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UTE Indian Tribe of Uintah and Ouray Reservation v. McKee

United States District Court, D. Utah, Central Division

May 1, 2019

UTE INDIAN TRIBE OF THE UINTAH & OURAY RESERVATION, Plaintiff,
v.
GREGORY D. MCKEE, T & L LIVESTOCK, INC., MCKEE FARMS, INC, AND GM FERTILIZER, INC., Defendants.

          MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' ANSWER, SET ASIDE DENIAL OF DEFAULT, AND ENTER DEFAULT JUDGMENT

          Clark Waddoups, United States District Judge.

         Before the court is Plaintiff's Motion to Strike Defendants' Answer, Set Aside Denial of Default, and Enter Default Judgment, (ECF No. 39). As explained below, because the court will allow Defendants' late filing under Rule 6(b)(1)(B), the court denies Plaintiff's Motion.

         Background

         On September 6, 2012, Plaintiff file a Complaint against Defendants in the Ute Indian Tribal Court of the Uintah and Ouray Reservation Fort Duchesne, Utah. (See ECF No. 2-3 at 29.) On September 4, 2013, Plaintiff filed an Amended Complaint in the Tribal Court. (See ECF No. 2-3 at 30.) Plaintiff sued Defendants for “Misappropriation, Theft, and/or Conversion of Water.” (Compl. ¶ 13, ECF No. 2 at 5.) Between November 14, 2012, and June 10, 2015, Defendants were represented in the Tribal Court proceeding by John Hancock. (See ECF No. 2-3 at 30, 32.)

         “The Ute Indian Tribal court held a trial on the matter on July 13, 2015.” (Compl. ¶ 17, ECF No. 2 at 6.) “Despite having filed an answer and receiving notice of the trial, Defendants did not participate in the trial.” (Compl. ¶ 17, ECF No. 2 at 6.) On August 3, 2015, the Ute Indian Tribal Court entered its Findings of Fact and Conclusions of Law. (ECF No. 2-3 at 28.) On September 29, 2015, the Ute Indian Tribal court entered a Final Judgment for Damages and Permanent Injunction. (See ECF No. 2-3 at 57.)

         On April 17, 2018, Plaintiff filed its Complaint in this court to “recognize, register, and enforce [the] tribal court money judgment . . . .” (Compl. ¶ 1, ECF No. 2 at 2.) On or around May 24, 2018, John Hancock spoke to Plaintiff's counsel and appears to have requested that Plaintiff grant Defendants an extension of time to respond to the Complaint. (See ECF No. 40 at 18.) On May 24, 2018, Plaintiff's counsel sent an email to John Hancock, writing: “The Tribe agrees to a 30-day extension of time from May 29 for the defendants' response. I look forward to working with you.” (ECF No. 40 at 19.)

         The next day, on May 25, 2019, Plaintiff's counsel received a phone call from a different attorney who stated that the Defendants were considering having him represent them. (ECF No. 40 at 18.) The same day he received this phone call, Plaintiff's counsel wrote an email to John Hancock explaining that Plaintiff had only agreed to a 30-day extension because it believed Defendants had already retained Mr. Hancock. (ECF No. 40 at 18.) Plaintiff's counsel explained that the 30-day extension was conditioned on Mr. Hancock entering an appearance in the case. (See ECF No. 40 at 18.) Plaintiff's counsel concluded the email by explaining that Plaintiff may seek entry of default if Mr. Hancock did not enter an appearance before the Answer deadline. (See ECF No. 40 at 18.)

         On June 4, 2018, Plaintiff filed an “Application and Request for Entry of Default Judgment and Default Judgment.” (ECF No. 18 at 1.) This submission was directed to the “CLERK OF THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH.” (ECF No. 18 at 1 (emphasis in original).) In this submission, “Plaintiff request[ed], ” “[p]ursuant to Fed.R.Civ.P. 55 and Local Rule DU CivR 77-2(a)(6)[1], ” “that the Clerk enter a default judgment in favor of Plaintiff.” (ECF No. 18 at 1.) The Clerk did not enter a default judgment.

         On July 10, 2018, the Defendants filed a late Answer to the Complaint.[2] (See ECF No. 20.) On August 15, 2018, the Chief Deputy Clerk entered an order denying “Plaintiff's Application and Request for Entry of Default, ” finding “there [was] not prejudice to Plaintiff as a result of the delay, ” and noting that “courts prefer to resolve disputes on the merits.” (ECF No. 24.)

         On October 9, 2018, Plaintiff filed a Motion to Recuse the undersigned. (ECF No. 29.) On October 23, 2018, Defendants filed an Opposition to this Motion. (ECF No. 31.) On November 6, 2018, Plaintiff filed its Reply. (ECF No. 31.) On November 7, 2018, the court referred Plaintiff's Motion to Chief Judge Shelby. On or around November 26, Chief Judge Robert Shelby recused. On November 26, 2018, the court referred Plaintiff's Motion to Judge Kimball. (ECF No. 36.) On January 24, 2019, Judge Kimball entered an order denying Plaintiff's Motion. (ECF No. 38.)

