion to Set Aside Clerk s Entry of Default, submitted concurrently herewith. 3. On October 22, 2013, service upon Defendants was waived by James L. Hilburn of the 1
East Baton Rouge Parish Attorney s Office. [Doc. 3]. 4. Thereafter, on April 16, 2014, Plaintiff moved for entry of default due to Defendants failure to answer or otherwise defend against the lawsuit. [Doc. 15]. 5. The Clerk granted Plaintiff s request for entry of default the same day. [Doc. 17]. 6. Without first seeking leave of Court, Defendants filed an Answer to Plaintiff s Complaint on April 17, 2014, more than seven months after first being notified of Plaintiff s claims, and after the Clerk s entry of default. [Doc. 20]. 7. Fed. R. Civ. P. 12(a)(1)(A)(ii) provides that where a defendant has timely waived service under Rule 4(d), it must serve an answer to the complaint within 60 days after the request for the waiver was sent. 8. Fed. R. Civ. P. 12(f) empowers a court to strike a defendant s answer when it is filed outside of the time period mandated in Rule 12(a). See e.g., DirecTV, Inc. v. Young, 195 Fed. Appx. 212, 215 (5th Cir. 2006) (unpublished) (finding no abuse of discretion where district court struck defendant s answer for untimeliness). 9. Fed R. Civ. P. 6(b)(1)(B) provides that a court may, for good cause extend the time allowed for completion of certain acts on motion made after the time has expired if the party 2
failed to act because of excusable neglect. See also, Moore v. BASF Corp., 2012 U.S. Dist. LEXIS 145135, *3 (E.D. La. Oct. 9, 2012) (noting magistrate granted extension of time to answer after expiration of deadline based upon finding that the defendant had established excusable neglect by its counsel and good cause for the extension ). 10. Defendants in the present case have presented nothing to indicate the presence of either good cause or excusable neglect with respect to their failure to defend this action. See generally, Plaintiff s Response in Opposition to Defendants Motion to Set Aside Clerk s Entry of Default. As Defendants have failed to seek leave of Court to file their answer outside of the time mandated by the Rules of Federal Procedure, and as they have failed to present any argument or evidence justifying the granting of such leave, Plaintiff respectfully requests that Defendants untimely Answer be stricken from the record. Respectfully submitted, s/ Terrence J. Donahue, Jr. TERRENCE J. DONAHUE, JR. McGlynn, Glisson, & Mouton 340 Florida Street Baton Rouge, Louisiana 70802-1909 (225) 344-3555 Bar Roll No.: 32126 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been served on all counsel of record through a Notice of Electronic Filing generated by the Court s CM/ECF system on this, the 3 rd day of May, 2014. 3
s/ Terrence J. Donahue, Jr. Terrence J. Donahue, Jr. 4
IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA ERNEST TAYLOR CIVIL ACTION Plaintiff, VS. THE CITY OF BATON ROUGE, ET AL. NO. 13-579-BAJ-RLB Defendants. ORDER Before the Court is Plaintiff s Motion to Strike Defendants Answer, which the Court finds is well-founded. IT IS THEREFORE ORDERED that the Answer filed on behalf of defendants The City of Baton Rouge, Mary E. Roper; Carl Dabadie Jr., Lisa Freeman, Patrick Wennemann, and James Thomas, appearing at [Doc. 20] is hereby stricken from the record. Baton Rouge, Louisiana, this day of, 2014. Clerk, Middle District of Louisiana