Harrington v. Veritext, LLC

• Court: District Court, S.D. Florida
• Decided: September 5, 2024
• Docket: 1:24-cv-22787
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-CV-22787-MOORE/Elfenbein

JONATHAN HARRINGTON,

Plaintiff,

v.

VERITEXT, LLC,

Defendant. _________________________________/

ORDER ON MOTION TO COMPEL ANSWER

THIS CAUSE is before the Court on pro se Plaintiff Jonathan Harrington’s Alternative Motion to Compel an Answer or For Default Judgment Against Defendant and Motion to E-File (the “Motion to Compel”), ECF No. [15]. The Honorable K. Michael Moore referred this case to the undersigned “to take all necessary and proper action as required by law regarding all pre-trial, non-dispositive matters and for a Report and Recommendation on any dispositive matters.” See ECF No. [6].1 I. BACKGROUND On June 10, 2024, Plaintiff filed a state-court action against Defendant Veritext, LLC in the Eleventh Judicial Circuit Court in and for Miami-Dade County, Florida. See ECF No. [1-2]. About six weeks later, on July 22, 2024, Defendant removed Plaintiff’s state-court action to this Court based on diversity of citizenship. See ECF No. [1]. Plaintiff then filed the Motion to Compel, in which he asks the Court either “to compel” Defendant “to answer” the state-court

1 Because the Motion to Compel involves a non-dispositive matter, I resolve it with an Order instead of a Report and Recommendation. See, e.g., Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007) (noting that a non-dispositive matter is one that does not “dispose[] of a claim or defense of any party”). Complaint “or, in the alternative, to enter default judgment against” Defendant. See ECF No. [15] at 1. Plaintiff also renews his request for the Court to “permit Plaintiff to e-file documents in this case by email to the Court or its judicial assistant or to Defendant’s counsel of record.” See ECF No. [15] at 2.

As support for that relief, Plaintiff asserts that Defendant “was validly served” with the state-court Complaint on July 3, 2024 and that under Federal Rule of Civil Procedure 12, Defendant had 21 days — until July 24, 2024 — to answer it. See ECF No. [15] at 1. Plaintiff notes that, despite the asserted July 24 deadline, Defendant had “still not pled an answer” by the time Plaintiff filed the Motion to Compel on August 2, 2024. See ECF No. [15] at 1–2. Plaintiff also argues that, if it does not order Defendant to answer, the Court should grant default judgment against Defendant “for its decision to ignore” the Court’s “power and authority.” See ECF No. [15] at 2. Defendant filed a Response in opposition to the Motion, arguing that it timely filed its Motion to Dismiss the state-court Complaint for failure to state a claim upon which relief can be

granted, and that it did so within seven days of filing the Notice of Removal as Federal Rule of Civil Procedure 81(c)(2) permits. See ECF No. [17] at 1. For that reason, Defendant argues that no answer to the state-court Complaint is due at this time and, given its filing of a Motion to Dismiss, no basis exists for the entry of a default either. Id. Plaintiff’s Reply was due by August 26, 2024, but he has not filed one as of the date of this Order. The Motion is ripe for review. II. LEGAL STANDARDS After a state-court action is removed to federal court, the Federal Rules of Civil Procedure apply. See Fed. R. Civ. P. 81(c)(1). Relevant here, a “defendant who did not answer before removal must answer or present other defenses or objections under” the Rules “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.” See Fed. R. Civ. P. 81(c)(2) (emphasis added).