         On January 28, 2019, Plaintiff filed the Motion currently before the court-the Motion to Strike Defendants' Answer, Set Aside Denial of Default, and Enter Default Judgment. (ECF No. 39.) On February 11, 2019, the Defendants responded. (ECF No. 40.)

         On February 13, 2019, four pro se proposed intervenors filed a “Motion for Leave to Intervene.” (ECF No. 43.) On February 27, 2019, Defendants filed an Opposition to this submission. (ECF No. 46.) Plaintiff also filed an Opposition to this submission. (ECF No. 45.)

         Analysis

         I. Rule 6(b)(1)(B)

         Rule 12(a) provides that “[a] defendant must serve an answer . . . within 21 days after being served with the summons and complaint.” Fed.R.Civ.P. 12(a)(1)(A)(ii). Plaintiff argues, and Defendants do not dispute, that under Rule 12(a), “Defendants submitted their Answer 42 days after their filing deadline . . . .” (See ECF No. 39 at 3.) Plaintiff further argues that under Rule 6(b)(1)(B), “Defendants' Answer must be stricken for failure to file a Motion for an Extension of Time and failure to make a showing of excusable neglect.” (ECF No. 39 at 2.) Rule 6(b) provides, in relevant part, that “[w]hen an act . . . must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). Plaintiff argues that because Defendants filed their Answer after the Rule 12(a) twenty-one day period expired, Defendants must satisfy Rule 6(b) in order to enlarge the time allowed for filing an answer.

         As an initial matter, the court must determine whether Rule 6(b)(1)(B) applies to Rule 12(a). The Tenth Circuit, in an unpublished decision, has made statements to suggest that it does not. In Lewis v. JPMorgan Chase Bank, Nat. Ass'n, the appellant, citing “Federal Rule of Civil Procedure 6(b)(2), ” “argue[d] that there was no excusable neglect for [her opponent's] untimely request for extensions.” 606 Fed.Appx. 896, 898 n. 3 (10th Cir. 2015). Responding to this argument, the panel in Lewis stated that “Rule 6(b)(2) does not, however, apply to an answer to a complaint or to a motion to dismiss. In any event, we agree with the district court that there was good cause for an extension.” Id.

         At least one district court appears to have taken a similar position. See McBride v. U.S. Bank Home Mortg., No. 3:15-CV-36, 2015 WL 4477801, at *1 (N.D. W.Va. July 22, 2015) (“[C]ourts may extend the answer deadline. Rule 12(a) governs this deadline. Rule 6(b) prohibits courts from extending deadlines under several rules, but not Rule 12(a).” (emphasis added)).

         But most courts to have considered the issue have applied Rule 6(b) to Rule 12(a). See Donald v. Cook Cty. Sheriff's Dep't, 95 F.3d 548, 558 (7th Cir. 1996) (“Under Rule 6(b), after the Rule 12(a) twenty-day period expires, the time period for responding to a complaint may be enlarged only upon motion of the defendant and a showing of excusable neglect. Fed.R.Civ.P. 6(b).”); Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-CV-00904, 2008 WL 545018, at *1 (S.D. Ohio Feb. 25, 2008) (“Rule 6(b) permits an enlargement of the time allowed for filing an answer under Rule 12(a) upon a showing of excusable neglect if the request for an extension comes after the expiration of the specified time period.”); Tingley Sys., Inc. v. CSC Consulting, Inc., 152 F.Supp.2d 95, 122 (D. Mass. 2001) (“Rule 12(a)(1)(A), Fed.R.Civ.P., allows a party 20 days after being served with the summons and complaint to file an answer. Rule 6(b)(1), Fed.R.Civ.P., permits a party to file a motion to extend the time period for filing an answer within the time frame of the 20 day period.”).

         Rule 6 provides, in relevant part, that “[w]hen an act . . . must be done, the court may, for good cause, extend the time . . . .” Fed.R.Civ.P. 6(b)(1) (emphasis added). Rule 12(a) provides, in relevant part, that “[a] defendant must serve an answer . . . within 21 days after being served . . . .” Fed.R.Civ.P. 12(a)(1)(A)(i) (emphasis added). Based on the plain meaning of these rules, read together, and the prevailing view among courts, this court holds that Rule 6(b) applies to Rule 12(a). The court now turns to Plaintiff's argument.

         Plaintiff argues that because “Defendants never filed a motion for an extension, ” “this Court does not have the discretion to entertain Defendants' late Answer . . . . ” (ECF No. 39 at 3- 4.) Plaintiff relies on the Supreme Court's decision in Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990).

         In Lujan, the District Court “issued an order directing respondent to file ‘a supplemental memorandum regarding the issue of its standing to proceed.'” Lujan, 497 U.S. at 894-95. The respondent “submitted” “additional affidavits” that constituted “new evidentiary materials” that the District Court's order “plainly did not call for.” Id. at 895. “The only explanation for the submission . . . was contained in a footnote to the memorandum . . . .” Id. “[T]he District Court rejected the additional affidavits as ‘untimely and in violation of' the court's briefing ...


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