United States District Court, D. Utah, Central Division
MEMORANDUM DECISION and ORDER DENYING PLAINTIFF'S
MOTION TO STRIKE DEFENDANTS' ANSWER, SET ASIDE DENIAL OF
DEFAULT, AND ENTER DEFAULT JUDGMENT
WADDOUPS UNITED STATES DISTRICT JUDGE.
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.
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,
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.)
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.)
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.)
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), ” “that the Clerk enter a
default judgment in favor of Plaintiff.” (ECF No. 18 at
1.) The Clerk did not enter a default judgment.
10, 2018, the Defendants filed a late Answer to the
Complaint. (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.)
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.)
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.
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.)
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.
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.
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)).
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.”).
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.
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).
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