By its own title, Rule 12 explains to litigants when and how to present defenses and objections. See Fed. R. Civ. P. 12 (containing as part of its title the phrase “Defenses and Objections: When and How Presented”). Among the ways described in Rule 12 that a litigant can present defenses and objections are: “in an amendment allowed by Rule 15(a)(1) as a matter of course,” see Fed. R. Civ. P. 12(h)(1)(B)(ii); through any pleading, see Fed. R. Civ. P. 12(h)(2)(A); through a responsive pleading (like an answer) specifically, see Fed. R. Civ. P. 12(a)(1)–(3), (b), (h)(1)(B)(ii), (h)(2)(A); through a motion, see Fed. R. Civ. P. 12(b)–(g), (h)(1)(A), (h)(2)(B); and at trial, see Fed. R. Civ. P. 12(b), (h)(2)(C). Indeed, Rule 12(b)(6) specifically allows litigants to assert the defense of failure to state a claim upon which relief can be granted “by motion.” See Fed. R. Civ. P. 12(b)(6). If a party wants

to file a “motion asserting” that defense, that motion “must be made before pleading if a responsive pleading is allowed.” Id. A complaint is a pleading for which a responsive pleading is allowed, and an answer is that responsive pleading. See, e.g., Fed. R. Civ. P. 12(a)(1) (recognizing implicitly, while explaining how much time a party has to serve “a responsive pleading,” that an answer is the responsive pleading for a “summons and complaint”); Skrtich v. Thornton, 280 F.3d 1295, 1305–06 (11th Cir. 2002) (recognizing an answer as a responsive pleading to a complaint), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009); Vital Pharms., Inc. v. Alfieri, 576 F. Supp. 3d 1150, 1154 (S.D. Fla. 2021) (same). “When a defendant has failed to plead or defend, a district court may enter judgment by default.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1244 (11th Cir. 2015). To obtain a default judgment against a defendant, a plaintiff must satisfy a two-step process. See Fed. R. Civ. P. 55. First, the plaintiff must ask the clerk of court to enter a clerk’s default: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,

and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.” See Fed. R. Civ. P. 55(a) (emphasis added). Second, after the clerk of court enters a clerk’s default, the plaintiff “must apply to the court for a default judgment,” subject to an exception that does not apply here. See Fed. R. Civ. P. 55 (b)(1), (b)(2). Entry of default judgment is warranted only “when there is a sufficient basis in the pleadings for the judgment entered,” a threshold “akin to that necessary to survive a motion to dismiss for failure to state a claim.” Surtain, 789 F.3d at 1245 (quotation marks omitted). III. DISCUSSION As explained above, Plaintiff argues that Defendant was required to answer his removed state-court Complaint by July 24, 2024 because he validly served it on July 3, 2024 and Rule 12

gave Defendant 21 days from that date to answer it. See ECF No. [15] at 1 (citing Fed. R. Civ. P. 12(a)(1)(A)(i)). And Plaintiff is correct that Rule 12(a)(1)(A)(i) requires defendants who have not “timely waived service under Rule 4(d)” to serve their answers within 21 days. See Fed. R. Civ. P. 12(a)(1)(A). But this is a removed action, so the operative Rule governing the timing of Defendant’s response to Plaintiff’s state-court Complaint is not Rule 12 but instead Rule 81. See Fed. R. Civ. P. 81(c) (noting that it applies to “removed actions”). Like Rule 12(a), Rule 81(c) also imposes a 21-day response timeline in certain circumstances. See Fed. R. Civ. P. 81(c)(2)(A)–(B). In situations like this one, though, where Defendant “did not answer before removal” and the “longest” response period is the one that ends “7 days after the notice of removal is filed,” Rule 81(c)’s 21-day response deadline does not apply. Because Defendant was served with the state-court Complaint on July 3, 2024, see ECF No. [15] at 1, and filed its Notice of Removal on July 22, 2024, see ECF No. [1], Defendant’s deadline to respond under the Rules was July 29, 2024, see Fed. R. Civ. P. 81(c)(2)(C).

