McCready v. Harrison

67 F. App'x 971
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 19, 2003
DocketNo. 02-3073
StatusPublished

This text of 67 F. App'x 971 (McCready v. Harrison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCready v. Harrison, 67 F. App'x 971 (7th Cir. 2003).

Opinion

ORDER

Kenneth McCready brought his motorcycle to Faron’s Cycles, a repair shop in Indianapolis, Indiana, for a tune-up and carburetor cleaning. The repairs cost more than McCready anticipated, and he refused to pay Faron’s for the work. When efforts to collect the amount owed proved unsuccessful, Faron’s notified McCready that it intended to sell the motorcycle at a public auction. McCready later sued Faron’s and its attorneys, Nice & Moore, LLP, in federal court, alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692k(d), and Indiana state law. The court dismissed McCready’s claims under the FDCPA as untimely and declined to exercise supplemental jurisdiction over the state law claims. McCready appeals, and we affirm.

Both parties agree that McCready left his motorcycle at Faron’s on February 2, 1999, but they disagree about how long Faron’s took to repair the motorcycle and the appropriate cost of the repairs. Far-on’s claims that it completed the repair work on February 16; when McCready failed to redeem the motorcycle by March 16, it began charging him a storage fee of $10 a day. But McCready alleges that Faron’s did not complete the repairs for “several months” and that the bill he received for $925.36 was much larger than the amount he and Faron’s had agreed upon. In any event, according to Faron’s, McCready owed a total of $2395.36, including storage fees, by the time Faron’s announced that it planned to sell the motorcycle at auction on September 10.

The record does not clarify whether the motorcycle was sold on September 10 or even whether the auction took place. But Faron’s did send McCready a letter dated August 25 notifying him of the auction and advising him that he could redeem the motorcycle before September 10 by paying his bill. McCready concedes that he received this letter but claims that it did not reach him until September 13. He suggests that Faron’s intentionally delayed [973]*973mailing the letter to prevent him from trying to attend the auction.

McCready filed suit against Faron’s and Nice & Moore on October 10, 2000, claiming that the defendants had violated the FDCPA by writing harassing and intimidating letters and failing to properly validate his debt. He also alleged that Far-on’s had never in fact held an auction for the motorcycle and that Faron’s had therefore made false and misleading representations in its letter dated August 25.

McCready, however, failed to serve the defendants, and in February 2001 the district court directed McCready to report the steps he had taken to have process served on the defendants and with what result. In his brief on appeal, McCready asserts that he had already served the defendants on October 27, 2000, but he did not argue this before the district court. Instead he filed an amended complaint on March 16, 2001. He contends that he then served the defendants on March 20, but he did not file return of service with the court until April 12. Meanwhile Faron’s appeared on April 5 and, finding no entry of service on the court’s docket, waived service of summons as allowed under Federal Rule of Civil Procedure 4(d).

On April 12 McCready filed a motion for entry of default, arguing that more than twenty days had elapsed since Faron’s and Nice & Moore had been served and that they had thus failed to comply with Federal Rule of Civil Procedure 12(a)(1)(A). The court summarily denied McCready’s motion, stating that Faron’s and Nice & Moore had made an appearance through their attorney and thus were not in default. The defendants then filed a motion to dismiss McCready’s FDCPA claims under Rule 12(b)(6) as untimely and to decline to exercise supplemental jurisdiction over McCready’s state law claims. The court granted the motion, finding that McCready’s FDCPA claim accrued no later than September 13, 1999, when he received notice from Faron’s of the auction, and that he had not filed his complaint until October 2000, after the one-year statute of limitations had expired.

After the court dismissed his claims, McCready moved to vacate the judgment, claiming that he had never received notice of the motion to dismiss. Before ruling on the motion to vacate, the court gave McCready twenty days to demonstrate the presence of a meritorious claim. McCready filed a response and also filed a motion for leave to amend his complaint so that he could plead an amount in controversy sufficient to establish diversity jurisdiction over his state law claims. The court denied both McCready’s motion to vacate and his motion for leave to amend. Although the court treated the motion to vacate as filed under Rule 60(b), it was actually a motion to reconsider under Rule 59(e) because McCready filed it within ten days of the dismissal order. Curry v. United States, 307 F.3d 664, 665-66 (7th Cir.2002). Thus McCready’s appeal brings up for review the underlying judgment as well as the denial of the Rule 59(e) motion. Kunik v. Racine County, Wis., 106 F.3d 168, 172-73 (7th Cir.1997).

On appeal McCready first argues that the district court erred when it refused to enter default against the defendants. Federal Rule of Civil Procedure 55 allows an entry of default when a party fails to file a responsive pleading within 20 days of being served. But we will reverse a district court’s decision not to enter default only if the district court abused its discretion. Robinson Eng’g Co. Pension Plan & Trust v. George, 223 F.3d 445, 448 (7th Cir.2000). See Whitfield v. Ill. Bd. of Law Examiners, 504 F.2d 474, 479 (7th Cir.1974); Duling v. Markun, 231 F.2d 833, 836 (7th Cir.1956). See also Dimmitt [974]*974& Owens Financial, Inc. v. United States, 787 F.2d 1186, 1193 (7th Cir.1986) (review of district court’s grant of a motion to set aside a default judgment is “quite limited”). Here the defendants were only a couple of days late in filing a responsive pleading at the time of McCready’s motion, and they had made an appearance and waived service of summons, signaling a desire to defend and a willingness to cooperate in the court’s proceedings. The court may have had discretion to impose sanctions, but it also had discretion not to impose them. See, e.g., In re: Hall, 304 F.3d 743, 747, 749 (7th Cir.2002) (district court did not abuse discretion when it concluded that debtor’s conduct “while hardly admirable, was not the sort of egregious conduct that warranted dismissal with prejudice”); Harlyn Sales Corp. v. Kemper Fin. Serv.,

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