United States District Court, D. Utah, Central Division
M. Warner Chief Magistrate Judge.
MEMORANDUM DECISION AND ORDER
A. KIMBALL United States District Judge.
the court are Defendant Corporation of the Presiding Bishop
of the Church of Latter-Day Saints dba Deseret
Industries' (“Deseret Industries” or
“Defendant”) motion for summary judgment (the
“Summary Judgment Motion”); Plaintiff
Kristina Zemaitiene's (“Ms. Zemaitiene” or
“Plaintiff”) motion for entry of default (the
“Default Motion”); and Plaintiff's motion for
leave to amend the complaint (the “Motion to
Amend”). The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to civil
rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will
determine the motions on the basis of the written memoranda.
See DUCivR 7-1(f).
court will first address the Motion to Amend, then the
Summary Judgment Motion, and finally, the Default Motion.
Motion to Amend
Zemaitiene moves the court for leave to amend her complaint
“to add additional parties, causes for relief, and
material facts.” “In general, ‘the grant or
denial of an opportunity to amend is within the discretion of
the District Court.'” Staats v. Cobb, 455
F. App'x 816, 817 (10th Cir. 2011) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)). Pursuant to Rule 15 of
the Federal Rules of Civil Procedure (“Rule 15”),
leave to amend “shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). Rule 15's directive
that leave to amend shall be freely given “is
especially true” where a plaintiff “is proceeding
pro se.” Murray v. Archambo, 132 F.3d 609, 612
(10th Cir. 1998). “Without apparent grounds to deny
leave-such as undue delay, repeated failure to cure
deficiencies in the pleadings, or undue prejudice to the
opposing party-the court should . . . ‘afford [the
plaintiff] an opportunity to test his claim on the
merits.'” Staats, 455 F. App'x at 818
(second alteration in original) (quoting Foman, 371
U.S. at 182).
Zemaitiene is proceeding pro se,  and in forma
pauperis (“IFP”) as permitted by the court
under 28 U.S.C. §1915. None of the named defendants,
other than Deseret Industries has been served with the
complaint. The court has not yet screened Ms.
Zemaitiene's complaint as required by the IFP statute,
nor has the court ordered service on the other defendants.
See 28 U.S.C. § 1915(d), (e)(2)(B).
Accordingly, the court finds that Ms. Zemaitiene has not
unduly delayed in filing the Motion to Amend.
Deseret Industries argues that it would be prejudiced by
allowing Ms. Zemaitiene to amend the complaint, the court is
unpersuaded. Deseret Industries argues that if Ms. Zemaitiene
is allowed to amend, Defendant will be required to
“instigate the summary judgment process on the basis of
essentially the same factual assertions and
deficiencies.” If Deseret Industries is correct, this
hardly presents Defendant with an undue burden or prejudice.
out of an abundance of caution and respect for Ms.
Zemaitiene's pro se status, Plaintiff's Motion to
Amend is granted. In accordance with DUCivR 15-1, Ms.
Zemaitiene must file the amended complaint attached to the
Motion to Amend. Ms. Zemaitiene is ordered to file the
amended complaint with the court within 14 days of the date
of this order.
Summary Judgment Motion
Summary Judgment Motion is based on the original complaint.
Because the court has granted leave for Plaintiff to file an
amended complaint, the court denies the Summary Judgment
Motion without prejudice. Nothing in this order prevents
Deseret Industries from filing a new motion for summary
judgment based on the amended complaint.
of the Federal Rules of Civil Procedure provides that,
“[a] defendant who, before being served with process,
timely returns a waiver need not serve an answer to the
complaint until 60 days after the request was sent.”
Fed.R.Civ.P. 4(d)(3). The Default Motion requests entry of
default against Deseret Industries pursuant to Rule 55(a) of
the Federal Rules of Civil Procedure, which requires the
entry of default “[w]hen a party against whom judgment
for affirmative relief is sought has failed to plead or
otherwise defend.” Fed.R.Civ.P. 55(a). Ms. Zemaitiene
argues that entry of default against Deseret Industries is