Defendant did not file an answer by July 29. See ECF No. [15] at 1–2 (noting that Defendant had “still not pled an answer” by August 2). But what Plaintiff fails to recognize is that the Rules did not require Defendant to file an answer by July 29; they required Defendant to “answer or present other defenses or objections under” the Rules by July 29. See Fed. R. Civ. P. 81(c)(2) (emphasis added). It is well-settled that defendants can present certain defenses, including failure to state a claim upon which relief can be granted, by motion. See Fed. R. Civ. P. 12(b); Fed. R. Civ. P. 12(b)(6). And importantly, defendants who choose to assert a failure to state a claim upon which relief can be granted defense by motion must file their motion before filing an answer. See, e.g., Fed. R. Civ. P. 12(b)(6); Fed. R. Civ. P. 12(a)(1); Skrtich, 280 F.3d at 1305–06; Alfieri, 576 F. Supp. 3d at 1154.

Defendant here did exactly that: it filed its Motion to Dismiss in which it asserted a Rule 12(b)(6) defense of failure to state a claim upon which relief can be granted. See ECF No. [11] at 1. And, Defendant did so on July 29, 2024, see generally ECF No. [11], so it met the deadline imposed by Rule 81(c), see Fed. R. Civ. P. 81(c)(2)(C). Because Defendant presented its defenses under the Rules by July 29 as Rule 81(c)(2) required, see Fed. R. Civ. P. 81(c)(2), it did not have to answer by that date. For that reason, Plaintiff’s Motion to Compel as it relates to his request that the Court compel Defendant to answer the state-court Complaint, see ECF No. [15] at 1, is DENIED. Plaintiff’s alternative request for default judgment against Defendant fairs no better. See ECF No. [15] at 1. Broadly speaking, a clerk’s default is warranted only when “a defendant has failed to plead or defend.” See Surtain, 789 F.3d at 1244; Fed. R. Civ. P. 55(a) (noting that the clerk of court can enter a clerk’s default if a defendant “has failed to plead or otherwise defend”).

As explained above, while Defendant has not yet pleaded in the form of an answer, it has certainly defended through the filing of its Motion to Dismiss. See ECF No. [11]. So Defendant has not “failed to plead or defend,” as is required to support even the first step toward a default judgment, which is a clerk’s default. See Surtain, 789 F.3d at 1244; Fed. R. Civ. P. 55(a). And without satisfying the criteria for the entry of a clerk’s default, Plaintiff is not entitled to the final step of a default judgment by the Court. Id. For that reason, Plaintiff’s Motion to Compel as it relates to his alternate request that the Court enter default judgment against Defendant, see ECF No. [15] at 1, is DENIED. Finally, Plaintiff renews his request for the Court to “permit Plaintiff to e-file documents in this case by email to the Court or its judicial assistant or to Defendant’s counsel of record,” see

ECF No. [15] at 2, which he previously requested, see ECF No. [8], and the Court previously denied, see ECF No. [10]. As the Court explained in its Order denying Plaintiff’s previous motion for permission to e-file, Plaintiff “is proceeding pro se and is not a member of the Bar or an attorney admitted to practice in the Southern District of Florida.” See ECF No. [10]. And “[a]ccording to this District’s CM-ECF Administrative Procedures, Section 2C, ‘[p]ro se litigants will not be permitted to register as Users at this time and must file their documents in the conventional manner.’” See ECF No. [10] (second alteration in original). CASE NO. 24-CV-22787-MOORE/Elfenbein

Because Plaintiff is still proceeding pro se, is not a member of the Bar, and is not an attorney admitted to practice in the Southern District of Florida, his Motion to Compel as it relates to his renewed request for permission to e-file documents, see ECF No. [15] at 2, is DENIED. IV. CONCLUSION For the reasons explained above, the Motion to Compel, ECF No. [15], is DENIED. DONE and ORDERED in Chambers in Miami, Florida on September 5, 2024.

~ VY) Ly 7, | — MARTY FUILGUEIRA ELFENBEIN UNITED STATES MAGISTRATE JUDGE ce: All Counsel of Record Jonathan Harrington 1701 S.W. 15th Court Fort Lauderdale, FL 33311 PRO SE