United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. KRASK, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on pro se defendant,
Charles Hines' ("Hines") motion for default
judgment against plaintiff JTH Tax, Inc.
("Liberty"). ECF No. 116. The motion has been
referred to the United States Magistrate Judge pursuant to
the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal
Rule of Civil Procedure 72(b). ECF No. 119. For the reasons
that follow, the Court recommends that Hines' motion for
default judgment be DENIED.
the procedural history of this action is extensive, the
pertinent filings are outlined below. On December 23, 2015,
Liberty filed this action against Hines, ECF No. 1, and Hines
answered the complaint on November 10, 2016. ECF No. 41. On
December 12, 2016, Hines requested leave to file a
"Counter-Complaint." ECF No. 46. On January 18,
2017, the Court granted Hines 21 days to file his
counterclaim. ECF No. 51.
February 8, 2017, Hines filed a 97-page incomplete
counterclaim ("Partial Counter-Complaint"), ECF No.
52, and a 169-page counterclaim ("Full
Counter-Complaint"), ECF No. 53, which failed to comply
with the Court's signature block and certificate of
service requirements. The Court entered an order, on February
13, 2017, advising Hines that the deficiencies needed to be
corrected within 30 days. ECF No. 55.
filed a motion to dismiss Hines' Partial and Full
Counter-Complaints (ECF Nos. 52, 53), on February 17, 2017,
for failure to comply with Federal Rules of Civil Procedure
8(a), 8(e), and 12(f). ECF No. 56. Hines filed an opposition
to the motion to dismiss on March 10, 2017, ECF No. 58, and
Liberty filed a reply on March 16, 2017, ECF No. 59.
March 15, 2017, Hines filed a 176-page counterclaim
("amended counterclaim"). ECF No. 60. On March 24,
2017, Liberty filed a motion to strike untimely pleadings and
dismiss counterclaim for failure to comply with the
Court's Order, asking the Court to strike or dismiss the
Partial and Full Counter-Complaints, and amended
counterclaim. ECF No. 62. See also ECF No. 63 (Mem.
Court construed representations made in Hines' Full
Counter-Complaint and opposition to the motion to dismiss as
Hines' motion to amend his Full
Counter-Complaint. ECF No. 65. The Court granted the
motion to amend, denied Liberty's motion to dismiss,
denied Liberty's motion to strike, and ordered Liberty to
respond to the Amended Counterclaim. ECF No. 65.
filed a motion to dismiss the amended counterclaim on April
14, 2017, for failure to comply with Federal Rules of Civil
Procedure 8(a), 8(e), and 10(b). ECF No. 66. See
also ECF No. 67 (Mem. in Support). Due to Hines'
apparent delay in receiving the motion to dismiss, the Court
held a telephone conference on June 2, 2017. See ECF
No. 76. The Court explained the posture of the case,
explained that Liberty's motion to dismiss was properly
filed, and ordered Hines to file a single document responding
to the motion by June 16, 2017. Id. Hines timely
filed an opposition on June 16, 2017, ECF No. 77, Liberty
filed a reply on June 22, 2017, ECF No. 78, and Hines filed a
sur-reply on July 13, 2017, ECF No. 79. On July 19, 2017, by
report and recommendation, the Court recommended that
Liberty's motion to dismiss the amended counterclaim be
granted without prejudice to Hines filing a second amended
counterclaim. ECF No. 80.
submitted a second amended counterclaim on August 11, 2017,
which was filed subject to defect. ECF No. 82. An order
entered August 28, 2017 directed the Clerk to file the second
amended counterclaim without defect, and directed Liberty to
file a responsive pleading within 21 days. ECF No. 85.
Twenty-one days later, on September 18, 2017, Liberty timely
filed a motion to dismiss Hines' second amended
counterclaim. ECF No. 88. Hines filed his opposition to the
motion to dismiss on October 12, 2017. ECF No. 101.
October 10, 2017, Hines filed a request for entry of default,
requesting that the Clerk enter default as to Liberty due to
Liberty's failure to timely answer Hines' Partial
Counter-Complaint (ECF No. 52), amended counterclaim (ECF No.
60), and second amended counterclaim (ECF No. 82). ECF No.
99. Liberty filed an opposition on October 11, 2017. ECF No.
filed a motion for default judgment against Liberty on
December 4, 2017, requesting that judgment be entered against
Liberty in the amount of $619, 735.00 due to Liberty's
failure to file an answer to Hines' counterclaims. ECF
No. 116. Liberty filed an opposition to the motion on
December 5, 2017, requesting attorneys' fees incurred in
responding to the motion. ECF No. 117. On December 14, 2017,
Hines filed a reply to the opposition. ECF No. 118.
Liberty has not filed an answer to Hines' counterclaims,
Liberty has complied with the rules by timely filing
responsive pleadings. A motion to dismiss is a responsive
pleading. Under Rule 12 of the Federal Rules of Civil
Procedure, "[a] party must serve an answer to a
counterclaim or crossclaim within 21 days after being served
with the pleading that states the counterclaim or
crossclaim." Fed.R.Civ.P. 12(a)(1)(B). However, if a
party serves a motion, the time to answer ...