United States District Court, E.D. Wisconsin
ORDER DENYING NOTICE AND DEMAND FOR ENTRY OF DEFAULT
FOR FAILURE TO APPEAR (DKT. NO. 8)
PAMELA PEPPER United States District Judge
29, 2019, the plaintiff filed suit in Waukesha County Circuit
Court, alleging that the defendant (an employee of the
Internal Revenue Service) violated his rights under the
Fourth and Fifth Amendments to the Constitution. Dkt. No.
1-2. He filed an amended complaint on September 30, 2019.
Dkt. No. 1-3. That same day, the defendant filed a notice of
removal to this court under 28 U.S.C. §1446. Dkt. No. 1.
with the notice of removal, the defendant filed an expedited,
non-dispositive motion under Civil Local Rule 7(h) (E.D.
Wis.), asking the court to extend the deadline for responding
to the complaint to November 12, 2019. Dkt. No. 3. The court
granted that motion via text-only order on October 1, 2019.
Dkt. No. 5.
plaintiff has objected to the court's order granting the
defendant an extension of time. Dkt. No. 7. He also has filed
a notice and demand for entry of default for failure to
appear, addressed to Stephen C. Dries, the Clerk of Court for
the Eastern District of Wisconsin. Dkt. No. 8. He demands
that Clerk Dries enter default against the defendant under
Federal Rule of Civil Procedure 55(a), arguing that the
defendant did not appear or respond to the complaint
“before the expiration of time as limited by
Fed.R.Civ.P. Rule 81(c).” Id. at 1. The
plaintiff argues that because this court's order
extending the defendant's deadline to answer was
“void ab initio, ” the defendant was
required to respond to the complaint by October 10, 2019.
Id. at 2-3. The plaintiff asserts that because the
defendant did not answer by that date, he is entitled to
entry of default. The court will deny the plaintiff's
demand for entry of default.
defendant, a settlement officer with the United States
Internal Revenue Service, is an officer/employee of the
federal government. Dkt. No. 1 at 1. The amended complaint
does not indicate whether the plaintiff sued the defendant in
her official or individual capacity. Dkt. No. 1-3.
Rule of Civil Procedure 4(i)(2) requires that when a
plaintiff sues an officer or an employee of the United States
in her official capacity, the plaintiff must “serve the
United States and also send a copy of the summons and of the
complaint by registered or certified mail to the . . .
officer, or employee.” To serve the United States, Rule
4(i)(1) requires the plaintiff to (a) either deliver the
summons and complaint to the United States Attorney in the
district where the lawsuit is brought, or send a copy by
registered or certified mail to the civil process clerk at
the U.S. Attorney's Office; and (b) send a copy by
registered or certified mail to the Attorney General of the
4(i)(3) requires that a plaintiff who sues an officer or
employee of the United States in her individual capacity for
acts or omissions that occurred during that employee's
performance of duties on behalf of the United States, must
serve the United States and the individual employee (by
registered or certified mail).
case removed to federal court from state court, “[a]
defendant who did not answer before removal” must
answer or otherwise respond “within the longest of
these periods: (A) 21 days after receiving-through service or
otherwise-a copy of the initial pleading stating the claim
for relief; (B) 21 days after being served with the summons
for an initial pleading on file at the time of service; or
(C) 7 days after the notice of removal is filed.”
12(a) allows an employee sued in her official capacity to
answer or otherwise respond within 60 days “after
service on the United States Attorney.” Fed.R.Civ.P.
