United States District Court, E.D. Virginia, Richmond Division
DR. MARK G. TURNER, DDS, PC, and DR. MARK G. TURNER, DDS in his individual capacity, Plaintiffs,
DENTAQUEST, LLC, Defendant.
E. Hudson Senior United States District Judge.
Plaintiffs Motion for Default Judgment
Rule of Civil Procedure 55 provides a two-step process by
which a plaintiff can obtain relief on the merits based
solely on a defendant's failure to file a responsive
pleading or otherwise defend in the case. First, a plaintiff
moves for an entry of default, which the clerk must enter if
the plaintiff has provided sufficient proof of the
defendant's default. Fed.R.Civ.P. 55(a). Second, after
the plaintiff has secured an entry of default, the plaintiff
can move for default judgment. Fed.R.Civ.P. 55(b).
MATTER is before the Court on Plaintiff Dr. Mark G.
Turner's("Plaintiff) Motion for Default
Judgment (ECF No. 30) and Defendant Dentaquest, LLC's
("Defendant" or "Dentaquest") Motion for
Extension of Time to File Answer (ECF No. 32) and Motion to
Dismiss for Failure to State a Claim (ECF No. 40). For the
reasons that follow, Plaintiffs Motion for Default Judgment
will be denied, Defendant's Motion for Extension of Time
to File Answer will be granted, and Defendant's Motion to
Dismiss will be deemed properly filed on the date that the
Order accompanying this Memorandum Opinion is entered.
Plaintiff will have fourteen (14) days from
the entry of that Order to file a response to Defendant's
Motion to Dismiss.
March 26, 2017, Plaintiff filed his Motion for Default
Judgment. Confusingly, while Plaintiff titled the filing
"Motion for Entry of Default Judgment Against Defendant
Dentaquest, LLC" and designated it as a motion for
default judgment in the Court's docketing system, the
body of the Motion fluctuates between requesting an entry of
default judgment and an entry of default. Given this lack of
clarity, the Clerk issued a Notice of Correction on April 11,
2018 that informed Plaintiff of the mistake and instructed
him to refile the document correctly. To date, Plaintiff has
taken no action to remedy the error. The Court cannot
transform itself into an advocate for Plaintiff nor can the
Court be expected to discern Plaintiffs unexpressed intent.
Based upon its title, docketing designation, and the body,
the Court construes the Motion as seeking default judgment.
Because Plaintiff did not first secure an entry of default
from the clerk, the Motion will be denied.
Defendant's Motion for Extension of Time and Motion to
Rule of Civil Procedure 12 provides that a defendant must
file a responsive pleading within twenty-one days of being
served with process. Fed.R.Civ.P. 12(a)(1). The filing of a
motion under Rule 12(b) effectively tolls this time period
until the Court has denied the motion or announces its
intention to delay its disposition until trial. Fed.R.Civ.P.
12(a)(4)(A). When a party fails to take action within a
specified time period, the Court can only issue an extension
of time upon the motion of a party and for good cause showing
that the moving party's delay was due to "excusable
neglect." Fed.R.Civ.P. 6(b)(1)(B). "In determining
if a party's neglect is excusable, courts consider
'the danger of prejudice to the [opposing party], the
length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it
was within the reasonable control of the movant, and whether
the movant acted in good faith.'" Agnew v.
United Leasing Corp., 680 Fed.Appx. 149, 155 (4th Cir.
2017) (quoting Pioneer Inv. Servs. v. Brunswick Assocs.
Ltd P'ship, 507 U.S. 380, 395 (1993)).
has satisfied its burden of showing that an extension of time
is warranted. First and foremost, Plaintiff consents to the
extension sought by Defendant. (Pet'r Br. 3 n.l, ECF No.
37.) The delay also does not appear to have been due to bad
faith. Defendant maintains that the delay was due to the fact
that the individual who received service never notified the
appropriate person at Dentaquest and that Defendant's
counsel was not made aware of this case until March 27, 2018.
(Mem. Supp. Mot. Ext. Time ¶ 4, ECF No. 33.)
while the length of the delay is significant, its potential
impact on judicial proceedings appears minimal. Plaintiff
filed his Motion for Default Judgment after taking no action
towards Defendant for the nearly seven months that Defendant
was in default and only after the Court required Plaintiff to
provide a status update as to Dentaquest-the only remaining
defendant in the case. Defendant filed its Motion seeking an
extension just three days later. Had Plaintiff properly
sought and received an entry of default, it is likely that
the default would have been vacated given the surrounding
circumstances and the Fourth Circuit's "strong
policy in favor of merits-based adjudication."
Colleton Preparatory Acad, Inc. v. Hoover Universal,
616 F.3d 413, 418 (4th Cir. 2010). In that event, Defendant
would have leave to file a responsive pleading just as they
seek to do through their present Motion. Based upon these
factors, and with particular focus on Plaintiffs consent to
the extension, Defendant's Motion for an Extension of
Time to File Answer will be granted.
April 18, 2018, Defendant filed its Motion to Dismiss for
Failure to State a Claim. This action was taken without first
securing leave from this Court,  and therefore the Motion was
not properly filed on that date. However, given the fact that
the Court is granting Defendant leave to make such a filing,
the Court will deem Defendant's Motion to Dismiss as
properly filed on the date of entry of the Order accompanying
this Memorandum Opinion. Accordingly, Plaintiff will have
fourteen (14) days from that date to file a
response to Defendant's Motion to Dismiss.
these reasons, Plaintiffs Motion for Default Judgment will be
denied and Defendant's Motion for an Extension of Time to
File Answer will be granted. Defendant's Motion to
Dismiss will be deemed as properly filed on the date of the
entry of the Order accompanying this Memorandum Opinion, and
Plaintiff will have fourteen (14) days from
that date to file a response to Defendant's Motion to
Dismiss. An appropriate Order will accompany this Memorandum