12(a)(2). It allows an officer or employee served in her
individual capacity to answer or otherwise respond
“within 60 days after service on the officer or
employee or service on the United States Attorney, whichever
is later.” Fed.R.Civ.P. 12(a)(3).
plaintiff filed a civil proof of service form (which he
appears to have filed in Waukesha County Circuit Court),
indicating that someone named Albert Moles personally served
the summons and complaint and other documents on the
defendant on September 13, 2019. Dkt. No. 7-1 at 7-9. Counsel
for the defendant acknowledges that “it appears that
plaintiff personally served the individually-named defendant
on September 13, 2019.” Dkt. No. 3 at 2. Seventeen days
later-before any of the periods specified in Rule 81(c) had
expired-the defendant filed a motion under Fed.R.Civ.P. 6(b),
asking the court to extend the deadline for answering or
otherwise responding to the complaint. Dkt. No. 3.
defendant filed the motion under Civil L.R. 7(h), which
allows a party to seek non-dispositive relief on an expedited
basis by filing a motion of three pages or less and
designating it a Rule 7(h) motion. Rule 7(h)(2) requires
someone responding to such a motion to file an opposition
memo within seven days of service of the motion,
“unless otherwise ordered by the Court.” Civil
L.R. (7)(h)(2). As indicated above, the court granted the
defendant's motion via text-only order on October 1,
2019. The plaintiff argues that “no ruling” on
the defendant's motion to extend time “could have
been made until after the expiration of 7 days after service
÷ 3 days for service by mail of said motion or October
10, 2019 . . . .” Dkt. No. 8 at ¶17. This argument
misunderstands both the nature of local rules and Rule 7(h).
General L.R. 1 states that while “[c]ompliance with the
rules is expected, ” “the rules are intended to
be enforced primarily upon the Court's own initiative,
and the filing of motions alleging noncompliance with a rule
may be reserved for egregious cases.” And, as the court
quoted above, Rule 7(h)(2) itself says that a respondent must
file an opposition memo in seven days “unless otherwise
ordered by the Court.” This court did not require the
plaintiff to respond to the defendant's motion for an
extension of time, because there was no need for a response.
Rule of Civil Procedure 6(b)(1)(a) allows a court to extend a
deadline for good cause shown if the request for the
extension is made before the original time has expired. The
defendant asked for the extension before any of the deadlines
in Rule 81(c) had expired. The defendant showed good cause,
asserting that the defendant had not served the U.S.
Attorney, the Attorney General and the IRS as required by
Rule 4 and that the defendant needed time to prepare a
response to the complaint, which the defendant characterized
as “lengthy.” Dkt. No. 3 at 2. The court agrees
with that characterization; the original complaint and
exhibits totaled 130 pages, dkt. no. 1-2, and the amended
complaint and exhibit thirty-four pages, dkt. no. 1-3. The
length of the complaint, and the apparent failure to serve
all required parties, constituted good cause to grant the
extension the defendant requested.
addition, Rule 12(a) allows a government officer or employee
sixty days from the date of service on the United States
Attorney to answer or otherwise respond. Arguably, because
there is no proof that the plaintiff had served the U.S.
Attorney as of the date the defendant asked for an extension
of time, the court could have extended the time under Rule
12(a). It is not a violation of a plaintiff's
constitutional rights for a court to grant a defendant's
motion for an extension of time under Rule 12(a). See
Patterson v. Wendel, 983 F.2d 1073, at *3 (7th Cir.
court has ruled that the defendant has until November 12,
2019 to answer or otherwise respond to the plaintiff's
complaint. Given that, there is no basis for the clerk to
enter default. Rule 55(a) provides that when a party against
whom relief is sought has failed to plea or otherwise defend,
“and that failure is shown by affidavit or otherwise,
” the clerk must enter default. The plaintiff did not
file an affidavit, but he has filed the instant notice and
demand for entry of default for failure to appear. Dkt. No.
8. In this document, he demands that the clerk of court enter
default, because by his calculations “October 10,
2019-20 days plus 3 days for service made by mail-was the
date ending the time for service of a responsive pleading in
the said Wisconsin Circuit Court from service of the Amended
Declaration.” Id. at ¶7. The removal of
the case from Waukesha County Circuit Court to federal court,
however, “divest[ed] the state court of jurisdiction,
Shannon v. Shannon, 965 F.2d 542, 545 (7th Cir.
1992), trigger[ed] the Federal Rules of Civil Procedure,
Schoenberger v. Oselka, 909 F.2d 1086, 1088 (7th
Cir. 1990), and introduc[ed] new-and possibly